Parbhudas Rayaji and anr. Vs. Motiram Kalyands - Court Judgment

Excerpt:
pensions act xxiii of 1871 - 'toda-gras'--decree before the date of the act. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - but, without insisting upon what may be only a fanciful interpretation, we are of opinion upon the best consideration which we are able to give to the terms of the act, that it was the intention of the legislature to reserve to the government the decision of all questions relating to such allowances as 'toda-gras' haks.melvill, j.1. 'toda-gras' haks are thus described by the judicial committee of the privy council in maharana fatesangji v. desai kallianrayaji (10 bom. h.c. rep. 281): 'it is sufficient to state that these annual payments, though originally exacted by the grasias from the village communities in certain territories in the west of india by violence and wrong, and in the nature of blackmail, had, when those territories jell under british rule, acquired by long usage a quasi-legal character as customary annual payments; and that as such they were recognized by the british government, which took upon itself the payment of such of them as were previously payable by villages paying revenue. the assistant judge has held that payments of this description fall within the definition of 'a grant of money or land revenue' in act xxiii of 1871. we are not prepared to say that he is wrong. in opposition to this view it has been contended that the purpose of act xxiii of 1871 is simply 'to keep the distribution of what is regarded as bounty of government wholly in the hands of its executive officers': babaji v. rajaram [1 ind. l.r. (bombay) 75]; and that the payment of 'toda-gras' haks by government is not, and never was, an act of bounty. it was, no doubt, stated in the legislative council, in introducing the bill that the leading principle of the main provisions of the law was that, as the bestowal of pensions and similar allowances was an act of grace or state policy on the part of the ruling power, the government reserved to itself the determination of all questions affecting the grant or continuance of these allowances. but, whatever may have been the intention, the act itself seems to us to have been so framed as to oust the jurisdiction of the civil courts in regard to other allowances than those originating in an act of grace or state policy. section 4 speaks of allowances granted for a consideration, and in substitution for some claim or right. section 3 defines the expression 'grant of money or land-revenue' as including 'anything payable on the part of government in respect of any right, privilege, perquisite or office.' these words are, as the assistant judge observes, exceedingly large: so large, indeed, that, if the word 'right' were taken in its fullest sense, the courts could entertain no claim against government for any payment whatever, inasmuch as every claim must be founded on some right on the part of the claimant. the word 'right' must be construed in some limited sense; and the context suggests the idea that the legislature may have intended it as an equivalent to the word hak, taking the latter word in its narrow sense of 'allowance' or 'fee,' and not in its broader sense, which is co-extensive with that of our word 'right.' if that be so, the question of the applicability of the act to 'toda-gras' haks is at once settled. but, without insisting upon what may be only a fanciful interpretation, we are of opinion upon the best consideration which we are able to give to the terms of the act, that it was the intention of the legislature to reserve to the government the decision of all questions relating to such allowances as 'toda-gras' haks.2. the plaintiffs may, however, escape, by a different way, from the operation of this act. the act was not intended to be retrospective, and section 1 provides that it shall not affect any suit in respect of a pension or grant of money or land-revenue which may have been instituted before the date on which it came into force. now, the plaintiffs' father, who was a mortgagee of the hakdar, obtained a decree in 1866, and under that decree he attached the hak which had been, subsequently to his decree, purchased by the defendant. the attachment was raised on the application of the defendant, and thereupon, under section 246 of act viii of 1859, the plaintiffs brought the present suit. this was the only means open to them of giving effect to the decree. to say that they should not bring this suit, or that they should not do so without the permission of the revenue authorities, would be to deprive them of the benefit of the former suit, or, at least, to throw difficulties in the way of their obtaining that benefit; and to that extent the former suit would be affected. this seems to have been the view taken by this court in miscellaneous appeal no. 11 of 1872 on the 12th august 1874. we are of opinion that, on this ground, the plaintiffs are entitled to claim exemption from the operation of act xxiii of 1871.3. the assistant judge has found that on the merits the plaintiffs are entitled to succeed. the respondent has not appealed against this finding, nor filed any statement of objections under section 348 of act viii of 1859. we must, therefore, reverse the decrees of the courts below, and enter judgment for the plaintiffs, with costs on the defendant throughout.