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Nayak Vajesingji Joravarsingji and others Versus Secretary of State for India in Council

1924 (6) TMI 1 - PRIVY COUNCIL

Privy Council Appeal No. 116 of 1922 - Dated:- 26-6-1924 - Lords Dunedin, Carson and Ameer Ali, JJ. For the Petitioner : A. M. Dunne, J. M. Parikh For the Respondent : Lowndes, K. Brown JUDGMENT Lord Dunedin, J. 1. In these consolidated appeals the three Naiks of Tanda, Chandwana and Katwada respectively, sue the Indian Government for a declaration that they are proprietors of the whole lands in the Taluk as belonging to them and that they are not hound to accept a lease of the same in the terms .....

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by a treaty of which Art. 3 is as follows: The Maharaja, transfers to the British Government in full Sovereignty the whole of His 'Highness ' possession in the Panch Mahals and to the south of the river Narbada also Pargana Kumghar on the Betwa river on the following conditions :- 1st. That for the lands transferred by His Highness, the British Government shall give in exchange lands of equal value calculated on both sides on the present gross revenue. 3rd. That each Government shall re .....

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under the other Government. 3. Their Lordships will have occasion presently to enquire into the circumstances of an earlier date, but, for the moment, they pause at this date because what happened in 1860 determines the law of the case. This law was most clearly laid down in the judgment of the Board delivered by Lord Atkinson in the case of Secretary of State for India v. Bai Rajbai A.I.R. 1915 P.C. 59 = 39 Bom. 625 = 42 I.A. 229 = 19 C.W.N. 1087 = 13 A.L.J. 953 = (1915) M.W.N. 563 = 29 M.L.J. .....

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territory is acquired by a sovereign state for the first time that is an Act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can only make good in the Municipal Courts established by the new sovereign such rights as that sovereign has, through his officers, recogn .....

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that the annexation of territory made an Act of State and that any obligation assured under the treaty with the ceding State either to the sovereign or the individuals is not one which Municipal Courts are authorised to enforce." Their Lordships have thought it necessary so far to repeat what has been said before because the appellants' counsel sought to make two points. He said that Act of State had not been pleaded before the Judge of first instance and ought not to be given effect to .....

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ee of Court, and that right it was alleged was taken by an Act of State, it would be necessary so specifically to plead, but that is not the situation. The moment that cession is admitted the appellants necessarily become petitioners and have the onus cast on them of showing the acts of acknowledgment, which give them the right they wish to be declared. The other point was that, in virtue of certain general declarations, the appellants became entitled to enforce the treaty. The general declarati .....

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The appellants first sought to prove that under Scindia they were proprietors. The defender retorted that they were merely farmers of revenue. Certain documents were produced out of the Gwalior repositories and controversy was raised as to whether they were genuine or had been tampered with. Their Lordships, for the reasons of law above stated, think it quite unnecessary to consider this question because their view of what was the tenure under Scindia has no bearing on the question. The view of .....

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ould be granted to the company, who thereupon managed the territory, respecting the rights of the inhabitants as they found them. As a matter of fact the ancestors of the appellants at that time were the holders of pottas for an unexpired term, these pottas having been granted by Scindia and payments were under them made payable to the company. Their Lordships will at once, in order to show that they have not been swayed by any contrary contention, make the concession that the mere fact that the .....

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by this time succeeded the company), granted, on the part of the Government of Scindia, three pottas to the appellants for a period of three years from 1860 to 1863. One of these pottas may be taken as a sample. The jammabundi for each year is fixed at ₹ 5,617-5-3. This was made up of ₹ 5,000 for the "jammabundi revenue, ₹ 217-2-5 for a balance and ₹ 600 a debt due to Jamadar Satarkhan. This last was an old debt due by the Naik which the Government was making him pay .....

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d and what were the tenures of their new subjects. This was necessary, first of all, because as land of equal value elsewhere was to be ceded to Scindia, it was necessary to note the exact value of what had been taken over, and also because undoubtedly the Government wished to give effect to the terms of the treaty above-quoted 'and in particular to the fourth head of the 3rd clause. Accordingly Captain Buckle, who was in charge, was told to make enquiries and furnish exact lists, giving par .....

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ernment officers proposed some increase of rent. In the meantime some outsiders made offers to take leases of the 3 Talukas for a rent preposterously higher than anything hitherto received. The Naiks had got wind of this and made representation to the Government in August, 1863. Their prayer is worded " As Government had been taking care of us they will be graciously pleased to grant us a potta to do which they are quite competent." 7. The Government came to the conclusion that they wo .....

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decision that the Naiks were not entitled to hereditary rights, but might be continued lease-holders so long as they behaved themselves. This determination was conveyed to the Naiks by letter of 12th June, 1876, which contains the following passage :- It appears that under the old rule the Pottas (leases) of these villages were also given several times to other people besides these Naiks, and from this it appears that their status may not be of hereditary Talukdars ; but for about the last fifty .....

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trical Survey of the three Talukas and it may be suitable to fix the amounts of the Pottas, keeping in view the trigonometrical measurements at the time of the Survey. No hereditary right of the Naiks is admitted in the preparation of the Pottas. 8. In 1881, the survey having been introduced, the Government came to a resolution as to what leases should be granted. They were to be on a sliding scale calculated on the survey assessment and allowing the Naiks a 10 per cent, margin. This proposal mu .....

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e taking of the forest land by the Government. In the petition they really sought to re-open the whole question. Thus in Art. 7 of the petition of 31st October, 1887, they say as follows:- 7. If our right is considered by the Government as specially that of Ijardar mention in above, it is a great mistake; we have the right of ownership over our village, which is handed down from generations ; we had been recovering, and we have been recovering the Jamabandi tax, Vaje (payment in kind), etc., fro .....

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question by sending a memorial to the Government, in which they went over the whole ground again and claimed to have proprietary rights. This was sent to headquarters, when a report from the Under-Secretary, inter alia, said as follows :- 4. The question as to the proprietary rights of these Naiks in their villages was fully inquired into and decided in the year 1880, and we are of opinion that no valid reason has now been shown for re-opening it after so long an interval of time. We are also o .....

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in paragraph 1 of Government Resolution No. 2783 dated 31st May, 1880 (copy appended), the following orders were passed by this Government. 11. In 1904 there was a final report from the Government officials as to the leases, which, as already noticed, had not actually been granted. By this time there had been complaints of what the Naiks had been doing, and some of the officials were anxious that no new leases should be granted to the Naiks, but that the whole villages should be made khalsa. Th .....

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l notice what has been urged on the other side. It is pointed out that the Naiks have been in the saddle for a long time. This is true, and it is to this fact that they held their position as lease-holders at all. But for that long possession the villages would have been made khalsa as others had been. 13. Then it is said that, by the terms of certain proclamations, the Government acknowledged the right. The proclamations in 1852, when there was merely a transference for administration purposes, .....

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of all your ancient houses I wish to warn you beforehand against debt. If you wish to preserve your present position, you should avoid it as the most unfortunate thing which happen to you. 14. Then follows a list of names, among which are persons who have had acknowledged to them a real proprietary right, and in this list occurs the names of Katwada, Chandwana and Tanda. There is also, especially in the Naiks petition, reference made to proclamations made at the time of the Durbar. There are tw .....

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ght to acknowledge what they thought right and conferred on a Municipal Court the right to adjudicate as upon rights which existed before cession, is in their Lordships' opinion, to misapprehend the law as above set forth. It was also urged that the Government had recognised certain free grants which had been made in the past by the Naiks. This is true. But the Government bad directed a special head of inquiry to be made as to free grants. They wish not to disturb persons whose tenure had be .....

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