LexVLTHAL YESHWANT JATHAR versus SHIKANDARKHAN MAKHTUMKHAN SARDESAI
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2 S.C.R. SUPREME OOURT Rl£PORTS ,. '! VlTHAL YESHWANT JATHAR v. SHIKANDARKHAN MAKH'fUMKHAN 8ARDESAI 285 (A. K. SARKAR, K. N. WANCHOO, .K. c. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.) Watan Lanrls-Pirpetual /eaB<-Fixation of higher rent by GOfJernment-Whether Watonrlar entitlerl to enhance rent- Oompulsory acquisition-Apportionment of compensation-If Watanrlar entitlerl only to capitaliserl value of rent-Bombay Hererlitary Offices Act, 1874 (Bom. III of 1874), ss. 5 anrl 9. Ii;i 1863, ,the Watandar granted a permanent lease of watan lands at a fixed rent of Rs. 727/- per year. In 1907 the Watandar applied under s. 9 of the Watan Act for declaring the lease null and void and for possession of the lands. The Collector rejected the application but directed an additional amount of rent to be paid. The Watanda< moved the Govern- ment and by an order dated May 23,1911,the Government fixed the rent at Rs. 1245/4)-. Some of the lands were compulsorily acquired and the compensation was apportioned between the Watandar and the tenant in the proportion of 10: 6. On appeal the High Court held that the Watandar was entitled to claim that the tenant should pay enhanced rei;it and on that basis apportioned the compensation in the proportion of 55: 45. Held, that the Watandar was not entitled to enhance the rent and that ne Was only entitled to the capitalised value of the rent as his share of the compensation. In an application under s. 9 of the Watan Act the Collector has first to decide whether there are reasons for declaring the alienation null and void. If he decides that there are good reasons he is \ogive the declamtion and thereafter he may either transfer the posses- sion to the Watandar or take action under s. 9(2), maintain the possession of the alience and collect from him the proper amount as the profits from the land for payment to the Watan- dar. In such a case, where the alienation was a lease, the former lease ceased to be effective and the lessee henceforth continued in possession on the strength of the Collector's per- mission. But if the Collector found no reasons to declare the lease null and void, he could take no action under s. 9(2). In the proceeding of 1907 the Collector had refused the declara- tion attd consequently he had no jurisdiction to make allf 196t A;ril 19. 1962 V ithol 1ishw,,nt Jathcr v. ShiiontltJJkl.u11 14 altAtlltnkh"1 Sartlut.i DasJ. 286 SUPREME OOURT REPORTS (1963] order under s. 9(2) and hu order directing the tenant to pay addition rent was without jurisdiction. From this order it could not be inferred that he had declared the lease null and void. Nor did the Government declare the lease of 1863 null and void; it merely ordered that the rent should be revised and fixed at Rs. 1245/4/-. It proceeded on the basis that the lease was subsisting the order of the Government was one giving sanction to the lcase·ofthe Watan Jands to the person in possession at this revised rent keeping the· other terms regard- ing the leaJe being permanent and the rent remaining fixed unaltered. The action of the Government must therefore be held to be under s. 5, and not under s. 9 of the Act. Crv!L APPELLATE JURISDICTION : Civil Appeal No. 379 of 1957. ,. I < •• Appeal from the judgment and decree dated D,ecember 3, 1954, of the Bombay High Court in F. A. No. 287 of l!l53. I S. B. JatMr, E. Udayarathoom a.nd B. P. Jlfaheshwari, for the appellant. S. G. Patwurdhan,J.B. Dadadianji, S.S. Andley, Rameshwar Nath a.nd P. L. Vohra, for the • respondent. 1962. April 19. The Judgment of the Court wa.;i delivered by DAS GUPTA, J.-Tbis appeal arises out of a. reference under s. 30 of the Land Acquisition Act a.s re"ards the apportionment of Rs. 35,102-10-0, the ~ompensa.tion awarded for two plots of land numbered, Survey N'o. 37 Kambha.pur and Survey No. 137 Narendra. It is no longer disputed that these form pa.rt of a Wa.tan. The dispute as regards the apportionment bas arisen between the Wata.nda.r and the person in actual possession of the land, the a.pp!'lla.nt before us. The Land Acquisition Judge ma.de an order that the compensation be apportioned in the ratio of JO, 6, the 10/15tb to be given to the I11ondlord and the remainder to the tenant. The correctness of I r .. 2 S.C.R. SUPREME COURT REPORTS 287 this was challenged in appeal. It was urged that the rent was fixed in perpetuity aud ·the landlord had no
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