The Government's order of 1911 was not an order under S. 9 of the Watan Act but amounted only to a sanction of a fresh lease. The Watandar had no right to increase the rent as the lease was permanent and the rate of rent would remain fixed from the date of creation of the lease.

Judgment:

DAS GUPTA, J. This appeal arises out of a reference under S. 30 of the Land Acquisition Act as regards the apportionment of its, 35,10210-0, the compensation awarded for two plots of land numbered, Survey No. 37 Kambhapur and Survey No. 137 Narendra. It is no longer disputed that these form part of a Watan. The dispute as regards the apportionment has arisen between the Watandar and the person in actual possession of the land, the appellant before us.

2. The Land Acquisition Judge made an order that the compensation be apportioned in the ratio of 10:6, the 10/16th to be given to the landlord and the reminder to the tenant. The correctness of this was challenged in appeal. It was urged that the rent was fixed in perpetuity and the landlord had no right to increase the rent, and so, the landlord should get only the capitalised value of the rent payable for the acquired lands and the remainder should o to the tenant. The High Court held that the landlord had the right to claim that the tenant should pay enhanced rent and directed the compensation to be apportioned in the proportion of 55 to 45 between the landlord and the tenant.

3. Against this decision this appeal has been preferred on certificate granted by the High Court.

4. The real question in controversy is whether at the date of the acquisition, the landlord (the Watandar) had any right to enhance the rent in respect of these lands. It appears that in 1863 a permanent lease was executed by the then Watandar in favour of the appellant s predecessors. The rent also was permanently fixed by the lease at Rs. 727/- per year. In 1907 the Watandar made an application under S. 9 of the Bombay Hereditary Offices Act, 1874 - which is described in short as the "Water Act." In this application he asked for a declaration that the alienation by the lease of 1863 be declared null and void and the Watandar be put in possession of the land leased.

5. The Assistant Collector, before whom the application came up for hearing rejected the application and refused to put the Watandar in possession or to cancel the lease of 1863. On appeal the Collector by his order dated March 16, 1908, maintained the Assistant Collector s order with the modification that he directed an additional amount of rent equal to the cess paid on the land to be paid by the lessees. An appeal to the Commissioner was unsuccessful. Then the Watandar moved the Government of Bombay. The Government made an order on May 23, 1411 fixing the rent payable for the lands covered by the lease at Rs. 1245/4/- The effect of this order by the Government requires careful consideration.

6. It is to be mentioned, however, that in the year 1926 the Watandar again moved the Government for a further increase of the rent, or for the restoration of the lands; and thereupon the Government made an order in 1927 fixing the rent at Rs. 4300/- and also directing that the rent leviable should be revised periodically at intervals of 10 years.

7. In 1928 the tenant brought a suit against the Secretary of State for indict and the Watandar in the Court of the First Class Subordinate Judge, Dharwar, praying for a declaration that the land mentioned in the Schedule to the plaint - which are the lands in respect of which the orders mentioned above were made by the government - did not form part of the Watan lands, that in any case the plaintiffs had acquired the status of Watandars and further that the Government resolution of 1911 and of 1927 were ultra vires. The learned Subordinate Judge held that the lands did form part of the Watan and that the Watan Act was applicable to these lands. He also held that the order of the Collector in 1908, though defective in form was in substance one under S. 9, sub-s.(2) of the Watan Act and therefore it could not be said to be ultra vires. He also held however that the order of Government in fixing rent at Rs. 1,245/4/- which was well above what the Collector had fixed was ultra vires; but that the plaintiff was n