# Chatturb·',uj Vithaldat ,7asani v. i\toreshwar Paras11ram and Others

- **Citation:** [1954] 1 S.C.R. 842
- **Court:** Supreme Court of India
- **Decided:** 1953-04-07
- **Case number:** Civil Appeals Nos. 167 and 169 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chatturb-uj-vithaldat-7asani-v-i-toreshwar-paras11ram-and-others-277
- **Pages:** 32

## Headnote

1954
Chatturb·',uj
Vithaldat
,7asani
v.
.i\toreshwar
Paras11ram
and Others.
Bose J.
1953
Det:emhcr 18.
842
SUPREME COURT REPORTS
conversion he continued to be a Mahar
nomination form
was wrongly rejected.
the whole election.
(1954J
and so his
That affects
The other points argued before the Election Tribunal
were not pressed before us.
We therefore uphold the
decision of the Tribunal and dismiss the appeal with
costs.
Appeal dismissed.
Agent for the appellant: I. N. Shroff.
Agent for the respondent: Gan pat Rai.
BISW AMBHAR SINGH
ti.
THE STATE OF ORISSA AND ANOTHER
JANARDHAN SINGH
v.
THE STATE OF ORISSA AND ANOTHER
SIBANARA YAN SINGH MAHAPATRA
ti.
THE STATE OF ORISSA AND ANOTHER.
rPATANJALI sAsTRI c.J., MEHR CHAND
MAHAJAN, S. R. DAs, VIVIAN BosE
and GHuLAM HASAN. JJ.J
Orissa Estates Abolition Act, (Orissa Act I of ]952), ss.
2(g)
2(h)
and
3-0tuners of
certain
zamindaries-Whether intern1ediaries
holding an estate
iuithin the nieaning of ss.
2(g';
and 2(/i ).
The State Government is en1po\vered under s. 3( 1) to issue a
notification
declaring
that
the estate specified
therein
has
passed to the State, but the notification must be in respect
of the
property which is defined as an estate in s. 2(g) and that estate
must be held by an intermediary as defined in s. 2(h).
In order to be an intennediary accordirig to the definition in
s. 2(h) the person n1us.t be, among other things, "a
Zamindar,
Jlaquedar, Kherposhdar or Jagirdar within the nieaning of Wajibul-arz or any Sanad, deed or other instrument."
S.C.R.
SUPREME COURT REPORTS
843
Held, that the proprietors of Hamgir and Serapgarh properties
were not intermediaries as defined in s 2.(h) and their respective
properties were not "estates" within the meaning of s. 2(g) and
therefore Government had no jurisdiction or authority
to issue
any notification under s. 3 with respect to their properties.
Held (Per PATANJALI SASTRI C.J., DAs and GHULAM HAsAo; JI.,
MAHAJAN and BosE JJ., dissenting), as respects the Nagra Zan::indari
that the Zan1indar appellant)- was an intern1ediary as defined in
s. 2(h) of the Act and his estate \Vas an estate \Vithin tbe meaning
of s. 2(g) because the predecessor-in-title of the present Zamindar
had acknowledged the overlordship of Raja of Gangpur and therefore the State Government had jurisdiction to issue a notification
under s. 3 of the Act declaring that the estate had passed to and
become vested in the State.
Per 1'1AHAJAN ar:.d BosE JJ.-'fhe words "deed" and
"other
instruments" in s. 2(h) are
not to be read
ejusdem generis \Vith
"Sanad" and thus are not confined to a docun1ent of title like
~
San.ad in which one party creates
or confers a zamindari estate
on another. 1"he words must be read disjunctively and be interpreted according to their ordinary meaning.
With
reference to
inerged territories an intermediary neither
"includes" a zamin<lar nor "1ncans" a zan1indar, but
means
a
zaminJar "within the meaning of" (I) the Wajib-ul-arz (2) any
Sanad (3) any deed or (4) of any others instrument.
The kind of zamindar referred to in s. 2(h) is one who may be
called "a true intern1ediary" within the 1neaning of the four documents set out there, that is to say, persons who hold an interest
in the land between the raiyat and the overlord of the estate.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeals
Nos. 167 and 169 of 1953·
Appeals under articles 132(1)
and 133(1) (c) of
the Constitutic:o. of India from the Judgment and Order,.
dated
the
7th
April
1953,
of the High Court of
Judicature of Orissa at Cuttack in Original Jurisdiction·
Cases Nos. 65, 67 an<l 68 of 1952.
N. C. Chatteriee
(B. Sen
K. C.
Mukheriea and
H. S. Mohanty, with him) for the appellant.
M.
C.
Setalvad,
Attorney-General
for
India
and
Pitambar
Misra,
Advocate-General
of Orissa,
(V. N. Sethi, with them) for the respondents.
1953.
December 18. The Judgment of Patanjali
Sastri C. J·, Das and Ghulam Hassan JJ. was delivered
by Das J.
The Judgment of Mahajan J.
and Bose J.
was delivered by Bose J.
DAs J.

## Text

_Characters 0–39,095 of 68,560. This is a partial read: ask again with offset=39095 for what follows._

1954
Chatturb·',uj
Vithaldat
,7asani
v.
.i\toreshwar
Paras11ram
and Others.
Bose J.
1953
Det:emhcr 18.
842
SUPREME COURT REPORTS
conversion he continued to be a Mahar
nomination form
was wrongly rejected.
the whole election.
(1954J
and so his
That affects
The other points argued before the Election Tribunal
were not pressed before us.
We therefore uphold the
decision of the Tribunal and dismiss the appeal with
costs.
Appeal dismissed.
Agent for the appellant: I. N. Shroff.
Agent for the respondent: Gan pat Rai.
BISW AMBHAR SINGH
ti.
THE STATE OF ORISSA AND ANOTHER
JANARDHAN SINGH
v.
THE STATE OF ORISSA AND ANOTHER
SIBANARA YAN SINGH MAHAPATRA
ti.
THE STATE OF ORISSA AND ANOTHER.
rPATANJALI sAsTRI c.J., MEHR CHAND
MAHAJAN, S. R. DAs, VIVIAN BosE
and GHuLAM HASAN. JJ.J
Orissa Estates Abolition Act, (Orissa Act I of ]952), ss.
2(g)
2(h)
and
3-0tuners of
certain
zamindaries-Whether intern1ediaries
holding an estate
iuithin the nieaning of ss.
2(g';
and 2(/i ).
The State Government is en1po\vered under s. 3( 1) to issue a
notification
declaring
that
the estate specified
therein
has
passed to the State, but the notification must be in respect
of the
property which is defined as an estate in s. 2(g) and that estate
must be held by an intermediary as defined in s. 2(h).
In order to be an intennediary accordirig to the definition in
s. 2(h) the person n1us.t be, among other things, "a
Zamindar,
Jlaquedar, Kherposhdar or Jagirdar within the nieaning of Wajibul-arz or any Sanad, deed or other instrument."
S.C.R.
SUPREME COURT REPORTS
843
Held, that the proprietors of Hamgir and Serapgarh properties
were not intermediaries as defined in s 2.(h) and their respective
properties were not "estates" within the meaning of s. 2(g) and
therefore Government had no jurisdiction or authority
to issue
any notification under s. 3 with respect to their properties.
Held (Per PATANJALI SASTRI C.J., DAs and GHULAM HAsAo; JI.,
MAHAJAN and BosE JJ., dissenting), as respects the Nagra Zan::indari
that the Zan1indar appellant)- was an intern1ediary as defined in
s. 2(h) of the Act and his estate \Vas an estate \Vithin tbe meaning
of s. 2(g) because the predecessor-in-title of the present Zamindar
had acknowledged the overlordship of Raja of Gangpur and therefore the State Government had jurisdiction to issue a notification
under s. 3 of the Act declaring that the estate had passed to and
become vested in the State.
Per 1'1AHAJAN ar:.d BosE JJ.-'fhe words "deed" and
"other
instruments" in s. 2(h) are
not to be read
ejusdem generis \Vith
"Sanad" and thus are not confined to a docun1ent of title like
~
San.ad in which one party creates
or confers a zamindari estate
on another. 1"he words must be read disjunctively and be interpreted according to their ordinary meaning.
With
reference to
inerged territories an intermediary neither
"includes" a zamin<lar nor "1ncans" a zan1indar, but
means
a
zaminJar "within the meaning of" (I) the Wajib-ul-arz (2) any
Sanad (3) any deed or (4) of any others instrument.
The kind of zamindar referred to in s. 2(h) is one who may be
called "a true intern1ediary" within the 1neaning of the four documents set out there, that is to say, persons who hold an interest
in the land between the raiyat and the overlord of the estate.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeals
Nos. 167 and 169 of 1953·
Appeals under articles 132(1)
and 133(1) (c) of
the Constitutic:o. of India from the Judgment and Order,.
dated
the
7th
April
1953,
of the High Court of
Judicature of Orissa at Cuttack in Original Jurisdiction·
Cases Nos. 65, 67 an<l 68 of 1952.
N. C. Chatteriee
(B. Sen
K. C.
Mukheriea and
H. S. Mohanty, with him) for the appellant.
M.
C.
Setalvad,
Attorney-General
for
India
and
Pitambar
Misra,
Advocate-General
of Orissa,
(V. N. Sethi, with them) for the respondents.
1953.
December 18. The Judgment of Patanjali
Sastri C. J·, Das and Ghulam Hassan JJ. was delivered
by Das J.
The Judgment of Mahajan J.
and Bose J.
was delivered by Bose J.
DAs J.-These three
together raise the same
appeals which have been heard
or similar questions.
Appr;:iL
1953
Biswambhar
Singh
v.
TLe State 'of
Orissa
and 0!11.rs.
1953
Biswamb:iar
Singh
v.
'T/;e Slate vj·
Orissa
url'f Otherj',
/Jri1 ].
844
SUPREME COURT REPORTS
[1954]
No. I 67 of 1953, relates
to Hemgir
of which the
appellant,
Shri Biswambhar Singh,
is the proprietor. It
comprises an area
of about 360 square miles out of
which 145 square miles are covered by forests. Appeal
No. 168 of 1953
is
by
the appellant, Shri Janardhan
Singh, who is the proprietor qf Sarapgarh comprising
an area of about 45 square miles.
Appeal No. 169 of
1953
relates
to
Nagra the proprietor whereof is
the
appellant. Shri Sibanarayan Singh Mahapatra. It comprises an area of 545 square miles including 109 square
miles of forests.
All these proprietors are the descendants of Blmiyan
Chiefs
and they claim that
their ancestors
were
independent ruling
chiefs of their respective
principalities.
There is no dispute that in course of time they
became subordimte vassals of the Raja of Gangpur.
It appears from Connolly's Report, Mukherjee's Report
and Ramdhyani's
Report that neither the
Raja of
Gangpur nor any of these proprietors was
anxious
to
have theic respective rights defined specifically and so
the settiement officers made no attempt to do so with
the result
that
their status vis-a-vis
the Raja of
Gangpur remains undertermined.
There is no evidence
on
record
that the
ancestors
of
the proprietors of
Hemgir and Sarapgarah ever received or accepted any
Sanad or grant from the Raja of Gangpur.
There is,
however, evidence that the ancestors of the proprietor
of Nagra had executed an Ekrarnama in favour of the
Raja of Gangpur as to which more will be said hereafter.
There
is no dispute that the ancestors of each
of
these proprietors
paitl every
year to the Raja of
Gangpur
what
has
been
called "Takoli" and the
present appellants are continuing this annual paymern.
This payment has sometimes been called a tribute and
sometimes even rent as in the order, dated the 9th
August,
1878, of A. C. Mangles, the Commissioner of
Chota Nagpur.
These cmsiderable
properties are and
have been heritable and the rule of primogeniture
rrcvails.
By a certain process beginning with
Agreement of
Integration made in December, 1947, and ending with
the States' Merger
(Governor's Province) Order made
on the 27th July, 1949, by the then Governor-General
.S.C.R.
SUPREME COURT REPORTS
845
.of India in exercise of the powers conferred on him by
section 290-A
of
the Government
of India Act as
amended by the Indian
Independence Act, 1947, all the
feudatory States
of Orissa merged into and became
part of the State of Orissa.
In consequence of such
merger the area comprised in Hemgir, Sarapgarh and
Nagra as parts
of the merged territories became parts
of the State of Orissa.
On the 17th January, 1950, a bill which eventually
became the Orissa Estates Abolition Act was introduced
in the Orissa Legislature.
The Constitution
of India
came into operation on
the 26th January, 1950. The
bill
having
been passed by the Orissa Legislature on
the 28th
September,
1951, the Governor of Orissa
reserved the same for the consideration of the President.
On the 23rd January, 1952, the bill received the assent
-of
the President and became law as Orissa Act I of
1952.
An Act
called
the Orissa Estates Abolition
(Amendment)
Act 1952,
was passed on the 5th July,
1952, and was assented to by the President on the 27th
August, 1952.
The long title of the Act is as follows:
"An Act to provide for the abolition of all the
rights, title and interest in land of intermediaries by
whatever name known, including the mortgagees and
lessees of such interests, between the
raiyat and the
State of Orissa, for vesting
in the said State of the
said rights, title and interest and to make provision
for other matters connected therewith."
There are two preambles to the Aet which recite:-
"\Vhereas in pursuance of the Directive Principles
·of State policy laid down by the Constitution of India
it is incumbent on the State to secure economic justice
for all and to that end to secure the ownership and
,control of
all material resources of the community so
diat they may best subserve the common good, and
to
prevent the concentration
of
wealth and means of
production to the common detriment;
And
whereas
in
order to enable
the
State to
<lischarge
the
above
obligation,
it
is expedient to
provide for the abolition of all the rights, title and
1953
Biswamb:iar
Singh
.
v.
The State of
Orfasa
and Others.
Das].
1953
Biswambhar
Singh
v.
.
The State of
Ori.tsa
and Others.
Das].
846
SUPREME COURT REPORTS
[1954]
interest m lan<l of interme<liaries
by
whatever
name
known, including the mortgagees and lessees of such
interest,
between the raiyat and the State of Orisrn,
for vesting in the said State of the said rights, title and
interest
and
to
make
provision
for other matters
connected therewith;"
The material parts of the definitions of "Estate"
and
"Intcrn1cdiarics"
set forth
in
section_ 2
are
as
follows:
( )
"
"
g
estate
. . . . . . . . . . . . . ....................... .
. . . . . . . . . . in relation to merged territories means any
collection of Mahals or villages held by the same intermediary which has been or
is liable to be assessed
as one unit to land revenue whether such land revenue
be payable or has been released or compounded for or
redeemed in whole or in part." .
(h) "Intermediary" .................... with reference
to
the
merged
territories means a maufidar
including the ruler of an Indian State mergeu with the
State of Orissa, a Zamindar, Ilaquedar, Khorposhdar
or Jagirdar within the meaning of the Wajib-ul-arz, or
any sana<l, deed or other instrument, and a gaontia or
a thikadar of a village in respect of which by or under
the provisions
contained
in the
Wajib-ul-arz applicable
to such
village
the manufidar, gaontia or the
thikadar, as the case may be, has a hereditary right to·
recover rent or revenue from persons holding land in
such village."
Section 3 (1) runs thus:
"3- (1) The State Government may, from time to
time by notification, declare that the estate specified
in the notification has passed to and become vested in
the State free from all encumbrances.
As was to be expected
the constitutionality of
t11e
Act was challenged in a number of petitions under
article 226 of the Constitution, but the Orissa High
Court pronounced in favour of the validity of the Act.
That decision has since been upheld by this court in
Civil Appeal
No. 71
of 1953 (Maliaraja Sri Krishna
Chandra Gajapati Narayan Deo v. The State of Orissa(')
During the pendency
of
the writ petitions before the
(1) [1954] S.C.R. 1.
S.C.R.
SUPREME COURT REPORTS
847
High Court, the
State
Government on the 27th
November,
1952,
issued
a number
of
notifications
under section 3 covering a large number of estates
including those
of
the three appellants before us and
called
upon
them to deliver
up possession. These
appellants thereupon filed three separate writ petitions
praying in each case for a writ in the nature of a writ
of
mandamus directing the State of Orissa and the
Collector of Sundargarh not to interfere with their
possess10n
of
their respective estate or to intermeddle
with
it or
to
give
effect
to
the
provmons
of
the
Act.
These applications
were opposed by the
State of Orissa.
The several grounds taken in support of the petitions were, very broadly speaking, (a) that they were
not intermediaries,
(b)
that their properties were not
estates, ( c) that the forest areas within their properties were not estates, ( d)
that the Act did not come
under
article 31A of
the Constitution and
was
not
entitled to its protection, (e) that the Act was discriminatory and offended against the . provisions of article
14.
The then Chief Justice of Orissa, again very
broadly
speaking, decided
each of these issues against
the appellants and was of opinion that the petitions
should be dismissed.
N arasimham J. agreed with the
Chief
Justice
that the
appellants were
intermediaries
and that immovable properties of the petitioners were
estates, that the forest areas were included in their
estates but he took a different view on two important
questions.
In his_ view the Act was not covered by
article 31A and was not entitled to its protection and
section 3 of the Act contravened article 14 of the Constitution and as it was the key section to the whole Act
tl1e entire
Act
was invalid
in its application to the
immovable
properties
of
the appellants although it
was valid in its application to other estates which come
with
article 31-A(Z)(a).
The learned
Judge
was
accordingly of
the opinion that the appellants were
entitled to the reliefs prayed for by them. In view of
this difference of opinion the applications were directed to
be posted before a third Judge for hearing on
fresh
argument.
Mahapatra
J.
before whom the
3-96 S. C. !ndia/59
1953
Biswambhar
Singh
v.
The State of
Orissa
and Others.
Das].
1953
Biswambhar
Si'ngh
v.
Th• State of
Orissa
and Others.
Das].
848
SUPREME COURT REPORTS
[1954]
applications
were re-argued
agreed substantially with
the learned Chief Justice that the Act was protected by
article 31A and that in any case it did not violate the
equal protection clause of the Constitution.
In the
result the applications were
dismissed.
Hence the
present appeals.
Section 3 (1)
authorises
the State Government to
issue
a notification declaring that the estate specified
therein
has
passed
to the State.
The State Government has
no power to issue a notification in respect of
any property unless
such
property is an "estate"
as
defined in section 2(g).
A perusal of the relevant part
of that definition which has been quoted above will at
once show that in order to be an "estate" the collection of mahals or villages must, amongst other things,
be held
by
the
same "intermediary".
An "Intermediary",
according to the definition in section 2(h),
must be, amongst other things,
"a Zamindar, Ilaqueder, Khorposhdar, or Jagirdar within the meaning of
the Wajib-ul-arz or any Sanad, deed or other instrument."
The point to note is that in order to be an
"intermediary" within the definition, it is not enough.
if the person is a Zamindar, Ilaquedar, Khorposhdar or
Jagirdar simpliciter
but
he must fall within one or
other of the categories "within the meaning of the
Wajib-ul-arz or any Sanad, deed or other instrument."
Accordingly, the first head of argument advanced before us by learned counsel for the appellants is that
the State Government had
no authority to issue the
notification because they are not intermediaries and,
therefore,
their properties
are not estates.
This argument obviously proceeds on
the footing that the Act is
intra vires the Constitution and if it succeeds then no
question of constitutionality will arise.
We have had the advantage of perusing the judgment prepared by our learned
brother Bose and we
agree,
substantially
for reasons
stated
therein, that
the appellants Shri Biswambhar Singh and Shri Janardhan Singh are not intermediaries as defined in section
2(h) and their respective properties, namely, Hemgir
and Sarapgarh are not "estates" within the meaning of
section 2(g) and
that
that
being
so
the State
S.C.R.·
SUPREME COURT REPORTS
849
Government had no jurisdiction or authority
to issue
any notification under section 3 with respect to their
properties.
In
this view of the matter no constitutional questions need be considered in Appeals Nos.
167 and 168 of 1953, which will, therefore, have to be
allowed.
Appeal No. 169 of 1953 filed by the appellant Shri
Sibanarayan Singh Mahapatra of Nagra appears to us
to stand
on a different
footing·
In paragraph 13
0£ the counter-affidavit filed
by the State in opposition
to
this appellant's petition
specific reference
was
made to the Rubakari in the court of J. F. K. Hewitt,
Commissioner · of Chota Nagpur, dated the 10th March,
1879.
At the hearing of the petition that · Rubakari
was filed in court without any objection. It is document No. 6(g).
Evidently the commissioner sent for
both the Raja of Gangpur and
Balki Mahapatra of
Nagra and after referring
to the then outstanding disputes between the then Raja of Gangpur and Balki
Mahapatra, the predecessor-in-title
of
the appellant
Shri Sibanarayan Singh
Mahapatra
this
Rubakari
records that
"it was agreed upon that from future
Balki
Mahapatra would
be paying to the Raja
of
Gangpur
Rs. 700
as yearly rent from the year 1935
and thereafter instead of Rs. 425 which he used to pay.
This amount of Rs. 700 is the fixed rent."
The words
rent and fixed rent are significant.
It further appears
tl;iat Rubakari decided that
"Balki Mahapatra and his
heirs
and .successors should ever
'hold'
possession
over this Nagra State Zamindari on the aforesaid fixed
annual rent
and nothing more would be
demanded
from him except marriage Pancha and Dashra Panch
which according to local custom and usage he can pay
.......... The claim of the Raja about
Rs. 200 as
Raja
Bijoy should be discontinued and the
Raja
should stop granting patta to the Gauntias of Nagra."
The Rubakari then concluded thus:
"This Ekrarnama being signed by
them by their
own pen was filed before me and they agreed to abide
by the terms mentioned in the Ekrarnama.
So it has
been ordered that copy of it may be sent to the Raja
1953
Biswambhizr
Singh
v.
The State of.
Orissa
and Others.
Das].
1953
Biswamhhar
Singh
v.
The State of
Orissa
artd Others.
Das].
850
SUPREME COURT REPORTS
[1954]
of Gangpur and Balki Mahapatra of Nagra for information and guidance."
It is thus quite clear from the above Rubakari that
as far back as 1879 an Ekrarnama had been executed
both
by the
then Raja of Gangpur and Balki Mahapatra of Nagra recording the terms on which the latter
would "hold"
possession
of
the Nagra Zamindari,
namely, that he must pay a fixed annual rent besides
certain customary dues.
Years later,
to
wit on the 29th March, 1943, the
Dewan of Gangpur State wrote a letter to the Zamindar of Nagra Estate calling upon him to show cause
why the takoli should not be enhanced. This letter is
document No. 6 (r-2).
The Zamindar of Nagra to
whom this letter was addressed was no other than the
appellant Shri Sibanarayan Singh Mahapatra·
On the
19th July,
1943, a long reply was sent by the latter.
In the heading of this reply after the name of the appellant is added the description "Zamindar of Nagra".
In paragraph 3 (XV) reference is made to the fact that
takoli had been
fixed
in perpetuity
and had
been
finally
settled
in the year 1879.
The whole of Rubakari of J. F. K. Hewitt
is
set out in extenso in paragraph 14 of this reply. Paragraph 15 states:
"That from the Rubakari proceeding
of
Mr.
Hewitt it will appear that the then Ra;~ Raghunath
Sekhar Deo of Gangpur and Babu Balki
Mahapatra,
Zam'indar, Nagra, duly signed a deed of compromise
in which it has been, clearly and in unequivocal terms,
embodied that Gangpur Raja and his successors will
be bound by that term and Nagra should only pay
Rs. 700 as Takoli every year and nothing more and
this Takoli should remain fixed for ever."
Reference is then made in paragraph 17 to the proceedings of the 29th June, 1891, before W.H. Grimley,
the then Commissioner, which is marked as document
No. 6 (L).
This also refers to the settlement made
by J.F.K. Hewitt in
1879.
There is,
therefore, no
getting away from
the fact
that an Ekrarnama had
been executed
by the Raja of
Gangpur and
Balki
Mahapatra,
the predecessor-in-title of this appellant,
S.C.R.
SUPREME COURT REPORTS
851
under which Balki
Mahapatra "held" the estate of
Nagra upon terms
of payment
of an annual rent.
Indeed, the appellant
Shri Sibanarayan Singh Mahapatra firmly
takes his stand on the Ekrarnama and
its terms.
A question has been
raised
that the original
Ekrarnama of 1879 has not been filed and as no evidence
was
led
to
explain the reason for its nonproduction,
secondary
evidence
of
its
contents is
inadmissible.
We
see
no force
in this belated contention.
The
Rubakari
and the
other documents
referred to above were filed without any objection as
to their admissibility
on the ground
that they are
merely
secondary
evidence of the contents
of the
Ekrarnama.
Indeed, in
the matter of production
and
proof of documents the parties undoubtedly proceeded a little informally.
The following extract from
the judgment
of
the learned Chief Justice will make
the position clear:
"As
regards some of
them, neither the originals,
nor the authenticated copies
have been filed
before
us, but typed paper books containing unauthenticated
copies have been filed
by both sides and have been
treated as evidence, with the mutual consent
of
the
parties.
Those typed paper books have accordingly
been placed on the record.
Some annual administration reports of the Gangpur State as
well as
certain
working plans
for
the
reserved
forests of Hemgir,
Nagra and other zamindaris as also the Forest Act of
Gangpur State have been
filed
and received without
any objection from either side.
Quite a number of
further
documents
have been produced on behalf of
the
State as per the list of documents filed along with
two affidavits dated the 9th and 10th February, 1953,
and certain annexures have been filed on behalf of the
petitioners
along
with an affidavit dated
the
11th
I: ebruary,
1953. All these have been, without objection,
treated
as
part
of the record excepting one
document to be presently
noticed.
The only document whose reception has been objected to is what is
referred
to
as
the Mukherjee's
Settlement Report,
1953
Birwamhhar_
Singh
v.
The Stale ef
Orissa
and Others.
Das].
1953
Biswambhar
Singh
v.
The State of
OrisJa
and Others.
Das].
852
SUPREME COURT REPORTS
p954]
item No. 18 in the list of documents filed on behalf of
the State."
Further and strictly speaking the appellant Shri
Sibanarayan Singh Mahapatra having in his own letter
dated the 19th July, 1943, referred to above admitted
the existence and contents of the Ekrarnama, secondary evidence
is, strictly speaking, admissible
under
section 65 (b) of the Indian Evidence Act.
It may
also be mentioned here that in the grounds of appeal
set forth in the petition
for
leave to this court no
grievance
was made t11at
secondary evidence of the
contents of the Ekrarnama had been wrongly let in.
In
the circumstances,
this
appellant cannot now be
heard
to complain of admission of inadmissible evidence as to the terms of the Ekrarnama.
Apart from
this, the recital of the Ekrarnama and its terms in an
ancient
public
document like the Rubakari whose
authenticity
has not been, nor
indeed could be,
doubted
furnishes
strong evidence of the existence
and genuineness of
the
settlement
arrived at by the
parties.
·
Procee<ling, then, on the footing that Bal ki Mahapatra
and
his descendants including
the present
proprietor held the Nagra Zamindari estate under the
Ekrarnama on the terms of payment of a fixe<l annual
rent there can arise no question as to tl1e real status
of
the proprietor
of
Nagra vis-a-vis
the Raja of
Gangrur since
1879, whatever
the position may have
been prior thereto.
It is, therefore, quite clear that
the proprietors of N agra
are zamindars within the
meaning
of the Ekrarnama, call it a "deed" or "other
instrument" as one likes.
In this view of the matter
the appellant
Shri Sibanarayan Singh Mahapatra
is
an intermediary as define<l
in section 2 (h) of the Act
and his estate
is
an "estate" within the meaning of
section 2 (g) and consequently there is no escape from
the conclusion
that
the State Government had ample
jurisdiction or authority to issue a notification under
section 3 of the Act.
A subsidiary point was raised that "' any rate the
forest
lands
which
are not parts
of any Mahal of
village
and
are
not assessed
as one ll11it to land
S.C.R.
SUPREME COURT REPORTS
853
revenue cannot possibly
fall within the definition of
estate.
This contention
was repelled by the High
Court and
there was no disagreement
between the
two learned
Judges on this question. We find ourselves
in agreement
with the High Court in this
behalf.
There is
no dispute that geographically the
forest tract
is
included within the Nagra Zamindari
estate.
Our attention was drawn to certain maps or
plan~ which clearly indicate that the forest lands are
scattered in
blocks
within
the boundaries of the
estate. There is no dispute that the annual rent fixed
under the Ekrarnama was
so payable in respect of
the whole estate.
In those days there was hardly any
income from the forests as at present and, therefore, in
those ancient
days the existence of the forest like that
of uncultivable waste land would not affect the assessment of the rent to any appreciable degree. There is
no evidence on record that in. fixing the annual rent
the forests were left out of consideration in the sense
that they were treated as a separate item of property.
There is no proof on
the record in support of such an
unusual
arrangement.
If the forests
are included
within the boundaries of the estate and if the Zamindar
of
Nagra
"holds"
the
estate
under the Raja of
Gangpur, he must be holding the forests
also under
the Raja of Gangpur.
The suggestion
that the proprietor of Nagra accepted
a grant from the Raja of
Gangpur only in respect of the collection of Mahals or
villages
but
retained his independent chieftainship
with respect to the forest lands interspersed between
the villages but situate within the geographical limits
of
the
entire
estate is hardly convincing.
For the
above reasons and those set out in the judgment of
the learned Chief Justice we are of the opinion that
the forest lands are included within the estate held by
the Zamindar of Nagra under the Raja of Gangpur.
In the view that the Zamindar of Nagra is an intermediary and
his territories
are
an estate it must
follow
that
the appellant
Shri Subanarayan Singh
Mahapatra cannot get any relief if the Act is valid.
Learned ,counsel appearing
in
support
of his appeal
(No. 169 of 1953) then falls back on the question of
1953
Biswambhar
Singh
v.
The State of
Orissa
and Others.
Das].
1953
Biswambhar
Singh
v.
Th£ State of
Orissa
and Others.
Das].
854
SUPREME COURT REPORTS
[1954]
the
constitutionality
of
the Act. Here he has a preliminary hurdle to get over, for if the Act is covered
and protected by article
31-A then the Act cannot be
deemed to be void on the ground that it is inconsistent
with or takes away or abridges any of the rights conferred
by any provision of Part III of the Constitution.
It has, therefore, been the endeavour of learned
counsel for
the appellant
before us, as it was before
the High Court,
that
Nagra was not an "estate" as
defined in article 31-A(2) (a). The learned Chief Justice
took the view that N agra was an estate as defined and
consequently the
Act was
within the protection of
article 31-A
but Narasimham
J.
took
the opposite
view.
The third Judge Mahapatra J. agreed with the
learned
Chief Justice.
In the view we take on the
question of the alleged violation of the provisions of
article 14 it is not necessary for us, for the purpose of
disposing of this appeal, to enter into a long discussion
on the applicability
of article 31-A to
the impugned
Act.
On the assumption, then, that article 31-A is out of
the way the Act in question becomes liable to attack
both under article 31 (2)
and article 14.
Learned
counsel appearing
before
us did
not call
in
aid
article 31
(2) hut
confined himself to article 14. Tn
the High Court article 14 was invoked in two ways
namely
(1) that the provision for assessing and fixing
the
amount
of compensation is discriminatory
and
(2) that section 3 which gives an unfettered discretion
to the State Government to issue or not to issue notification with respect to an estate is discriminatory in
that
it enables the State
Government to issue notificatim with respect to those zamindars who opposed
the
ruling
party in
the election
and to refrain
from doing so with respect to others who were loyal
to
that
party.
The objection as to discrimination
founded on the manner of assessment of the compensation has not been pressed before us and learned
counsel confined his arguments to the second ground.
Here again the learned Chief Justice held that there
was no
violation
of article 14 while Narasimham J.
took
the
opposite
view.
Mr.
Justice Mahapatra,
iS.C.R.
SUPREME COURT REPORTS
855
however, agreed with the Chief Justice.
We find
ourselves in agreement
with the majority view.
The long title of the Act and the two preambles
which have been quoted above clearly indicate that
the object and purpose of the Act is to abolish all the
rights, title and
interest in land of intermediaries by
whatever name known.
This is a clear enunciation of
the policy which is sought to be implemented by the
operative provisions of the Act.
Whatever discretion
has
been
vested in
the State
Government
under
section 3 or section 4 must be exercised in tbe light of
this policy and, therefore, it cannot be said to be an
absolute or unfettered discretion, for sooner or later all
estates must perforce be abolished.
From the vety
nature
of
things a certain amount of discretionary
latitude had to
be given to the State Government. It
would
have been a colossal
task if the State Government had to take over all the estates at one and the
same
time.
It would have broken down the entire
administrative machinery.
It could not be possible to
collect sufficient staff to take over and discharge the
responsibilities.
It would be difficult to arrange for the
requisite finance all at once.
It was, therefore, imperative to confer some discretion' on the State Government.
It has
not been suggested or shown that in
practice any
discrimination
has
been made. If any
notification or order is made, not in furtherance of the
policy of the Act but in bad faith and as and by way
of discrimination such notification or order, which by
virtue of article 13(3) comes within the definition of
"Law",
will
itself
be void
under article 13 (2).
Learned counsel appearing for the appellant has not
shown, by advancing any cogent and convincing argument, how and why the reasonings adopted by the
majority of
the learned
Judges below are faulty or
Untenable.
In the premises, it is not necessary for us
to pursue this matter further beyond saying that we
find ourselves in agreement with the conclusions of the
majority of the learned Judges of the High Court.
Learned counsel for the appellant referred to another
point, namely
that the amending Act altering the
<lefinition of the date of vesting was invalid as there
1953
Biswambhar
Singh
v.
The State oj
Orlssa
and Othtrs.
1953
Biswambh11.1
Singh
v.
The State of
Orissa
and Others.
Bose].
856
SUPREME COURT REPORTS
[1954]
was no public purpose for
taking away the vested
right that the original definition of that expression in
the
Act
had given to the persons whose estates had
been
notified.
Learned
counsel, however, did not
seriously press this objection and nothing further need
be said about it.
The result, therefore, is that appeals Nos. 167 and
168 of 1953 are allowed with costs and appeal No. 169
of 1953 is dismissed with costs.
BosE J.-These three
appeals arise out
of petitions made to the High Court of Orissa under article 226
of
the Constitution
by
the Zarnindars
of Hemgir,
Sarapgarh and Nagra.
· On the 28th of September,
1951, the Orissa
State
Legislature passed the Orissa Estates Abolition Act of
1951* (Orissa Act I of 1952*).
The Act was reserved
for the assent of the President and became law on the
23rd of January,
1952, when the President gave his
assent.
The Act enables the State Government to take over
the "estates"
of all "intermediaries" situate in the
State of Orissa.
In pursuance of the powers so conferred the State Government issued notifications from
time to time under section 3 of the Act and among
the notifications so issued are the three which affect
the present petitioners.
This action of the State Government was challenged
on a number of grounds, among them the following:
(1) that the Act was invalid as it infringed the hmdamental provisions of the Constitution, (2) that even if
it is valid the notifications are ultra vires because (a)
the zarnindaris in question are not "estates" within
the meaning of section 2(g) of the Act and because
(b)
the petitioners are
not "intermediaries" within
the meaning of section 2(h).
We will first deal with the question of "estates"
and
"intermediaries".
The question
assumes importance because of section 3( 1)
which enacts that
"The State Government may, from time to time
by notification, declare that the estate specified in the
*Sic.
S.C.R:
SUPREME COURT REPORTS
857
notification · bas passed to and become vested in the
State free from all encumbrances."'
Tl1e definition of an "estate" is given in section 2(g)
and is as follows:
"'estate' ...... in relation
to
merged
territories
means any collection
of Mabals or villages held bv the
same intermediary which has been or is liable to be
assessed as one nnit to land revenue."
"Intermediary"
fa
defined
in section 2(h):
" 'Intermediary' ...... with reference
to the merged
territories means a maufidar including the Ruler of an
Indian State
merged
with
the State
of Orissa,
Zamindar, Ilaquedar, Khorposhdar or Jagirdar within
the meaning of the wajib-ul-arz, or any
sanad, deed
or other in$trun1ent."
It is admitted that the territories with which we are
concerned
are merged
territories,
so the portions of
the definition that we have reproduced above are all
we need consider.
Before any property can be taken
over under the Act it must be an "estate" within the
meaning of the above definition and so must belong to
an "intermediary" as
defined in clause (h).
We will start with the definition of "intermediary."
It is admitted by both sides
that the petitioners are
zamindars but the petitioners contend that they are
not "intermediaries" because the definition does not
include all zamindars but only those who are zamindars, etc., within the meaning of-
(a) any "wajib-ul,arz"
(b) any "sanad, deed or other instrument."
We have grouped the last three together because
that is how the appellant's learned counsel says they
should be read.
According to him, the "deed"
and
"other instrument"
must
be read
ejusdem
generis
with "sanad" and so must be confined to a document
of title
like a sanad
in which one partv creates or
confers a zamindari estate on another.
We do not agree. In our opinion, the words must be
read
disjunctively
and
be
interpreted
according
to
their ordinary
meaning. For example, a document by
1953
Biswombf;a,
Singh
v.
The Sta#of
Orii~•
and Others.
Bose J.
1953
Biswamhhar
Singh
v.
The. State of
Orissa
and Others.
Bose J.
858
SUPREME COURT REPORTS
[1954]
an intermediary
another would,
definition.
acknowledging
111 our
op11110n,
the overlordship of
fall
within
the
Now had these zamindars been in what was once
British India there would be no difficulty because the
first part of
the definition in section 2(h) is straightforward and clear.
The petitioners in these case would
have fallen under
one
or
other of the categories
mentioned
there.
But when we come to the merged
territories the definition
changes
and an "intermediary" there no longer means this or that (except in
the case of a maufidar) but this or that "U1ithin the
meaning of"
certain docuriients.
Thus an
"intermediary"
neither
"includes"
a zamindar 11or "means''
a zamindar, but means a zamindar within the meaning '
of (1) the wajib-ul-arz (2) any sanad (3) any deed or
(4)
any other instrument.
We take it that this was
deliberate and that there was purpose behind
the
change.
What then do the words "within the meaning of"
signify' They cannot mean mere mention of A as a
zamindar.
They cannot mean that if A is mentioned
in one of those doc_uments and is called or referred to
as a zamindar that makes him an intermediary, for if
that had been the intention, the definition
would have
said so.
In our opinion, the words have been inserted
to
include
only those
documents which deal, or
purport to deal, with true intermediaries, that is to
say, with persons who hold an interest in the land
between the raiyat or actual cultivator and the overlord of the demesne. Two illustrations will show what
we mean.
A may be a zamindar in one State and yet may hold
lands, which have no connection with his zamindari, as
an ordinary tenant in another State.
Now A may well
execute
a kabuliat
or
enter
into a lease
with his
immediate landlord in that other State and
refer to
himself
as a zamindar, but that would not make him a
zamindar within the meaning of that deed because the
deed does not purport to deal with zamindars but with
a landlord and his tenant.
Though called a zamindar
S.C.R.
SUPREME COURT REPORTS
859
there, the word would only be descriptive, and he
would really
be a tenant
within the meaning of
that deed.
Consider a second illustration.
A ruling Chief might
acquire a zamindari of the intermediary type in a
neighbouring State by purchase or otherwise. In documents relating to the zamindari he may well be described as the Raja or Chief of so and so but he would
not be a ruling Chief within the meaning of that document though so called. He would only be a zamindar.
That is the only way in which we are able to interpret
this clause in section 2.
We cannot ignore the change
in the two parts of the definition and we are bound to
assign some intelligible purpose to the words "within
the meaning of."
The distinction is of importance because zamindars
are of various kinds;
some are true intermediaries in
that they are the collectors of the revenue of the State
from
the raiyats
and
other under-tenants of lands.
They have an interest in the land but
not the true fee
simple of English law.
They are not the lords of the
manor as in England and bear little or no resemblance
to an English landlord though they have some of his
attributes.
(See
Baden-Powell's
Land
Systems
of
British
India, Vol.
I, pages 130, 519 and 523); others
are either Ruling Chiefs or court favourites with a
mere courtesy title or just peasant cultivators.
The
following
description
by Baden-Powell Jt
page 508 of Volume I is illuminating.
He is dealing
with the decline of the Moghul Empire in the year 1713
and says that the decline was marked by a relaxation
of control,
not only over the outlying provinces, but
over the whole administrative machinery, and by the
substitution of plans of farming the revenues of convenient tracts.
Then comes this passage-
"Then it was that besides the Rajas, Chiefs and
ancient grantees, who had a real hold over the country,
and were already spoken of as the zamindars, other
classes
of persons were employed as farmers, and the
same name and the same designation came to be applied
·to them also.
As a matter of fact, we find ex-officials
1953
Biswambh.ar
Si•gh
v.
Tht Statt of
Orissa
and Others ..
BUse ].
1953
Biswambhar
Singh
v.
The State of
Orissa
and Others.
Bose].
860
SUPREME COURT REPORTS
[1954]
possessed
of wealth and energy-amils, karoris, etc.-
also bankers and court favourities, receiving the name
of zamindar.