# GAYARAM PATEL & ORS v. KAILASH CHAND P ANIGRAHI f ef?ruary 20, 1979

- **Citation:** [1979] 3 S.C.R. 320
- **Court:** Supreme Court of India
- **Decided:** 1979
- **Case number:** Criminal Appeal No. 286 a' ' of 1973
- **Bench:** S. Murtaza Fazal Ali, A. D. Koshal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gayaram-patel-ors-v-kailash-chand-p-anigrahi-f-ef-ruary-20-1979-7794
- **Pages:** 9

## Headnote

Orissa Estates Abolition Act, 1951-S.1-"lntermediary" who is -Gaonda
·thik<1dari' whether intermedia,:Y.
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The ancestors of a former Zamindar dedicated their maufi interest in a 'Yillage in favour of a deity. Acting on behalf of the deity the ex-zamindar
created a lease of thikadari rights in the village in favour of the appellant for
ten years. The lease deed termed the appellant .. "legal guardian of gaontia
thikadari patta". While the lease was in force the Orissa Estates Abolition A':~
1951 which •ought to abolish all intermediaries in land and vest their intell'.S!
in the State came intO force. The Act however protected certain interme.tiarie&
thereby carving out an exception to the scheme of the Act.
Meanwhile the Managing Trustee of the Board of Trustee• appointed under
the Orissa Hindu Religious Endowments Act, 1951 to look after the affairs of
the deity filed a petition under s. 7 of the Abolition Act claiming that the deity
was in Khas possession of certain lands including the land lease to the appellant
and prayed that the same be settled on the Board of Trustees as an occupan::y
tenant. The question was eventually settled in favour of the Truateet and agair1st
the appellant.
fo the Managing Trustee's application under s. 145 Cr. P.C. aasertina that
the appellant was disturbing peaceful possession of the deity over the land, the
Magistrate held that it was the appellant who was in poaseaaion of the land
and directed that the land should be restored to him.
The High Court in revision set aside the order of the Maai1trate.
In appeal• to this Court the appellant contended that it was he and not the
deity, who was the thikadar and therefore an intermediary within the meaning
of the definition of that term in the Abolition Act and WM in Khaa possessi1)n
ef the land in dispute and so the land should be restored to him.
Allowing the appeals,
HELD : 1. It was the appellant who had the Khas poss~ssion of the land,.
and therefore, the land must be deemed to have been vested in him, and not
in the deity, as an occupancy tenant under the provisions of 11. 7 of the Abolition Act. [328 F]
2. Apart from the description of the appellant as gaontia thikadari patta.
condition 8 contains a. sure indication of the nature of the tenancy agreement.
It states "that the cultivable lands cannot be utilised for any other purpose nor
can they be transferred or sold or otherwise dealt with to the hardship of the
villagers or the tenants." [328 B-C]
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GAYARAM PATEL v. j(AILAS\I CHANp
(~mbal, J.)
321
3. The reference to tenants in !his condition points to the land bejng under
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the cuthvatiOn' of persons Other than· the 3.ppellant ai ·the mo'ment the lease was
granted. This position was incompatible with the grarit of~ an ordinary lease to
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him. The tenure. granted in his favour was on the other band one conferring on
him a right to collect the rents from the tenants of the deity and in lieu thereof
pay a fixed sum to it. He was, therefore, correctly
described as gacmtia or
thikadar, both of which expressions describe an intermediary as distinguiihed
from a raiyat or an acfoal tiller of the soil. [328 D-EJ
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## Text

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320
GAYARAM PATEL & ORS.
v.
KAILASH CHAND P ANIGRAHI
f ef?ruary 20, 1979
[S. MURTAZA FAZAL ALI AND A. D. KOSHAL, JJ.J
Orissa Estates Abolition Act, 1951-S.1-"lntermediary" who is -Gaonda
·thik<1dari' whether intermedia,:Y.
- ·- '. .
~-.
The ancestors of a former Zamindar dedicated their maufi interest in a 'Yillage in favour of a deity. Acting on behalf of the deity the ex-zamindar
created a lease of thikadari rights in the village in favour of the appellant for
ten years. The lease deed termed the appellant .. "legal guardian of gaontia
thikadari patta". While the lease was in force the Orissa Estates Abolition A':~
1951 which •ought to abolish all intermediaries in land and vest their intell'.S!
in the State came intO force. The Act however protected certain interme.tiarie&
thereby carving out an exception to the scheme of the Act.
Meanwhile the Managing Trustee of the Board of Trustee• appointed under
the Orissa Hindu Religious Endowments Act, 1951 to look after the affairs of
the deity filed a petition under s. 7 of the Abolition Act claiming that the deity
was in Khas possession of certain lands including the land lease to the appellant
and prayed that the same be settled on the Board of Trustees as an occupan::y
tenant. The question was eventually settled in favour of the Truateet and agair1st
the appellant.
fo the Managing Trustee's application under s. 145 Cr. P.C. aasertina that
the appellant was disturbing peaceful possession of the deity over the land, the
Magistrate held that it was the appellant who was in poaseaaion of the land
and directed that the land should be restored to him.
The High Court in revision set aside the order of the Maai1trate.
In appeal• to this Court the appellant contended that it was he and not the
deity, who was the thikadar and therefore an intermediary within the meaning
of the definition of that term in the Abolition Act and WM in Khaa possessi1)n
ef the land in dispute and so the land should be restored to him.
Allowing the appeals,
HELD : 1. It was the appellant who had the Khas poss~ssion of the land,.
and therefore, the land must be deemed to have been vested in him, and not
in the deity, as an occupancy tenant under the provisions of 11. 7 of the Abolition Act. [328 F]
2. Apart from the description of the appellant as gaontia thikadari patta.
condition 8 contains a. sure indication of the nature of the tenancy agreement.
It states "that the cultivable lands cannot be utilised for any other purpose nor
can they be transferred or sold or otherwise dealt with to the hardship of the
villagers or the tenants." [328 B-C]
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GAYARAM PATEL v. j(AILAS\I CHANp
(~mbal, J.)
321
3. The reference to tenants in !his condition points to the land bejng under
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the cuthvatiOn' of persons Other than· the 3.ppellant ai ·the mo'ment the lease was
granted. This position was incompatible with the grarit of~ an ordinary lease to
•
him. The tenure. granted in his favour was on the other band one conferring on
him a right to collect the rents from the tenants of the deity and in lieu thereof
pay a fixed sum to it. He was, therefore, correctly
described as gacmtia or
thikadar, both of which expressions describe an intermediary as distinguiihed
from a raiyat or an acfoal tiller of the soil. [328 D-EJ
I},
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 286
a' '
of 1973.
)
Appeal by Special Leave from the Judgment and Order
dated
.J
~. ,_ 16-5-1973 of the Orissa High Court in Crl. Revision No. 645
of
1972.
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AND
CIVIL APPEAL No. 2036 of 1973
Appeal by Special Leave from the Judgment and Order
dated
6-3-1973 of the Orissa High Court in O.J.C. No. 491/72.
J. L. Jain and Mrs. S. Gopalakrishnan for the Appellants.
G. Dass, Mrs. S. Bhandare and A. N. Karkhanis for
the
Respondent.
The Judgment of the Court was delivered by
KosHAL, J. By this judgment we shall dispose of Civil Appeal
No. 2036 of 1973 and Criminal Appeal No. 286 of 1973, both of
which have arisen from a dispute over a single piece of land and the
facts leading to which may be briefly stated.
Long before the year
1949, the ancestors of Shri Lal Anup Singh Dea, ex-zamindar of
'i<hariar dedicated their maufi interest in village Konabira in favour
of Sri Samaleswari Devi (hereinafter referred to as the deity). On the
10th May 1949 Shri Lal Annp Singh Dea aforesaid, acting on behalf
of the deity, created a lease of thikadari rights in the vilJage for a
~eriod of 10 years beginning with the 1st of June 1950 and ending on
the 31st May 1960 in favour of Gayaram Patel, who figures as the
!\Ppellant in each of the appeals and is hereinafter called Patel. The
geed of lease appears at pages 5 and 6 of the paper book in Civil
Appeal No. 2036 of 1973 and describes Patel thus :
"Gayaram Patel son of Bisram Patel, the legal gnardian
of gaonila thikadari patta"
The terms on which the lease was granted to Patel arc reproduced
below:-
(i) That the yearly rent payable shall be Rs. 109/- to
be paid before January of every year.
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SUPREME COURT REPORTS
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(ii) That in case of non-payment the lease is liable to
be cancelled.
(iii) That all the repairs, upkeep and development works
should be executed and for such works no compen5ation can be claimed. All the repairs, maintenance
of tanks, garden, buildings, etc., shall be carried ont
11t your responsibility.
(iv) That no injustice should be done to the community
in maintaining the abovementioned works.
(v) That no transfer is permissible in respect of the property.
(vi) That the property is to be maintained for the exclusive welfare of the community with the help, directions, orders and co-operation of the Estate Officer.
(vii) That the rules and regulations for forest lands are to
be obeyed.
(viii) That the cnltivable lands cannot be utilised for any
other purpose, nor can they be transferred or sold
or otherwise dealt with to the
hardship
of the
villagers or the tenants. If any· land is abandoned
and (?) takes a new land for cultivation he will be
liable nnder the law and be subjected to the payment of the usual rent.
The lease was acted upon and while it was in force, the Orissa
Estates Abolition Act, 1951 (hereinafter called the Abolition Act)
was promulgated. The object of that Act was to abolish all intermediaries and rent-receivers, to vest their interest in the State, and to
establish a direct relationship between the State and the tillers of the
soil. Section 3A of the Abolition Act authorised the State Government
to declare by notification that such interests have passed to and become vested in the State free from all encumbrances. A notification
of that type was issued by the State Government and became effective from the 1st of June 1959.
In the meantime a Board of Trustees had been appointed under
the Orissa Hindu Religious Endowments Act,
1951
(for
short
Endowments Act) with Shri Kailash Cha11dra Panigrahi as the
Managing Trustee to look after the affairs of _the deity on whose
behalf an application under section 7 read with section
8-A ( 1) of
the Abolition Act was made by the Managing Trustee after the said
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GAYARAM PATEL V. KAILASH CHAND (Koshal, J.)
3 23
notification had come into force.
It was claimed in the application
that the deity was in "Khas possession" of certain lands in village
Konabira and prayed that the same be settled on it as an occupancy
tenant.
The. application was resisted by Patel who claimed that it
was lie and not the deity who enjoyed the "Khas possession" of the
said land. The application was decided by the Tehsildar Khariar,
Tehsil Nawapara, acting as Collector under the Abolition Act.
He
. held that Patel was in "Khas possession" of o'nly one plot of land
which was designared by No. 5 and had an area of 20.14 acres but
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that such possession was held by him on behalf of the deity and not
.. . on his own account. In this view of the matter he passed the order
,
dated 13th June 1962, the operative part of which runs thus :
"Sir lands in village Konabira bearing plot No. 5 with
an area of 20.14 acres are settled on occupancy rights with
Gayaram Patel s/o Bisram Patel of Konabira, P. S. Kamna
Distt. Kalahandi for and on behalf of Samaleswari Devi of
Kemna, the Maufidar, u/s 7(1) (b) of the Orissa Estates
Abolition Act, 1951. A fair and equitable annual rent of
Rs. 6.75 np. is determined from the date of vesting release
rent from 1959-60 onwards."
On the 21st of October 1963, the Managing Trustee -0f the deity
made an application to the Assistant Commissioner of Endowments
under section 68 of the Endowments Act complaining that he had
been resisted by Patel in obtaining possession of the land
of
the
deity and praying for recovery of possession thereof from Patel. In
his order dated the 12th of January 1970, the Assistant Commissioner of Endowments allowed the application holding that it was the
deity and not Patel who had been declared to be the occupancy
tenant in the order dated 13th June 1962 abovementioned. Patel went
up in revision to the Conunissioner of
Endowments
but
without
success and thereafter knocked at the door of the Orissa High Court
with a petition under Articles 226 and 227 of the Constitution of
India seeking to have the orders of the Assistant Commissioner of
Endowments and the Commissioner of Endowments set aside. The
High Court however took the same view of the matter as was
expressed by authority appointed under the Endowments
Act
and
negatived the contentions raised on behalf of Patel, in its order dated
6th March 1973. It is that order which is challenged before us in
Civil Appeal No. 2036 of 1973 instituted by special leave.
In the meantime litigation had started between the
deity
and
Patel on the criminal side also. Claiming that the de,ity had recovered
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SUPREME COUR1' REPORTS
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P<Jl>Session of plot No. 5 abovementioned (which had by then come
!Cl 1:le designated by No. 15 and to have an area of 22.58 acres) on
t!ie 9th of Decell!ber 1970 through a warrant of possession dated
14th Febrμary 1970 issued by the Assistant Co=issioner of Endowments, the M anagjng Trustee filed an application dated 28th October
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~71 under section 145 of the Code of Criminal frocedure before. a
l\.fagistrate of the First Class at Nawapara against Patel,
who was
alleged to be disturbing the peaceful possession of the deity over the
h,)nd ill di,spute. A Preliminary order attaching the property was
passed by the Magistrate on the same day, i.e., 28th October 1971.
That order was however cancelled and the proceedings were dropped
on the 15th November 1971
in pursuance of a report dated
6th
November 1971
made
by the officer
incharge
of
the
· Police Siation, Kemna (within the territorial limits of which lay the
land ·in dispute) to the effect that there was no apprehension of a
breach of peace by the parties. Nevertheless, on the 20th November
1971, another report was received by the Magistrate from the same
officer revealing "an emergency" whereupon the Magistrate made a
direction that the preliminary order dated 28th
October 1971 re
given effect to and that the land be attached along with the · crops
standing thereon. Ultimately, the proceedings were finalised
through
an order dated 21st September 1972 passed by the Magistrate who
held that it was Patel who was in possession of the land in dispute
oll' the 20tJ1 November 1971, and directing that the land be restored
to him.
Aggrieved by the order of the Magistrate the Managing Trurtee
or the deity went up in revision to the H'gh Court, a learned Single
Judge of wl1ich set aside the same and directed delivery of possession
of the· land to the deity on the basis of the findings given below :
(1) The proceedings had. terminated on the 15til
November 1971 and the Magistrate has no jurisdiction to revive them five days later and to give effect
t0 the order of attachment which
already
stood
vacated.
(2) There had been a civil suit and a writ application in
rtspect of the land which has terminated in favour
of the deity.
(3) The matter had been taken up by the Endowments
Department which had delivered all properties to the
deity before the 29th April 1970.
It is this order of the High Court which is impugned in Criminal
Appeal No. 286 ,of 1973 by special leave of this Court.
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GAYARAM PATEL v. KJllLASH CHANt:J (Kvshal, J.)
325
2. In order to appreciate. the rival contentions of learned counsel for the parties it is necessary to make a refetehee to the relevant
pruvisions of the Abolition Act and to determine the party in whom
the occupancy temlllcy vests under section 7 there9f, As already
pointed -Oui the object of the .Aboiition ·Act was to 90 away with all
interfueili~ries and rept:reeeivers aJ\d to est~blish a djrect relationship
between the .State and thoo actual tillers of the soil. The preamble of
the Act states :
"Whereas in pursuance of the Directive Pdnciples of
State Policy laid dowh 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 that 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 discharge the above obligation it is expedient 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 such interest, 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 with; .............. "
Section 2 contains definitions. Clauses (f), (g), (h), (hh) and (j)
thereof are relevant to the dispute and are extracted below :
(f) "date of vesting" means in· relation to an estate
vested in the State the date of publication in
the
Gazette of the notification under sub-section (1) of
section 3 or sub-section (1) of
section
3-A in
respect of such estate and in the case of surrender
by an intermediary under section 4 the date of the
execution of the agreement;
(g) 'estate' includes a part of an estate and means any
land held by or vested in an Intermediary and included under one entry in any revenue roll or any
of the general registers of revenue-paying lands and
ievenue-free fands, prepared aild maintained under
the law relating to land revenue for the time being
in force or urtder any rule, order, custom or usage
having the foree of law, and inc1udes tevenue-free
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SUPREME COURT REPORTS
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lands not entered in any register or revenue-roll and
all classes of tenures or under-tenures and any Jagir,
iham or maufi or other similar i:rant;
(h) 'Intermediary' with reference to any .estate means a
proprietor,
sub-proprietor,
landlord,
landholder,
malguzar, thik:adar, gaontia, tenure-holder,
undertenure-holder, and includes an inamdar, a jagirdar,
Zamindar,
Ilaquadar,
Khorposhdar,
Parganadar,
Sarbarakar and Maufidar including the Ruler of an
lndian State merged with the State of Orissa and all
other holders or owners of interest in land between
the raiyat and the State;
(hh) 'Intermediary interest' means an estate or any rights
or interest therein held or owned by or vested in an
Intermediary and any reference to 'state' in this Act
shall be construed as including a reference to 'intermediary interest' also;
( j) .. Khas possession" used with reference to the possession of an Intermediary of any land used for
agricultural or horticultural purposes, means the possession of such in'ermcdiary by cultivating such land or
carrying on horticultural operations thereon himself
wHh his own stock or by his own servants or by
hired labour or with hired stock;
The provisions of section 3A have already been noted.
Then
comes section 7 which is all-important for the purpose
of resolving the present dispute. It states :
"7. ( 1) On and from the date of vesting-
( a) all lands used for agricultural or horticultural purposes which were in Khas possession of an Intermediary on the date of such vesting,
(b) lands used for agricultural or horticultural purposes
and held by a temporary lessee or lessees
of an
Intermediary who owns either as Intermediary or in
any other capacity less than thirty"three acres of
land in total extent situated within the State,
( c) lands used for agricultural or horticultural purposes
and in possession of a mortgagee,
which
immediately before the · execution of the mortgage bond
were in
Khas
possession of such
intermediary,
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GAYARAM PATEL v. KAILASH CHAND (Koshal, J.)
327
shall, notwithstanding anything contained
in this
Act, be deemed to be settled by the State Government with such Intermediary and with all the shareholders owning the estate and
such Intermediary
with all the share-holders shall be entitled to retain
possession thereof and hold them as raiyats under
the State Government having occupancy rights in
respect of such lands subject to the payment of such
fair and equitable rent as may be determined by the
Collector in the prescribed manner :
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Sub-section (1) of section SA requires Intermediaries to file their
claims in the prescribed manner for settlement of fair and equitable
rent in respect of land and buildings, which are deemed to be settled
with them under section 6 or section 7, before the Collector within
the specified period.
3. It would be seen that clauses (a), (b) and (c) o{ sub-section
(1) of section 7 protect certain Intermediaries and thus form exception> to the scheme of the Act which, generally speaking, conforms
to the object detailed in the preamble. In the present case we
are
not concerned with clause (c). According to learned counsel for
Patel his caoc falls within the ambit of clause (a). It is claimed on
his behalf that he was not merely a lessee or a temporary lessee under
the deity but was a thikadar aud, therefore, himself an Intermediary
within the meaning of the definition of that word occurring in clause
(h) of section 2 and that he being in "Khas possession" of the land
, in dispute on the elate of vesting was an Intermediary described in
clause (a). On the other hand, for the deity it is argued that Patel was
granted only a temporary lease in 1949, that he did not have any
status better than that of a Jessee, temporary or otherwise, and that
therefore his case was covered by clause (b) and not clause (a) so
that it was the deity who was entitled to be regarded as the occupancy
tenant on and from the date of vesting. The whole controversy thus
turns rouqd the position which Patel came to hold in respect of the
land in dispute under the 181lSe deed of 1949 and in order to assess
that position it is necessary to refer to the lease deed dated 10th May
1949. As noted earlier that deed itself describes Patel as
"gaontia
thikadari patta". Learned counsel for the diety has contended that
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supitliME COURT !U!PORTS
[1979] 3 s.c.R.
this description is really not correct and that the conditions of the
lease clearly make out a case of Patel being inducted into the land as
an ordinary lessee who was to till the land against payment of rent.
The ccirttetition (foes not appear to us to have any force. Apart from
the description of Patel as "gaoniia thikadari patia" the deed contanis
a sure inditatioh of the natute of the tenure granted in condition (8)
which states specilically :
'"fhat the cultivable lands cannot be utilised for any
other purpose, nor can they be transrerred or sold or otherwi5e dealt with lo the hardship of the vi:lagers or the tenants.
..
The reference to tenants is of considerable significance
and
points to land being under the cultivation of persons other than
Patel at the moment the lease was granted. This state of affairs
is
focoinpatible with the grant of an ordinary lease to Patel. The tenure
granted in his favour was on the other hand one corJerring on· him
a right to collect the rents from the tenants of the deity and in lieu
thereof pay a fixed sum of Rs. 109 /- per annum to it so that he wak
correctly described in the lease deed as a gaontia or thikadar, bnth of
which expressions describe an Intermediary as distinguished from a
raiyat or an actual tiller of the soil.
4: Once Patel is found to be an Intermediary his case must fall
within clause (b) of sub-section (1) of section 7 as it was he who
had the "Khas possession" of the land now in controversy, according
to the findings contained in the order dated 13th January 1962
pa.Ssed by the Collector and mentioned above, which have not been
F ·shown to us to suffer from any infirmity. And if that be so, the land
must be held to have vested in him, and not in the deity, as an occupancy tenant under the provisions of that section.
5 .. In the result both the appeals sncceed and are accepted, the
order of the High Court impugned in each being set aside and it being
directed that the possession of the land in dispute attached by the
order of the Magistrate in the proceedings nnder section 145 of the
Code of Criminal Procedure be delivered to Patel as an occupancy
tenaht under the State. the parties are however left to bear their own
costs throughout.
•
N.V.K..
Appeals allowed.
11roiPF-!9li SCI/79-27-9-79.:._1000