# STATE OF BOMBAY April 5 v. SAR,DAR VENKAT RAO KRISHNA RAO GUJAR - **Citation:** [1963] 1 S.C.R. 428 - **Court:** Supreme Court of India - **Decided:** 1963 - **Bench:** A. K. Sarkar, K. SuBBA RAo, J. R. Mudholkar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bombay-april-5-v-sar-dar-venkat-rao-krishna-rao-gujar-2600 - **Pages:** 10 ## Headnote Abolition of Proprietary RigkUi-Settlement of aitea of holrlings in abarli-Uncovererl ottas anrl chabutra•, whether builrlinga-Builrlings, connotation of-M. P. Abolition of Proprietary RighUi (Estates, Mahala, Alienaterl Lanrls) Act, 1950 (M. P. I of 1951), s. fi(a). The proprietary interest of the respondent in his village was abolished by the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and all rights, title and interest were vested in the State bys. 4. Section 5(a) of the Act provide that where any "buildings" belonging lo the proprietor exist on any portion of the abadi land, that land together with the land appurtenant to those buildings shall be settled with the ex-proprietor. Land covered by ottaa and chabutras on which sheds had been constructed was settled with the respondent but not the land on which open uncovered ottas and chabutras existed. Held, that the respondent was entitled under section 5(a) of the Act to have the land on which uncovered ottaa and chabutras existed, as also the land appurtenant thereto, settled with him. Uncovered ottas and chabutras fell within the term "buildings" as used in s. 5(a). The provisions showed that where the proprietor had spent money on constructing something on an abadi site within the limits of the village sites, that site had to be settled with him. Accordingly the word "buildings" has to be given its literal meaning as S>mething which is built. Moir v. Williams, (1892) I Q. B. 217, Morri•on v. Oommissioners of Inlanrl R•venue, (1915; I K. B. 716 and Samuel Small v. Parkway Auto Supplies, 49 A. L. R. 1361, distinguished. CIVIL APPELLATK JURISDICTION: Civil Appeal No. 455/59. Appeal by special leave from the judgment and order dated January 16, 1956, of the former • I S.C.R. SUPREME COURT REPORTS 429 Nagpur High Court, in Misc. Petition No. 448 of 1954. N. S. Bindra and D. Gupta, for the appellants. Purshottam Trikamdas, G. J. Ghate and Naunit Lal, for the respondents. 1962. April 6. The Judgment of the Court, was delivered by MuDHOLKA.R, J.-The respondC>nt was a proprietor of mauza Bhivapur, Tehsil Umerer, District Nagpur. His proprietary interest in the village was abolished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. l of 1951 ). By virtue of s. 4 of the Act, all rights, titks and interests, among others, in all pathways, village sites, hats, bazars and melas in Bhivapur vested in the State of Madhya Pradesh for the purposes of the State free from all encumbrances under s. 4(l)(a) of the Act. Under the provisions of th~ States Re-organisation Act, 1956 those rights vested in the State of Bombay and now by virtue of Bombay He· Organisation Act, 1960 ( 11 of 1960) in the State of Maharashtra. The provisions of s. 4(l)(a) are as follows:- "All right~, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprie.,. tor in such area including Jand (cultivable or barren) grasEJ-land, scrub jungle, forest, trees, fisheries, wells, tanks, pondA, waterchannels, ferries, pathways, viJlage sites, hats, bazars and me]as; ......... shall cease and be vested in the State for purposes of the State free of all encumbrances;· and the mo1~g{l.ge debt or charge or any proprietary :r1gh.t shaJI be a charge on the amount of coznp"n1ation payable for such propriet:i.ry right to.·tbe proprietor qnder the provisions of thfS''Act:'' J96B Slat1 of Bombay v. S ardor .V enkat 1l ao Krishna Rao Gf9ar JI udholfcar J. 1962 Stele of B""ba)I •• S1rdar V•llk•I R o Kf"ishn.s Rae Gujar Mudholkar J. 439 SUPREME COURT REPORTS [1963] After the Act came into operation proceedings for compensation in respect of the village Bhivapur were started in the court of the Compensation Officer, Umrer, in Revenue case No. 583/l·A-4/1950-51 decided on January 19, 1952. The Compensation Officer held that 0.14 acres of land out of Khasra No. 61/l which is rec'orded i ## Text 428 SUPREME OOURT REPORTS [1963] 1962 STATE OF BOMBAY April 5. v. SAR,DAR VENKAT RAO KRISHNA RAO GUJAR (A. K. SARKAR, K. SuBBA RAo and J. R. MUDHOLKAR, JJ.) Abolition of Proprietary RigkUi-Settlement of aitea of holrlings in abarli-Uncovererl ottas anrl chabutra•, whether builrlinga-Builrlings, connotation of-M. P. Abolition of Proprietary RighUi (Estates, Mahala, Alienaterl Lanrls) Act, 1950 (M. P. I of 1951), s. fi(a). The proprietary interest of the respondent in his village was abolished by the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and all rights, title and interest were vested in the State bys. 4. Section 5(a) of the Act provide that where any "buildings" belonging lo the proprietor exist on any portion of the abadi land, that land together with the land appurtenant to those buildings shall be settled with the ex-proprietor. Land covered by ottaa and chabutras on which sheds had been constructed was settled with the respondent but not the land on which open uncovered ottas and chabutras existed. Held, that the respondent was entitled under section 5(a) of the Act to have the land on which uncovered ottaa and chabutras existed, as also the land appurtenant thereto, settled with him. Uncovered ottas and chabutras fell within the term "buildings" as used in s. 5(a). The provisions showed that where the proprietor had spent money on constructing something on an abadi site within the limits of the village sites, that site had to be settled with him. Accordingly the word "buildings" has to be given its literal meaning as S>mething which is built. Moir v. Williams, (1892) I Q. B. 217, Morri•on v. Oommissioners of Inlanrl R•venue, (1915; I K. B. 716 and Samuel Small v. Parkway Auto Supplies, 49 A. L. R. 1361, distinguished. CIVIL APPELLATK JURISDICTION: Civil Appeal No. 455/59. Appeal by special leave from the judgment and order dated January 16, 1956, of the former • I S.C.R. SUPREME COURT REPORTS 429 Nagpur High Court, in Misc. Petition No. 448 of 1954. N. S. Bindra and D. Gupta, for the appellants. Purshottam Trikamdas, G. J. Ghate and Naunit Lal, for the respondents. 1962. April 6. The Judgment of the Court, was delivered by MuDHOLKA.R, J.-The respondC>nt was a proprietor of mauza Bhivapur, Tehsil Umerer, District Nagpur. His proprietary interest in the village was abolished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. l of 1951 ). By virtue of s. 4 of the Act, all rights, titks and interests, among others, in all pathways, village sites, hats, bazars and melas in Bhivapur vested in the State of Madhya Pradesh for the purposes of the State free from all encumbrances under s. 4(l)(a) of the Act. Under the provisions of th~ States Re-organisation Act, 1956 those rights vested in the State of Bombay and now by virtue of Bombay He· Organisation Act, 1960 ( 11 of 1960) in the State of Maharashtra. The provisions of s. 4(l)(a) are as follows:- "All right~, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprie.,. tor in such area including Jand (cultivable or barren) grasEJ-land, scrub jungle, forest, trees, fisheries, wells, tanks, pondA, waterchannels, ferries, pathways, viJlage sites, hats, bazars and me]as; ......... shall cease and be vested in the State for purposes of the State free of all encumbrances;· and the mo1~g{l.ge debt or charge or any proprietary :r1gh.t shaJI be a charge on the amount of coznp"n1ation payable for such propriet:i.ry right to.·tbe proprietor qnder the provisions of thfS''Act:'' J96B Slat1 of Bombay v. S ardor .V enkat 1l ao Krishna Rao Gf9ar JI udholfcar J. 1962 Stele of B""ba)I •• S1rdar V•llk•I R o Kf"ishn.s Rae Gujar Mudholkar J. 439 SUPREME COURT REPORTS [1963] After the Act came into operation proceedings for compensation in respect of the village Bhivapur were started in the court of the Compensation Officer, Umrer, in Revenue case No. 583/l·A-4/1950-51 decided on January 19, 1952. The Compensation Officer held that 0.14 acres of land out of Khasra No. 61/l which is rec'orded in the village papers as aOOdi wherein a bazar is held, should be settled with the respondent under s. 5(a). On a portion of the land which was used for bazar, otf,as and chabutras, with or without sheds, and separated by passages, exist. It is common ground that they belong to the respondent. It is also common ground that the land covered by ottas and chabutras on which sheds have been constructed were ord~red to be settled on the respondent in the revenue case referred to above. The respondent's contention, however, was that not only the sheds and the land on which those sheds were erected but also the open uncovered ottas and chabutras should also have been settled w th him by virtue of tho provisions of s. 5(a) of the Act along with the land appurtenant to those structures. The total area or this land, according to him, is 2.85 acres. The respondent, therefore, preferred an appeal against the order of the Compensation Officer which directed settling only 0.14 acres of land on him. That appeal was, however, dismissed by tho Additional Commissioner of Land Reforms and Additional Commissioner of Settlement, Madhya Pradesh, on March 28, 1952. The respondent thereafter was asked to remove his ottas and ehabutras. Even so, the matter of settling land covered by ottas and chabutras on the ex-proprietors was being considered by Government. On May 16, 1952, a press note was iBBued by the Directoratl;l of Informa.tion and Publicity, Government of Madhya Pradesh, the material portion of which runs thus: ''Thci Government consider th~t the option ' 1 s.c.R. SUPREME COURT REPORTS 431 given to ex-proprietors to remove the material etc., might cause hardship to them in such cases. Government have, therefore, d~cided on the following lines of actioi1 in such matters: (i) where the ottas and chabutraswere,constructed in brick and stone, they should be allowed to remain with the ex-proprietors and the land thereunder should be settJed with them under section 5( a) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (1 of 1951) on terms and conditions determined by the Government; and (ii) where the ottas and chabutras are in mud, the land under thPm should be deemed to have vested in the State Government. But after this press note was issued the Government, apparently on the advice of its law officers, issued instructions to the Deputy Commissioners on June 22, 1954, to give one month's notice all ex-proprietors to remove the materials, clear the site of ottas and chabutras other than those on which there were sheds. In pursuance of this, a notice was issued to the respondent on July 13, 1954. Feeling aggrieved by this, the respondent preferred a petition under Art. 226 of the Const!tution before the High Court of Nagpur for issue of a Wl'it of mandamus or certiorari or other appropriate writ to quash the orders passed by the Compensation Officer and the appellate authority as '\rell as the order of the State Government of Madhya Pradesh dated June 22, 1954, and the notice issued in pursuance thereto on July 13, 1954. The High Court allowed the petition and set aside the impugned orders and directed the State Government to settJe ihe entire area. of Khasra No. 61/l of Bhivapur 19tJt Stall of Bombay v. S1J1d r Ve• Aat Rao Krishna Rao GuJar Mudholkar J. 1962 Slate of homb•.1 v. S•'-•r V1nkot Rao KrUhu Hao Gujar Muihtlkar J. 432 SUPREME COURT REPORTS [1963] with the respondent on such terms and conditions as may be determined by it. It may be mentioned that the entire area of Khasra No. 61/1 is 12.85 acres or so. The State of Madhya Pradesh sought a certificate from the High Court under Art. 133( 1 )( c) of the Constitution. But the certificate was not granted. Thereupon a special leave petition was made before this Court under Art. 136 of the Constitution. Leave was granted by this Court by its order dated March 18, 1957. That is how the appeal has come up before us. It may be mentioned that the High Court granted the petition of the respondent on the view that. oil.as and chabutras etc., are buildings within the meaning of s. 5(a} of the Act and that consequently the State Government was bound to settle the land covered by them with ex-proprietors along with land appurtenant to those structures. In the application made before the High Court for grant of certificate, the following three grounds were raised: 1'5. For that the total market area as claimed by the non-applicant being only 2.85 the entire abadi area. of 12.85 acres in Khasra No. 61/1 could not be granted and settled with the ex-proprietor. 6. For that the ottris and chabutras in the bazar area could not be held to be buildings contemplated under section 5(1 }(a} read with section 4(1)(a) of the Aot 1 of 1941 and could not be settled with the ex-proprietor under the law. 7. For that the buildings envisaged in the provisions 5(l)(a)are those buildings which are situated in the abadi.,and not those standing in bazars even though the bazar may also be located in the abadi and that ottas and clUJbutras et.c., in the bazar being an integral part thereof are oleitrly different from tho11e other I S.C.R. SUPREME COURT REPORTS 433 buildings used for agricultural or domestic purposes." It would, however, appear from para. 2 of the order of the High Court refusing certificate that the learned Advocate-General for the State did not challenge the correctness of the meaning given by the High Court to the word "buildings'' in s. 5(a) of the Act. But the contention he pressed was that the words "ottas and cha.butras" must be restricted to structures standing on the abadi of the village excluding that on which bazar was held, which under s. 4( l)(a) vests in the State. Before us however, 1\Ir. Bindra reiterated the contention which was originally pressed in the High Court that ottas and chnbutras cannot be regarded as buildings within the meaning of tha.t word in s. 5(a) of the Act. According to him the concession made by the learned Advocate.General was on a question of law and the State is entitled to withdraw that concession. In our opinion the question w he th er ottas and ch.abutras fall within the term "buildings" is not purely one of law and the State is not entitled to withdraw that concession. It would also appear from grounds 5 and 6 in the special leave petition that what was really sought to be urged before this Court was the contention actually pressed by the learned Advocate-General in support ·of the application for • grant of certifi.t:ate. All the ea.me we allowed Mr. Bindra to urge the oontention that ottq.s and chabutras are not included in the term ''buildings'' in s. 5(a) of the Act. The relevant portion of s. 5(a) of the Act reads thus: "Subject to the provisions in sectionCJ 4 7 and 63 - all open enclosures used for agricultural of domestic purposes and in continuous possession for twelve years immediatt>ly before 1948-49; all open houi;e-sites purohased for 1961 Sl•l1 of Bomb~y v. S1111Jar V enkat Rao KriahM R110 Oujar -- MudlwlluJrJ. 1961 State of Bombay •• Sardar V dial Bra Krishna Rao Gujar Mudholk .. J. 4~4 SUPREME COURT REPORTS [1963] consideration; all buildings; ............••• within the limits of a village site belonging to or held by the outgoing proprietor or any other person, shall continue to belong to or be held by such proprietor or other person as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine;" "Village site" means the abadi in an estate or a mahal. Section 5(a) is an exception to s. 4(l)(a) of the Act. No. doubt, s. 4( l )(a) provides for the vesting in the State of the land on which bazar is held. But reading that section along with s. 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the e denotes 'a structure or edifice including a spa.'.le within its wa.lls and usually covered · · with a roof, such as a house, a church, a shop, a barn or a shed.' The word 'building' cannot be held to include every species of erection on land, such as fences, gates or other like structures. Taken (l) (1915) I K.B. 176 at 722. (2) 4~ A.t.R. 1361 at 1363 •. 1962 - Stat• of Boml•y v. S1Jrda• V~nkat Rao Krishna Rao Gujar Mudho/hrJ. 1962 Slalt oJ Bombay v. Sardor Y1nkat R•o Krishna Rao