# THAKUR MANMOHAN DEO AND ANOTHER v. September I9,· THE STATE OF BIHAR AND OTHERS

- **Citation:** [1961] 1 S.C.R. 695
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-manmohan-deo-and-another-v-september-i9-the-state-of-bihar-and-others-2213
- **Pages:** 15

## Headnote

Ghatwali Tenure-Government ghatwalis-Applicability of
Bihar La1td Reforms Act-Legislative competence-Pith and substance of legislation-Bengal Regulation, r8r4 (Regulation 29 of
r8r4)-Bihar Land Reforms Act, r950 (Bihar 30 of r950), ss. 2(0)
(q) (r), 23 (I) {fl, 32(4).
The appellants were holders of ghatwali tenure called
Rohini apd Pathrole ghatwalis and were governed by Bengal
Regulation XXIX of 1814. The Bihar Land Reforms Act, 1950,
was enacted-by the Bihar State Legislature and came into force
on September 25, 1950. In suits instituted by the appellants
the question was raised as to whether under the provisions of
the Act the State could acquire their ghatwalis, They claimed
(1) that th.e Act was not applicable to the Government ghatwali
tenure~ like Rohini and Pathrole ghatwalis which could not be
acquired by the State under s. 3 of the Act, in view of the definition clause ins. 2 and ss. 23 (1) (f) and 32(4), (2) that the Act
did not purport to repeal Bengal Regulation XXIX of 1814 an!i
inasmuch as the said Regulation dealt with special tenures, the
special law enacted with regard to such tenures would not be
affected by the general law with regard to land reforms as
embodied in th.e Act, and (3) that, in any case, ghatwali tenures,
being of a quasi-military nature, must be held to. fall under
Entries l and 2 of List I of the Seventh Schedule to the Constitution of India and, therefore, the Act was outside the competence of the State Legislature.
Held: (1) that all ghatwali tenures including government
ghatwalis came within the definition clause in s. 2 of the Bihar
Land ~eforms f'.ct, 1950, and that ss. 23(1_) (f) and 3.2(4), though
they might be mapphcable to the ghatwah tehures m question"
did not have the effect of excludmg such tenures from the operation of the other provisions of the Act ;
(2) that the Act in pith and substance related to acquisition
of property and was covered by Entry 36, List II, Seventh
Schedule to the Constitution and had no relation to Entries 1
- and 2 of List I. Consequently, the State Legislature was com-
•. petent to enact the Act ;
89
1960
T/i(Jkur
1\fan111ohan Deo
v.
State of Bil1ur
696
SUPRE:\1E COURT REPORTS
[1961]
Tlze State of Bihar v. Mahar•jadhiraja Sir .Kameshwar Singh
of D11rbhat1ga and Others, (1952] S.C.R. 898, followed.
(3) that the principle that a special law relating to special
tenure is not affected by a subsequent general law of land
reforms had no application to the Act which in pith and substance related to acquisition of property and no question of the
repeal of Regulation XXlX of 1814 arose.
Raja Suriya l'al Singh '" 'the Stair of U. I'. alid Another,
(1952] S.C.R. !056, applied.
CrvrL APPELLATE Junrsnrr.TroN: Ch·il App,.a\8
:"\os. 273 and 274 of 1955.
Appeals from the judgment and order dated December 10, 1954, of the Patna High Court in Appeals from
Original Decree Nos. 309 and 310 of 1954.
L. K. Jlia, J.C. Sinha, S. Mustafi and R. R. Biswas,
for the appellants.
.
'
Lal Narayan Sinha, Bajrang Sahai and R: C. Prasad,
for the respondents
1960. September 19. The ,Judgment of the Court
was delivered by
s. K. Da' J.
S. K. DAS J.-These two appeals on a certificate
granted by the High Court of Patna. a.re from the
judgment and decree of the said High Court dated
December 10, 1954. By the said judgment and decree
the High Court dismissed two appeals which a.rose out
of two suits, Title Suit no. 42 of 1950 and Title Suit
No. 23 of 1952, which were tried together and dismissed with costs by the learned Subordinate Judge
of Deoghar.
The plaintiffs of those two suits are the appellants
before us.
One of the appellants Thakur Manmohan
Deo was the holder of a ghatwali tenure commonly
known as the Rohini gha.twali, situate within the subdivision of Deoghar in the district of the Santal Parga.nas. The other appellant Tikaitni Faldani Kuma.ri
was the holder of the Pathrole gha.twa.li also situa.tfin the same sub-division. Doth these gha.twa.li tenures
were formerly known a.s Birbh

## Text

1 s.c.R. SUPREME COURT REPORTS
695
THAKUR MANMOHAN DEO AND ANOTHER
1960
V.
September I9,·
THE STATE OF BIHAR AND OTHERS.
(AND CONNECTED APPEAL)
(S. K. DAS, J. L. KAPUR, K. SUBBA RAO,
M. HIDAYATULLAH and
N. RAJAGOPALA AYYANGAR, JJ.)
Ghatwali Tenure-Government ghatwalis-Applicability of
Bihar La1td Reforms Act-Legislative competence-Pith and substance of legislation-Bengal Regulation, r8r4 (Regulation 29 of
r8r4)-Bihar Land Reforms Act, r950 (Bihar 30 of r950), ss. 2(0)
(q) (r), 23 (I) {fl, 32(4).
The appellants were holders of ghatwali tenure called
Rohini apd Pathrole ghatwalis and were governed by Bengal
Regulation XXIX of 1814. The Bihar Land Reforms Act, 1950,
was enacted-by the Bihar State Legislature and came into force
on September 25, 1950. In suits instituted by the appellants
the question was raised as to whether under the provisions of
the Act the State could acquire their ghatwalis, They claimed
(1) that th.e Act was not applicable to the Government ghatwali
tenure~ like Rohini and Pathrole ghatwalis which could not be
acquired by the State under s. 3 of the Act, in view of the definition clause ins. 2 and ss. 23 (1) (f) and 32(4), (2) that the Act
did not purport to repeal Bengal Regulation XXIX of 1814 an!i
inasmuch as the said Regulation dealt with special tenures, the
special law enacted with regard to such tenures would not be
affected by the general law with regard to land reforms as
embodied in th.e Act, and (3) that, in any case, ghatwali tenures,
being of a quasi-military nature, must be held to. fall under
Entries l and 2 of List I of the Seventh Schedule to the Constitution of India and, therefore, the Act was outside the competence of the State Legislature.
Held: (1) that all ghatwali tenures including government
ghatwalis came within the definition clause in s. 2 of the Bihar
Land ~eforms f'.ct, 1950, and that ss. 23(1_) (f) and 3.2(4), though
they might be mapphcable to the ghatwah tehures m question"
did not have the effect of excludmg such tenures from the operation of the other provisions of the Act ;
(2) that the Act in pith and substance related to acquisition
of property and was covered by Entry 36, List II, Seventh
Schedule to the Constitution and had no relation to Entries 1
- and 2 of List I. Consequently, the State Legislature was com-
•. petent to enact the Act ;
89
1960
T/i(Jkur
1\fan111ohan Deo
v.
State of Bil1ur
696
SUPRE:\1E COURT REPORTS
[1961]
Tlze State of Bihar v. Mahar•jadhiraja Sir .Kameshwar Singh
of D11rbhat1ga and Others, (1952] S.C.R. 898, followed.
(3) that the principle that a special law relating to special
tenure is not affected by a subsequent general law of land
reforms had no application to the Act which in pith and substance related to acquisition of property and no question of the
repeal of Regulation XXlX of 1814 arose.
Raja Suriya l'al Singh '" 'the Stair of U. I'. alid Another,
(1952] S.C.R. !056, applied.
CrvrL APPELLATE Junrsnrr.TroN: Ch·il App,.a\8
:"\os. 273 and 274 of 1955.
Appeals from the judgment and order dated December 10, 1954, of the Patna High Court in Appeals from
Original Decree Nos. 309 and 310 of 1954.
L. K. Jlia, J.C. Sinha, S. Mustafi and R. R. Biswas,
for the appellants.
.
'
Lal Narayan Sinha, Bajrang Sahai and R: C. Prasad,
for the respondents
1960. September 19. The ,Judgment of the Court
was delivered by
s. K. Da' J.
S. K. DAS J.-These two appeals on a certificate
granted by the High Court of Patna. a.re from the
judgment and decree of the said High Court dated
December 10, 1954. By the said judgment and decree
the High Court dismissed two appeals which a.rose out
of two suits, Title Suit no. 42 of 1950 and Title Suit
No. 23 of 1952, which were tried together and dismissed with costs by the learned Subordinate Judge
of Deoghar.
The plaintiffs of those two suits are the appellants
before us.
One of the appellants Thakur Manmohan
Deo was the holder of a ghatwali tenure commonly
known as the Rohini gha.twali, situate within the subdivision of Deoghar in the district of the Santal Parga.nas. The other appellant Tikaitni Faldani Kuma.ri
was the holder of the Pathrole gha.twa.li also situa.tfin the same sub-division. Doth these gha.twa.li tenures
were formerly known a.s Birbh um ghatwa.lis and wern
governed by Benge.I Regulation XXIX of 1814.
In
the year 1950 was enacted the Bihar Laud Reforms Act
1 S.C.R. SUPREME COURT REPORTS
697
1950 (Bihar Act 30 of 1950), hereinafter called the Act.
The Act came into force on September 25, 1950.
Tho
validity of the Act was challenged in the ·Patna--High
Court on grounds of a violation of certain fundamental rights and the High Court held it to be unconstitutional on those grounds. The Constitution (First
Amendment) Act, 1951, was enacted on June 18, 1951,
and in appeals from the decision of the 'Patna High
Court, this Court held in The State of Bihar v. Maharajadhiraja Sir Kame11hwar Singh of Darbhanga (1)
that the Act was not unconstitutional or void on the
grounds alleged, except with regard to the provisions
in s. 4(b) and s. 23(f) thereof. The validity of the Act
is, therefore, no longer open to question on those
grounds, though in one of the suits out of which these
two appeals have arisen, it was contended that the
Act was ultra .vires the Constitution.
The principal hsue in the two suits which now
survives is issue no. 3 which said: "Do the provisions of the Bihar Land Reforms Act., 1950, purport
to acquire the plaintiffs' ghatwalis? If so, are they
ultra vires in their application to such ghatwalis? This
issue was decided against the appellants by the learned Subordinate Judge and the decision of the learned
Snbordinate Judge was upheld on appeal by the High
Court of Patna in its judgment and decree dated
December 10, 1954, from which decision these two
appea.ls have come to us.
Three main points have been urged on behalf of the
appellants. The first point is one of construction and
the appellants contend that on a proper construction
of the relevant provisions of the Act, it does not apply
to ghatwali tenures like the Rohini and Pathrole
ghatwalis. Secondly, it is contended that if the provisions of the Act apply to the appellants' ghatwali
tenures, then the State legislature was not competent
lo enact it, because ghatwali tenures like the Rohini
n.nd Pathrole ghatwalis, were of a quasi-military
nature and if the Act, applies to them, it must be held
to relate to items 1 and'2 of the Union List (List l)
and, therefore, outside the competence of the State
(r) [1952) S.C.R. 898.
r960
Thakur
]YI anmohaii Deo
v,
Sfatt of Bihar
TJuik11r
}.f at1t11ohan Deo
v.
Stoia of Biha1
S. K. Das J.
698
SUPREME COURT REPORTS
[1961]
legislature. The third contention is that tho Act does
not purport to repeal Bengal Regulation XXIX of
1814 and in as much as the said Regulation <lea.ls
with special tenures, the special law enacted with
regard to such tenures would not be affected by the
general law .with regard to land reforms as embodied
in the Act.
Wo shall deal with these three contentions in the order in which we havo stated them. But
before we do so, it is necessary to explain, briefly, the
nature of these ghatwali tenures.
We may quote here some of the provisions of Bengal Regulation XXIX of 1814. The Regulation says
in s. I that lands held by the class of persons denominated ghatwals in the district of Birbhum form a
peculiar tenure to which the pi:ovisions of the existing
Regulations a.re not expressly applicable; it then states
that according to the former usages a.nd constitution of
the country, this class of persons are entitled to hold
their lands, generation after generation, in perpetuity,
subject nevortheless to the payment of a fixed and
established rnnt to the zamindar of Birbhum and to
the performance of certain dutios for the maintenance
of the public peace and support of the police. The
Regulation then lays down certain rules to give
stability to the arrangement established among the
ghatwals and these rules are contained in ss. 2, 3, 4
and 5. It would be enough if we quote ss. 2, 3 and a.
pa.rt of s. 5.
"S. 2. A settlement having lately been made on
the part of the Government with the ghatwals in the
district of Birbhum, it is hereby declared that they
and their descendants in perpetuity shall be maintained in possession of the lands so long as they shall
respe~t; ~ 0Iy pay the revenue at present assessed upon
them, and that they shall not be liable to any enhancement of rent so long as thoy shall punctually
discharge the same and fulfil the other obligations of
their tenure.
S. 3. The ghatwali lands shall be oonsidered, as
at present, to. form a pa.rt of the za.mindari of Birbhum; but the rent of ghatwa.ls shall be paid direot
to the Assistant Colleotor stationed at Suri, ,or to
/
I S.C.R. SUPREME COURT REPORTS
699
such other public officer as the Board of Revenue
may direct to receive the rents.
S. 5. Should any of the ghatwals at any time fail
to discharge their stipulated rents, it shall be competent for the State Government;
to cause the ghatwali tenure of such defaulter to
be sold by public .sale in satisfaction of the arrears
due from him,. in like "manner, and under the same
rules, as lands held immediately of Government, or
to make over the tenure of such defaulter to any person whom the State Government may approve on the
condition of making good the arrear due ; or
to transfer it by grants assessed with the same
revenue, or with an increased or reduced assessment,
a.s to the Government may appear meet ; or
to dispose of it in such other form and manner as
shall be judged by the State Government proper."
In a number of decisions of the Privy Council the
nature of these tenures has been explained and in
Satya Narayan Singh v. Satya Niranjan Chakravarti (1)
Lord Sumner thus summarised the position at pages
198, 199 of the ·report :
" In the Santai Parganas there are for practical
purposes three classes of ghatwali tenures, (a) Government ghatwalis, created by the ruling power; (b)
Government ghatwalis, which since their .creation
and generally at the time of the Permanent Settlement have been included in -a zamindari estate and
formed into. a unit in its assessment; and, (c) zamindari ghatwalis, created by the zamindar or his predecessor and alienable with his consent. The second
of these classes is really a branch of the first. · The
matter may, however, be looked at broadly. In
itself' ghatwa.l' is a term meaning an office held by a
pa.rticula~ person from time to time, who is bound to
the performance of its duties, with a C\:!nsideration to
to be·enjoyed in return by the incumbent of the office.
Within .th.is meaning the utmost variety of conditions
may exist. There may be a mere personal contract of
employment for wages, which takes the forQl of the
use of land or an actual estate in land, heritable a.nd
(1) l.L.R. 3 Pat. 183.
1960
l"hakur
lv! an1nohan Dro
v.
State of Bihar
S. /(. Das ].
Tlicil111r
,\fa 11:•;t·lwH
JJco
v.
Sta/a of Dihar
.':i. /\. Da~ j.
700
Sl'PREl\IE COl'RT REPORTS
[1961]
perpetual, bnt conditional upun services certain or
•.irvice8 lo be demanded. The office may be public
or private, important or the reverse.
Tho ghatwa.l,
the guard of the pass, may be the bulwark of a whole
country-side against invaders; he ma.y be merely a.
sentry against petty marauders; he ma.y be no more
than a. kind of gamekeeper, protecting the crops from
the ravages of wild animals.
Ghat.we.Ii duties ma.y be
divided into police duties a.nd quasi-military duties,
though both clas~es have lost much of their importance, and the latter in any strict form 1ire but rarely
rendered.
Again the duties of the otlice may be such
as 1lema.nded personal competence for that dischargo;
they may, on tho other hand, be such as can be discharged Yicariously, by the creation of shikmi tenures
and by the appointment and maintenance of a suborrlinat~ force, or they ma.y be such a.s in their nature
only require to be provided for in bulk. It is plain
that where a grant is forthcoming to a man and his
heirs aH ghatwal, or i~ to bo presumed to ha,ve been
rna.Je though it may have been since been lost, personal performance of the ghatwa.li services is not
essential so long a.s the gra.utee is responsible for them
a.nrl procures them to he rendered (Shib Lall Singh v.
Mooracl Khan(')).
80 much for the ghalwal. The
superior, who appoints him, may al•o in the varying
eireumstanccs of tho organisation of Hindostan be
th<' rnliug power over the country at large, the landholder rMponsihle by custom for the maintenance of
security and order within his estales, or simply the
private person, to whom tho maintenance of watchmen is in the case of an extensive property, import-
· ant enough to require the creation of a regular office."
It i" not disputed before us that tho Hohini and
Pa"tlirole ghatwalis arc Government ghatwalis and
admittedly they arc governed by Regulation, XXIX
of 1814.
The question noll' is, does the Act apply t-0 these
gha.t walis Y It is necessary now to read some of tho
provisions of the Act.
8ection 2 is the definition section, cl. (o) whereof defines a "proprietor", cl. (q)
(1) (18b8) 9 W.R. 126.
I S.C.R. SUPREME COURT REPORTS
701
defines a "tenure" and cl. (r) defines a "tenureholder ". The definition of the
tw_o expressions
"tenure" and "tenure-holder" was amended by Bihar
Act 20 of 1954. The amendments were made with
retrospective effect and the amending Act said that
the amendments shall be deemed always to have been.
substituted. Now, the three clauses (o), (q) and {r)
of s. 2 are in these terms :
"S. 2(o)-" Proprietor" means a person holding
in trust or owning for his own benefit an estate or part
of an estate, and includes the hefrs and successors-ininterest of a proprietor and, where a proprietor is a
minor or of unsound mind or an idiot, his guardian,
committee or other legal curator ;
( q) " tenure " means the interest of a tenureholder or an under-tenure-holder and includes-
(i) a ghatwali tenure,
(ii) a tenure created for the maintenance of any
person and commonly known as kharposh, b!J,buana,
etc., and
(iii) a share in or of a tenure, but does not include
a Mundari Khunt Kattidari tenancy within the
meaning of the Chota Nagpur Tenancy Act, 1908,
or a bhuinhairi tenure prepared and confirmed under
the Chota Nagpur Tenures Act, 1869;
(r) "tenure-holder" means a pEirson who has
acquired from a proprietor or from any other tenureholder a right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it and includes-
.
(i) the successors-in-interest of persons who have
acquired such right,
.
(ii) a person who holds such right in trust,
(iii) a holder of a tenure created for the maintenance of any person,
(iv) a ghatwal and the successors-in-interest of a
ghatwal, and
(v) where a tenure-holder is a minor or of unsound mind or an idiot, his guardian, committee or
other legal curator."
The definition clauses ( q) and (r) state in express terms
r960
ThakHr
P.1 a ninohan Deo"
v.
State oj Bihar
S. K. Das J.
702
SUPREME COURT REPORTS
(1961]
r96o
tha.t ' tenure' includes a. gha.twa.li tenure a.nd, ' tenureT ' h
holder ' includes a. gha.twa.l a.nd the successors-inna "'
•
f
h
Mallmohan neo rnterest o a. g atwa.1. The a.rgument on behalf of the
v.
·
a.ppella.nts is that tho definition clauses should be so
State of Bihar construed a8 to include zaminda.ri gha.twa.lis only a.nd
not Govornment ghatwalis. :Firstly, it is pointed out
s. K. Das J.
that cl. (r) in its substa.ntive pa.rt sa.ys that a 'tenuroholder' means a person who has acquired from a proprietor or from any other tenure-holder a. right to
hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it;
this pa.rt, it is submitted, cannot apply to a. Government gha.twa.l, because a Government gha.twal does
not acquire from a. proprietor or from any other tenure.
holder a right to hold la.nd for any of the two purposes mentioned therein.
In this connection our
attention ha.s been drawn to cl. (o) which defines a.
' proprietor' and it is further pointed out that, a.s
stated by Lord Sumner, Government gha.twa.ls were
either created by the ruling power or were since their
creation and genera.Hy a.t the time of the Perma.nent
Settlement included in a. za.minda.ri esta.te a.nd formed
int-0 a. unit in its a.ssessment; therefore, it is a.rgued
that Government gha.twa.lis did not acquire a.ny right
from a. proprietor or any other tenure. holder. Secondly, it is submitted that sub-cl. (i) of cl. ( q) and sub.
cl. (iv) of cl. (r) must be read in the light of the substantive pa.rt of the two clauses, even though the subclauses state in express terms that a. ' tenure ' includes
a. gha.twa.li tenure and a 'tenure-holder' inclues a.
gha.twa.l. It is pointed out that a za.minda.ri gha.twa.l
acquires his interest from a. proprietor and the substantive pa.rt of els.uses (q) and (r) may a.pply to a.
za.minda.ri gha.twa.l and his tenure but the substantive
pa.rt of the two clauses cannot apply to a. Government
ghe.twe.l and his tenure. We a.re unable to accept
this line of argument a.s correct.
Where e. sta.tute sa.ys in express terms that the
expression 'tenurn ' includes a. gha.twe.li tenure a.nd
the expression 'tenure-holder' includes e. ghe.twe.l and
the successors-in-interest of e. ghe.twa.l, there must be
compelling rea.sons to out down the amplitude of the
J
1 S.C.R. SUPREME COURT REPORTS
703
two express10ns.
The Bihar legislature must have
been aware of the distinction between Government
ghatwalis and zamindari ghatwalis and if the intention was to exclude Government ghatwalis, nothing
could have been easier than to say in the two definition clauses that they did not include Government
ghatwalis. On the contrary, the legislature made no
distinction between Government ghatwalis and zamindari ghatwalis but included all ghatwali tenures within the definition clauses. There are no restrictive
words in the definition clauses and we see no reasons
why any restriction should be read into them. It is
worthy of note that the two definition clauses first
state in the substantive part what the general meaning of the two expressions is, and then say that the
expressions shall inter alia include a ghatwali tenure
and a ghatwal and the successors-in-interest of a
ghatwal. Thus, the two definition clauses are artificially extended so as to include all ghatwali tenure.a and
all ghatwals and their successors-in-interest, irrespective of any consideration as to whether they come
within the general meaning stated in the substantive
part of the two clauses. Such artificial extension of the
two clefinition clauses is also apparent from sub-cl. (v)
of cl. (r) and sub.cl. (iii) of cl. (q). Sub-.clause (iii) of
cl. ( q) excludes certain tenures from
~he definition
clause which would otherwise come within the general
meaning of the expression 'tenure' and sub-cl. (v) of
· cl. (r) extends the expression ' tenure-holder' to guardians committees and curators. When we are dealing
with ari artificial definition of. this kind which states
1" means and shall include etc.", there is no room for
an argument that even though the definition expressly states that something is included within a particular expression, it must be excluded by reason of its
not coming within the general meaning of that
expression.
The learned Counsel for the appellants has also
called to his aid certain. other provisions of the Act in
support of the argument that the Act does not apply
to Government ghatwa!is. He has referred to s. 23(1)
90
Thakur
M anniohan Deo
v.
State of Bihar
S. K. {)as ].
704
SUPREME COURT REPORTS
[ 1961]
i96o
(f) and s. 32(4) of the Act. Section 23 deals with the
1 h ,
computation of net income for tho purpose of prepa.-
.11 .... ,,0~.::' 0 , 0 ring a Compensation Assessment-roll, by deducting
v.
from the gross asset of ea.ch proprietor or tenures1a1e of l<ih<o
holder, certain sums mentioned in cla.uReR (a.) to (f).
It must be stated that what was cl. (g) of s. 23(1)
s. 1'- Das J.
b~fore has now become cl. (f), because the original
cl. (f) of s. 23(1) was held to be unconstitutional by
this Court in The State of Bihar v. Maharajadhiraja
Sir Kameshwar Singh of Darbhanga('). Section 23(1) so
far as it is relevaut for our purpose states :
"S. 23(1) For the purpose of preparing a Compensation Assessment.roll, the net income of a. proprietor or a tenure-holder shall be computed by
deducting from the gross asset of such proprietor or
tenure-holder, a.s the ca.so may be, the following,
na.mely:-
(a.) ............................................................ .
(b) ........................................................... ..
(c) ............................................................ .
(d) ........................................................... ..
(e) ............................................................ ..
(f) any oth~r tax or legal imposition payable in
respect of such estate or tenure not expressly mentioned in clauses (a.) to (e) or the value, to be commuted in
the prescribed manner, of any services or obligations
of any other form to be rendered or discharged as a.
condition precedent to his Pnjoyment of such estate or
tenure".
Now, the argument before us is that cl. (f) of s. 23(1)
cannot apply to a Government gha.twa.I, because he
can still be asked to perform the services and obligations which he had undertaken by reason of the
office which he held. It is submitted that the Act
does not purport to abolish the ghatwali office and as
the office and the tenure a.re inseparably connected,
the calculation referred to in cl. (f) cannot be ma.de in
the case of a Government ghatwali. Our attention
has also been drawn to a later decision of the Patna
High Court (Election Appeals nos. 7 and 8 of 1958) of
March 20, 1959, wherein a distinction was drawn
(1) [1952] S.C.R. 1198.
I S.C.R. SUPREME COURT REPORTS
705
between acquisition and resumption of a ghatwali
'9~
0
tenure and the argument that on the acquisition of
Thaku'
the gbatwali tenure the office lapsed was not accepted. Ma 11moha" D•o
We have been informed at the Bar that. that decision
v.
i~ under appeal to this Court .. 'fherefore, we do not Stal••/ Bil1ar
propose to say anything about the correctness or
otherwise of the view expressed therein. It is enough
s. K. Das f.
to point out that assuming that the argument of the
appellants is correct and cl. (f) of s. 23(1) does not
apply, it does not necessartly follow that the a ppelIants' ghatwali tenures cannot be acquired by the
Stn.te Government under s. 3 of the Act. Section
23(l)(f) provides only for the deduction of a particular
item from the gross·asset 6f the tenure-holder for the
purpose of computing the net income. Even if cl. (f)
does not apply, the statute provides for other deductions mentioned 'in clauses (a.) to (e).
Those clauses
indisputedly apply to a. gbatwali tenure and a Compensation Assessment-roll can be prepared on their
basis. It would not be correct to say that because a
particular item of deduction does not apply in the
case of a Government ghatwali, such ghatwali tenure
must be excluded from the ambit of the Act; such a
view will be inconsistent with the scheme of s. 23.
The scheme of s. 23 is that certain deductions have to
be made to compute the net income ; some of the
items may apply in one case and some may not·
apply. The section does not contemplate that a.II the
itemR must apply in the case of each and. every proprietor or tenure-holder.
\Ve -now come to s. 32 of the. Act. Section 32(4)
states :
·
"S. 32(4) if the estate or tenure in respect of
which the compensation is payable is held by a limite? owner or the holder of life-interest, the Compensation Officer she.II keep the amount of compensation in
deposit with the Collector of the distrfot and the
Collector shall direct the payment of the interest
accruing on the amount of compensation to the limited owner or the holder of the life interest during his
lifetime. Such a.mount shall remain deposited with
the Collector until the a.mount of compensation or
Thakur
M atouoAati Dto
v.
Statt of BiAar
S. K. Das].
706
SUPRE::IIE COURT REPORTS
[1961]
portion thereof after making payments, if any, under
the proviso to this sub-section is ma.de over to any
person or persons becoming absolutely entitled thereto :
Provided that nothing in this sub-section shall be
deemed to affect the right of any limited owner or the
holder of a life interest to apply to the District Judge
for the payment of a pa.rt of the a.mount of compensation to defray any ex_penses which may be necessary
to meet any legal necessity."
It is argued that sub-s. (4) of s. 32 is also ·not applicable to 11 Government ghatwali, because the expression ' limited owner ' occurring therein has been used
in the sense in which it is understood in Hindu Law
and the holder of a Government gha.twali is not a
limited owner in that sense. Learned Counsel for the
appellants has drawn our attention to the expression
'legal necessity' occurring in the proviso to sub-s. (4)
in support of his argument that the expression 'limited owner ' has the technical sense ascribed to it in
Hindu Law. On behalf of the respondent State it has
been argued that the expressions' limited owner' and
'legal necessity' are not used in any technical sense
and may apply to persons who under the conditions
on which they hold the tenure cannot alienate or
divide it. Here again we consider it unnecessary to
pronounce on the true scope and effect of sub-s. (4) of
s. 32. The short question before us is-a.re Government ghatwalis excluded from the am bit of the Act
by reason of sub-s. (4) of s. 32? Let us assume without deciding, that sub-s. (4) does not apply to ghatwali tenure. What is the result? Section 32 merely
provides for the manner of payment of compensation.
If sub-s. (4) does not apply, the payment of compen-
·Bation will have to be made in accordance with subs. (1) of s. 32 which says:
"S. 32(1). When the time within which appeals
under section 27 may l)e made in respect of any entry
in or omission from a Compensation Assessment-roll
has expired or where any such appeal has been made
under that section and the same has been disposed of,
the Compensation Officer shall proceed to make pay·
ment, in the manner provided in this section, to the
..
•
1 S.C.R. SUPREME COURT REPORTS
707
proprietors, tenure-holders and other persons who are
shown in such Compensation Assessment-roll as finally
r960
T hahur
published under section.28 to be entitled to compenManmohan Dea
sation, of the compensation payable to them in terms
v.
of the said roll after deducting from the amount of State of Bihar
any compensation so payable any amount which has
been ordered by the Collector under clause (c) of section 4 or under any other section to be so deducted."
Therefore, the result is not that Government ghatwalis will go out of the Act, because sub-s. (4) does
not apply. The result only is that the holders of such
tenures will be paid· compensation in a different
manner. What rights others having a proprietary
interest in a ghatwali tenure have age.inst the compensation money does not fall for decision here.
Therefore, we are of the view that neither s. 23(1)(f)
nor s. 32(4) have the necessary and inevitable result
contended for by the appellants, viz., that the appellants' ghe.twali tenures must be excluded from the
operation of the Act even though the definition
clauses expressly include them.
.
This brings us to the second point urged before us.
That point can be disposed of very shortly. It is
contended that if the provisions of the Act apply to
Government ghatwalis, then the Act falls outside the
legislative competence of the State Legislature in as
much as the Act then becomes legislation with regard
to items 1 and· 2 of the Union List. These two
items are-
" 1. Defence of India and every part thereof
including preparation for defence and all such acts as
may be conducive in times of war to its prosecution
and after its termination to effective demobilisation.
2. Naval, military and air forces; any other
armed forces of the Union."
It is, we think, quite obvious that the Act has no connexion whatsoever with the defence of India or the
armed forces of the Union. As Lord Sumner had
pointed out as far be.ck as 1923, though ghatwali
duties might be divided into police duties and quasimilita.ry duties, both classes had lost their importance
and the latter were rarely if ever demanded. This
S. K. Das J.
708
SUPREME COURT REPORTS
[1961)
1960
Court had observed in The State of Bihar v. M aharaja.
n.-.. ,
d
0
hthiraja(
1)Sir Kameshwar Singh of Darbhanga and
Mon>Hoha11 D•o
ers
:
v.
"The pith and substance of the legislation, how.
stat• of Bih•• ever, in my opinion, is the transference of ownership
of este.tes to the State Government and falls within
s K. Das J. the ambit of legislative head entry 36 of List II.
There is no scheme of land reform within the frame
work of the statute except that a pious hope is expressed the.t the commission may produce one. The Bihar
Legislature was certainly competent to make the law
on the subject of transference of estates and the Act
as regards such transfers is constitutional." (per
Mahe.jan, J., e.t p. 926 of the report).
We think the.t in pith arid substance the legislation
was covered by item 36 of List II (e.s it then stood)
e.nd it he.s no relation to items I and 2 of List I.
Now, e.s to the last argument founded on Regulation
XXIX of 1814. In our view the Act in pith e.nd
substance related to acquisition of property e.nd consequently no question of the repeal of Regulation
XXIX of 1814 a.rose ; nor is it necessary to consider
the principle that a special le.w relating to special
tenures is not e.!fected by a subsequent general law .of
land reforms.
Such a principle has no application in
the present ce.se.
The Act expressly includes all
ghatwali tenures within its ambit e.nd provides for
the ve8ting of all rights therein absolutely in the
S· ate of Bihe.r on the issue of e. notification under
s. 3 and under s. 4 certain consequences ensue on the
issue of such a notification notwithstanding anything
contained is any other law for the time being in force.
It is worthy of note that the Benge.I Permanent Settle.
mcnt Regulation, 1793 (Bengal. Regulation I of 1793),
did not stand in the way of acquisition of other permanently settled estates, and it is difficult to see how
Regulation XXIX of 1814 can stand in the way of
acqnisition of ghatwa.li tenures. The point is really
covered by the ducision of this Court in Raja Suri ya
Pal Singh v. The State of U. P. (') where it was
observed:
(1) [1952] S.C.R 898.
(2) [195•] S.C.R. 1056, 1078-79.
1 S.C.R. SUPREME COURT REPORTS
709
" The Crown cannot deprive a legislature of its
r960
legislative authority by the mere fact that in the
n k
exercise of its prerogative it makes a grant of land Manmo~a:' Deo
within tho territory over which such legislative authov:
rity exists and no court can annul the enactment of a
State of Bihar
legislative 'Body acting within the legitimate scope of
its sovereign competence. If, therefore, it be found s. g, Das f.
that the subject of a Crown grant is within the competence of a provincial legislature, nothing can prevent
that legislature from legislating about it, unless the
Constitution Act itself expressly prohibits legislation
on the subject either absolutely or conditionally."
For the reasons given above, we hold that none of the
three points urged on behalf of the appellants has any
substance. The appeals fail and are dismissed with
costs ; there will be only one hearing fee.
Appeals dismissed.
M/s. ANW ARKHAN MAHBOOB CO.
v.
THE STATE OF BOMBAY
(NOW MAHARASHTRA) AND OTHERS
(S. K. DAS, M: HIDAYATULLAH, K. c. DAS GUPTA, J. c ..
SHAH and N. RAJAGOPALA AYYANGAR JJ.)
Purchase Tax-If leviable on goods not specifically mentioned as
taxable but come under the general description "all goods other than
those specified "-Conversion of one commodity into another commercially different article-If amounts to consumption-Place of
purchase for the purpose of taxation-Constitution of India, Art. z9
({) & (g), 286-Bombay Sales Tax Act, z953 (Bom. Act III of
z953), s. IO, Schedule B, Entry 80.
The petitioner Company carrying on the business of manufacturing bidis and having its head office at Jabalpur in the
State of Madhya Pradesh made certain purchases of tobacco in
the State of Bombay. The Sales Tax Officer assessed the petitioner to a purchase tax under the provisions of the Bombay
Sales Tax Act, 1953. The petitioner contested the assessment of
September ao.