TMI Blog1996 (4) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by any error of law warranting interference. - Civil Appeal Nos. 5046 of 1984 & 332 of 1985 And Civil Appeal No. 7547 of 1996 - - - Dated:- 25-4-1996 - Ramaswamy, K. , Bharucha S. P. And Paripoornan, K. S. ,JJ. JUDGMENT Leave granted in SLP (C) No.7495/85. These appeals by certificate granted by Patna. High Court under Articles 133(1) and 134-A of the Constitution arise from judgment and order of the Full Bench made on November 16, 1984 in CWJC No.45 of 1968 and batch. They raise common substantial question of law as to the meaning of the word "Bazar", namely, Tilak Babu Hatia " in Bhagalpur, "Hasan Bazar" in Piro, Gudari Katra Bazar" in Arrah and "Patna Market" in Patna, within the meaning of Section 4(a) of the Bihar Land Reforms Act 30 of 195 or short the 'Act'. The facts in Civil appeal No.5046 of 1984 are sufficient for decision. 'Hence' They are stated as under: Municipal plot Nos . 51 etc . with construction standing thereon along with Zamindari interest held therein, were transferred to S. Sayed Haider Imam father of Sayed Abid Imam by his predecessor Zamindar. Sayed Hassan Imam had constructed several shops in 4 plots of the land and let them out to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsisting of whole complex of shops in rows. Buying and selling operations are the main commercial activities. Daily, weekly or monthly rents are collected from the occupants. Realization of toll is not a pre-condition to conclude that they are bazars. The essential feature is regular conduct of buying and selling as a permanent feature which is the primary condition. These markets satisfy the above conditions. Therefore, they are nothing but markets and they are bazars within the meaning of Section 4(a) of the Act. S/Shri Shanti Bhushan, A.K. Sen and Soli Sorabjee, learned senior counsel for the appellants, contended that the view of the High Court is wholly unsustainable. The Act is an agrarian reform intending to acquire the estate covered under Act and confers permanent tenancy right to the Raiyats. Hats, bazars or melas held by intermediaries, though stand vested in the State after the notification under Section 3 of the Act is published, Section 4(a) envisages vesting only of any building or a part of a building comprised in such an estate or tenure used primarily as office or cutchery for the collection of revenue of such an estate or tenure and his interests therein stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the primary object of the Act is land reform for transference of the entire rights, titles and interests in the estate of zamindar or tenure holder irrespective of the land-or buildings, hats, bazars, melas etc. whether situated in rural or urban area and vested in the State Free from all encumbrances except to the extent saved by the Act, the vesting of estate is completes under Section 4(a) of the Act. There is no question of only partial vesting of agricultural lands. rights in or the land tenures including interests of the intermediaries or tenureholders. The case of the appellants, as manifested from their pleadings in the High Court, is that the bazars are homestead land saved by Section 5 claiming that the intermediaries have title to the bazars subject to settlement on them by the State. It is not their case that the shops in urban land is not vested in the State. Bazars are nothing but markets in which commercial activity is carried on in a regular course. Though the Act makes a distinction between hats, mela and bazar, bazar used in Section 4(a) must be construed in its etymological sense The Act does not intend to have partial vesting of Touzi situated in rural ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me they were used for official purpose by zamindars or tenure holder. If the Collector, after enquiring under sections 5, 7, 7A and 7B, holds that it was sold after January 1, 1946, such sale does not bind the State and the same stands vested. In other words, the legislature made a distinction between building used exclusively for official purpose by the intermediary and any other building and the latter would be governed by Section 5 to 7 of the Act. The diverse contentions give rise to the questions whether the bazars governed by the provisions of the Act stand vested in the State under Section 4(a) of the Act? At the outset, we would state that the High Court in the judgment has specifically pointed out that constitutionality of the provisions of the Act has not been challenged. That is not disputed before us. It would, therefore, be unnecessary for us to go into the constitutionality of the provisions of the Act. The controversy is no longer res integra. In Kameshwar Singh's case [supra], per majority, this Court had held that the Act is not a law in respect of a matter mentioned in Entry 18 of List II. Mahajan, J. with whom Mukherjee and Chandrasekhara Aiyar, JJ. had concu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirement of other use. The right to hold mela has always been considered in this country to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land. There can be no doubt, therefore, that the right of the proprietor of an estate to hold a mela on his own land is a right in the 'estate' being appurtenant to his ownership of land; so also the right of a tenure-holder, who, it has to be remembered, is the owner of the land subject only to the payment of the rend to the proprietor, to hold a mela on land forming part of the tenure. The validity of Sections 7A to 7C read with Sections 4 and 6 of the Act was upheld. Section 3(1) of the Act empowered the State Government to declare by notification that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State. Such vesting took place as on January 1, 1956. Section 4 of the Act mentions the consequences which flow from the publication of the notification under Section 3(1) of the Act. Section 4(a) envisages vesting of such an estate or tenure including the interest of the proprietor or tenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght and title therein. The sequential operation of Section J. is vesting of right, title and interest of all enumerated items absolutely in the State free form all encumbrances expect to the extent of interests of the intermediary saved by the provisions of the Act. Section 5 saved only interest in enjoyment of homesteads held by the intermediaries treating him as a tenant under the State from the date of vesting. "Homestead" defined under Section 2(j) of the Act means a dwelling house either used by the proprietor or tenure- holder for the purpose of his own residence or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out-buildings and includes any outbuildings used for purposes connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house were treated as a homestead. Explanation to Section 2(j) implies dwelling house or out-house should include any land on which there stood such dwelling house or out-building at any time before the date of vesting was explained to be a dwelling house. It would be clear that dwelling house encompassed under Section 5, is one compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for storing grains, keeping cattle or implements for the purpose of agriculture and constructed or established and used for the aforesaid purposes before the first day of January, 1946, shall, subject to the provisions of Sections 7A and 7B, be deemed to be settled by the State with such intermediary and he shall be entitled together with the lands on which they stand as a tenant under the State with a corresponding obligation on the intermediary to pay fair and equitable rent determined by the Collector in the prescribed manner. Section 7A takes out from the purview of Sections 5 to 7 the conferring of any right on the intermediary end states that nothing in those sections shall be deemed to confer any right in the intermediary in respect of any land on which at any time within one year prior to the date of vesting of the estate or tenure, the intermediary was holding any hat or bazar. In other words, though the hat or bazar is situated in any land or a building held by the intermediary prior to one year from the date of vesting, such hat or bazar together with the land standing thereon would stand vested in the State free from all encumbrances. Similarly, Section 7B excludes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid purpose before January 1, 1946, shall be deemed to be settled by the State with the intermediary and he shall be entitled to retain Possession of such buildings or structures as tenants. In other words, the buildings or structures together with the land over which hat, bazar or mela is held, by operation of Sections 7A to 7C, stand excluded from homestead under Section 5. Equally the building and the land used primarily as office or cutcherry are vested in the State. Land used as gola, factory for the purpose of trade, manufacture or commerce and constructed or established and used for the aforesaid purposes prior to January 1, 1946 shall vest in the State. Other buildings or structures together with the land are regulated under Section 5 read with Sections 6 7 subject to Sections 7A to 7C. In Kanpur Sugar Works Ltd. v. State of Bihar Ors. [(1970) 3 SCR 703] strongly relied on by the appellants provides the clue for interpretation in this behalf. Therein, under the Act, the intermediary used part of the area in his possession for manufacture of sugar with an inner enclosure used for residential quarters, garages, kitchens, clubs, dispensaries, rest houses, out houses, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether after the abolition of the estate under the West Bengal Estates Acquisition Act 1953 the fishery right of the intermediary was saved by that Act? A Bench of three Judges had held in paragraphs 9 and 11 that the pre-existing rights of the intermediary in the estate to which the declaration applied shall stand vested in the State free from all encumbrances. Section 6 does not have the effect of divesting the State of the vested right, title and interest of the intermediary. One of the rights is the right to take possession of the land held by the intermediary, The Section excluded the operation of Section 4 to 5, the interest of viz., the respondent to retain khas possession was saved subject to his making the application in the prescribed form. It was held that the fishery rights stood vested in the State. In Brighu Nath Sahay Singh Ors v. Md. Khallur Rehman Ors. [(1995) 5 SCC 687], the appellants were proprietors of certain lands in Tauzi [new] No.8655 in Saraunja village in District Begusarai in Bihar which were sought to be declared as private lands in a civil suit. The courts granted the decree but the High Court reversed the decree. On appeal, this Court had held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare or portion of an estate held by one landowner or jointly by two or more landowners. Punj. Act XVII of l887 (Land Revenue) S.3 c1.3. "Holding" means land held under one title or agreement and surrounded by one set of boundaries. Provided that where two or more adjoining holdings form part and parcel of the site or premises of a dwelling house, manufactory, wdrehouse or place of trade or business, such hnldings stall be deemed to be one holding. Ben.Act III of 1884 (Municipal) S.6, c1.3. The term 'holding" in the Bengal Municipal Act S.6,c1.(3) medns land held by an occupier under one title or agreement and surrounded by one set of boundaries. 15 I.C.548 (549)." It would, therefore, be clear that the word "hold" used in Section 7A would mean that the intermediary must hold, as owner under a title and in occupation of the land or the building in which the hats are conducted or bazars are situated in his own right as owner or by virtue of the authority or settlement. It is not conducting hats, bazars or melas as contended for the appellants. In the light of the conjoint operation of Sections 3 and 4(a) and in contra- distinction of the remainder rights of the intermediary/te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave any interest in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act. At page 17, it is further held that a tenant at will is not holding possession on behalf of landlord but he has a vestige of title to it and holds on his own behalf and can set up his possession against the landlord till formality prescribed by law is undertaken by the landlord and he is evicted by due process of law. The word "khas possession' on which the intermediary placed reliance is interpreted at page 20 to mean a statute for ushering agrarian reforms. The purpose and object behind the legislation must inform the interpretative process and it was held that though the word 'khas possession' with reference to the intermediary was used, he was not holding possession as on the date of the notification and that, therefore, he ceased to have the right to have the tenant at will ejected from the lands vested in the State under Section 3. The High Court has examined the meaning, scope and purport of the word "bazar" prevalent in the State of Bihar. We presume, on the premise that it is a local enactment, that the learned Judges are better informed of the conno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in that row of shops, but that does not and cannot conceal the essential character of the complex. Regarding Hassan Bazar in Piro village, it was pointed out that the "entire complex consists of 180 shops, some of which are brick-built and some are kacha. It is not the petitioners' case that the buildings are Golas." Similarly, in respect of shops in Arrah, it is pointed out that it "is famous as Gudari Katra Bazar". The names in each case are rather suggestive of their essential character. Thus the learned Judges having had The personal knowledge of the existing local conditions in the aforesaid bazars reached the conclusion that "they are markets and known as bazars" and that therefore, "they are hot homesteads". As regards Patna market, it is sought to be pointed out that at one time it was homestead but the High Court has pointed out that long prior to the vesting, the intermediary himself demolished the building homestead and constructed the bazar in 1947. The High Court has pointed out that it is the most important market in Patna city. It is also pointed out by the learned counsel for the State and was not disputed across the bar by the counsel for appellants, that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol in the hands of private individuals with whom the profit motive is likely to be the sole guiding principle. Law may provide for Acquisition even though the purpose behind acquisition is not a public purpose. It was also held that augmentation of revenue by the State may be incidental to the acquisition. On that account, it cannot be said that meals were no intended to be acquired under the Act. Proprio vigore, the ratio would apply to the facts of the case Moreover, right to hold bazar is and interest in the land Section 3 of Transfer of Property Act, 1882 defines " immovable property" to exclude standing timber, growing crops and grass. In other words, all other interests in the land are intergal to immovable property. In Raja Bahadur Kamakshya Narain Singh Ors. v. The Collector and Deputy Commissioner of Hazaribagh Ors. [(1955j 2 SCR 988] when the building standing on the land comprised in the estate was notified and the validity of Section 4 [h] of the Act was questioned another Constitution Bench had held that though the definition of 'estate' does not mention the word 'building', the provisions of Section, 4 d and 7 would indicate that legislature intended to mean som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, therefore, cannot be regarded as homestead Section 5 read with Section 2 (j) of the act. It is true that Bihar Rent Control Act appears to have been applied to the markets held by the intermediaries but its application to buildings though situated in urban area, does not have any effect on the interpretation of the provisions of the Act. The question whether the Bihar Legislature lacks competence under the Act to acquire urban property was neither raised in the writ petition nor argued before us. The decisions of this Court in Balmadies Plantation Ltd. Anr. vs. State of Tamil Nadu [(1973) 1 SCR 258 ], Gulabhai Vallabhbhai Desai etc. vs. Union of India Ors. [(1967) 1 SCR 620] and Malankara Rubber and produce Co., Ors. etc.etc. vs. State of Kerla Ors. etc. etc. [(1973) 1 SCR 399] are of little assistance to the appellants. Each Act contains its own scheme of abolition of the estate and its agrarian reforms. In those Acts the purpose was primarily agrarian reform. The Constitution Benches of this Court had held that the forests would get exempted from the purview of those Acts. We are, therefore, of the view that it was not necessary to critically examine the scope of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X
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