9911796707
TMI Blog1956 (2) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... lates to Nagra the proprietor whereof is the appellant, Shri Sibanarayan Singh Mahapattra. It comprises an area of 545 square miles including 109 square miles of forests. All these proprietors are the descendants of Bhuiyan Chiefs and they claim that their ancestors were independent ruling chiefs of their respective principalities. There is no dispute that in course of time they became subordinate vassals of the Raja of Gangpur. It appears from Connolly's Report, Mukherjee's Report and Ramdhyani's Report that neither the Raja of Gangngpur nor any of these proprietors was anxious to have their respective rights defined specifically and so the settlement officers made no attempt to do so with the result that their status Vis-a-vis the Raja of Gangpur remains undetermined. There is no evidence on record that the ancestors of the proprietors of Hemgir and Sarapgarh ever received or accepted any Sanad or grant from the Raja of Gangpur. There is, however, evidence that the ancestors of the proprietor of Nagra had executed an Ekrarnama in favour of the Raja of Gangpur as to which more will be said hereafter. There is no dispute that the ancestors of each of these proprietors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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 of 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- therewith;" The material parts of the 'definitions of "Estate" and "Intermediaries" set forth in section 2 are as follows: (g) "estate............ in relation to merged territories means any collection of Mahals or villages held by the same intermediary which has been or is liable to be assessed as one unit to land revenue whether such land revenue be payable or has been released or compounded for or redeemed in whole or in part." (h) " Intermediary.................with referencre to the merged territories means a maufidar including the ruler of an Indian State merged with the State of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants were intermediaries and that immovable properties of the petitioners were estates, that the forest areas were included in their estates but he took a different view on two important questions. In his view the Act was not covered by article 31A and was not entitled to its protection and section 3 of the Act contravened article 14 of the Constitution and as it was the key section to the whole Act the entire Act was invalid in its application to the immovable properties of the appellants although it was valid in its application to other estates which come within article 31-A(2)(a). The learned Judge was accordingly of the opinion that the appellants were entitled to the reliefs prayed for by them. In view of this difference of opinion the applications were directed to be posted before a third Judge for hearing on fresh argument. Mahapatra J. before Whom the applications were re-argued agreed substantially with the learned Chief Justice that the Act was protected by article 31A and that in any case it did not violate the equal protection clause of the Constitution. In the result the applications were dismissed. Hence the present appeals. Section 3(1) authorises the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State in opposition to this appellant's petition specific reference was made to the Rubakari in the court of J. F. K. Hewitt, Commissioner of Chota Nagpur, dated the 10th March, 1879. At the hearing of the petition that Rubakari was filed in court without any objection. It is document No. 6(g). Evidently the commissioner sent for both the Raja of Gangpur and Balki Mahapatra, of Nagra and after referring to the then outstanding disputes between the then Raja of Gangpur and Balki Mahapatra, the predecessor-in-title of the appellant Shri Sibanarayan Singh Mahapatra this Rubakari records that "it was agreed upon that from future Balki Mahapatra would be paying to the Raja of Gangpur ₹ 700 as yearly rent from the year 1935 and thereafter instead of ₹ 425 which he used to pay. This amount of ₹ 700 is the fixed rent." The words rent and fixed rent are significant. It further appears that Rubakari decided, that "Balki Mahapatra and his heirs and successors should - ever 'hold' possession over this Nagra State Zamindari on the aforesaid fixed annual rent and nothing more would be demanded from him except marriage Pancha and Dashra Panch which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been executed by the Raja of Gangpur and Balki Mahapatra, the predecessor-in-title of this appellant, under which Balki Mahapatra "held" the estate of Nagra upon terms of payment of an annual rent. Indeed, the appellant Shri Sibanarayan Singh Mahapatra firmly takes his stand on the Ekrarnama and its terms. A question has been raised that the original Ekrarnama of 1879 has not been filed and as no evidence was led to explain the reason for its nonproduction, secondary evidence of its contents is inadmissible. We see no force in this belated contention. The Rubakari and the other documents referred to above were filed without any objection as to. their admissibility on the ground that they are merely secondary evidence of the contents of the Ekrarnama. Indeed, in the matter of production and proof of documents the parties undoubtedly proceeded a little informally. The following extract from the judgment of the learned Chief Justice will make the position clear: "As regards some of them, neither the originals, nor the authenticated copies have been filed before us, but typed paper books containing unauthenticated copies have been filed by both sides and have been tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Ekrarnama, call it a 'deed" or "other instrument" as one likes. In this view of the matter the appellant Shri Sibanarayan Singh Mahapatra is an intermediary as defined in section 2 (h) of the Act and his estate is an "estate" within the meaning of section 2 (g) and consequently there is no escape from the conclusion that the State Government had ample jurisdiction or authority to issue a notification under section 3 of the Act. A subsidiary point was raised that at any rate the forest lands which are not parts of any Mahal or village and are not assessed as one unit to land revenue cannot possibly fall within the definition of estate. This contention was repelled by the High Court and there was no disagreement between the two learned Judges on this question. We find ourselves :in agreement with the High Court in this behalf. There is no dispute that geographically the forest tract is included within 'the Nagra Zamindari estate. Our attention was drawn to certain maps or plans which clearly indicate that the forest lands are scattered in blocks within the boundaries of the estate. There is no dispute that the annual rent fixed under the Ekra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the view we take on the question of the alleged violation of the provisions of article 14 it is not necessary for us, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of article 31-A to the impugned Act. On the assumption, then, that article 31-A is out of the way the Act in question becomes liable to attack both under article 31 (2) and article 14. Learned counsel appearing before us did not call in aid article 31 (2) but confined himself to article 14. In the High Court article 14 was invoked in two ways namely (1) that the provision for assessing and fixing the amount of compensation is discriminatory and (2) that section 3 which gives an unfettered discretion to the State Government to issue or not to issue notification with respect to an estate is discriminatory in that it enables the State Government to issue notification with respect to those zamindars who opposed the ruling party in the election and to refrain from doing so with respect to others who were loyal to that party. The objection, as to discrimination founded on the manner of assessment of the compensation has not been pressed before us and learned counsel conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid as there was no public purpose for taking away the vested right that the original definition of that expression in the Act had given to the persons whose estates had been. notified. Learned counsel, however, did not seriously press this objection and nothing further need be said about it. The result, therefore, is that appeals Nos. 167 and 168 of 1953 are allowed with costs and appeal No. 169 of 1953 is dismissed with costs. Bose J.-These three appeals arise out of petitions made to the High Court of Orissa under article 226 of the Constitution by the Zamindars of Hemgir, Sarapgarh and Nagra. On the 28th of September, 1951, the Orissa State Legislature passed the Orissa Estates Abolition Act of 1951* (Orissa Act I of 1952). The Act was reserved for the assent of the President and became law on the 23rd of January, 1952, when the President gave his assent. The Act enables the State Government to take over' the " estates " of all " intermediaries " situate in the State of Orissa. In pursuance of the powers so conferred the State Government issued notifications from time to time under section 3 of the Act and among the notifications so issued are the thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read. According to him, the "deed" and "other instrument" must be read ejusdem generis with "sanad" and so must be confined to a document of title like a sanad in which one party creates or confers a zamindari estate on another. We do not agree. In our opinion, the words must be read disjunctively and be interpreted according to their ordinary meaning. For example, a document by an intermediary acknowledging the overlordship of ,another would, in our opinion, fall within the definition. Now had these zamindars been in what was once British India there would.be no difficulty because the first part of the definition in section 2(h) is straightforward and clear. The petitioners in these case would have fallen under one or other of the categories mentioned there. But when we come to the merged territories the definition changes and an "intermediary " there no longer means this or that (except in the case of a maufidar) but this or that "within the meaning of " certain documents. Thus an " intermediary " neither "includes" a zamindar nor "means" a zamindar, but means a zamindar within the meaning of (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of his attributes, (See Baden-Powell's Land Systems of British India, Vol. I, pages 130, 519 and 523); others are either Ruling Chiefs or court favourites with a mere courtesy title or just peasant cultivators. The following description by Baden-Powell at page 508 of Volume I is illuminating. He is dealing with the decline of the Moghul Empire in the year 1713 and says that the decline was marked by a relaxation of control, not only over the outlying provinces, but over the whole administrative machinery, and by the substitution of plans of farming the revenues of convenient tracts. Then comes this passage- "Then it was that besides the Rajas, Chiefs and ancient grantees, who had a real hold over the country, and were already spoken of as the zamindars, other classes of persons were employed as farmers, and the same name and the same designation came to be applied to them also. As a matter of fact, we find ex-officials possessed of wealth and energy-amils, karoris, etc.also bankers and court favourites, receiving the name of zamindar. And-such persons would, besides taking the name, also ape the dignities and importance of the older landholders. " At page 401 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that disputed-lands are within the geographical boundaries of a larger estate is not conclusive proof that they are part of that estate [see Secretary of State for India v. Raja Jyoti Prashad Singh(1) and Forbes v. Meer Mahomed Tuquee(2)]; nor is the fact that the Raja of Gangpur exercises a general superintendence over these zamindars in certain matters necessarily conclusive, for, as Lord Phillimore says in Secretary of State for India v. Raja Jyoti Prashad Singh(1) at page 552, care must be taken not to confound hierarchical superintendence with what may be called feudal overlordship. The contention of the petitioners that they are not "intermediaries" but are the direct landlords of the soil will best be understood if we refer again to the Privy Council decision just cited. The zamindar there claimed to be the overlord of the Ghatwali Digwars in the same way as Gangpur is said to be the overlord of the zamindaris in the present cases. Lord Phillimore said at page 553- "It is agreed that these digwars have existed from time immemorial and may be coeval with the Raja and may have been created or recognised by a sovereign power superior to both." The Judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 581 he says that- "Anciently the theory was that no bhuinhar (of, an original founders' family) could ever lose his lands; so that after years of absence he might return and claim it from the present holder." But he says at page 580 that- When British rule began, some of the surviving Rajas, chiefs and grantees, were recognised as "Zamindars" with a permanent settlement When the old Rajas(or their successors) became Zamindar landlords they did their best to reduce to a minimum the rightsof the 'bhuinhars' in their free allotments; and this led to so much discontent as to cause rebellion in 1831-32 and again 1858 In 1869 it was deter- mined to put an end to the uncertainty and discontent which arose from the encroachments of the landlords who had ignored the old tenures and infringed the bhuinhari rights.". Accordingly, a Special Commissioner was appointed in that year to examine, define and record all the various classes of rights and, in accordance with that, determine the status of the Bhuyans in British India Vis-a-Vis the "zamindars" who were the surviving Rajas and petty chiefs. This was done and settlements were made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volume of historical material which was placed before us because we are, not deciding the point' here and it would be wrong to any more than is necessary for the present case as the Raja of Gangpur is not before us. It is enough to say that there is much historical material to indicate that the Bhuyan tenures had their origin in pre-historic times and were not the creations of a conquering line of Rajput Rajahs. As Mr. Forbes put it in Political Suit No. 26 of 1900-1901: "The British Government had the unquestionable rights of the conqueror and is in a position to dictate its terms in its Sanads to the Chiefs. But the Chiefs are very far from being in a similar position of authority in regard to the landholders." Similar observations occur in Hunter's Imperial Gazetteer Volume 4, page 478, and Sir Richard Temple's Treaties, Zamindaries, Chieftainships in the Central Provinces, page 18. But we wish to emphasise that this is only one side of the picture and that there may be much' to indicate the contrary and in the a sence of,the Ruler of Gangpur it would not be right to say that this is the full picture especially as two successive Settlement Officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learning were expended on finding out what a Wajibul-arz means and what it consists of. We do not intend to go into any of that. We will assume for the purposes of this case (without deciding the point) that the only document relied on by the State of Orissa as a Wajib-ul-arz though it is called the Record of Rights, is a Wajib-ul-arzwithin the meaning of the Act. But what is that document? It records the rights of the raiyats and the gaontias vis-a-vis the "Chief or Ilaquedar"; The word "zamindar" is not used and neither the word "Chief" nor the word (1) I.L.R. 1944 Nag. 180 at 215 tO 221. "Ilaquedar" ha-is been gtruck out. All it says is that the "malguzari" will be paid to the "Chief or Ilaquedar" and that all lawful orders of the "Chief or Ilaquedar" will immediately be carried out without any objection. We have the further fact that the petitioners have been issuing pattas to the gaontias in their areas apparently in conformity with this Record of Rights because their pattas expressly refer to it; also that the petitioners have signed the pattas as zamindars. A typical patta is in this form: "Gountia P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assurance a number of subsidiary documents settled the matter and that therefore the petitioners must be taken to be "true intermediaries" within the meaning of the Wajib-ularz. The same is true of the Khewats. It is true one of the columns shows that these petitioners hold under the Chief of Gangpur and it is possible that the Officer preparing the Khewats thought that was the true position 'But the final assessment is in the Settlement Report and that, in our opinion, must be regarded as the governing factor. Whatever else a Wajib- ul-arz may be, it is only a part of the Record of Rights and entries in the Record of Rights have only a presumptive value. They can be shown to be wrong. And what better proof can there be of that than the categorical statement of the Settlement Commissioner who was in charge of those very returns. Even as late as 1935 we have the Secretary to the Agent to the Governor-General saying- "The record of rights of the settlement of Gangpur State of the year 1911 seems to the Governor-General in the main to support the contentions of the zamindar as enjoying his zamindari on the same rights as the State enjous in Khalsa." We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of the Chota Nagpur dated 9th August, 1878. The Imperial Gazetteer, Volume IV,' was also relied on by the State but we do not think that helps it much. The passage in point says that- "Included within the State are two Feudatory Chiefships subordinate to the Raja, Nagra in the East and Hemgir in the West." But this appears to point more to political than to municipal subordination and, that is just what the petitioners say they are. They claim to be feudatory chiefs vis-a-vis Gangpur and say that the money they pay to the Raja is tribute and not revenue. However, these historical document are not relevant except to show-that the word "zamindar" has different meanings, one of which lifts them out of the category of I intermediaries" within the meaning of that part, of the definition which applies to the merged territories. We are not called upon to decide the actual relationship between the Chief of Gangpur and the petitioners but only to see whether the petitioners are "zamindars" within the meaning of certain specified docu- ments. Even if they are "intermediaries" within the broader sense of the term, they are not so wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitting the basic rights of the other or surrendering his own. Read as a whole, the settlement supports the Zamindar's claims rather than negatives them. And as to the word "rent" the English of the document shows that it was not written or drawn up by an Englishman though it was signed by one, so no one can know just what was meant. The Ekrarnama would, we-take it, have been in the vernacular and unless we know just what term was used there it would be wrong to assume on the basis of this Rubakari that the Zamindar had suddenly abandoned the position for which he had been fighting all this time. If the original word was " takoli ", as it would seem to have been because of the Gangpur State Diwan's letter of 29th March, 1943, it is as consistent with tribute as with revenue, especially when we read it along with the concessions made by Gangpur about the police powers and the Gaontias. Takoli is a term which has no fixed meaning and is what the Zamindars of Hemgir and Sarapgarh also pay the Raja of Gangpur. The only difference in their cases is that their Takoli can be enhanced from time to time where. as that of Nagra cannot; that we think places Nagra ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
