TMI Blog1956 (2) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 paid every year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve 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 Orissa, a Zamindar, Ilaquedar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kari 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 according to local custom and usage he can pay The claim of the Raja about ₹ 200 as Raja Bijoy should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 treated as evidence, with the mutual consent of the parties. Those typed paper books have accordingly been placed on the record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayan 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 Ekrarnama was so payable in respect of the whole estate. In those days there was hardly any income from the forests as at present and, therefore, in those a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 confined his arguments to the second ground. Here again the learned Chief Justice held that there was no violation of article 14 while Narasimham J.' took the opposite vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified. 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 three which affect the present petitioners. This action of the State Government was challenged on a number of grounds, among them the following: (1) that the Act was invalid as it infringed the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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) the wajib-ul-arz (2) any sanad (3) any deed or (4) any other instrument. We take it that this was deliberate and that there was purpose behind the change. What then do the words within the meaning of signify ? They cannot mean mere mention of A as a zamindar. They cannot mean that if A is mentioned in one of those documents and is called or referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 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 he tells us that some of the zamindars were old Rajas who had a very close connection with the land (see also page 579) and at page 7 he says that in some parts of India the term means a petty peasant cultivator. The net result is that he calls the word zamindar a Protean term at page 261 because of the variety of shapes which it takes, not only in different places but at di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Judicial Committee held that though the Ghatwali lands they were dealing with fell within the geographical limits of the Raja's zamindari, they did not form part of it. Similar questions arose for consideration in Bir Bikram Deo v. Secretary of State for India(1), where the Privy Council examined claims made by eight of the Central Provinces zamindars. They also claimed semi-sovereign status. The history of the Central Provinces zamindaris was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amindar 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 and accepted. But that was British India. In the present case, every attempt to settle the same question between the Bhuyan petitioners and the Ruler of Gangpur ended in failure. No decision has been reached to this day. Reference is made to the Bhuyans 'in the Gangpur State in Dalton's Ethnology of Bengal (1873), pages 139 and 140. According to that author the Bhuyans in Gangpur possess proprietary rights under the Chiefs. But he weakens this by saying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have refused to decide the question despite raising of the dispute on the occasions which we have indicated. Connolly in his Settlement Report of 1907-1911 says- There are four zamindaris in the State..... all held by Bhuias. No attempt has, been made in this settlement to determine their relations to the Chief. Mukherji in his Settlement Report of 1929-36 also says that The relations of the zamindars with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Patta: This Gountia Patta is granted to you................ according to the rules and conditions mentioned in the Record of Rights included hereunder.' You should deposit the malguzari and the cess in the Treasury according to the kists mentioned below....... (Sd.) (Signature) Zamindar. Now when this is read along with Connolly's Settlement Report of which it forms a part, it is evident that the document does not pretend to deal with the rights and status of the petitioners vis-a-vis the Chief of Gangpur, because Conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 therefore unable to regard the petitioners as zamindars within the meaning of the Wajib-ul-arz. We turn next to the portion of the definition in section 2 (h) which refers to a deed or other instrument. Now even if the Parchas and Khatians and Khewats are either deeds or instruments , they are of no assistance in these cases for the reasons we have just given. It is necessary in this connection to say that though the documents filed clearly establish that the petitioners have been paying a certain sum of money each year to the Chief of the Gangpur State, that in itself does not show that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 within the meaning of the specified documents and that the definition to which we are tied. We do not intend, therefore, to examine them further. That leaves a document which concerns Nagra. In or about the year 1,879 the Zamindar of Nagra is said to have executed an Ekranama in favour of the Raja of Gangpur. The Ekrarnama has not been produced and there is nothing on record to show that it has been lost and that despite a search it cannot be found, nevertheless we are asked to hold that such a document was executed and to deduce its contents from a description of it given by Mr. Hewitt, the Officiating Commissioner in a Rubakari dated 10th March, 1879. In the absence of the document itself we do not think it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsistent 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 in a much stronger position than the other two and so, far from showing municipal subordination to Gangpur, indicates the contrary particularly when read in conjunction with the police powers which Nagra retained in defiance of Gangpur's claim. We are accordingly not able to conclude on the basis of this imperfect secondary evidence that, the meaning of the Ekrarnama was to define the Zamindar's status as that of a true intermediary. The result is that there is no deed or other instrument within whose meaning the petitioners can be said to be the kind of zamindar's which are true intermediaries , and we so hold. It follows that the petitioners are not intermediaries within the meaning of section 2(h). If they are not intermediaries , Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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