PETITIONER: KUMAR BIMAL CHANDRA SINHA Vs. RESPONDENT: STATE OF ORISSA DATE OF JUDGMENT: 30/04/1962 BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R. AIYYAR, T.L. VENKATARAMA CITATION: 1962 AIR 1912 1963 SCR (2) 552 ACT: Estates, Abolition of-Raiyati right purchased by proprietor- Building on occupancy holding, used as Katchteri-Notifcation Vesting estate in the State-Effect-Whether building on occupancy holding vests in the State-Orissa Estates Abolition Act, 1951 (Orissa 1 of 1952), ss. 2(g), (h) (i), 3, 5, 26. HEADNOTE: The appellants held the Paikpara estate as proprietors. They had purchased the properties in question comprising raiyati lands with certain buildings thereon from the raiyat. Thus the proprietors became occupancy raiyat8 under the tenure holders or sub-proprietors. By virtue of a notification issued under s. 3 of the Orissa Estates Abolition Act, 1951, the Paikpara estate vested in the State of Orissa. But the interest of tenure holders and sub- proprietors within the estate had not been taken over under the provisions of the Act: 553 The said buildings on the lands of the occupancy holdings were used as Katcheri houses by the proprietors for the administration of their estates. The state officials took possession of these buildings situated on the raiyati land. The appellants made an application to the collector, Puri, for vacant possession of the lands and the buildings. The Collector did not concede the demand and held that the occupancy holding was situated within the tenure held under the proprietors and lay within the geographical limits of the estate which had vested in the Government. The High Court dismissed the writ petition of the appellant under Art. 226 on the ground that the question raised was practically concluded by the Supreme Court in K. C. Gajapati Narayan v. Deo State of Orissa. The appellants came up in appeal on a certificate granted by the High Court. Held, that the appellants' raiyati interests in the lands and in the buildings standing on those lands had not been affected by the abolition of their interests as proprietors, and the State Authorities had illegally taken possession of them. Held, further, that the Orissa Estates abolition Act,1951, was intended to abolish all proprietors,sub-proprietors, tenureholders, with a variety of names, but did not touch the interest of the raiyat. Hence though these lands with buildings was situate geographicaiy within the ambit of the appellant's estate, they were not part of the estate. The appellant held those properties with the buildings not as proprietors as such, but as raiyats. Held, also, that the conclusion drawn by the High Court from the decision in K. C. Gajapati Narayan Deo v. The State of Orissa is not well founded. The observation of this Court on which it drew its conclusion had reference to the definition of 'home-stead' in cl. (1) of s. 2 of the Act. This court while dealing with the constitutionality of the Act, in the above case, was not concerned with raiyati lands. Its observations had reference only to such buildings as stood upon the proprietor's private land, which were in his possession as proprietor or as tenure-holder. K. C. Gajapati Narayan Deo v. The State of Orissa,[1954] S. C. R. 1, not applicable. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 177 of 1960.
554
Appeal from the Judgment and order dated March 27, 1958, of
the Orissa, High Court in O. J.C. No. 191 of 1956.
Hemendra Chandra Sen and S. Ghose, for the appellants.
N. S. Bindra, V. N. Sethi and P. D. Xenon, for the
respondents.
1962. April 30. The Judgment of the Court was delivered by
SINHA, C. J.-This appeal on a certificate granted by the
High Court of Orissa raises the question of the
interpretation of certain provisions of The Orissa Estates
Abolition Act, 1951 (Orissa Act 1 of 1952) which hereinafter
will be referred to as the Act. The appellants who were
petitioners in the High Court were the proprietors of an
Estate, known as Paikpara Estate, in the district of Puri,
bearing Touzi Nos. 268, 269 and 270. The respondents are
the State of Orissa and its officials.
The facts on which the High Court based its judgment under
appeal areas follows. Within the said Paikpara Estate,
there were several tenures and sub-proprietory interests.
The Paikpara Estate vested in the State of Orissa by virtue
of a notification issued under s. 3 of the Act, on August
23, 1953. It is common ground that the interests of tenure-
holders and sub-proprietors within the said estate have not
yet been taken over under the provisions of the Act. Under
the tenure-holders aforesaid, there were some occupancy
holdings which Lad been purchased by the proprietors, the
appellants in this Court, long ago. Thus the proprietors by
virtue of their purchase became occupancy raiyats, under the
tenure-holders or sub-proprietors, in respect of the
holdings purchased by them. It is also common ground that
in the last Settlement Khatians their interests as occupancy
555
raiyat8 in respect of the holdings purchased by them have
been recorded. On the lands of the occupancy holdings,
there were several buildings which were used as Katcheri
houses by the proprietors, for the administration of their
estate. In January 1954, according to the petitioners in
the High Court, the State Officials took illegal possession
of those buildings situate on the raiyati land, as
aforesaid. The appellants thereupon made an application to
the Collector of Puri for vacant possession of the lands and
the buildings, described in the petition, on the allegation
that those lands together with the buildings, purchased from
tenants with rights of occupancy, were, after purchase by
the proprietors, used as Katcheri house by them. They also
alleged that those properties had not vested in the State of
Orissa as a result of the said notification, under the Act.
Part of the said house had been let out to the Postal
Department. The Anchal Adhikari of that area wrote to the
Postmaster, and Superintendent of Post Offices, not to pay
rent to the proprietors. The Postal Department, therefore,
vacated that portion of the building in their occupation,
which has gone into the occupation of the State Government.
Another portion of the property, which was used as dhangola
was let out for storing paddy, to a third party. That
dhangola was also taken illegal possession of by the Naib
Tehsildar of the place. Other portions of the property also
are in illegal possession of the State Government, through
its Anchal Adhikari. It was thus claimed on behalf of the
proprietors that the State Government had no right to take
possession of the property, as it did not form part of the
estate which had been acquired under the Act, and had, on
notification, vested in the State Government. The learned
Collector of Puri did not concede the demand of the
proprietors, and held that the occupancy holding is situated
within the tenure held
556
under the proprietors and lay within the geographical limits
of the (state which had vested in the Government. Being
aggrieved by the aforesaid order of the Collector, dated
November 20, 1956, the proprietors moved the High Court
under Art. 226 of the Constitution for relief against what
was alleged to be illegal interference with their interest
not as proprietors but as occupancy tenants. The High Court
dismissed the proprietors’ claim chiefly on the ground that
the question raised by the petition before the High Court
was “practically concluded by the observations of the
Supreme Court in the case of K. C. Gajapati Narayan Deo v.
The State of Orissa (1).
It is manifest that the controversy raised in this case has
to be answered with reference to the provisions of the Act.
‘Estate’ has been defined in cl. (g) of s. 2 of the Act as
follows :
” ‘estate’ includes a part of an estate and
means any land held by or vested in an Inter-
mediary and included under one entry in any
revenue roll or any of the general registers
of revenue-paying lands and revenue-free
lands, prepared and maintained under the law
relating to land revenue for the time being in
force or under any rule, order, custom or
usage having the force of law, and includes
revenue-free lands not entered in any register
or revenue-roll and all classes of tenures or
under-tenures and any jagir, inam or muafi or
other similar grant”;
Explanation I.-Land Revenue means all sums and
payments in money or in kind, by whatever name
designated or locally known, received or
claimable by or on behalf of the State from an
Intermediary on account of or
(1) (1954) S. C. R. 1.
557
in relation to any land hold by or vested in
such intermediary;
Explanation II.-Revenue-free land includes
land which is, or but for any special
covenant, agreement, engagement or contract
would have been, liable to settlement and
assessment of land revenue or with respect to
which the State has power to make laws for
settlement and assessment of land revenue;
Explanation III.-In relation to merged
territories estate’ as defined in this clause
shall also include any mahal or village or
collection of more than one such mahal or
village held by or vested in an 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”.
The definition makes reference to an ‘Intermediary’, which
has been defined in cl.(h) as follows:
‘Intermediary’ with reference to any estate
means a proprietor, sub-proprietor, landlord,
landholder, malguzar, thikadar, gaontia,
tenure-holder, undertenure-holder, and
includes an inamdar a jagirdar, Zamindar,
Ilaquadar, Khorgoshdar, Parganadar, Sarbaraka
r
and Maufidar including the Ruler of an Indian
State merged with the State of Orissa and all
other holders or owners of interest in land
between the raiyat and the State;
Explanation I.–Any two or more Intermediaries
holding a joint interest in an estate which is
borne either on the revenue-roll or on the
rent-roll of another Intermediary shall be
deemed to be one Intermediary for the purposes
of this Act;
558
Explanation II.-The heirs and successors-in-
interest of an Intermediary and where an
Intermediary is a minor or of unsound mind or
and idiot, his guardian, committee or other
legal curator shall be deemed to be an
Intermediary for the purposes of this Act.
All acts done by an Intermediary under this
Act shall be deemed to have been done by his
heirs and successors-in-interest and shall be
binding on them.
Reading the two definitions together, the position in law
is that ‘estate’ includes the interest, by whatever name
called, of all persons, who hold some right in land between
the State at the apex and the raiyat at the base. That is
to say, the Act is intended to abolish all Intermediaries
and rentreceivers and to establish direct relationship bet-
ween the State, in which all such interests vest, after
abolition under the Act, and the tillers of the soil. The
interest of a raiyat is designated by the word ‘holding and
is defined by the Orissa Tenancy Act (Bihar and Orissa Act
II of 1913), as follows: .
” holding” means a parcel or parcels of land
held by a raiyat and forming the subject of a
separate tenancy”.
Under the, Orissa Tenancy Act, the unit of interest of a
proprietor is an ‘estate’. Under a proprietor may be a
number of sub-proprietors. ‘Sub-proprietor’ is also defined
in the Tenancy Act, but we are not concerned in this case
with that class of holders of land. The interest of a
tenure-holder or an under-tenureholder is characterised as a
“tenure’. Thus, the process of in feudalist and sub-
infeudation, which has been similar in all places where the
Permanent Settlement took place, that is to say, in Bengal,
Bihar and Orissa and Madras and Andhra Pradesh,
559
has led to the coming into existence of proprietors, with
their estates, sub-proprietors under them, tenure-holders
and under-tenure-holders and ultimately the tiller of the
soil, the raiyat, whose unit of interest is a ‘holding’.
The Act was intended to abolish all proprietors, sub-
proprietors, tenureholders and under-tennure-holders, with a
variety of names; but did not touch the interest of the
raiyat. The same person, by transfer or by operation of
law, might at the same time occupy different status in
relation to land. He maybe in respect of a particular area,
which is geographically included in the estate, the
proprietor. That land may be held by a raiyat not directly
under a proprietor but under a tenure-holder, who holds
directly under proprietor. The proprietor may have acquired
the interest of a raiyat. Thus the proprietor, in his
capacity as the owner of the estate holds the entire estate,
and he may have by purchase acquired the interest of a
raiyat, paying rent for the raiyati interest to his
immediate landlord, the tenure-bolder. The tenure-holder,
in his turn, may have been liable to pay rent to the
proprietor. That is what appears to have happened in this
case. The appellants held the Paikpara estate as
proprietors. They also appear to have purchased the
properties in question comprising raiyati lands with certain
buildings thereon from the raiyat. Hence, the position in
law is that though these lands with the buildings are
situate geographically within the ambit of the appellants’
estate, they are not part of the estate. In other words,
the appellants hold those properties with the buildings not
as proprietors as such, but as rayats. It appears that the
Courts below have not kept clearly in view this distinction.
The Collector, in the first instance, and the High Court in
the proceedings under Art. 226 of the Constitution, appear
to have fallen into the error of confusing the petitioners’
position as ex-proprietors, with their present position as
raiyat in
560
respect of the land on which the buildings stand. The High
Court has drawn the conclusion from the decision of this
Court in K. C. Gajapati Narayan Deo v. The State of Orissa,
(1) and has observed that whether the buildings in question
vested in the Government, on the vesting of the estate under
s. 3 of the Act, world depend not upon whether it formed
part of the estate acquired by the Government but on the,
purpose for which the buildings wore used by the
proprietors. As the buildings in question had been
primarily used as office or Katcheri for the collection of
rent or for the use of servants or for storing grains by way
of rent in kind, the buildings will vest in the Government
on the vesting of the estate itself. In our opinion, this
conclusion drawn by the High Court from the decision of this
Court is not well-founded in law. The High Court draw its
conclusions from the following observations of this Court in
the aforesaid case at Pages 25-26.
“Assuming that in India there is no absolute
rule of law that whatever is affixed to or
built on the soil becomes a part of it and is
subject to the same rights of property as the
soil itself, there is nothing in law which
prevents the State legislature from providing
as a part of the estates abolition scheme that
buildings, lying within the ambit of an estate
and used primarily for management or
administration of the estate, would vest in
the Government as appurtenances to the estate
itself. This is merely ancillary to the
acquisition of an estate and forms an integral
part of the abolition scheme. Such
acquisition would come within article 31 (2)
of the Constitution and if the conditions laid
down in clause (4) of the article are complied
with, it would certainly attract the
protection afforded by that clause.
Compensation has
(1) (1954) S.C.R. 11,
561
been provided for these buildings in s.
26(2)(iii) of the Act and the annual rent of
these buildings determined in the prescribed
manner constitutes one of the elements for
computation of the gross asset of an estate.”
The observations quoted above of this Court have reference
to the following definition of ,homestead’ in el. (i) of s.
2 of the Act:
“homestead’ means a dwelling house used by the
Intermediary for the purpose of his own
residence or for the purpose of letting out on
rent together with any courtyard, compound,
garden, orchard and outbuildings attached
thereto and included any tank, library and
place of worship appertaining to such dwelling
house but does not include any building
comprised in such estate and used primarily as
office or kutchery for the administration of
the estate on and from the is day of January,
1946”.
it will appear from this definition that the Legislature
placed a proprietor’s homestead’ in two categories, namely
(1) a dwelling house used by the Intermediary for his own
purposes and (2) any building comprised in such estate and
used primarily as office or.Katcheri for the administration
of the estate on and from the list day of January, 1946. In
respect of first category the Act provides in a. 6 that
portion of the homestead shall be deemed to be settled by
the State with the Intermediary, who will continue to hold
it as a tenant under the State Government, subject to the
payment of fair and equitable groundrent, except where under
the existing law no rent is payable in respect of homestead
lands. It will be noticed further that the second category
in the definition of homestead, which has not been permitted
to the outgoing
562
Intermediary has reference to “any building comprised in
such estate”. It has no reference to any building standing
on rayati holding or a portion thereof. This becomes
further clear with reference to the provisions of a. 5,
which lays down the consequences of vesting of an estate in
the State. Under cl (a) of s. 5, the entire estate,
including all kinds of lands described in meticulous
details, and other non-raiyati lands vest absolutely in the
State Government. This Court, while dealing with the
constitutionality of the Act, was not concerned with raiyati
lands. Its observations had reference only to such
buildings as stood upon the proprietor’s private lands like
peel, seer, Zirat, etc., whicl, were in his possession as
proprietor or as tenure-bolder. It is thus clear that the
very basis of the judgment of the High Court is entirely
lacking. That the High Court was not unaware of this
distinction becomes clear from the following passage in its
judgment:
“Doubtless, Ryoti lands are excluded from the
scope of this clause. But buildings and
structures standing on Ryoti lands and in the
possession of the proprietor are not expressly
saved.”
The first sentence quoted above is correct, but not the
second. ‘I here is no question of expressly saving
structures on ratyati lands, when it is absolutely clear
that raiyati lands are not the subject-matter of legislation
by the Act. The same remarks apply to the reference in
section. 26 (b) (iii). Section 26 begins with the words
,for the purpose of this chapter”, namely, Chapter V, headed
“Assessment of Compensation”. Reading s. 26 as a whole it
is absolutely clear that for the purpose of assessment of
the compensation payable to the outgoing proprietor or
tenure-holder, of the estate to be acquired, gross assets
have to be determined, by aggregating the rents payable by
563
tenure-holders or under-tenure-holders and raiyats. It is,
thus, clear that the rent payable by the appellants as
raiyats in respect of the disputed lands would form part of
the assets which have to be included in the gross assets in
determining compensation. But that does not mean that the
interests of raiyats also have become vested in the State as
a result of the notification under. 3, read with s. 5.
For the reasons aforesaid, it must be held that the
appellant’s raiyati interests in the lands and in the
buildings standing on those lands have not been affected by
the abolition of his interest as proprietors, and that the
State authorities had-illegally taken possession of those.
The appeal is accordingly allowed with costs here and below.
Appeal allowed.