PETITIONER:
BISWAMBHAR SINGH
Vs.
RESPONDENT:
THE STATE OF ORISSA AND ANOTHERJANARDHAN SINGHV.THE STATE OF
DATE OF JUDGMENT:
18/12/1953
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
BOSE, VIVIAN
HASAN, GHULAM
CITATION:
1954 AIR 139 1954 SCR 842
CITATOR INFO :
F 1955 SC 504 (54,87)
R 1955 SC 795 (5)
E&D 1956 SC 346 (3)
R 1956 SC 503 (23)
R 1958 SC 956 (19)
ACT:
Orissa Estates Abolition Act, (Orissa Act 1 of 1952), ss.
2(g), 2(h) and 3-Owners of certain zamindaries - Whether
intermediaries holding an estate within the meaning of ss.
2(g)and 2(h).
HEADNOTE:
The State Government is empowered under s. 3(1) to issue a
notification declaring that the estate specified therein has
passed to the State, but the notification must be in respect
of the’ property which is defined as an estate in a. 2(g)
and that estate must be held by an intermediary as defined
in s. 2(h).
In order to be an intermediary according to the definition
in s. 2(h) the person must be, among other things, “a
Zamindar, Ilaquedar, Kherposhdar or Tagirdar within the
meaning of Wajibul-arz or any Sanad, deed or other
instrument.”
843
Held, that the proprietors of Hamgir and Serapgarh
properties were not intermediaries as defined in s. 2(h) and
their respective properties were not “estates” within the
meaning of s. 2(g) and therefore Government had no
jurisdiction or authority to issue any notification under s.
3 with respect to their properties.
Held (Per PATANJALI SASTRI C.J.,DAS and GHULAM HASAN JJ.,
MAHAJAN and BOSE JJ., dissenting), as respects the Nagra
Zamindari that the Zamindar (appellant) was an intermediary
as defined in a. 2(h) of the Act and his estate was an
estate within the meaning of s. 2(g) because the
predecessor-in-title of the present Zamindai had
acknowledged the overlordship of Raja of Gangpur and there-
fore the State Government had jurisdiction to issue a
notification under s. 3 of the Act declaring that the estate
had passed to and become vested in the State.
Per MAHAJAN and BosE JJ.-The words “deed” and “other
instruments” in a. 2(h) are not to be read ejusdem generis
with “Sanad” and thus are not confined to a document of
title like a Sanad in which one party creates or confers a
zamindari estate on another. The words must be read
disjunctively and be inter. preted according to their
ordinary meaning.
With reference to merged territories 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) of any others instrument.
The kind of zamindar referred to in s. 2(h) is one who may
be called “a true intermediary” within the meaning of the
four documents set out there, that is to may, persons who
hold an interest in the land between the raiy at and the
overlord of the estate.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 167 and 169
of 1953.
Appeals under articles 132(1) and 133(1) (c) of the
Constitution of India from the Judgment and Order, dated the
7th April, 1953, of the High Court of Judicature of Orissa
at Cuttack in Original Jurisdiction Cases Nos. 65, 67 and 68
of 1952.
N. C. Chatterjee (B. Sen, K. C. Mukherjea and H.S. Mohanty,
with him) for the appellant.
M.C. Setalvad, Attorney-General for India and Pitambar
Misra, Advocate-General of Orissa.(V. N. Sethi, with them)
for the respondents.
1953. December 18. The Judgment of Patanjali Sastri C. J.,
Das and Ghulam Hasan JJ. was delivered by Das J. The
Judgment of Mahajan J. and Bose J. was delivered by Bose J.
DAS J.-These three appeals which have been,-heard together
raise the same or similar questions. Appeal
844
No. 167 of 1953, relates to Hemgir of which the appellant,
Shri Biswambhar Singh, is the proprietor. It comprises an
area of about 360 square miles out of which 145 square miles
are covered by forests. Appeal No. 168 of 1953 is by the
appellant, Shri Janardhan Singh, who is the proprietor of
Sarapgarh comprising an area of about 45 square miles.
Appeal No. 169 of 1953 relates 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 paid every year to
the Raja of Gangpur what has been called “Takoli” and the
present appellants are continuing this annual payment. This
payment has sometimes been called a tribute and sometimes
even rent as in the order, dated the 9th August, 1878, of A.
C. Mangles, the Commissioner of Chota Nagpurr. These
considerable properties are and have been heritable and the
rule of primogeniture prevails.
By a certain process beginning with Agreement of integration
made in December, 1947, and ending with the States’ Merger
(Governor’s Province) Order made on the 27th July, 1949, by
the then Governor-General
845
of India in exercise of the powers conferred on him by
section 290-A of the Government of India Act as amended by
the Indian Independence Act, 1947, all the feudatory States
of Orissa merged into and became part of the State of
Orissa. In consequence of such merger the area comprised in
Hemgir, Sarapgarh and Nagra as parts of the merged
territories became parts of the State of Orissa.
On the 17th January, 1950, a bill which eventually became
the Orissa Estates Abolition Act was introduced in the
Orissa Legislature. The Constitution of India came into
operation on the 26th January, 1950. The bill having been
passed by the Orissa Legislature on the 28th September,
1951, the Governor of Orissa reserved the same for the
consideration of the President. On the 23rd January, 1952,
the bill received the assent of the President and became law
as Orissa Act I of 1952. An Act called the Orissa Estates
Abolition (Amendment) Act, 1952, was passed on the 5th July,
1952, and was assented to by the President on the 27th
August, 1952
The long title of the Act is as follows:
“ An Act 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
interests, 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. ”
There are two preambles to the Act which recite:
” Whereas in pursuance of the Directive Principles of State
policy laid down by the Constitution of India it is
incumbent on the State to secure economic justice for all
and to that end to secure the ownership and control of all
material resources of the community so that they 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
846
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, Khorposhdar or Jagirdar within the meaning of the
Wajib-ul-arz, or any sanad, deed or other instrument, and a
gaontia or a thikadar of a village in respect of which by or
under the provisions contained in the Wajib-ul-arz appli-
cable to such village the maufidar, gaontia or the thikadar,
as the case may be, has a hereditary right to recover rent
or revenue from persons holding land in such village.”
Section 3(1) runs thus:
“ 3. (1) The State Government may, from time. to time by
notification, declare that the estate specified in the
notification has passed to and become vested in the State
free from all encumbrances.
As was to be expected the constitutionality of the Act was
challenged in a number of petitions- under article 226 of
the Constitution, but the Orissa High Court pronounced in
favour of the validity of the Act,. That decision has since
been upheld. by this court in Civil Appeal No. 71′of 1953
(Maharaja Sri Krishna Chandra Gajapati Narayan Deo v. The
State of Orisas(1).During the pendency of the writ petitions
before the
(1) [1954) S.C.R. 1.
847
High Court, the State Government on the 27th November, 1952,
issued a number of notifications under section 3 covering a
large number of estates including those of the three
appellants before us and called upon them to deliver up
possession. These appellants thereupon filed three separate
writ petitions praying in each case for a writ in the nature
of a writ of mandamus directing the State, of Orissa and the
Collector of Sundargarh not to interfere with their
possession of their respective estate or to intermeddle with
it or to give effect to the provisions of the Act. These
applications were opposed by the State of Orissa.
The several grounds taken in support of the petititions
were, very broadly speaking, (a) that they were not
intermediaries, (b) that their properties were not estates,
(c) that the forest areas within their properties were not
estates' (d) that the Act did not come under article 31A of
the Constitution and was not entitled to its protection, (e)
that the Act was discriminatory and offended against the
provisions of article 14. The then Chief Justice of Orissa,
again very broadly speaking, decided each of these issues
against the appellants and was of opinion that the petitions
should be dismissed. Narasimham J. agreed with the Chief
Justice that 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
848
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 to, issue a
notification declaring that the estate specified therein has
passed to the State. The State Government has no power to
issue a notification in respect of any property unless such
property is an "estate" as defined in section 2(g) A
perusal of the relevant part of that definition which has
been quoted above will at once show that in order to be an
"'estate" the collection of mahals or villages must, amongst
other things, be held by the same "intermediary". An
"Intermediary", according to the definition in section 2(h),
must be, amongst other things, "a Zamindar, Ilaqueder,
Khorposhdar, or Jagirdar within the meaning of the wajib-ul-
arz or any Sanad, deed or other instrument." The point to
note is that in order to be an "intermediary" within the
definition, it is not enough, if the person is a Zamindar,
Ilaquedar, Khorposhdar or Jagirdar simpliciter but he must
fall within one or other of the categories "within the
meaning of the wajib-ul-arz or any sanad deed or other
instrument." accordingly the first head of argument advanced
before is by learned counsel for the appellants is that the
state government had no authority to issue the notification
because they are not intermediaries and, therefore their
properties are not estates. This argument obviously
proceeds on the footing that the Act is intra vires the
Constitution and if it succeeds then no question of
constitutionality will arise.
We have had the advantage of perusing the judgment prepared
by our learned brother Bose and we agree, substantially for
reasons stated therein, that the appellants Shri Biswambhar
Singh and Shri Janardhan Singh are not intermediaries as
defined in section 2(h) and their respective properties,
namely, Hemgir and Sarapgarh are not "estates" within the
meaning of section 2(g) and that that being so the State
849
Government had no jurisdiction or authority to issue any
notification under section 3 with respect to their
properties'. In this view of the matter no constitutional
questions need be considered in Appeals Nos. 167 and 168 of
1953, which will, therefore, have to be allowed.
Appeal No. 169 of 1953 filed by the appellant Shri
Sibanarayan Singh Mahapatra of Nagra appears to us to stand
on a different footing. In paragraph 13 of the counter-
affidavit filed by the 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 Rs. 700 as yearly rent from
the year 1935 and thereafter instead of Rs. 425 which he
used to pay. This amount of Rs.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 Rs.
200 as Raja Bijoy should be discontinued and the Raja
should stop granting patta to the Gauntias of Nagra." The
Rubakari then concluded thus:
" This Ekrarnama being signed by them by their own pen was
filed before me and they agreed to abide by the terms
mentioned in the, Ekrarnama. So it has been ordered that
copy of it may be sent to the Raja
110
850
of Gangpur and Balki Mahapatra of Nagra,for information and
guidance."
It is thus quite clear from the above Rubakari that as far
back as 1879 an Ekrarnama had been executed both by the then
Raja of Gangpur and Balki Mahapatra of Nagra recording the
terms on which the latter would "hold" possession of the
Nagra Zamindari namely, that he must. pay a fixed annual
rent besides certain customary dues.
Years later, to wit on the 29th March, 1943, the Dewan of
Gangpur State wrote a letter to the Zamindar of Nagra Estate
calling upon him to show cause why the takoli should not be
enhanced. This letter is document No. 6 (r-2). The
Zamindar of Nagra to whom this letter was addressed was no
other than the appellant Shri Sibanarayan Singh Mahapatra.
On the 19th July, 1943, a long reply was sent by the latter.
In the heading of this reply after the name of the appellant
is added the description "Zamindar of Nagra". In paragraph
3 (XV) reference is made to the fact that takoli had been
fixed in perpetuity and had been finally settled in the year
1879. The whole of Rubakari of J. F. K. Hewitt is set out
in extenso in paragraph 14 of this reply. Paragraph 15
states :
"That from the Rubakari proceeding of Mr. Hewitt it will
appear that the then Raja Raghunath Sekhar Deo of Gangpur
and Babu Balki Mahapatra, Zamindar, Nagra, duly signed a,
deed of compromise in which it has been, clearly and in
unequivocal terms, embodied that Gangpur Raja and his
successors will be bound by that term and Nagra should only
pay Rs. 700 as Takoli every year and nothing more and this
Takoli should remain fixed for ever."
Reference is then made in paragraph 17 to the proceedings of
the 29th June, 1891, before W.H. Grimley, the then
Commissioner, which is marked as document, No. 6 (L). This
also refers to the settlement made by J.F.K. Hewitt in 1879.
There is, therefore, no getting away from the fact that an
Ekrarnama had been executed by the Raja of Gangpur and Balki
Mahapatra, the predecessor-in-title of this appellant,.
851
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 treated as evidence, with
the mutual consent of the parties. Those typed paper books
have accordingly been placed on the record. Some annual
administration reports of the Gangpur State as well as
certain working plans for the reserved forests of Hemgir,
Nagra and other zamindaris as also the Forest Act of Gangpur
State have been filed and received without any objection
from either side. Quite a number of further documents have
been produced on behalf of the State as per the list of
documents filed along with two affidavits dated the 9th and
10th February, 1953, and certain annexures have been filed
on behalf of the petitioners along with an affidavit dated
the 11th February, 1953. All these have been, without
objection, treated as part of the record excepting one
document to be presently noticed. The only document whose
reception has been objected to is what is referred to as the
Mukherjee's Settlement Report,
852
item No. 18 in the list of documents filed on behalf of
the State."
Further and strictly speaking the appellant Shri Sibanarayan
Singh Mahapatra having in his own letter dated the 19th
July, 1943, referred to above admitted the existence and
contents of the Ekrarnama, secondary evidence is, strictly
speakina. admissible under section 65 (b) of the Indian
Evidence Act. It may also be mentioned here that in the
grounds of appeal set forth in the petition for leave to
this court no grievance war, made that secondary evidence of
the contents of the Ekrarnama had been wrongly let in. In
the circumstances, this appellant cannot now be heard to
complain of admission of inadmissible evidence as to the
terms of the Ekrarnama. Apart from this, the recital of the
Ekrarnama and its terms in an ancient public document like
the Rubakari whose authenticity has not been, nor indeed
could be, doubted furnishes strong evidence of the existence
and genuineness of the settlement arrived at by the parties.
Proceeding, then, on the footing that Balki Mahapatra and
his descendants including the present proprietor held the
Nagra Zamindari estate under the Ekrarnama on the terms of
payment of a fixed annual rent there can arise no question
as to the real status of the proprietor of Nagra vis-a-vis
the Raja of Gangpur since 1879, whatever the position may
have been prior thereto. It is, therefore, quite clear that
the proprietors of Nagra are zamindars within the meaning 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
853
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 ancient days the
existence of the forest like that of uncultivable waste land
would not affect the assessment of the rent to any
appreciable degree. There is no evidence on record that in
fixing the annual rent the forests were left out of
consideration in the sense that they were treated as a
separate item of property. There is no proof on the record
in support of such an unusual arrangement. If the forests
are included within the boundaries of the estate and if the
Zamindar of Nagra "holds" the estate under the Raja of
Gangpur, he must be holding the forests also under the Raja
of Gangpur. The suggestion that the proprietor of Nagra
accepted a grant from the Raja of Gangpur only in respect of
the collection of Mahals or villages but retained his
independent chieftainship with respect to the forest lands
interspersed between the villages but situate within the
geographical limits of the entire estate is hardly
convincing. For the above reasons and those set out in the
judgment of the learned Chief Justice we are of the opinion
that the forest lands are included within the estate held by
the Zamindar of Nagr under the Raja of Gangpur.
In the view that the Zamindar of Nagra is an intermediary
and his territories are an estate it must follow that the
appellant Shri Sibanarayan Singh Mahapatra; cannot get any
relief if the Act is valid. Learned counsel appearing in
support' of his appeal (No. 169 of 1953) then falls back on
the question of
854
the constitutionality of the Act. Here he has a preliminary
hurdle to get over, for if the Act is covered and protected
by article 31 -A then the Act cannot be deemed to be void on
the ground that it is inconsistent with or takes away or
abridges any of the rights conferred by any provision of
Part III of the Constitution. It has, therefore, been the
endeavour of learned counsel for the appellant before us, as
it was before the High Court, that Nagra was not an "estate"
as defined in article 31 -A (2)(a). The learned Chief
Justice took the view that Nagra was an estate as defined
and consequently the Act was within the protection of
article 31 -A but Narasimham J. took the opposite view. The
third Judge Mahapatra J. agreed with the learned Chief
Justice. 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 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 view. Mr. Justice
Mahapatra,
855
however, agreed with the Chief Justice. We find ourselves
in agreement with the majority view.
The long title of the Act and the two preambles which have
been quoted above clearly indicate that the object and
purpose of the Act is to abolish all the rights, title and
interest in land of intermediaries by whatever name known.
This is a clear enunciation of the policy which is sought to
be implemented by the operative provisions of the Act.
Whatever discretion has been vested in the State Government
under section 3 or section 4 must be exercised in the light
of this policy and, therefore, it cannot be said to be an
absolute or unfettered discretion,-for sooner or later all
estates must perforce be abolished. From the very nature of
things a certain amount of discretionary latitude had to be
given to the State Government. It would have been a
colossal task if the State Government had to take over all
the estates at one and the same time. It would have broken
down the entire administrative machinery. It could not be
possible to collect sufficient staff to take over and
discharge the responsibilities. It would be difficult to
arrange for the requisite finance all at once. It was,
therefore, imperative to confer some discretion on the State
Government.. It has not been suggested or shown that in
practice any discrimination has been made. If any
notification or order is made, not in furtherance of the
policy of the Act but in bad faith and as and by way of
discrimination such notification or order, which by virtue
of article 13(3) comes within the definition of " Law ",
will itself be void under article 13 (2). Learned counsel
appearing for the.appellant has not shown, by advancing any
cogent and convincing argument, how and why the reasonings
adopted by the majority of the learned Judges below are
faulty or untenable. In the premises, it is not necessary
for us to pursue this, matter further beyond saying that we
find ourselves in agreement with the conclusions of the
majority of the learned Judges of the High Court.
Learned counsel for the appellant referred to another point,
namely that the amending Act altering the definition of the
date of vesting was invalid as there
856
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 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 fundamental provisions
of the Constitution, (2) that even if it is valid the
notifications are ultra vires because (a) the zamindaris in
question are not " estates " within the meaning of section 2
(g) of the Act and because (b) the petitioners are not "
intermediaries " within the meaning of section 2(h).
We will first deal with the question of " estates and "
intermediaries ". The question assumes importance because of
section 3 (1) which enacts that
"The State Government may, -from time to time by
notification, declare that the estate specified in the
857
notification has passed to and become vested in the State
free from all encumbrances. "
The definition of an "estate" is given in section 2(g) and
is as follows:
"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. "
Intermediary " is defined in section 2 (h)
"Intermediary....... with reference to the merged
territories means a maufidar including the Ruler of an
Indian State merged with the State of Orissa, Zamindar,
Ilaquedar, Khorposhdar or Jagirdar within the meaning of the
wajib-ul-arz, or any sanad, deed or other instrument.
It is admitted that the territories with which we are
concerned are merged territories, so the portions of the
definition that we have reproduced above are all we need
consider. Before any property can be taken over under the
Act it must be an '.'estate" within the meaning of the above
definition and so must belong to an " intermediary " as
defined in clause (h).
We will start with the definition of "intermediary." It is
admitted by both sides that the petitioners are zamindars
but the petitioners contend that they are not
"intermediaries" because the definition does not include all
zamindars but only those who are zamindars, etc., within the
meaning of-
(a) any wajib-ul-arz "
(b) any sanad, deed or other instrument.
We have grouped the last three together because that is how
the appellant's learned counsel says they should 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
111
858
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 as a zamindar that makes him an
intermediary, for if that had been the intention, the
definition would have said so. In our opinion, the words
have been inserted to include only those documents which
deal, or purport to deal, with true intermediaries, that is
to say, with persons who hold an interest in the land
between the raiyat or actual cultivator and the overlord of
the demesne. Two illustrations will show what we mean.
A may be a zamindar in one State and yet 'May hold lands,
which have no connection with his zamindari, as an ordinary
tenant in another State. Now A may well execute a kabuliat
or enter into a lease with his immediate landlord in that
other State and refer to himself as a zamindar, but that
would not make him a zamindar within the meaning of that
deed because the deed does not purport to deal with
zamindars but with a landlord and his tenant. Though called
a zamindar
859
there, the word would only be descriptive, and he would
really be a tenant within the meaning of that deed.
Consider a second illustration. A ruling Chief might
acquire a zamindari of the intermediary type in a
neighbouring State by purchase or otherwise. In documents
relating to the zamindari he may well be described as the
Raja or Chief of so and so but he would not be a ruling
Chief within the meaning of that document though so called.
He would only be a zamindar. That is the only way in which
we are able to interpret this clause in section 2. We cannot
ignore the change in the two parts of the definition and we
are bound to assign some intelligible purpose to the words "
within the meaning of "
The distinction is of importance because zamindars are of
various kinds; some are true intermediate in that they are
the collectors of the revenue of the State.from the raiyats
and other under-tenants of lands. They have an interest in
the land but not the true fee simple of English law. They
are not the lords of the manor as in England and bear little
or no resemblance to an English landlord though they have
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
860
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 different stages of
history in the same place. At one moment we are dealing
with a rajah or petty chieftain exercising sovereign or
quasisovereign powers, at another with revenue farmers, at
another with landlords of small estates in the English sense
of the term, at another with a petty peasant cultivator and
at times with mere courtesy titles which have no legal
foundations or backing. We do not think the Act can be
applied to peasants who own their own land and cultivate it,
that is to say, to the raiyats, nor do we think it can be
applied, to a landlord in the English sense of the term, the
man who is the true lord of the soil, because the title of
the Act, the preamble and the definitions, all point the
other way. The title and the preamble use the same language
and describe the Act and its purpose as one
" to provide for the abolition of all the rights, title and
interest in land of intermediaries by whatever name known.
We are therefore bound to construe the ambiguous words which
we have examined above in a sense which will carry out the
purpose of the Act and not in a way which will travel beyond
it. We accordingly hold that the kind of zaminder referred
to in section 2 (h) is one who is what we may call a " true
intermediary " within the meaning of the four documents set
out there, that is to say, persons who hold an interest in
the land between the raiyat and the overlord of the estate.
861
It is unfortunate that we should have to call them true
intermediaries " when the whole purpose of the discussion is
to examine what an " intermediary " means but that is a
convenient term and we do not think it will mislead when
read in conjunction with what we have said.
Now the mere fact that the zamindari lands in the present
cases are situate within the boundaries of the Gangpur State
is not conclusive to show that the petitioners who own them
are "intermediaries" because, as the Privy Council has
pointed out in two cases, the mere fact 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 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.
(1) I.L.R. 53 Cal. 533 at 547.
(2) (1870) 13 I.A. 438 at 457.
862
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
elaborately set out in the lower courts and copious extracts
from their judgments are given in the report. The lower
courts held that the zamindars in that area were of two
kinds-feudatory and non-feudatory (page 637). The Privy
Council remarking on this at page 657 said-
“ The status of the Zamindar of Khariar and the plaintiffs
in the other suits is simply the status of an ordinary
British subject. That matter was determined by the grant in
1864 after ail exhaustive enquiry into the position of the
petty chiefs of the Central Provinces. A few were
recognised as feudatories having some of the attributes of
sovereigntv. The rest were classed as non-feudatories and
declared to be ordinary British subjects.”
Now if the State of Gangpur be substituted for the British
Government the claim made by the present petitioners vis-a-
vis the State of Gangpur becomes the same as the claims
which the plaintiffs in the suit made against the Secretary
of State for India. The status of the plaintiffs in that
case vis-a-vis the British Government was settled because
the question had been definitely raised and examined in the
year 1863 and determined in the year 1864 and in 1874 sanads
were granted to and accepted by the ancestors of the parties
to that litigation (page 637). In the present cases the
question of the present petitioners’ status vis-a-vis the
State of Gangpur was repeatedly raised and as often
deliberately not decided; and it is an admitted fact that
there are no sanads.
There is another point. The petitioners are Bhuyans and
they have repeatedly claimed that their ancestors were the
original settlers who were ‘on the soil long before the
Chiefs of Gangpur came on the scene. Now Baden-Powell sets
out the history of
(1) I.L.R. 39 Cal. 615.
863
the Bhuyans in the Bengal and Chota Nagpur area of what was
once British India in Volume I of his book. At page 577 he
explains that the Bhuyans were the original founders of the
village and at 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 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 in the next sentence that-
864
“They are the barons from whom those Chiefs originally
derived their authority, and are either the support or the
sap of that authority according to the side they take in the
politics of the State. ”
This is evidence to indicate that the Bhuyans in Gangpur
were there before the Rulers of Gangpur.
In the’ year 1891 a dispute arose between the Raja of
Gangpur and the Zamindars of Hemgir and Nagra. The Bengal-
Nagpur Railway cut through a part of their lands and both
claimed compensation from the railway for timber which was
out from the forests. The Commissioner Mr. W. H. Grimley
refused to pay the Raia any compensation for timber taken
from the zamirndari forests and only paid him for what was
taken from his Khalsa lands. In the course of his decision
be refers to Hewitt’s Settlement of 1879 and quotes the
following from the report:
“ The contention that the Zamindar of Nagra is merely a
tehsildar or rent-collector subordinate to the Raja is
therefore invalid, and it is established beyond doubt that
the zamindar has a permanent interest in the Nagra Estate
and is practically on the same footing as a zamindar under
permanent settlement in Bengal.”
He then concludes-
” The above extracts and remarks show that the zamindars of
Nagra and Hemgir and other zainindars of Gangpur were
regarded by a former Commissioner not only as possessing
permanent rights in their zamindaris but as having full and
exclusive rights over the jungles in their estates. They
seem to be the original settlers of the soil, and their
position appears to be analogous to that of the Mankis in
Lohardugga and Manbhum, who, as aboriginal chiefs, or heads
of the clans holding groups of twelve or more villages,
exercise jungle rights and are independent of the superior
Raja or zamindar, a creature of subsequent growth.”
We need not make further extracts from the large volume of
historical material which was placed before us because we
are, not deciding the point’ here and it
865
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 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 the Chief have, not
been expressed in any administration paper which is accepted
by the zamindar in each settlement.”
In the year 1941 Ramdhyani was appointed an Officer on
Special Duty to report on the Land Tenures and the Revenue
System of the Orissa and Chhattiagarh States. In paragraph
75 of the first volume of his Report he says that the
zamindars on the one hand refuse to accept sanads to
determine their rights and the Rulers on the other hand do
not favour precise laws which will tie their hands. And in
Volume III he says that.
112
866
“No sanads have been issued by the State to the zamindars
and thus there is no clear definition of their rights.”
That there can be another side to the picture is evident
from the historical material collected in Kunwarlalsingh v.
Provincial (Government, Central Provinces and Berar(1) and
in Rajkrishna Prasadlal Singh Deo v. Baraboni Coal Concern
Ltd.(1) In many cases, ‘even though the zamindars started as
independent sovereigns vis-a-vis the ruling power, their
rights were so whittled away in course of time that whatever
they may once have been their present status has become one
of subordination. Whether that happened in these cases has
never been determined and it would not be right for us to
assume anything one way or the other in the absence of the
Raja of Gangpur. Our object in delving into this mass of
historical material is to show that the mere use of the word
“zamindar” proves nothing and that a passing reference to
the term in the various documents which we will now examine
cannot fix the petitioners’ status as “intermediaries” when
the Settlement Reports to which the documents appertain
state in categorical terms that neither side would agree to
a definition of their rights vis-a-vis each other and that
consequently no attempt was made to define them.
The first document on which reliance is placed by the State
is the Wajib-ul-arz. Much research and 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.
(2) I.L R. 62 Cal. 346 at 354 & 355.
867
“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
Connolly expressly says that those rights were neither
agreed upon nor determined. It is true the petitioners
style themselves as zamindars in the pattas, but the whole
question is what kind of zamindar is meant. That is
deliberately left indeterminate by the continued use of the
words “Chief” or “Ilaquedar”. The petitioners’ case is that
they are the overlords within the meaning of these documents
an d that the gaontias are their intermediaries and, as we
have seen, there is ground for that contention. We are
therefore unable to hold that the petitioners are
“zamindars” within the meaning of this “Wajibul-arz” (even
if the document is assumed to be a Wajib-ul-arz), taking
“zamindar” to mean, as it must under the definition, what we
have called a “true intermediary”.
it was also said that certain Settlement Khewats and
Khatians formed part of the Wajib-ul-arz in this part of the
country.’ We were not shown anything to support
868
that beyond the bare assertion, that was so but even if that
is correct we cannot read more into these documents than
what the Settlement Commissioner expressly stated. The
Khatians, for example, merely say that the name of the
person who receives the revenue is “Zamindar so and so of
Khewat No. 2″. It is to be observed that the column refers
to the name of the person and not to his designation. But
quite apart from that, we find it impossible to separate the
statements in these documents from the categorical
reservation made by the Settlement Officer in his report.
If it was understood on all hands, and was solemnly recorded
in the Settlement Report, that the dispute about the
relations between the Ruler of Gangpur and the petitioners
was neither agreed to nor decided in these Settlements we
can hardly conclude that despite that solemn 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 therefore unable to regard the petitioners as
zamindars within the meaning of the Wajib-ul-arz.
869
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
are municipally, as opposed to politically, subordinate to
him. These moneys have been variously described at
different times. Sometimes they are called malguzari, at
others takoli, at others revenue and sometimes rent. But
none of that is conclusive because what we have to determine
is whether the petitioners are “true intermediaries” within
the meaning of certain documents, and there the overriding
factor is the repeated assertions of the Settlement Officer
that at no time has their status inter se been agreed upon
or decided.
Among the documents relied on as “deeds or other
instruments” are the pattas to which we have just referred.
The petitioners are said to have signed them as “zamindars”,
or some one else is said to have signed for them. The
signatures were not admitted in all the cases but even if
they were validly signed by or on behalf of the petitioners
that would not make the petitioners “zamindars” within the,
meaning of the pattas. The word “zamindar” under their
respective signatures is merely descriptive and does not in
itself indicate what kind of zamindar is meant and since
everybody agreed that question should be left on the pattas
cannot be taken to mean that the petitioners are the kind of
zamindars about which there is a dispute and that they have
the status which they have stoutly contested at every stage.
The rest of the documents, except one which concerns Nagra
alone, are merely historical material. They are neither,
Wajib-ul-arz nor deeds nor -other instruments. We have
already referred to a number on which the petitioners rely’.
There are others
870
which are more favourable to Gangpur as, for example, a
Political Book of 1831-1833 and an order of the Commissioner
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 mearing
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 right to infer that the Zamindar of Nagra had
suddenly surrendered the
871
claims to municipal independence which he had been
contesting for years and which he has continued to contest
to the present day. The immediate cause of the dispute was
about Gangpur’s right to grant leases to Gaontias in the
zamindari, about a royalty of Rs. 200, about the Raja’s
right to interfere with the policing of the zamindari tract
and about certain taxes. The zamindar agreed to pay the
Raja a fixed yearly sum of Rs. 700 as “rent” while the Raja
agreed that the Nagra Zamindar should police his own estate
and agreed that he, the, Raja, would not grant any more
pattas to the Gaontias in that area; also that the Raja
would not collect taxes from the Kumbars etc., but would
instead settle separately with the zamindar after first
submitting his report about this to the Commissioner.
The only point here against the Zamindar is that the word ”
rent ” is used instead of ” tribute “, but this loses all
its force in view of the fact that the Diwan of the Gangpur
State writing to the Zamindar of Nagra himself called it
Takoli in a letter dated 29th March, 1943. The rights of
the Zamindar regarding Gaontias and the policing of his own
tracts were conceded. Now the right to police a tract of
land is one of the first attributes of sovereignty. The
power can be delegated but that is at the will of the
sovereign and not the other way round; the subject cannot
resist the sovereign’s right to police his own State. The
settlement about the taxes is neither here nor there because
that was done as a matter of compromise without either side
admitting 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
872
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 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 “, Then their lands are not an
“ estate” within the meaning of section (2) (g) and so
cannot be taken over by the State of Orissa under section 3.
In view of this, it is not necessary to examine any other
points. The learned Judges of the High Court differed on
the remaining points and so those points were referred to a
third Judge. But on the definition of “ intermediary ”
there was no difference of opinion. Both the Chief Justice
and Narasimham J. agreed that the petitioners were ”
intermediaries. ” We disagree for the reasons we have given
above.
The result is that, in our opinion, all three appeals should
be allowed and that the decision of the High Court should be
set aside and a nwndamus issued to the State of Orissa
directing that State not to give
873
effect to.the provisions of the Orissa Estates Abolition Act
of 1951 and not to take possession of the several estates of
the three petitioners under that Act.
The costs of the petitions here and in the High Court
should, in our opinion, be paid by the State of Orissa.
Appeals Nos. 167 and 168 allowed.
Appeal No. 169 dismissed
Agent for the appellants: B. P. Maheshwari.
Agent for the respondents: G. H. Rajadhyaksha.