PETITIONER:
JAGANNATH BEHERA AND OTHERS
Vs.
RESPONDENT:
RAJA HARIHAR SINGHMARDARAJ BHRAMARBARA ROY
DATE OF JUDGMENT:
06/12/1957
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
KAPUR, J.L.
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 239 1958 SCR 1067
ACT:
Merger Agreement-Private Property of Ruler-Legislation
restricting ejectment of tenants-If violates guarantee of
full ownership, use and enjoyment-jurisdiction of Courts in
dispute between Ruler and tenants-Ruler whether a landlord-
Orissa Tenants Protection Act, 1948 (Orissa III of 1948),
SS. 2(a) and (g)-Orissa Merged States (Laws) Act, 1950
(Orissa IV of 1950), SS. 7(a) and (h) -Constitution of
India, Arts. 19(1)(f), 363.
HEADNOTE:
The respondent was the Ruler of the erstwhile State of
Khandapara which merged in the State of Orissa on August 1,
1949. Article 3 of the Agreement of Merger guaranteed that
“the Raja shall be entitled to full ownership, use and
enjoyment of all his private properties”. The Orissa Merged
States’ (Laws) Act, 1950 extended the Orissa Tenant’s
Protection Act, 1948 to the merged areas. In 1951 the
respondents evicted certain tenants. The tenants applied to
the Revenue Officer under the 1948 Act for being restored to
possession on the allegations that the respondent was their
landlord and that he had unlawfully evicted them. The
Revenue Officer allowed the applications and directed
restoration of possession. The respondent filed a petition
under Art. 226 of the Constitution in the High Court for
quashing the orders of the Revenue Officer contending, (1)
that the application of the provisions of the 1948 Act to
his private properties violated the guarantee given under
the Agreement, (2) that Art. 363 Of the Constitution barred
the Court from dealing with any dispute arising out of the
Agreement, and (3) that the 1948 Act did not apply to him as
he was not a landlord. The High Court accepted these
contentions and quashed the proceedings taken under the 1948
Act:
Held, that the extension of the 1948 Act did not affect
the full ownership, use and enjoyment of his properties
guaranteed to the respondent under the Agreement. The
provisions of the Agreement only protected his rights to the
properties declared to be his private properties so that
they could not be claimed at anytime thereafter as State
properties. The guarantee given under the Agreement could
not be absolute but could only be co-extensive with the
right to acquire, hold and dispose of property which is
guaranteed to all citizens under Art. 19(1)(f) of the
Constitution.
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of
136
1068
Darbhanga, [1952] S.C.R. 889 and Visheshwar Rao v. The State
of Madhya Pradesh, [1952] S.C.R. 1020, followed.
Held, that the jurisdiction of the Courts to entertain
the applications under the 1948 Act, was not barred by Art.
363 Of the Constitution. The dispute between the appellants
and respondent was not a dispute which arose out of the
Agreement of Merger, and so was not covered by Art. 363.
Held further, that the respondent was a landlord to whom
the provisions of the 1948 Act applied. Whatever may have
been the definition of the terms landlord and tenant in SS.
2(C) and (g) of the 1948 Act the definitions contained in s.
7(a) of the 1950 Act, made the appellants ‘the tenants’ and
the respondent ‘the landlord’ in regard to the lands in
question.
JUDGMENT:
CIVIL APPFLLATE JURISDICTION: Civil Appeal No.309 of
1955.
Appeal from the judgment and order dated October 7, 1953,
of the Orissa High Court in O.J.C. No. 37 of 1952.
C.K.Daphtary, Solicitor-General of India and B.Sen (B.
M. Patnik, Advocate, Orissa High Court with Special
Permission of the Court and R. H. Dhebar), for the
appellants, Nos. 1, 3 to 9 and 11 to 16 and the intervener.
H. Mahapatra and Gyan Chand Mathur, for the respondent.
1957. December 6. The following Judgment of the Court
was delivered by
BHAGWATI J.-This appeal with a certificate under Arts.
132 and 133(1)(c) of the Constitution arises out of a writ
petition filed by the respondent in the High Court of Orissa
under Art. 226 seeking to quash the proceedings taken by
certain tenants of his private lands under the provisions of
the Orissa Tenants’ Protection Act, 1948 (Orissa III of
1948), hereinafter referred to as the 1948 Act.
The respondent was the ruler of the erstwhile Khandapara
State which merged with the Province of Orissa under the
States’ Merger (Governor’s Provinces) Order, 1949 with
effect from August 1, 1949. The respondent had on December
14, 1947 entered into an agreement with the Governor-General
of India art, 3 Whereof provided that:
1069
” The Raja shall be entitled to full ownership, use, and
enjoyment of all private properties (as distinct from State
Properties) belonging to him on the date of the agreement.”
That article further provided that if any dispute arose
as to whether any item of property was the private property
of the Raja or State property, it shall be referred to such
officer with judicial experience as the Dominion Government
might nominate and the decision of that officer shall be
final and binding on both parties. The respondent claimed a
number of properties and the matter was referred to the
Adviser for Orissa States for determining whether all the
items claimed by him could be regarded as his private pro-
perties. On June 10, 1949, the Adviser communicated his
decision that the respondent was entitled to 1,643 acres as
his Khamar lands and 29 and odd acres as lands settled with
his tenants. The lands comprised in the present proceedings
taken under the 1948 Act as aforesaid were declared to be
the private properties of the respondent.
On March 3, 1950, the Orissa Legislature passed the
Orissa Merged States’ (Laws) Act, 1950 (Orissa IV of 1950)
hereinafter referred to as ” the 1950 Act “. Section 4 of
that Act extended inter alia the 1948 Act to the areas
merged in the absorbing Province of Orissa. Section 7
provided for the modification of tenancy laws in force in
the merged States. The relevant provisions of that section
so far as they are material for the purposes of this appeal
may be set out herein:
” Notwithstanding anything contained in the tenancy laws
of the merged States as continued in force by virtue of
article 4 of the States Merger (Governor’s Provinces) Order,
1949:
(a)all suits and. proceedings between landlord and tenant
as such shall be instituted and tried in revenue courts.
Explanation:In this clause the expression ” landlord”
shall mean a person immediately under whom a tenant holds
land, and the expression ” tenant ” shall mean a person who
holds land under another
1070
person and is or, but for a special contract, would be
liable to pay rent for that land to that person:
(h) when a person holds Khamar, nij-jote or any other
private lands of a Ruler, which has been recognised as such
by the Provincial Government, he shall not be liable to
ejectment but shall be liable to pay such fair and equitable
rent as may be fixed by any competent authority appointed in
this behalf by the Revenue Commissioner or the Commissioner,
Northern Division, as the case may be and thereupon he shall
acquire right of occupancy in respect of such lands: ”
On April 14, 1951, the State Legislature passed the
Orissa Tenants Protection (Amendment) Act, 1951 (Orissa XVII
of 1951) whereby the date the ” 1st day of September, 1947 ”
wherever it was used in the 1950 Act, was substituted by the
“I st day of August, 1949″ for the purposes of the merged
States areas and it was further provided that in such areas
where neither the Madras Estates Land Act, 1908, nor the
Orissa Tenancy Act, 1913 was in force the special laws or
customs prevailing therein shall be taken into consideration
for the application of that Act.
It appears that certain tenants who were in occupation of
the private lands of the respondent were evicted by him
during the year 1951 and other tenants were inducted by him
and put in possession of the lands. The tenants who were
thus evicted applied to the Revenue Officer some time in
1952 for being restored to possession of their tenancy lands
under the provisions of the 1948 Act, alleging that the
respondent was their landlord and that he had unlawfully
evicted them from their lands. These were numbered as
O.T.P. Act Cases Nos. 21 to 25 of 1952, 26 to 28 of 1952, 29
to 32 of 1952 and 33 to 41 of 1952. Notice was issued to
the respondent but it appears that be did not care to enter
appearance before the Revenue Officer or to contest the
applications. On the ex parte evidence of the Applicants
the Revenue Officer directed restoration of possession to
them holding that they
1071
were in possession of the lands as tenants on the 1st day of
August, 1949, and as such were entitled to the benefits
conferred by the 1948 Act, as amended in its application to
the merged States.
The respondent thereupon filed a writ petition under Art.
226 of the Constitution in the High Court seeking to quash
the entire proceedings on the ground that in respect of the
disputed lands he was not a ” landlord ” within the meaning
of the 1948 Act. The petition as filed averred that the
fundamental right conferred upon the respondent by Art. 19
of the Constitution was infringed, that the provisions of
the 1948 Act which were inconsistent with that article were
void as being ultra vires the Constitution and the orders
passed thereunder by the Revenue Officer were illegal and
liable to be set aside.
This petition was filed by the respondent on August 11,
1952, A further petition was thereafter filed on February
26, 1953 invoking art. 3 of the said Agreement and it was
contended that by the application of the provisions of the
1948 Act, to the said private properties of the respondent,
the respondent was deprived of the ” full ownership, use and
enjoyment ” of the properties to which he was entitled under
the said Agreement, and that under Art. 363 of the Constitu-
tion, no Court had jurisdiction to deal with any dispute
arising out of any provisions of the said Agreement. The
decision of the Revenue Officer was thus called in question
and it was contended that he had no jurisdiction to decide
the dispute as to whether the tenants had any right to the
personal properties of the respondent and as such the
proceedings were liable to be quashed as being without
jurisdiction.
The High Court accepted these contentions of the
respondent and allowed the writ petition. It accordingly
directed the issue of a writ declaring that the proceedings
under the 1948 Act taken by the Revenue Officer were void as
being without jurisdiction and that they should be quashed.
The tenants then filed an application before the High
Court asking for a certificate under Arts. 132 and
1072
133(1)(c) of the Constitution which was granted by the High
Court. The State of Orissa asked for leave to intervene in
the appeal which leave was granted by this Court and the
learned Solicitor-General has appeared before us in support
of the appeal, both on behalf of the tenants who are the
appellants herein, and the State of Orissa, the Intervener.
It may be noted at the outset that no question has been
raised in regard to the vires of the 1950 Act, which
extended inter alia the 1948 Act to the areas merged in the
absorbing Province of orissa. That being so, s. 7(h) of the
1950 Act in terms would apply to the appellants before us
and they would not be liable to ejectment.
The answer of the respondent, however, is that (1) the
Revenue Court had by virtue of Art. 363 of the Constitution
no jurisdiction in the disputes between the appellants and
him arising out of the provisions of the said Agreement
dated December 14, 1947, (2) that the full ownership, use
and enjoyment of the properties which was guaranteed to him
under art. 3 of the said Agreement was affected by the
application of the provisions of the 1948 Act, to the said
lands and (3) that, he was not a “ landlord “ and the
appellants were not the ” tenants ” within the meaning of
the terms as defined in the 1948 Act, and, that in any
event, these lands were not recognised as such by the
Provincial Government which recognition was a condition
precedent to the application of s. 7(h) of the 1950 Act to
these lands and that therefore the appellants were not
entitled to the protection thereof.
The first two contentions are inter-related and can be
disposed of together. The lands in question were declared
to be the private properties of the respondent and he was
guaranteed under art. 3 of the said Agreement full
ownership, use and enjoyment thereof. Article 363 only
ousted the jurisdiction of the courts in regard to the
disputes arising out of any provisions of the Agreement
entered into by the Rulers of Indian States with the
Government of India. The dispute which had arisen between
the appellants and the respondent in the present case could
hardly be said to
1073
be a dispute arising out of any provisions of the said
Agreement. The full Ownership, use and enjoyment of the
properties which were declared to be the private properties
of the respondent was not sought to be affected by extending
the 1948 Act, to the merged State of Khandapara. The
properties which had been declared to be the private
properties of the respondent were not claimed as State
properties but the whole legislation proceeded on the basis
that the respondent was the owner of these properties
wherein he had inducted tenants and what was sought to be
done was to enact a measure for the protection of those
tenants. A measure for the protection of the tenants
inducted by the respondent could hardly be said to affect
the full ownership, use and enjoyment of these properties by
the respondent. It no doubt imposed certain restrictions on
the absolute rights which the respondent claimed in regard
to the user and enjoyment of the said properties; but these
measures were imposed upon him in common with all the
citizens of the Union and the justification for the same
could be sought under cl. 5 of Art. 19 of the Constitution.
Similar contentions which had been raised on behalf of
the erstwhile Rulers, whose States had merged with the
Provinces, were answered by this Court in The State of Bihar
v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1) and
in Visweshwar Rao v. The State of Madhya Pradesh (2).
PatanjaliSastri C. J.observed in the former case at page
915:
“But a short and obvious answer is that there was no
contravention of any guarantee or assurance given by the
Government under the covenant of merger, as the estates in
question are sought to be acquired only as the “ private
property “ of the Rulers and not otherwise. The
compensation provided for, such as it is, is in recognition
of their private proprietorship, as in the case of any other
owner.”
Mahajan J. (as he then was) observed in the latter case
at page 1041 :
” It is true that by the covenant of merger the
[1952] S.C.R. 889, 915.
(2) [1952] S.C.R, 1020, 1041, I054.
1074
properties of the petitioner became his private properties
as distinguished from properties of the State but in respect
of them he is in no better position than any other owner
possessing private property. Article 362 does not prohibit
the acquisition of properties declared as private properties
by the covenant of merger and does not guarantee their
perpetual existence. The guarantee contained in the article
is of a limited extent only. It assures that the Rulers’
properties declared as their private properties will not be
claimed as State properties. The guarantee has -no greater
scope than this. That guarantee has been fully respected by
the impugned statute, as it treats those properties as their
private properties and seeks to acquire them on that
assumption. Moreover, it seems to me that in view of the
comprehensive language of article 363 this issue is not
justiciable.”
Das J. (as he then was) also observed in that case at page
1054:
” The guarantee or assurance to which due regard is to be
had is limited to personal rights, privileges and dignities
of the Ruler qua a Ruler. It does not extend to personal
property which is different from personal rights. Further,
this article does not import any legal obligation but is an
assurance only. All that the covenant does is to recognise
the title of the Ruler as owner of certain properties. To
say that the Ruler is the owner of certain properties is not
to say that those properties shall in no circumstances be
acquired by the State. The fact that his personal
properties are sought to be acquired on payment of
compensation clearly recognises his title just as the
titles of other proprietors are recognised.”
It is clear therefore that neither Art. 363 nor Art. 362
of the Constitution would avail the respondent and the
courts would have jurisdiction to entertain the dispute
between the appellants and him which arose out of his action
in ejecting them from his private lands. The provisions of
the said Agreement only protected his rights in the
properties declared to be his private properties so that
they could not be claimed at any time thereafter as State
properties. The 1948 Act
1075
did not dispute his ownership over the same but proceeded on
the basis that they were his private properties and sought
to impose upon him certain obligations in order to protect
the rights of the tenants whom he had inducted therein and
there was no infringement of the guarantee or assurances
which had been given to him under art. 3 of the said
Agreement. It could not also be urged that by imposing
reasonable restrictions in the interests of the tenants on
his right to acquire, hold and dispose of properties under
cl. 5 of Art. 19 of the Constitution, the 1948 Act affected
his rights of full ownership, use and enjoyment of those
properties. If anything was done by extending the 1948 Act
to the merged State of Khandapara, it was done in the
interests of the tenants and it was done for the protection
of the tenants who were inducted by him and such
restrictions did not affect the full ownership, use and
enjoyment of his private properties, any more than they did
in the case of other owners of lands. As a matter of fact,
under the terms of the 1950 Act which extended the 1948 Act
to the merged State of Khandapara, he was entitled to the
payment by “he tenants of such fair and equitable rent as
may be fixed by any competent authority appointed in this
behalf by the Revenue Commissioner or the Commissioner of
the Northern Division as the case may be and so long as the
tenants continued to pay such rent he was no worse off than
were other proprietors of lands. The tenants would no doubt
acquire rights of occupancy in respect of such lands but the
acquisition of the occupancy rights by the tenants would not
be calculated to affect his right to full ownership, use and
enjoyment of his lands, because he would be entitled to
eject the occupancy tenants also if the tenants used the
lands comprised in their holdings in any manner which
rendered them unfit for the purposes of the tenancy or
committed a breach of conditions consistent with the
provisions of the tenancy laws in force in the merged State
concerned on breach whereof they were under the terms of the
contract between themselves and the landlord liable to be
ejected. As already stated
I37
1076
these restrictions were for the protection of the tenants
who were inducted on the lands by the erstwhile Rulers
themselves and by the extension of the 1948 Act to the
merged State of Khandapara, the respondent was treated in
the same manner as any other citizen of the Union. If at
all there was any infringement of his rights to full
ownership, use and enjoyment of his properties that was also
in accordance with the provisions of the Constitution itself
and whatever may have been the guarantee or assurance given
to him under the terms of the said Agreement, it could not
be absolute but would only be co-extensive with the right to
acquire, hold and dispose of property which is guaranteed to
all the citizens of the Union under Art. 19(1)(f) of the
Constitution. These contentions of the respondent therefore
are of no avail.
If, then, the provisions of the 1950 Act could be validly
applied to the merged State of Khandapara in spite of art. 3
of the said Agreement thus attracting the operation of the
1948 Act to his private lands it remains to consider whether
the respondent was a landlord and the appellants were his
tenants within the meaning of the terms as defined in that
Act.
The contention of the respondent, in the first instance,
is that under the terms of s. 2(ii) of the Orissa Tenants
Protection (Amendment) Act, 1951 (Orissa XVII of 1951) which
added sub-s. 5 to s. I of the 1948 Act, in such areas where
neither the Madras Estates Lands Act, 1908, nor the Orissa
Tenancy Act, 1913, was in force-and the State of Khandapara
was such an area-the special laws or customs prevailing
therein shall be taken into consideration for the
application of that Act. It is urged that the relationship
between the respondent and the tenants whom he had inducted
on his private properties was governed by special laws and
customs and that therefore the application of the Act was
excluded . It is, however, to be observed that no such
contention was ever taken in the proceedings before the
Revenue Officer or before the High Court and it was urged
for the first time in the course of the arguments before us.
The question is one of fact,
1077
whether any such special laws or customs were prevailing in
the merged State of Khandapara, and we cannot allow the
respondent to urge this contention for the first time before
us. We shall, therefore, proceed on the basis that the 1948
Act was quite properly extended to the merged State of
Khandapara.
It is next contended that the definition of landlord and
tenant given in s. 2(c) and (g) of the 1948 Act did not
apply to the relationship between the parties. The
definitions of these terms are as under:
Section 2 (c).-”landlord” means a person, whether a
proprietor, sub-proprietor, tenure-holder or raiyat or
under-raiyat, either in the raiyatwari area or in the
zamindari area or land-holder or permanent undertenure-
holder, whose land a person, whether immediately, or
mediately cultivates as a tenant;
Section 2 (g).-”tenant” means a person who, under the
system generally known as Bhag, Sanja, Kata or such similar
expression, cultivates the land of another person on
condition of delivering to that person-
(i) either a share of the produce of such land, or
(ii) the estimated value of a portion of the cropraised
on the land, or
(iii) a fixed quantity of produce irrespective of the
yield from the land, or
(iv) produce or its estimated value partly in any one
of the ways described above and partly in another; but shall
not include………………. ”
It is urged that the tenants who were inducted by the
respondent on these lands did not fulfil the terms of this
definition and they were therefore not tenants and, as a
logical corollary to that, the respondent could not be a
landlord qua them. It is also contended that even though
these lands were declared to be the private properties of
the Respondent under the decision of the Adviser for the
Orissa States, that was a recognition of the lands as such
by the Dominion Government and not by the Provincial
Government; which recognition was a condition precedent of
the application of s. 7(h) of the 1950 Act to these lands.
Here
1078
also, the respondent is confronted with this difficulty that
these questions were not mooted either before the Revenue
Officer or the High Court in the manner in which it was
sought to be done before us. It was all along assumed that
the appellants had been the tenants of the respondent but
had been ejected by him in the year 1951 and other tenants
were inducted in their place some time in 1952. The lands
in question were also assumed to have been recognised as the
private lands of the respondent by the Government without
making any distinction between the Dominion Government and
the Provincial Government as was sought to be done before
us. Reliance was mainly placed by the respondent in the
High Court on his plea that the jurisdiction of the Revenue
Officer was barred under Art. 363 of the Constitution and it
was nowhere urged that the appellants were not the tenants
and be was not the landlord within the terms of the
definitions contained in the 1948 Act or that in the absence
of recognition of these private lands of his as such by the
Provincial Government, the condition precedent to the
application of s. 7(b) of the 1950 Act was not fulfilled and
that section has no application at all to these lands. The
determination of these questions also requires evidence in
regard to the same and it would not be legitimate to allow
these questions to be agitated for the first time at this
late stage.
The matter is, however, concluded by the provisions of s.
7(a) of the 1950 Act. That section enacts a statutory
extension of the definition of the terms landlord and tenant
and provides that the expression ‘Jandlord’shall mean a
person immediately under whom a tenant holds land, and the
expression ‘tenant’ shall mean a person who holds land under
another person and is or, but for a special contract, would
be liable to pay rent for that land to that person.
Whatever may have been the definitions of the terms landlord
and tenant in s. 2(c) and (g) of the 1948 Act, this
definition contained in the explanation to s. 7(a) of the
1950 Act makes the appellants ‘the tenants ‘and the
respondents ‘ a landlord ‘ in regard to the lands in
question. This statutory extension of the definition of the
terms
1079
‘landlord’ and ‘ tenant’ therefore is sufficient, in our
opinion, to repel the last contention urged on behalf of the
respondent before us.
The respondent further contends that in spite of s. 7 of
the 1950 Act, enacting that all suits and proceedings
between landlord and tenant as such shall be instituted and
tried in revenue courts, the provisions of the 1948 Act in
regard to the hierarchy of revenue courts and the procedure
and the penalties provided therein are not attracted to the
merged State of Khandapara. The contention is that the
provisions contained in the 1950 Act are special provisions
which eliminate the operation of the general provisions
contained in the 1948 Act, and in so far as nothing more is
stated in regard to how the revenue courts are to act in the
matter of the institution and trial of all suits and pro-
ceedings between landlord and tenant, there is a lacuna and
the revenue courts as envisaged by the 1948 Act, have no
jurisdiction to entertain the proceedings in question.
The simple answer to this contention of the respondent is
that both these Acts have to be read together. The 1950 Act
is an Act to extend certain Acts and regulations to certain
areas administered as part of the Province of Orissa. The
merged State of Khandapara is one of such areas. By virtue
of s. 4 of this Act the 1948 Act is inter alia extended to
the merged State of Khandapara and the provisions thereof
are made applicable in that area. The other sections of
this Act enact further provisions which are applicable to
these merged States including the merged State of Khandapara
and s. 7, in particular, enacts the modification of the
tenancy laws in force in those merged States. These
provisions are therefore supplementary to those contained in
the 1948 Act, and it follows that not only the provisions of
the 1948 Act but also the provisions of the 1950 Act are
applicable to the merged State of Khandapara. If both these
Acts are thus read together, as they should be, there is no
inconsistency between the provisions of these Acts and it is
clear that the provisions of sub-s. (a) and (h) of s. 7 of
the 1950 Act
1080
which applied to the dispute which arose between the
appellants and the respondent read together with the
relevant provisions in regard to the procedure, penalties,
etc., contained in the 1948 Act did give jurisdiction to the
Revenue Officer to entertain the dispute between the
parties. This contention of the respondent also therefore
fails.
We are therefore, of opinion that the judgment of the
High Court was clearly wrong and is liable to be set aside.
We accordingly allow the appeal, set aside the order made
by the High Court, and restore the orders passed by the
Revenue Officer in the O.T.P. Act Cases Nos. 21 to 25 of
1952, 26 to 28 of 1952, 29 to 32 of 1952 and 33 to 41 of
1952. The respondent will pay the appellants’ costs of this
appeal as also of the writ petition in the High Court. The
State of Orissa will, of course, bear and pay its own costs.
Appeal allowed.