PETITIONER:
MAGUNI CHARAN DWIVEDI
Vs.
RESPONDENT:
STATE OF ORISSA AND ANOTHER
DATE OF JUDGMENT19/12/1975
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SARKARIA, RANJIT SINGH
CITATION:
1976 AIR 1121 1976 SCR (3) 76
1976 SCC (2) 134
ACT:
ORISSA Merged Territories (Village offices Abolition)
Act, 1963-Sections 3, 5 and 9-Interpretation of.
HEADNOTE:
In the execution proceedings to satisfy a decree dated
14-10-1958 for title and recovery of possession of certain
“ganju Bhogra lands” obtained by the appellant against the
State, the Notified Area Council. Rourkela claimed the suit
lands by an application u/o XXI Rule 58 r/w ss. 37 and 38
Code of Civil Procedure. The said application was rejected.
A revision against it was also dismissed with the
observation that the council was free to file a regular suit
for adjudication of its rights. When the appellant took out
a fresh application for execution u/s 47 of the Code` of
Civil Procedure, the Council which never filed any suit, and
the respondent State which never appealed against the
original decree, opposed the execution application on the
ground that the decree became infructuous by virtue of s. 3
of the orissa Merged Territories (Village offices Abolition)
Act, 1963.
The Executing court upheld the objection and dismissed
the execution petitition. On appeal the Additional District
Judge, by his order dated 2-5-1970, held that the decree was
executable resulting in a second appeal to the High court by
the respondent State. The High Court allowed the appeal by
its order dated 4-11-1974 holding that as the decree holder
was not in actual physical possession of the land, the
tenure has vested in the State free from all encumbrances
u/s 3 of the Act and the decree was rendered “non est”.
Dismissing the appeal by special leave, the Court,
^
HELD: (1) As a result of the abolition of the village
office under s. 3 of the OMTA, all incidents of the
appellant’s service tenure, e.g., the right to hold the
“bhogra land” stood extinguished by virtue of the provision
of clause (b) of s. 3, and ail settlements, sanads and all
grants in pursuance of which the tenure was being held by
the appellant, stood cancelled under s. 3(c). The right of
the appellant to receive emoluments was also deemed to have
been terminated under Cl. (d) and by virtue of Cl. (f), his
bhogra land stood resumed and “vested absolutely” in the
State free from all encumbrances. Section 3 of the Act, in
fact, expressly provided that this would be the result,
notwithstanding anything in law, usage, settlement, grant,
sanad, order or “in any judgment, decree or order of a
court.” All these consequences ensued with effect from April
1, 1966 the date of coming into force of the orissa Merged
territories (Village offices Abolition) Act, 1963. From that
date, the appellant suffered from these and other
disabilities enumerated in s. 3 of the Act, the “bhogra
land” in respect of which he obtained the decree dated
October 14, 1958 declaring his title and upholding his right
to possession was, therefore, lost to him as it vested
“absolutely” in the State Government free from all
encumbrances. The decree for possession also thus lost its
efficacy by virtue of the express provisions of the Act and
there is nothing wrong in holding that the decree was
rendered incapable of execution by operation of law. [77 D-
H]
(2) Under sec. 5 of orissa Merged Territoies ((Village
offices Abolition) Act, 1963, once a ”bhogra land” stood
resumed and vested absolutely in the State Government to the
exclusion of the village officer concerned, it was required
to be “settled” with rights of occupancy thereunder. The
settlement of the land contemplated by sec. S had to be
with the holder of the village office and the other persons
who were enjoying it (or part of it) and as his co-sharers,
as tenants under him or his co-sharers, but that was to be
so on the condition
76
that “each such person, namely, the holder of the village
office and his cosharers or the tenants under the holder of
the office or his co-sharers was in separate and actual
cultivating possession” of the land immediately before
April, 1966. The words “each such person” occurring in sub-
section I of Sec. 5 include the holder of the village office
so that in order to be eligible for settlement of the land
with occupancy rights, he must also be in separate and
cultivating possession of the “bhogra land” immediately
before April 1, 1966. There is nothing in sub-section I of
Sec. 5 to justify the argument that the interpretation of
the words “each such person” should be such as to exclude
the holder of v the village office from its purview. [78 E,
F-H]
State of orissa v. Rameswar Patabisi (Civil Revision
Petition No. 257 of 1974) decided on 27-6-1975 (orissa High
Court) over-ruled; Meharabansingh and Ors. v. Nareshaingh
and ors. [1970] 3 S.C.R. 18 (held not applicable).
(3) The provisions of sec. 9 do not justify the
argument that the village officer was entitled to continue
his possession of the ”bhogra land” under that section in
spite of the fact that the land. stood resumed and vested
absolutely in the State Government free from all
encumbrances. [80 E]
(4) The normal consequences arising out of the
rejection of the application under o. XXI, r. 58, Civil
Procedure Code and the failure to institute the suit
thereafter, were rendered nugatory by the express provisions
of section 3 of the orissa Merged Territories (Village
offices Abolition) Act, 1963. The question of executability
of the decree did not arise. [81 A-B]
[The Court left open to the authorities concerned to
examine the question of settlement of the land under s. 5(1)
of the orissa Merged Territories (Village Dr offices
Abolition) Act, 1963, with liberty to the village officer to
rely upon such matters as may be available according to
law.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 577 of
1975.
Appeal by Special Leave from the Judgment and order
dated the 4-11-74 of the orissa High Court in M.A. No. 75 of
1970.
G. S. Pathak, Santosh Chatterjee and G. S. Chatterjee
for the Appellant.
Sachin Chowdhury (Respondent No. 2) and Vinoo Bhagat
for the Respondent No. 1.
The Judgment of the Court was delivered by
SHlNGHAL J., Maguni Charan Dwivedi, the appellant,
filed a title suit in the Court of Munsif, Sundargarh
against the State of orissa, for declaration of his title
and recovery of possession of plot No. 99 meaguring 3.80
acres in khata No. 89 of village Mahulpali claiming it as
his “ganju bhogra” land. The suit was decreed on October 14,
1958, in respect of 3.45 acres. The defendant State of
orissa, did not file an appeal and the decree became final.
Decree-holder Dwivedi applied for its execution. The case
was transferred to the court of the Subordinate Judge of
Sundargarh. An objection was taken there by the Notified
Area Council, Rourkela, respondent No. 2, hereinafter
referred to as the Council, under ss. 37 and 38 and order
XXI rule 58 of the Code of Civil Procedure on the ground
that it was in actual physical possession of the land. The
objection application was however rejected by the execution
court on March 31, 1965. The Council applied for revision or
the order of rejection, but its application was dismissed
with the observation that the Council might file a regular
suit for adjudication of its right if it so desired. No suit
was filed by the Council and decreeholder Dwivedi filed an
application on September S, 1966 for proceeding with the
execution of his decree. The Council and the State then
77
made an application under s. 47 of the Code of Civil
Procedure stating A that the decree was not executable
because the orissa Merged Territories (Village offices
Abolition) Act, 1963, hereinafter referred to as the Act,
had come into force in the area on April 1, 1966, and the
“bhogra land” in question had vested in the State free from
all encumbrances. The Subordinate Judge upheld that
objection and dismissed the execution application.
Decree-holder Dwivedi felt aggrieved, and filed an
appeal which was heard by Additional District Judge,
Sundargarh, who held by his order dated May 2, 1970 that the
decree was executable. He therefore set aside the order of
the execution court, and the State of orissa and the Council
went up in appeal to the High Court. The High Court held
that as the decree-holder was not in actual physical
possession of the land, the tenure had vested in the State
free from all encumbrances C under s. 3 of the Act, the
decree was “rendered non est”, and the Collector could not
settle the land with him under s. S of the Act. It therefore
allowed the appeal by its impugned judgment dated November
4, 1974, and ordered that the decree-holder could not
execute the decree. He applied for and obtained special
leave, and has filed the present appeal.
It is not in dispute before us that the appellant held
the “village office” within the meaning of s. 2(j) of the
Act. It is also not in dispute that it was in that capacity
that he held the “bhogra land” in question by way of
emoluments of his office. Moreover it is not in dispute that
the appellant’s village office stood abolished in accordance
with the provisions of s. 3(a) of the Act. The consequences
of the abolition, have been stated in cls. (a) to (g) of s.
3. It will be sufficient for us to say, for purposes of the
present controversy, that as a result of the abolition of
the office, all incidents of the appellant’s service tenure,
e.g., the right to hold the “bhogra land”, stood
extinguished by virtue of the provisions of cl. (b) of s. 3,
and all settlements, sanads and all grants in pursuance of
which the tenure was being held by the appellant stood
cancelled under s. 3(c). The right of the appellant to
receive the emoluments was also deemed to have been
terminated under cl. (d), and by virtue of cl. (f) his
“bhogra land” stood resumed and “vested absolutely in the
State Government free from all encumbrances.” Section 3 of
the Act in fact expressly provided that this would be the
result, notwithstanding anything in any law, usage,
settlement, grant, sanad or order or “in any judgment,
decree or order of a Court.” All these consequences
therefore ensued with effect from April 1, 1966 when, as has
been stated, the Act came into force in the area with which
we are concerned. There can be no doubt therefore that from
that date appellant Dwivedi suffered from these and the
other disabilities enumerated in s. 3 of the Act; the
“bhogra land” in respect of which he obtained the decree
dated October 14, 1958 declaring his title and upholding his
right to possession, was therefore lost to him as it vested
“absolutely” in the State Government free from all
encumbrances. The decree for possession also thus lost its
efficacy by virtue of the express provisions of the Act
referred to above, and there is nothing wrong if the High rt
has held that it was rendered incapable of execution by
operation of the law.
78
Section S of the Act deals with the settlement of the
resumed “bhogra land” and has been the subject matter of
controversy before us. It provides as follows:
“5. Settlement of Bhogra lands:-(1) All Bhogra
lands resumed under the provisions of this Act shall
subject to the provisions of sub-section (2) be settled
with rights of occupancy therein on a fair and
equitable rent with the holder of the Village office or
with him and all those other persons, if any, who may
be in the enjoyment of the land or any part thereof as
his co-sharers or as tenants under him or under such
co-sharer to the extent that each such person was in
separate and actual cultivating possession of the same
immediately before the appointed date.
(2) The total area of such land in possession of
each such person shall be subject to a reservation of a
certain fraction thereof in favour of the Grama Sasan
within whose limits the land is situate and the extent
of such reservation shall be determined in the
following manner, namely:-
Land in possession Extent of reservation
For the first 10 acres Nil
For the next 20 acres 5 per cent
For the next 70 acres 10 per cent
For the next 100 acres 30 per cent
For the remaining 40 per cent:
Provided that the area reserved shall, as far as
practicable be in compact block or blocks of one acre
or more.” (Emphasis added) .
It would appear that once a “bhogra land” stood resumed and
vested absolutely in the State Government to the exclusion
of the village officer concerned, it was required to be
“settled”, with rights of occupancy thereunder, with the
erstwhile holder of the village office, or with him and all
those other persons, if any, who may be in enjoyment of the
land or any Part thereof as his co-sharer to the extent that
each such person was in separate and actual cultivating
possession of the same immediately before the date appointed
for the coming into force of the Act. The settlement of the
land contemplated by s. 5 had therefore to be with the
holder of the village office and the other persons who were
enjoying it (or part of it) as his co-sharers or as tenants
under him or his co-sharers, but that was to be so on the
condition that ”each such person” namely, the holder of the
village office, and his co-sharers, or the tenants under the
holder of the office or his co-sharers, was in “separate and
actual cultivating possession” of the land immediately
before April 1, .1966. There is nothing in sub-section (1)
of s. S to justify the argument of Mr. Pathak that we should
so interpret the words “each such person” as to exclude the
holder of the village office from its purview. In fact the
same words occur in sub-s. (2) of s. S as well, which deals
with the question of reservation of a fraction of the
“bhogra land” in favour of Grama Sasan, and Mr. Pathak has
not found it possible to argue that the land in possession
of the holder of
79
the village office was immune from the liability to such
fractional reservation. We have no doubt therefore that in
order to be entitled to the settlement contemplated by sub-
s. (1) of s. S, the village officer or the other persons
mentioned in the sub-section had to be in “separate and
actual cultivating possession” immediately before the
appointed date.
It has also been argued by Mr. Pathak that the
provisions of s. 3 of the Act were subject to the provisions
of s. 5, and that the High Court committee an error in
losing sight of that requirement of the law. He has urged
that if s. 3 had been read as suggested by him, it would
have been found that, in spite of the resumption and vesting
of the ”bhogra land” under s. 3, the appellant’s right to
possess the “bhogra land” in question continued to subsist
so long as it was not converted into a right of occupancy
under sub-s. (1) of s. 5. Counsel has gone on to argue that
the appellant was therefore entitled to ignore any trespass
on his possession of the “bhogra land”, and to ask for
execution of the decree for possession against the
respondents as they were mere trespassers and were not co-
sharers or tenants within the meaning of sub-s. (1) of s.5.
Reference in this connection has been made to Maxwell on
Interpretation of Statutes, twelfth edition, p. 86, where it
has been stated that it is necessary to interpret the words
of the statute so as to give the meaning “which best suits
the scope and object of the statute.” It has been argued
that grave injustice would otherwise result for, by a mere
act of trespass committed on the eve of the coming into
force of the Act, a village officer would lose the right of
settlement of his “bhogra land” under sub-section (1) of
s.5. It has also been argued that the words “each such
person” occurring in that sub-section do not include the
holder of the village office himself, so that it was not
necessary for him to show that he was in separate and actual
cultivating possession of his ”bhogra land”. Reliance for
this proposition has been placed on a bench decision of the
High Court of Orissa in State of Orissa v. Rameswar Patabisi
(Civil Revision Petition No. 257 of 1974 decided on June
27,1975) and on Meharaban Singh and others v. Naresh Singh
and others(1). As will appear, there is no force in this
argument.
Section 3 of the Act expressly provides for the
abolition of village offices under the Act, and the
consequences of such abolition. We have made a reference to
cls. (a) (b) (c) (d) and (f) of that section, and we have no
doubt that the consequences stated in the section in regard
to the abolition of village offices, the extinction of the
incidents of the service tenures, cancellation of the
settlements and sanads etc. creating those office,
termination of the right to receive any emoluments for the
offices, the resumption and vesting of the “bhogra lands”
free from all encumbrances ensued “with effect from and on
the appointed date” and were not put off until after the
settlement provided for in sub-section (1) of s. 5 had been
made. Section 3 in fact expressly made provision for those
consequences and there is no justification for the argument
that they remained suspended or were put off until occupancy
rights were settled on the persons concerned. As has been
(1) [1970] 3 S.C.R. 18.
80
stated, sub-section (1) of s. S deals with the settlement of
such lands, with rights of occupancy, with the holder of the
village office or with him and the other persons, if any,
referred to in the sub-section, but such settlement was
required to be made as a result of the consequences referred
to in s. 3 and not otherwise. It is therefore futile to
contend that the appellant did not suffer from those
consequences merely because the “bhogra land” claimed by him
had not been settled with rights of occupancy under sub-s.
(1) of s. 5 because it was the subject matter of the decree
which had not been executed.
We have gone through the decision in State of Orissa v.
Rameshwar Patabisi (supra) and it has no doubt been held
there that actual cultivating possession of the village
officer was not necessary for purposes of sub-s. (1) of s.
S, but, as has been shown, we have no doubt that the words
“each such person” occurring in sub-s. (1) of s. 5 include
the holder of the village office, so that in order to be
eligible for settlement of the land with occupancy rights,
he must also be in separate and actual cultivating
possession of the “bhogra land” immediately before the
appointed date. It appears that the earlier bench decision
to the contrary, which is the subject matter of the present
appeal, was not brought to the notice of the Bench which
decided Rameswar Patabisi’s case. We have gone through
Maharabansingh’s(1) case also but that was quite a different
case which was decided in accordance with the provisions of
a different Act.
It has next been argued by Mr. Pathak that the High
Court lost sight of the provisions of s. 9 of the Act which
provided for submission of records and delivery of
possession of other land but did not require delivery of
possession of the “bhogra land” even after its resumption.
The argument is however untenable because s. 9 was meant to
serve quite a different purpose inasmuch as it made
provision for the delivery of all records maintained by the
village officer in respect of the land or village held by
him in relation to his office, the rendering of all accounts
appertaining to his office in respect of the dues payable by
and to him, and the delivery of possession of all abandoned
and surrendered holdings etc. The section did not therefore
have any bearing on the question of the vesting of the
“bhogra land” absolutely in the State Government and the
extinction of the right of the village officer to hold it.
That had in fact been. expressly provided in those clauses
of s. 3 to which reference has been made by us already. As
it is, section 9 did not deal with the question of delivery
of possession of the “bhogra land” and its provisions could
not justify the argument that the village officer was
entitled to continue his possession of the “bhogra land”
under that section in spite of the fact that the land stood
resumed and vested absolutely in the State Government free
from all encumbrances under s. 3.
It may be mentioned that Mr. Pathak has argued further
that as the application which had been filed by the Council
under order XXI r. 58 C.P.C. had been rejected on March 31,
1965 and the Council did not file a suit to establish its
right to the “bhogra land”, the decree in favour of the
appellant became final and could not be challenged for
81
any reason whatsoever, and the High Court committed an error
in A taking the view that it was rendered inexecutable
merely because of the coming into force of the Act. It will
be sufficient for us to say in this connection that whatever
might have been the consequences of the rejection of the
Council’s application under order XXI r. 58 C.P.C. and the
failure to institute a suit thereafter, those normal
consequences were rendered nugatory by the express
provisions of the Act to which reference has been made
above. The question of executability of the decree has
therefore been rightly decided with reference to the Act.
It may be mentioned that in a given case there may be
no “bhogra land” to be settled with a village officer, or a
village officer may feel aggrieved on the ground that the
Act provides for the acquisition of property by the State,
but we find that provision has been made in the Act for the
payment of solatium or compensation under ss. 8 and 10 in
such cases and it cannot be said that they have been left
without a remedy.
For the reasons mentioned above, we find no force in
the arguments which have been advanced on behalf of the
appellant. It however appears to us that there is
justification for the other argument of Mr. Pathak that
there was really no occasion for the High Court to express
the view that the appellant “had no possession of the land”
so as to claim its settlement under s. 5(1) of the Act, and
that the Collector could not settle the land with him. As is
obvious, that was clearly a matter for the authorities
concerned to examine and decide under s. 5 and it was, at
any rate, outside the purview of the question relating to
the executability of the decree which was the subject matter
of the appeal in the High Court. While therefore the appeal
fails and is dismissed, the observation of the High Court
that the decree-holder had no possession of the land and the
Collector could not settle the land with him, is set aside,
and it is left to the authorities concerned to examine the
question of settlement of the land under s. 5(1). The
appellant may rely on such matters as may be open applellant
the law. In the circumstances of this case, we leave the
parties to pay and bear their own costs.
S.R. Appeal dismissed
82