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PETITIONER: BISWAMBHAR SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 16/11/1962

BENCH:

ACT: Sovereign-Zamindar whether  sovereign-Etates-Intermediaries- Constitutionality  of  Act XVII of 1954-The  Orissa  Estates Abolition Act, 1952 (Orissa 61 of 1952), ss. 2 (g), 2 (h).

HEADNOTE: When  the  Orissa Estates Abolition Act came into  force  in February  1952,  the appellants along  with  another  person moved  the  High Court under Art. 226  of  the  Constitution challenging  the  constitutionality of the  Act.   The  High Court  held  that  the Act was valid and the  lands  of  the appellants could be taken over by the State.  When the  case came  to this Court in appeal, it held that the Act did  not apply to the proprietors of Hemgir and Sarpgarh as they were not  intermediaries as defined in s. 2 (h) of the Act.   The Zamindar  of Nagra was held to be an intermediary as he  had acknowledged  overlordship  of  the Raja  of  Gangpur.   The Orissa  legislature passed Act XVII of 1954 and changed  the definitions of estate’ and intermediary’ to cover the  cases of the proprietors of Hemgir and Sarpgarh. The appellants, the Zamindars of Hemgir and Sarpgarh,  moved the  High Court for a writ of mandamus against the State  of Orissa  and  the Collector of  Sundargarh.   The  appellants claimed sovereign status and contended that the Amending Act did not apply to them.  Their petitions were dismissed 363 by the High Court which held that as a result of  historical process  the  appellants  had lost  all  vestiges  of  their sovereignty  and become subject to the laws  promulgated  by ruler  of Gangpur and when that ruler merged his State  with the  State of Orissa, the appellants ’were not  better  than mere  subjects  and had absolutely no  claims  to  sovereign power.   The  other  contentions raised  by  the  appellants regarding discrimination etc. were also rejected by the High Court.  The appellants came to this Court after securing the certificate. Held,  that the appellants or their ancestors had ceased  to be  sovereigns  on  the eve of the merger of  the  State  of Gangpur with the State of Orissa and their position was that of  intermediaries  who  held or  owned  interests  in  land between  the  Raiyat and the State and  their  interests  in their  lands could be acquired by the State under  the  Act. Although  there  was no evidence of actual conquest  of  the territory  of the appellants by the Raja of Gangpur  or  the active  imposition of the sovereignty of the Raja  over  the territories  in  question, as a matter of  fact  the  former rulers of those territories had submitted to the sovereignty of  the Raja as a result of a continuous process.  The  Raja of   Gangpur  exercised  sovereign  authority   over   those

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territories.   The outward symbols of sovereignty were  that the  laws  of  Gangpur State were in  force  in  Hemgir  and Sarpgaph.   The whole of the administrative control  was  in the  hands of the Raja of Gangpur.  Neither in fact  nor  in law  was  there any vestige left of the sovereignty  of  the appellants when the Raja merged his State with the State  of Orissa. Biswambhar  Singh v. State of Orissa, [1954] S. C.  R.  842, Promod Chandra Deb v. State of Orissa [1962] Supp.  I S.  C. R. 405, Thakur Amar Singhji v. State of Rajasthan, [1955]  2 S. C. R. 303 and Amarsarjit Singh v. State of Punjab, [1962] Supp. 3 S. C. R. 346, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 11 2  and 11 3 of 1960. Appeals from the judgment and order dated April 25, 1957, of the Orissa High Court in 0. J. C. Nos. 164 and 181 of 1954. N.   C.  Chatterjee,  M. S. Mohanty, A. N. Singh and  B.  P. Maheshwari, for the appellants. 364 C.   B.  Agarwala, R. Gopalakrishnan and R. H.  Dhebar,  for the respondents Nos.  1 and 2 (in C. A. No. 112/60) and  for the respondents (in C. A. No. 113/60). 1962.  November 16.  The judgment of the Court was delivered by SINHA,  C. J.-These two appeals on certificates  of  fitness granted  by the High Court of Orissa raise the  question  of the  constitutionality  of  the  Orissa  Estates   Abolition (Amendment) Act (Orissa XVII of 1954) amending the main Act, the  Orissa Estates Abolition Act (Orissa 1 of 1952),  which hereinafter  will  be  referred  to  as  the  Act.   As  the questions raised in the High Court and in this Court are the same in both the appeals, they have been heard together  and this judgment will govern them both. It  appears  that the two Zamindars of Hemgir  and  Sarpgarh moved  the  High  Court  of Orissa under  Art.  226  of  the Constitution  for  a writ of mandamus against the  State  of Orissa and the Collector of Sundargarh, which is a  district formed  after  Merger.   Previously  it  was  part  of   the feudatory   State   of  Gangpur.    The   two   petitioners’ Zamindaries  covered about 540 sq. miles between them.   The petitioners in the High Court in their petitions, claimed  a sovereign  status  and  referred to  a  mass  of  historical literature,  including references to the Imperial  Gazetteer by W. W. Hunter, Sir Richard Temple’s Treaties, Zamindaries, Chieftainships  in  Central Provinces,  and  other  official records.  The High Court has found that the remote ancestors of  the  petitioners  were  Bhuiyan  Chiefs,  who  were  the original  settlers and who had in course of time become  the chieftains  of  the  place,  exercising  sovereign   powers. Subsequently,  when the Rajput Rulers of Gangpur settled  in that  area, these Bhuiyan Chiefs accepted the suzerainty  of those Rulers and gradually surrendered their sovereign 365 rights.   They  used  to pay annual  "Takolis",  which  they originally paid as tributes to the suzerain, but which later became  indistinguishable from land revenue.   Their  status vis-a-vis the Ruler of Gangpur remained undefined, though in successive revenue settlements made by the Ruler of Gangpur, with  the concurrence of the then political  Department,  of the  Government of India, they were described as  Zamindars, and  ’Khewats’ were issued to them.  The High Court,  on  an

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examination of the relevant evidence, came to the conclusion that  these Zamindars ultimately lost all vestiges of  their sovereignty,  and as a result of historical  process  became subject to the laws promulgated by the Ruler of Gangpur, and that  when  the  Ruler merged his State with  the  State  of Orissa, with effect from January 1, 1948, these  petitioners were  no  better than mere subjects and  had  absolutely  no claims  to sovereign power.  The High Court also found  that considerable  forest  areas formed part of  the  land  which belonged  to  them,  and  that these  forest  areas  had  no separate and distinct existence in the eye of law.  The High Court repelled the petitioners’ contention that their  lands were  not  restates’  as defined in Art.  31A(2)(a)  of  the Constitution.   The High Court also rejected the  contention that  the Act, in so far as it applies to  the  petitioners, was  discriminatory.  The High Court thus held that Art.  14 of the Constitution had not been contravened.  It also  held that  the  Act  was  not  void  under  Art.  254(1)  of  the Constitution.  It further held that the so called  violation of Art. 17(2) of the "Universal Declaration of Human Rights" promulgated by the General Assembly of the United Nations on December  10,  1948,  to which India was a  party,  was  not justiciable.   In that view of the matter,  these  petitions were dismissed and both parties were directed to bear  their own  costs.   The petitioner, in each case, moved  the  High Court  and obtained the necessary certificate for coming  up in  appeal  to this Court.  That is how  these  appeals  are before us. 366 This  is  not  the first time that  these  petitioners,  now appellants  in this Court, have figured as litigants in  the High Court and in this Court in respect of their  respective lands.   When  the Orissa Act 1 of 1952, the main  Act,  was enacted and came into force in February 1952, the Government of Orissa notified the petitioners’ property also as  coming within  the purview of the Act.  The appellants  along  with another person claiming the same rights, belonging to Nagra, moved  the  High Court under Art. 226  of  the  Constitution challenging   the  constitutionality  of  the  Act.    Those applications  were heard by the High Court, and by  majority it  was  held  that the Act was valid  and  that  the  lands belonging  to  the petitioners could be taken  over  by  the State,  as  a  result  of the operation  of  the  Act.   The petitioners  in the High Court preferred an appeal  to  this Court.  The judgment of this Court is reported as Biswambhar Singh v. State of Orissa(1) This Court allowed the appeal of the  proprietors of Hemgir and Sarpgarh on the  ground  that they were not ’Intermediaries’ as defined in s. 2(h) of  the Act.   As  regards the proprietor of Nagra Zamindari,  by  a majority  judgment, it was decided that he came  within  the definition  of an ’intermediary’, and that,  therefore,  his land  would  come within the definition of an  ’estate’,  as defined in s. 2(g) of the Act.  This Court distinguished the case of Nagra from that of the other two on the ground  that the  Zamindar of Nagra had acknowledged the overlordship  of the  Raja of Gangpur.  As a result of the decision  of  this Court,  allowing the appeals of the Zamindars of Hemgir  and Sarpgarh  and  prohibiting the State of Orissa  from  taking over possession of those two zamindaries under the Act,  the Orissa  Legislature passed the Amending Act (XVII)  of  1854 recasting  the  definition  of the two  terms  ’estate’  and ,intermediary’.   The amended definition of these two  terms is as follows :-               "(g) ’estate’ includes a part of an estate and               (1)   [1954] S.C.R. of 842.

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             367               means any land held by or vested in an  Inter-               mediary  and included under one entry  in  any               revenue rolls or any of the general  registers               of   revenue-paying  lands  and   revenue-free               lands,  prepared and maintained under the  law               relating to land revenue for the time being in               force  or  under any rule,  order,  custom  or               usage  having the force of law,  and  includes               revenue-free lands not entered in any register                             or  revenue-roll and all classes of tenures  o f               under-tenures and any jagir, inam or muafi  or               other similar grant ;               Explanation I-Land Revenue means all sums  and               payments in money or in kind, by whatever name               designated  or  locally  known,  received   or               claimable by or on behalf of the State from an               Intermediary  on account of or in relation  to               any   land   held  by  or   vested   in   such               Intermediary ;               Explanation II-Revenue-free land includes land               which  is,  or but for any  special  covenant,               agreement,  engagement or contract would  have               been  liable to settlement and  assessment  of               land  revenue  or with respect  to  which  the               State  has power to make laws  for  settlement               and assessment of land revenue;               Explanation  III-In relation to merged  terri-               tories,  ’estate’  as defined in  this  clause               shall  also  include any mahal or  village  or               collection  of  more than one  such  mahal  or               village  held by or vested in an  Intermediary               which has been or is liable to be assessed  as               one  unit  to land revenue  whether  such  and               revenue  be  payable or has been  released  or               compounded  for  or redeemed in  whole  or  in               part."               (h)   ’Intermediary’  with  reference  to  any               estate               368               means a proprietor, sub-proprietor,  landlord,               land-holder,   malguzar,  thekadar,   gaontia,               tenure-holder,     under-tenure-holder     and               includes  an  inamdar, a  jagirdar,  zamindar,               Ilaquedar, Khorposhdar, parganadar, Sarbarakar               and Muafidar including the Ruler of an  Indian               State merged with the State of Orissa and  all               other  holders or owners of interest  in  land               between the raiyat and the state;               Explanation 1 Any two or more  intermediaries               holding a joint interest in an estate which is               borne  either  on the revenue-roll or  on  the               rentroll  of  another  Intermediary  shall  be               deemed to be one Intermediary for the purposes               of his Act;               Explanation  II-The  heirs  and  successors-in               interest  of  an  Intermediary  and  where  an               Intermediary is a minor or of unsound mind  or               an  idiot, his guardian, Committee  or,  other               legal  curator  shall  be  deemed  to  be   an               Intermediary  for  the purposes of  this  Act.               All  acts done by an Intermediary  under  this               Act  shall be deemed to have been done by  his               heirs and successors-in-interest and shall  be

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             binding on them." In  the  statement of objects and reasons for  amending  the Act,  it was indicated that these wide definitions of  those two  terms were enacted so that the decision of  this  Court with  particular reference to these two properties  may  not stand in the way of acquiring them. Though  the  arguments in the High Court  occupied  a  every large  field, on these appeals Mr. Chatterjee, on behalf  of the  appellants,  has  confined  his  submissions,  in   the ultimate  analysis.  to only one point,  namely,  that  even after the amendment of the Act 369 the  legislature  has  failed to achieve  its  objective  of bringing  the  land  of these  two  petitioners  within  the mischief of the Act.  In other words, the contention is that the appellants were sovereign rulers whose States could  not be  taken  over  by  the State  of  Orissa  even  after  the amendment  of  the  Act, as aforesaid.   The  definition  of ’intermediary’ in s. 2 (h) as amended, the argument proceeds further, would not take in the appellants’ properties so  as to  entitle  the  State  to  acquire  them,  nor  does   the definition  of  ’estate’ in the amended s. 2 (g)  cover  the interest  of the appellants in their respective  lands.   It is, therefore, necessary to find whether the interest of the appellants,  in order to be liable to acquisition under  the Act,  could come within the purview of the definition of  in termediary’.  It is difficult to accede to the argument that the all inclusive definition of "intermediary’, as given  in the amended cl. (11) of s. 2 would not cover the interest of the appellants.  If it is held, as we must hold in agreement with  the  High Court, as will presently  appear,  that  the appellants  were not holders of sovereign States,  then  the inference  is clear that they held or owned an ’interest  in land  between the Raiyat and the State.’ As admitted on  all hands, they are not Raiyats.  Then, whatever their  interest may be, whether as proprietors or tenure-holders or Inamdars or   Jagirdas  or  Khorposhdars,  etc.  etc.,   specifically mentioned  in  the definition, they would  come  within  the purview of the last clause and their interest would be  that of an intermediary, because they stand in between the  state at the apex and the cultivating Raiyat at the base.  If  the interest  of  these appellants is not that  of  a  sovereign State,  they hold their property as intermediaries  and  the payment which they used to make to the Raja of Gangpur,  and later to the State of Orissa, would be in the nature of land revenue. The main argument, therefore, of Mr. Chatterjee was directed to showing that the 370 appellants held the lands as sovereign power, and      that the  Takoli which they paid to the Raja of Gangpur was  only in  the  nature  of tribute and not land  revenue.   In  our opinion,  there is no substance in this contention.   It  is true  that  there is no evidence of an act of State  in  the nature of a conquest by the Raja of Gangpur or that the Raja imposed his sovereignty on these principalities by force  of arms  or  by express agreement.  It was,  therefore,  argued that there was no scope for applying the doctrineof "act of State" to these principalities. There   is a fallacy in this argument.  It was pointed     out  by this Court  in  Promod Chandra Deb v. Stateof  Orissa(1) that an act of  State may  be  the  taking  over of  sovereign  powers  either  by conquest  or by treaty or by cession or otherwise.   It  may have  happened on a particular date by a public  declaration or  proclamation,  or  it  may have been  the  result  of  a

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historical  process  spread over many years,  and  sovereign powers  including the right to legislate in  that  territory and  to administer it may be acquired without the  territory itself  merging in the new State.  It has been found by  the High  Court  that the various laws which were  in  force  in Gangpur State were in force in Hemgir and Sarapgarh also, by their own force and not as a result of any agreement between sovereign  States.  Furthermore the various  departments  of administration   were  also  in  the  hands  of  the   staff maintained  and supervised by the Ruler of Gangpur.   Hence, at the date of the merger of the Gangpur State in the  State of  Orissa, not even a vestige of sovereignty was left  with these appellants.  It is, therefore, not necessary to  refer to  a large mass of historical evidence which shows that  at one  time  in  the ancient past these  appellants  or  their ancestors  were  sovereign chiefs.  They may  have  occupied that  position  in  the  remote past, but  as  a  result  of historical  process  spread over many  years,  those  rights became  vested in tile Ruler of Gangpur not  necessarily  by express agreement but impliedly, by (1)  [1962] Supp.  1 S.C. R. 405, 434. 371 conduct, over a series of years.  We are concerned with  the year 1947, and in that there is no evidence on behalf of the appellants  that  they had any sovereign authority  left  in them.    Their  position  is  analogous  to  that   of   the Bhomicharas of Rajasthan, dealt with by this Court in Thakur Amar Singhji v. State of Rajasthan (1) and that of the  Cis- Sutlej  jagir  in  Punjab,  dealt  with  by  this  Court  in Amarsarjit Singh v. State of Punjab (2).  Hence, even though there is no evidence of actual conquest of the territory  of the  appellants  by  the  Raja of  Gangpur,  nor  of  active imposition  of  the  sovereignty  of  that  Raja  over   the territories  in question, the fact remains that as a  result of  a  continuous  process, the erstwhile  rulers  of  these territories  submitted to the sovereignty of the  Raja  with the result that the Ruler of Gangpur became, in effect,  the sovereign  power  exercising his  sovereign  authority  over those   territories  also,  and  the  outward   symbols   of sovereignty  were  that the laws of Gangpur  State  were  in force in Hemgir and Sarpgarh areas also not by virtue of any orders of the appellants but by their own force, as has been pointed out by the High Court on a consideration of all  the relevant  evidence,  which need not be  recapitulated  here. The administrative control also had passed into the hands of the Ruler of Gangpur.  Hence, neither in fact nor in law was there any vestige left of the sovereignty of the  appellants by  1947 though it may not be possible to determine by  what exact  process and by what exact date, this  transition  was complete.   Apparently  it was spread over many  years.   We know only this much that at the relevant date, i. e., at the end of 1947, and on the eve of the integration of the  State of  Gangpur  with the State of Orissa,  the  territories  in question  were not sovereign states and had become  part  of the  territory  of the Ruler of Gangpur.  The law  does  not know any tertium quid between a sovereign State and a  State which is partly sovereign and partly not so.  The  erstwhile rulers of these, (1) (1955) 2 S.C.R. 303.     (2) [1962] Supp. 3 S.C.R. 346. 372 territories  were either sovereigns in their own  rights  or had  become  subjects  of  the Ruler  of  Gangpur,  and  all indications  are that the appellants had become subjects  of the  Ruler of Gangpur before the latter’s  territory  merged with the State of Orissa.

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On the finding that the petitioners, or their ancestors, had ceased  to be sovereign States, on the eve of the merger  of the  State  of  Gangpur  with  the  State  of  Orissa,   the petitioners’  position would be that of  intermediaries  who held  or owned "interest in land between the Raiyat and  the state",  within the meaning of s. 2 (h) of the Act, and  the ’Takoli’  paid by them to the Ruler of Gangpur and later  to the  State of Orissa was land revenue within  Explanation  I read  with  Explanation  III  to  s.  2  (g)  which  defines "’estate".   There is, thus, no escape from  the  conclusion that their interest in their lands was liable to be acquired under the Act. No  other  point  was  urged before us  in  support  of  the appeals,  and as the only point urged in this Court  has  no substance in it, the appeals must be held to be without  any merit.   They are accordingly dismissed with costs, one  set of hearing fees.          Appeals dismissed. 373