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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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."

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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

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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

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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

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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

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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

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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.