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PETITIONER: GAYARAM PATEL & ORS

       Vs.

RESPONDENT: KAILASH CHAND PANIGRAHI

DATE OF JUDGMENT20/02/1979

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. FAZALALI, SYED MURTAZA

CITATION:  1979 AIR 1741            1979 SCR  (3) 320  1979 SCC  (4) 552

ACT:      Orissa Estates  Abolition Act,  1951-S.7-"Intermediary" who is-Gaontia thikadari’ whether intermediary.

HEADNOTE:      The ancestors  of a  former  Zamindar  dedicated  their maufi interest  in a village in favour of a deity. Acting on behalf of  the deity  the ex-zamindar  created  a  lease  of thikadari rights  in the  village in favour of the appellant for ten years. The lease deed termed the appellant as "legal guardian of gaontia thikadari patta". While the lease was in force the Orissa Estates Abolition Act, 1951 which sought to abolish all  intermediaries in  land and vest their interest in the  State came  into force.  The Act  however  protected certain intermediaries  thereby carving  out an exception to the scheme of the Act.      Meanwhile the Managing Trustee of the Board of Trustees appointed under  the Orissa  Hindu Religious Endowments Act, 1951 to look after the affairs of the deity filed a petition under s.  7 of the Abolition Act claiming that the deity was in Khas possession of certain lands including the land lease to the  appellant and prayed that the same be settled on the Board of  Trustees as  an occupancy tenant. The question was eventually settled in favour of the Trustees and against the appellant.      In the  Managing Trustee’s application under s. 145 Cr. P.C. asserting  that the  appellant was  disturbing peaceful possession of  the deity  over the land, the Magistrate held that it  was the appellant who was in possession of the land and directed that the land should be restored to him.      The High  Court in  revision set aside the order of the Magistrate.      In appeals  to this  Court the appellant contended that it was  he and  not the  deity, who  was  the  thikadar  and therefore  an   intermediary  within   the  meaning  of  the definition of that term in the Abolition Act and was in Khas possession of  the land in dispute and so the land should be restored to him.      Allowing the appeals, ^      HELD:  1.  It  was  the  appellant  who  had  the  Khas possession of  the land,  and therefore,  the land  must  be

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deemed to  have been vested in him, and not in the deity, as an occupancy  tenant under  the provisions  of s.  7 of  the Abolition Act. [328 F]      2. Apart  from the  description  of  the  appellant  as gaontia  thikadari   patta,  condition  8  contains  a  sure indication of the nature of the tenancy agreement. It states "that the  cultivable lands cannot be utilised for any other purpose nor  can they  be transferred  or sold  or otherwise dealt with to the hardship of the villagers or the tenants." [328 B-C] 321      3. The reference to tenants in this condition points to the land  being under  the cultivation of persons other than the appellant  at the  moment the  lease was  granted.  This position was  incompatible with  the grant  of  an  ordinary lease to  him. The  tenure granted  in his favour was on the other hand  one conferring  on hint  a right  to collect the rents from  the tenants of the deity and in lieu thereof pay a fixed sum to it. He was, therefore, correctly described as gaontia or  thinkdar, both  of which expressions describe an intermediary as  distinguished from  a raiyat  or an  actual tiller of the soil. [328 D-E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 286 of 1973.      Appeal by  Special Leave  from the  Judgment and  Order dated 16-5-1973  of the  Orissa High  Court in Crl. Revision No. 645 of 1972.                             AND                CIVIL APPEAL No. 2036 of 1973      Appeal by  Special Leave  from the  Judgment and  Order dated 6-3-1973  of the  orissa  High  Court  in  O.J.C.  No. 491/72.      J. L.  Jain and  Mrs.  S.  Gopalakrishnan  for  or  the Appellants.      G. Dass,  Mrs. S.  Bhandare and A. N. Karkhanis for the Respondent.      The Judgment of the Court was delivered by      KOSHAL, J.  By this  judgment we shall dispose of Civil Appeal No. 2036 of 1973 and Criminal Appeal No. 286 of 1973, both of which have arisen from a dispute over a single piece of land  and the  facts leading  to  which  may  be  briefly stated. Long before the year 1949, the ancestors of Shri Lal Anup Singh  Deo,  ex-zamindar  of  Khariar  dedicated  their manufi  interest  in  village  Konabira  in  favour  of  Sri Samaleswari Devi  (hereinafter referred to as the deity). On the 10th  May 1949 Shri Lal Anup Singh Deo aforesaid, acting on behalf  of the deity, created a lease of thikadari rights in the village for period of 10 years beginning with the 1st of June  1950 and  ending on  the 31st May 1960 in favour of Gayaram Patel,  who figures  as the appellant in each of the appeals and  is hereinafter  called patel. The deed of lease appears at  pages 5  and 6 of the paper book in Civil Appeal No. 2036 of 1973 and describes Patel thus:           "Gayaram Patel  son of  Bisram  Patel,  the  legal      guardian of gaontia thikadari patta"      The terms  on which  the lease was granted to Patel are reproduced below :-           (i)   That the  yearly rent  payable shall  be Rs.                109/- to  be paid  before  January  of  every                year. 322

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         (ii) That  in case  of non-payment  the  lease  is                liable to be cancelled.           (iii)That all  the repairs, upkeep and development                works should  be executed  and for such works                no  compensation  can  be  claimed.  All  the                repairs,  maintenance   of   tanks,   garden,                buildings, etc., shall be carried out at your                responsibility.           (iv) That  no injustice  should  be  done  to  the                community in  maintaining the  abovementioned                works.           (v)  That no transfer is permissible in respect of                the property.           (vi) That the property is to be maintained for the                exclusive welfare  of the  community with the                help, directions,  orders and co-operation of                the Estate Officer.           (vii)That the  rules and  regulations  for  forest                lands are to be obeyed.           (viii)That the cultivable lands cannot be utilised                for  any  other  purpose,  nor  can  they  be                transferred or  sold or  otherwise dealt with                to the  hardship  of  the  villagers  or  the                tenants. If  any land  is abandoned  and  (?)                takes a  new land  for cultivation he will be                liable under  the law and be subjected to the                payment of the usual rent.      The lease was acted upon and while it was in force, the orissa Estates  Abolition Act,  1951 (hereinafter called the Abolition Act)  was promulgated.  The object of that Act was to abolish  all intermediaries  and rent-receivers,  to vest their interest  in the  State, and  to  establish  a  direct relationship between  the State and the tillers of the soil. Section  3A  of  the  Abolition  Act  authorised  the  State Government to  declare by  notification that  such interests have passed  to and become vested in the State free from all encumbrances. A  notification of that type was issued by the State Government  and became  effective from the 1st of June 1959.      In the  meantime a Board of Trustees had been appointed under the  Orissa Hindu  Religious Endowments Act, 1951 (for short Endowments Act) with Shri Kailash Chandra Panigrahi as the Managing  Trustee to look after the affairs of the deity on whose  behalf an  application under  section 7  read with section 8-A(1) of the Abolition Act was made by the Managing Trustee after the said 323 notification had  come into  force. It  was claimed  in  the application that  the deity  was  in  "Khas  possession"  of certain lands  in village Konabira and prayed that the same, be settled on it as an occupancy tenant. The application was resisted by  Patel who  claimed that  it was  he and not the deity who  enjoyed the  "Khas possession"  of the said land. The application was decided by the Tehsildar Khariar, Tehsil Nawapara, acting  as Collector  under the  Abolition Act. He held that Patel was in "Khas possession" of only one plot of land which  was designated by No. 5 and had an area of 20.14 acres but  that such possession was held by him on behalf of the deity  and not  on his  own account. In this view of the matter he  passed  the  order  dated  13th  June  1962,  the operative part of which runs thus:           "Sir lands  in village Konabira bearing plot No. 5      with an  area of  20.14 acres  are settled on occupancy      rights  with   Gayaram  Patel  s/o  Bisram  Patel,’  of      Konabira, P.  S. Komna  Distt.  Kalahandi  for  and  on

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    behalf of  Samaleswari Devi of Kemna, the Maufidar, u/s      7(1) (b)  of the  Orissa Estates Abolition Act, 1951. A      fair and  equitable annual  rent of  Rs.  6.75  np.  is      determined from  the date  of vesting release rent from      1959-60 onwards."      On the  21st of  October 1963,  the Managing Trustee of the deity  made an application to the Assistant Commissioner of  Endowments  under  section  68  of  the  Endowments  Act complaining that  he had been resisted by Patel in obtaining possession of the land of the deity and praying for recovery of possession  thereof from  Patel. In  his order  dated the 12th  of   January  1970,   the  Assistant  Commissioner  of Endowments allowed  the application  holding that it was the deity and  not  Patel  who  had  been  declared  to  be  the occupancy  tenant   in  the   order  dated  13th  June  1962 abovementioned.  Patel   went  up   in   revision   to   the Commissioner  of   Endowments  but   without   success   and thereafter knocked at the door of the orissa High Court with a petition under Articles 226 and 227 of the Constitution of India  seeking   to  have   the  orders   of  the  Assistant Commissioner  of   Endowments  and   the   Commissioner   of Endowments set  aside. The  High Court however took the same view of  the matter  as was expressed by authority appointed under the  Endowments  Act  and  negatived  the  contentions raised on  behalf of  Patel, in  its order  dated 6th  March 1973. It  is that  order which  is challenged  before us  in Civil Appeal No. 2036 of 1973 instituted by special leave.      In the  meantime litigation  had  started  between  the deity and Patel on the criminal side also. Claiming that the deity had recovered 324 possession of  plot No.  5 abovementioned (which had by then come to be designated by No. 15 and to have an area of 22.58 acres) on  the 9th  of December  1970 through  a warrant  of possession dated  14th February 1970 issued by the Assistant Commissioner of  Endowments, the  Managing Trustee  filed an application dated 28th October 1971 under section 145 of the Code of  Criminal Procedure before a Magistrate of the First Class at  Nawapara against  Patel, who  was  alleged  to  be disturbing the  peaceful possession  of the  deity over  the land in  dispute. A Preliminary order attaching the property was passed  by the  Magistrate on  the same  day, i.e., 28th October 1971.  That order  was  however  cancelled  and  the proceedings were  dropped  on  the  15th  November  1971  in pursuance of  a report  dated 6th  November 1971 made by the officer incharge  of the  Police Station,  Komna (within the territorial limits  of which lay the land in dispute) to the effect that  there was  no apprehension of a breach of peace by the  parties. Nevertheless,  on the  20th November  1971, another report  was received by the Magistrate from the same officer revealing  "an emergency"  whereupon the  Magistrate made a  direction that  the  preliminary  order  dated  28th October 1971  be given  effect  to  and  that  the  land  be attached along  with the crops standing thereon. Ultimately, the proceedings  were finalised  through an order dated 21st September 1972 passed by the Magistrate who held that it was Patel who  was in  possession of  the land in dispute on the 20th November  1971, and directing that the land be restored to him.      Aggrieved by  the order  of the Magistrate the Managing Trustee or  the deity went up in revision to the High Court, a learned  Single Judge  of which  set aside  the  same  and directed delivery  of possession of the land to the deity on the basis of the findings given below:           (1)   The proceedings  had terminated  on the 15th

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              November  1971  and  the  Magistrate  has  no                jurisdiction to  revive them  five days later                and to give effect to the order of attachment                which already stood vacated.           (2)   There had  been a  civil  suit  and  a  writ                application in  respect of the land which has                terminated in favour of the deity.           (3)     The  matter  had  been  taken  up  by  the                Endowments Department which had delivered all                properties to the deity before the 29th April                1970.      It is this order of the High Court which is impugned in Criminal Appeal  No. 286  of 1973  by special  leave of this Court. 325      2. In  order to  appreciate the  rival  contentions  of learned counsel  for the  parties it  is necessary to make a reference to  the relevant  provisions of  the Abolition Act and to  determine the  party in  whom the  occupancy tenancy vests under  section 7  thereof. As  already pointed out the object of  the  Abolition  Act  was  to  do  away  with  all intermediaries and  rent-receivers and to establish a direct relationship between the State and the actual tillers of the soil. The preamble of the Act states:           "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      interest in  land of  Intermediaries by  whatever  name      known,  including   the  mortgagees  and  lessees  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 with;.. " Section 2  contains definitions. Clauses (f), (g), (h), (hh) and  (j)  thereof  are  relevant  to  the  dispute  and  are extracted below:           (f)   "date of  vesting" means  in relation  to an                estate  vested  in  the  State  the  date  of                publication   in    the   Gazette    of   the                notification under sub-section (1) of section                3  or  sub-section  (1)  of  section  3-A  in                respect of  such estate  and in  the case  of                surrender by  an intermediary under section 4                the date of the execution of the agreement;           (g)   ‘estate’ includes  a part  of an  estate and                means any  land  held  by  or  vested  in  an                Intermediary and  included under one entry in                any  revenue  roll  or  any  of  the  general                registers of revenue-paying lands and avenue-                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 326                lands not entered in any register or revenue-                roll and  all classes  of tenures  or  under-

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              tenures and any Jagir, inam or maufi or other                similar grant;           (h)  ‘Intermediary’ with  reference to  any estate                means a proprietor, sub-proprietor, landlord,                landholder,  malguzar,   thikadar,   gaontia,                tenure-holder,   under   tenure-holder,   and                includes an  inamdar, a  jagirdar,  Zamindar,                IIaquadar,      Khorposhdar,      Parganadar,                Sarbarakar and  Maufidar 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;           (hh) ‘Intermediary interest’  means an  estate  or                any rights  or interest therein held or owned                by or  vested  in  an  Intermediary  and  any                reference to  ‘state’ in  this Act  shall  be                construed  as   including  a   reference   to                ‘intermediary interest’ also;           (j) "Khas  possession" used  with reference to the                possession of  an Intermediary  of  any  land                used  for   agricultural   or   horticultural                purposes,  means   the  possession   of  such                intermediary  by  cultivating  such  land  or                carrying on  horticultural operations thereon                himself with  his own  stock or  by  his  own                servants or  by hired  labour or  with  hired                stock;      The provisions  of section  3A have already been noted. Then comes  section 7 which is all-important for the purpose of resolving the present dispute. It states:           "7.  (1) on and from the date of vesting-           (a)     all  lands   used  for   agricultural   or                horticultural purposes  which  were  in  Khas                possession of  an Intermediary on the date of                such vesting,           (b)  lands used  for agricultural or horticultural                purposes and  held by  a temporary  lessee or                lessees of an Intermediary who owns either as                Intermediary or  in any  other capacity  less                than thirty  three acres  of  land  in  total                extent situated within the State,           (c)   lands used for agricultural or horticultural                purposes and  in possession  of a  mortgagee,                which immediately before the execution of the                mortgage bond were in Khas possession of such                intermediary, 327                ..........................................                ...........................................                shall, notwithstanding  anything contained in                this Act,  be deemed  to be  settled  by  the                State Government  with such  Intermediary and                with all  the share holders owning the estate                and such  Intermediary with  all  the  share-                holders   shall   be   entitled   to   retain                possession thereof  and hold  them as raiyats                under the  State Government  having occupancy                rights in  respect of  such lands  subject to                the payment  of such  fair and equitable rent                as may  be determined by the Collector in the                prescribed manner:                ..........................................                ................................."      Sub-section (1)  of section  8A requires Intermediaries

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to file their claims in the prescribed manner for settlement of fair and equitable rent in respect of land and buildings, which are  deemed to be settled with them under section 6 or section 7, before the Collector within the specified period.      3. It  would be  seen that  clauses (a), (b) and (c) of sub-section (1)  of section 7 protect certain Intermediaries and thus  form exceptions.  to the  scheme of the Act which, generally speaking,  conforms to  the object detailed in the preamble. In  the present  case we  are not  concerned  with clause (c).  According to learned counsel for Patel his case falls within  the ambit  of clause (a). It is claimed on his behalf that he was not merely a lessee or a temporary lessee under the  deity but  was a thikadar and, therefore, himself an Intermediary within the meaning of the definition of that word occurring  in clause (h) of section 2 and that he being in "Khas  possession" of  the land in dispute on the date of vesting was  an Intermediary described in clause (a). On the other hand,  for the  deity it  is  argued  that  Patel  was granted only a temporary lease in 1949, that he did not have any status  better than  that  of  a  lessee,  temporary  or otherwise, and that therefore his case was covered by clause (b) and  not clause  (a) so  that it  was he  deity who  was entitled to  be regarded as the occupancy tenant on and from the date  of vesting. The whole controversy thus turns round the position which Patel came to hold in respect of the land in dispute  under the  lease deed  of 1949  and in  order to assess that  position it  is necessary to refer to the lease deed dated  10th May 1949. As noted earlier that deed itself describes  Patel   as  "gaontia  thikadari  patta".  Learned counsel for the deity has contended that 328 this  description   is  really  not  correct  and  that  the conditions of  the lease  clearly make  out a  case of Patel being inducted  into the  land as an ordinary lessee who was to till  the land  against payment  of rent.  The contention does not  appear to  us to  have any  force. Apart  from the description of  Patel as  "gaontia thikadari patta" the deed contains a  sure indication  of the  nature  of  the  tenure granted in condition (8) which states specifically:           "That the  cultivable lands cannot be utilised for      any other  purpose, nor can they be transferred or sold      or  otherwise   dealt  with  to  the  hardship  of  the      villagers or the tenants.      .................................................      ................................"      The   reference   to   tenants   is   of   considerable significance and  points to land being under the cultivation of persons  other than  Patel at  the moment  the lease  was granted. This  state of  affairs is  incompatible  with  the grant of  an ordinary  lease to Patel. The tenure granted in his favour  was on  the other  hand one  conferring on him a right to collect the rents from the tenants of the deity and in lieu  thereof pay a fixed sum of Rs. 109/-per annum to it so that  he was  correctly described  in the lease deed as a gaontia or  thikadar, both  of which expressions describe an Intermediary as  distinguished from  a raiyat  or an  actual tiller of the soil.      4. Once  Patel is  found to be an Intermediary his case must fall  within clause (b) of sub-section (1) of section 7 as it  was he  who had the "Khas possession" of the land now in controversy,  according to  the findings contained in the order dated  13th January  1962 passed  by the Collector and mentioned above,  which have  not been shown to us to suffer from any infirmity. And if that be so, the land must be held to have vested in him, and not in the deity, as an occupancy

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tenant under the provisions of that section.      5. In  the result  both the  appeals  succeed  and  are accepted, the order of the High Court impugned in each being set aside  and it  being directed that the possession of the land in  dispute attached  by the order of the Magistrate in the proceedings  under section  145 of  the Code of Criminal Procedure be delivered to Patel as an occupancy tenant under the State.  The parties  are however  left to bear their own costs throughout. N.V.K.                                       Appeal allowed. 329