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PETITIONER: KUMAR BIMAL CHANDRA SINHA

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 30/04/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R. AIYYAR, T.L. VENKATARAMA

CITATION:  1962 AIR 1912            1963 SCR  (2) 552

ACT: Estates, Abolition of-Raiyati right purchased by proprietor- Building on occupancy holding, used as Katchteri-Notifcation Vesting  estate  in  the  State-Effect-Whether  building  on occupancy   holding  vests  in  the   State-Orissa   Estates Abolition  Act, 1951 (Orissa 1 of 1952), ss. 2(g), (h)  (i), 3, 5, 26.

HEADNOTE: The  appellants  held the Paikpara  estate  as  proprietors. They  had  purchased the properties in  question  comprising raiyati  lands  with  certain  buildings  thereon  from  the raiyat.  Thus the proprietors became occupancy raiyat8 under the  tenure  holders  or sub-proprietors.  By  virtue  of  a notification  issued  under  s.  3  of  the  Orissa  Estates Abolition Act, 1951, the Paikpara estate vested in the State of  Orissa.   But the interest of tenure  holders  and  sub- proprietors within the estate had not been taken over  under the provisions of the Act:                    553 The  said buildings on the lands of the  occupancy  holdings were  used  as Katcheri houses by the  proprietors  for  the administration  of their estates.  The state officials  took possession of these buildings situated on the raiyati  land. The  appellants made an application to the collector,  Puri, for  vacant possession of the lands and the buildings.   The Collector  did  not  concede the demand and  held  that  the occupancy holding was situated within the tenure held  under the  proprietors and lay within the geographical  limits  of the  estate  which had vested in the Government.   The  High Court  dismissed  the writ petition of the  appellant  under Art.  226  on  the  ground  that  the  question  raised  was practically concluded by the Supreme Court in K. C. Gajapati Narayan v. Deo State of Orissa. The appellants came up in appeal on a certificate granted by the High Court. Held,  that the appellants’ raiyati interests in  the  lands and  in the buildings standing on those lands had  not  been affected by the abolition of their interests as proprietors,

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and the State Authorities had illegally taken possession  of them. Held,  further, that the Orissa Estates abolition  Act,1951, was  intended  to abolish  all  proprietors,sub-proprietors, tenureholders,  with a variety of names, but did  not  touch the  interest of the raiyat.  Hence though these lands  with buildings was situate geographicaiy within the ambit of  the appellant’s  estate, they were not part of the estate.   The appellant  held those properties with the buildings  not  as proprietors as such, but as raiyats. Held, also, that the conclusion drawn by the High Court from the  decision in K. C. Gajapati Narayan Deo v. The State  of Orissa  is not well founded.  The observation of this  Court on  which  it  drew  its conclusion  had  reference  to  the definition  of ’home-stead’ in cl. (1) of s. 2 of  the  Act. This  court while dealing with the constitutionality of  the Act,  in  the  above case, was not  concerned  with  raiyati lands.    Its  observations  had  reference  only  to   such buildings as stood upon the proprietor’s private land, which were in his possession as proprietor or as tenure-holder. K.   C.  Gajapati Narayan Deo v. The State of  Orissa,[1954] S.   C. R. 1, not applicable.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 177 of 1960. 554 Appeal from the Judgment and order dated March 27, 1958,  of the Orissa, High Court in O. J.C.  No. 191 of 1956. Hemendra Chandra Sen and S. Ghose, for the appellants. N.   S.  Bindra,  V.  N.  Sethi and P.  D.  Xenon,  for  the respondents. 1962.  April 30.  The Judgment of the Court was delivered by SINHA,  C. J.-This appeal on  a certificate granted  by  the High   Court   of  Orissa  raises  the   question   of   the interpretation  of certain provisions of The Orissa  Estates Abolition Act, 1951 (Orissa Act 1 of 1952) which hereinafter will  be  referred to as the Act.  The appellants  who  were petitioners  in  the High Court were the proprietors  of  an Estate,  known as Paikpara Estate, in the district of  Puri, bearing  Touzi Nos. 268, 269 and 270.  The  respondents  are the State of Orissa and its officials. The  facts on which the High Court based its judgment  under appeal  areas  follows.  Within the  said  Paikpara  Estate, there  were several tenures and  sub-proprietory  interests. The Paikpara Estate vested in the State of Orissa by  virtue of  a notification issued under s. 3 of the Act,  on  August 23, 1953.  It is common ground that the interests of tenure- holders and sub-proprietors within the said estate have  not yet been taken over under the provisions of the Act.   Under the  tenure-holders  aforesaid, there  were  some  occupancy holdings  which Lad been purchased by the  proprietors,  the appellants in this Court, long ago.  Thus the proprietors by virtue of their purchase became occupancy raiyats, under the tenure-holders   or  sub-proprietors,  in  respect  of   the holdings  purchased by them.  It is also common ground  that in the last Settlement Khatians their interests as occupancy 555 raiyat8  in respect of the holdings purchased by  them  have been  recorded.   On the lands of  the  occupancy  holdings, there  were  several buildings which were used  as  Katcheri houses  by the proprietors, for the administration of  their estate.   In January 1954, according to the  petitioners  in the High Court, the State Officials took illegal  possession

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of   those  buildings  situate  on  the  raiyati  land,   as aforesaid.  The appellants thereupon made an application  to the Collector of Puri for vacant possession of the lands and the buildings, described in the petition, on the  allegation that those lands together with the buildings, purchased from tenants  with rights of occupancy, were, after  purchase  by the proprietors, used as Katcheri house by them.  They  also alleged that those properties had not vested in the State of Orissa as a result of the said notification, under the  Act. Part  of  the  said house had been let  out  to  the  Postal Department.   The Anchal Adhikari of that area wrote to  the Postmaster,  and Superintendent of Post Offices, not to  pay rent to the proprietors.  The Postal Department, therefore, vacated  that portion of the building in  their  occupation, which has gone into the occupation of the State  Government. Another portion of the property, which was used as  dhangola was  let  out  for storing paddy, to a  third  party.   That dhangola  was also taken illegal possession of by  the  Naib Tehsildar of the place.  Other portions of the property also are  in illegal possession of the State Government,  through its  Anchal Adhikari.  It was thus claimed on behalf of  the proprietors  that the State Government had no right to  take possession  of the property, as it did not form part of  the estate  which had been acquired under the Act, and  had,  on notification,  vested in the State Government.  The  learned Collector  of  Puri  did  not  concede  the  demand  of  the proprietors, and held that the occupancy holding is situated within the tenure held 556 under the proprietors and lay within the geographical limits of  the  (state which had vested in the  Government.   Being aggrieved  by  the aforesaid order of the  Collector,  dated November  20,  1956, the proprietors moved  the  High  Court under  Art. 226 of the Constitution for relief against  what was  alleged to be illegal interference with their  interest not as proprietors but as occupancy tenants.  The High Court dismissed the proprietors’ claim chiefly on the ground  that the  question raised by the petition before the  High  Court was  "practically  concluded  by  the  observations  of  the Supreme  Court in the case of K. C. Gajapati Narayan Deo  v. The State of Orissa (1). It is manifest that the controversy raised in this case  has to be answered with reference to the provisions of the  Act. ’Estate’  has been defined in cl. (g) of s. 2 of the Act  as follows :               "  ’estate’ includes a part of an  estate  and               means any land held by or vested in an  Inter-               mediary  and included under one entry  in  any               revenue  roll or any of the general  registers               of   revenue-paying  lands  and   revenue-free               lands,  prepared and maintained under the  law               relating to land revenue for the time being in               force  or  under any rule,  order,  custom  or               usage  having the force of law,  and  includes               revenue-free lands not entered in any register               or revenue-roll and all classes of tenures  or               under-tenures and any jagir, inam or muafi  or               other similar grant";               Explanation I.-Land Revenue means all sums and               payments in money or in kind, by whatever name               designated  or  locally  known,  received   or               claimable by or on behalf of the State from an               Intermediary on account of or               (1)   (1954) S. C. R. 1.                                    557

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             in  relation to any land hold by or vested  in               such intermediary;               Explanation  II.-Revenue-free  land   includes               land   which  is,  or  but  for  any   special               covenant,  agreement, engagement  or  contract               would  have  been, liable  to  settlement  and               assessment of land revenue or with respect  to               which  the  State has power to make  laws  for               settlement  and  assessment of  land  revenue;               Explanation   III.-In   relation   to   merged               territories estate’ as defined in this  clause               shall  also  include any mahal or  village  or               collection  of  more than one  such  mahal  or               village  held by or vested in an  Intermediary               which has been or is liable to be assessed  as               one  unit  to land revenue whether  such  land               revenue  be  payable or has been  released  or               compounded  for  or redeemed in  whole  or  in               part". The  definition makes reference to an ’Intermediary’,  which has been defined in cl.(h) as follows:               ’Intermediary’  with reference to  any  estate               means a proprietor, sub-proprietor,  landlord,               landholder,   malguzar,   thikadar,   gaontia,               tenure-holder,     undertenure-holder,     and               includes  an  inamdar  a  jagirdar,  Zamindar,                             Ilaquadar, Khorgoshdar, Parganadar,  Sarbaraka r               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;               Explanation I.--Any two or more Intermediaries               holding a joint interest in an estate which is               borne  either  on the revenue-roll or  on  the               rent-roll  of  another Intermediary  shall  be               deemed to be one Intermediary for the purposes               of this Act;               558               Explanation  II.-The heirs and  successors-in-               interest  of  an  Intermediary  and  where  an               Intermediary is a minor or of unsound mind  or               and  idiot, his guardian, committee  or  other               legal  curator  shall  be  deemed  to  be   an               Intermediary  for  the purposes of  this  Act.               All  acts done by an Intermediary  under  this               Act  shall be deemed to have been done by  his               heirs and successors-in-interest and shall  be               binding on them.  Reading  the two definitions together, the position in  law is  that  ’estate’ includes the interest, by  whatever  name called, of all persons, who hold some right in land  between the  State at the apex and the raiyat at the base.  That  is to  say, the Act is intended to abolish  all  Intermediaries and rentreceivers and to establish direct relationship  bet- ween  the  State, in which all such  interests  vest,  after abolition  under the Act, and the tillers of the soil.   The interest of a raiyat is designated by the word ’holding  and is  defined by the Orissa Tenancy Act (Bihar and Orissa  Act II of 1913), as follows: .               "  holding" means a parcel or parcels of  land               held by a raiyat and forming the subject of  a               separate tenancy". Under  the,  Orissa Tenancy Act, the unit of interest  of  a proprietor  is  an ’estate’.  Under a proprietor  may  be  a

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number of sub-proprietors.  ’Sub-proprietor’ is also defined in  the Tenancy Act, but we are not concerned in  this  case with  that  class  of holders of land.  The  interest  of  a tenure-holder or an under-tenureholder is characterised as a "tenure’.   Thus,  the  process of  in  feudalist  and  sub- infeudation, which has been similar in all places where  the Permanent Settlement took place, that is to say, in  Bengal, Bihar and Orissa and Madras and Andhra Pradesh,                             559 has  led to the coming into existence of  proprietors,  with their  estates, sub-proprietors under  them,  tenure-holders and  under-tenure-holders and ultimately the tiller  of  the soil,  the  raiyat, whose unit of interest is  a  ’holding’. The  Act  was  intended to  abolish  all  proprietors,  sub- proprietors, tenureholders and under-tennure-holders, with a variety  of  names; but did not touch the  interest  of  the raiyat.   The  same person, by transfer or by  operation  of law,  might  at  the same time occupy  different  status  in relation to land.  He maybe in respect of a particular area, which   is  geographically  included  in  the  estate,   the proprietor.  That land may be held by a raiyat not  directly under  a  proprietor but under a  tenure-holder,  who  holds directly under proprietor.  The proprietor may have acquired the  interest  of  a raiyat.  Thus the  proprietor,  in  his capacity as the owner of the estate holds the entire estate, and  he  may  have by purchase acquired the  interest  of  a raiyat,  paying  rent  for  the  raiyati  interest  to   his immediate  landlord, the tenure-bolder.  The  tenure-holder, in  his  turn,  may  have been liable to  pay  rent  to  the proprietor.   That is what appears to have happened in  this case.    The   appellants  held  the  Paikpara   estate   as proprietors.   They  also  appear  to  have  purchased   the properties in question comprising raiyati lands with certain buildings  thereon from the raiyat.  Hence, the position  in law  is  that  though these lands  with  the  buildings  are situate  geographically within the ambit of the  appellants’ estate,  they are not part of the estate.  In  other  words, the appellants hold those properties with the buildings  not as proprietors as such, but as rayats.  It appears that  the Courts below have not kept clearly in view this distinction. The Collector, in the first instance, and the High Court  in the  proceedings under Art. 226 of the Constitution,  appear to have fallen into the error of confusing the  petitioners’ position  as ex-proprietors, with their present position  as raiyat in 560 respect of the land on which the buildings stand.  The  High Court  has  drawn the conclusion from the decision  of  this Court in K. C. Gajapati Narayan Deo v. The State of  Orissa, (1) and has observed that whether the buildings in  question vested in the Government, on the vesting of the estate under s.  3  of the Act, world depend not upon whether  it  formed part  of the estate acquired by the Government but  on  the, purpose   for   which  the  buildings  wore  used   by   the proprietors.    As  the  buildings  in  question  had   been primarily  used as office or Katcheri for the collection  of rent or for the use of servants or for storing grains by way of  rent in kind, the buildings will vest in the  Government on  the vesting of the estate itself.  In our opinion,  this conclusion drawn by the High Court from the decision of this Court  is not well-founded in law.  The High Court draw  its conclusions from the following observations of this Court in the aforesaid case at Pages 25-26.               "Assuming  that in India there is no  absolute               rule  of  law that whatever is affixed  to  or

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             built on the soil becomes a part of it and  is               subject to the same rights of property as  the               soil  itself,  there is nothing in  law  which               prevents the State legislature from  providing               as a part of the estates abolition scheme that               buildings, lying within the ambit of an estate               and   used   primarily   for   management   or               administration  of the estate, would  vest  in               the Government as appurtenances to the  estate               itself.   This  is  merely  ancillary  to  the               acquisition of an estate and forms an integral               part   of   the   abolition   scheme.     Such               acquisition  would come within article 31  (2)               of the Constitution and if the conditions laid               down in clause (4) of the article are complied               with,   it   would   certainly   attract   the               protection    afforded   by    that    clause.               Compensation has               (1)   (1954) S.C.R. 11,               561               been  provided  for  these  buildings  in   s.               26(2)(iii)  of the Act and the annual rent  of               these  buildings determined in the  prescribed               manner  constitutes  one of the  elements  for               computation of the gross asset of an estate." The  observations quoted above of this Court have  reference to the following definition of ,homestead’ in el. (i) of  s. 2 of the Act:               "homestead’ means a dwelling house used by the               Intermediary  for  the  purpose  of  his   own               residence or for the purpose of letting out on               rent  together with any  courtyard,  compound,               garden,  orchard  and  outbuildings   attached               thereto  and  included any tank,  library  and               place of worship appertaining to such dwelling               house  but  does  not  include  any   building               comprised in such estate and used primarily as               office  or kutchery for the administration  of               the estate on and from the is day of  January,               1946". it  will  appear from this definition that  the  Legislature placed  a proprietor’s homestead’ in two categories,  namely (1)  a dwelling house used by the Intermediary for  his  own purposes  and (2) any building comprised in such estate  and used primarily as office or.Katcheri for the  administration of the estate on and from the list day of January, 1946.  In respect  of  first category the Act provides in  a.  6  that portion  of the homestead shall be deemed to be  settled  by the  State with the Intermediary, who will continue to  hold it  as a tenant under the State Government, subject  to  the payment of fair and equitable groundrent, except where under the existing law no rent is payable in respect of  homestead lands.  It will be noticed further that the second  category in the definition of homestead, which has not been permitted to the outgoing 562 Intermediary  has  reference to "any building  comprised  in such estate".  It has no reference to any building  standing on  rayati  holding  or a  portion  thereof.   This  becomes further  clear  with reference to the provisions  of  a.  5, which lays down the consequences of vesting of an estate  in the  State.   Under  cl  (a) of s.  5,  the  entire  estate, including  all  kinds  of  lands  described  in   meticulous details, and other non-raiyati lands vest absolutely in  the State  Government.   This  Court,  while  dealing  with  the

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constitutionality of the Act, was not concerned with raiyati lands.    Its  observations  had  reference  only  to   such buildings as stood upon the proprietor’s private lands  like peel,  seer, Zirat, etc., whicl, were in his  possession  as proprietor  or as tenure-bolder.  It is thus clear that  the very  basis  of the judgment of the High Court  is  entirely lacking.   That  the  High Court was  not  unaware  of  this distinction becomes clear from the following passage in  its judgment:               "Doubtless, Ryoti lands are excluded from  the               scope  of  this  clause.   But  buildings  and               structures standing on Ryoti lands and in  the               possession of the proprietor are not expressly               saved." The  first  sentence quoted above is correct,  but  not  the second.   ’I  here  is  no  question  of  expressly   saving structures  on  ratyati lands, when it is  absolutely  clear that raiyati lands are not the subject-matter of legislation by  the  Act.  The same remarks apply to  the  reference  in section.  26  (b) (iii).  Section 26 begins with  the  words ,for the purpose of this chapter", namely, Chapter V, headed "Assessment  of Compensation".  Reading s. 26 as a whole  it is  absolutely clear that for the purpose of  assessment  of the  compensation  payable  to the  outgoing  proprietor  or tenure-holder,  of the estate to be acquired,  gross  assets have to be determined, by aggregating the rents payable by  563 tenure-holders or under-tenure-holders and raiyats.  It  is, thus,  clear  that  the rent payable by  the  appellants  as raiyats in respect of the disputed lands would form part  of the assets which have to be included in the gross assets  in determining  compensation.  But that does not mean that  the interests of raiyats also have become vested in the State as a result of the notification under.     3, read with s. 5. For  the  reasons  aforesaid,  it  must  be  held  that  the appellant’s  raiyati  interests  in the  lands  and  in  the buildings standing on those lands have not been affected  by the  abolition of his interest as proprietors, and that  the State  authorities had-illegally taken possession of  those. The appeal is accordingly allowed with costs here and below. Appeal allowed.