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PETITIONER: MAGUNI CHARAN DWIVEDI

       Vs.

RESPONDENT: STATE OF ORISSA AND ANOTHER

DATE OF JUDGMENT19/12/1975

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1976 AIR 1121            1976 SCR  (3)  76  1976 SCC  (2) 134

ACT:      ORISSA Merged  Territories (Village  offices Abolition) Act, 1963-Sections 3, 5 and 9-Interpretation of.

HEADNOTE:      In the  execution proceedings to satisfy a decree dated 14-10-1958 for  title and  recovery of possession of certain "ganju Bhogra  lands" obtained  by the appellant against the State, the  Notified Area Council. Rourkela claimed the suit lands by  an application  u/o XXI  Rule 58 r/w ss. 37 and 38 Code of  Civil Procedure. The said application was rejected. A  revision   against  it   was  also   dismissed  with  the observation that the council was free to file a regular suit for adjudication  of its rights. When the appellant took out a fresh  application for  execution u/s  47 of  the Code‘ of Civil Procedure, the Council which never filed any suit, and the  respondent  State  which  never  appealed  against  the original decree,  opposed the  execution application  on the ground that  the decree became infructuous by virtue of s. 3 of the orissa Merged Territories (Village offices Abolition) Act, 1963.      The Executing  court upheld the objection and dismissed the execution  petitition. On appeal the Additional District Judge, by his order dated 2-5-1970, held that the decree was executable resulting in a second appeal to the High court by the respondent  State. The  High Court allowed the appeal by its order  dated 4-11-1974 holding that as the decree holder was not  in actual  physical possession  of  the  land,  the tenure has  vested in  the State  free from all encumbrances u/s 3 of the Act and the decree was rendered "non est".      Dismissing the appeal by special leave, the Court, ^      HELD: (1)  As a  result of the abolition of the village office under  s.  3  of  the  OMTA,  all  incidents  of  the appellant’s service  tenure, e.g.,  the right  to  hold  the "bhogra land"  stood extinguished by virtue of the provision of clause  (b) of  s. 3, and ail settlements, sanads and all grants in  pursuance of  which the  tenure was being held by the appellant,  stood cancelled  under s. 3(c). The right of the appellant  to receive emoluments was also deemed to have

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been terminated  under Cl. (d) and by virtue of Cl. (f), his bhogra land  stood resumed  and "vested  absolutely" in  the State free  from all  encumbrances. Section 3 of the Act, in fact, expressly  provided that  this would  be  the  result, notwithstanding anything  in law,  usage, settlement, grant, sanad, order  or "in  any judgment,  decree or  order  of  a court." All these consequences ensued with effect from April 1, 1966  the date  of coming into force of the orissa Merged territories (Village offices Abolition) Act, 1963. From that date,  the   appellant  suffered   from  these   and   other disabilities enumerated  in s.  3 of  the Act,  the  "bhogra land" in  respect of  which he  obtained  the  decree  dated October 14, 1958 declaring his title and upholding his right to possession  was, therefore,  lost to  him  as  it  vested "absolutely"  in   the  State   Government  free   from  all encumbrances. The  decree for  possession also thus lost its efficacy by  virtue of the express provisions of the Act and there is  nothing wrong  in  holding  that  the  decree  was rendered incapable  of execution by operation of law. [77 D- H]      (2) Under  sec. 5 of orissa Merged Territoies ((Village offices Abolition)  Act, 1963,  once a  "bhogra land"  stood resumed and vested absolutely in the State Government to the exclusion of  the village officer concerned, it was required to be  "settled" with  rights of  occupancy thereunder.  The settlement   of the  land contemplated  by sec.  S had to be with the  holder of the village office and the other persons who were  enjoying it (or part of it) and as his co-sharers, as tenants  under him  or his co-sharers, but that was to be so on the condition 76 that "each  such person,  namely, the  holder of the village office and  his cosharers or the tenants under the holder of the office  or his  co-sharers was  in separate  and  actual cultivating  possession"  of  the  land  immediately  before April, 1966.  The words "each such person" occurring in sub- section I of Sec. 5 include the holder of the village office so that  in order  to be eligible for settlement of the land with occupancy  rights, he  must also  be  in  separate  and cultivating possession  of  the  "bhogra  land"  immediately before April  1, 1966.  There is nothing in sub-section I of Sec. 5  to justify  the argument  that the interpretation of the words  "each such  person" should  be such as to exclude the holder  of v the village office from its purview. [78 E, F-H]      State of  orissa v.  Rameswar Patabisi  (Civil Revision Petition No.  257 of 1974) decided on 27-6-1975 (orissa High Court) over-ruled;  Meharabansingh and  Ors. v.  Nareshaingh and ors. [1970] 3 S.C.R. 18 (held not applicable).      (3) The  provisions  of  sec.  9  do  not  justify  the argument that  the village  officer was entitled to continue his possession  of the  "bhogra land"  under that section in spite of  the fact  that the  land. stood resumed and vested absolutely  in   the  State   Government   free   from   all encumbrances. [80 E]      (4)  The   normal  consequences   arising  out  of  the rejection of  the application  under o.  XXI, r.  58,  Civil Procedure  Code  and  the  failure  to  institute  the  suit thereafter, were rendered nugatory by the express provisions of section  3 of  the  orissa  Merged  Territories  (Village offices Abolition)  Act, 1963. The question of executability of the decree did not arise. [81 A-B]      [The Court  left open  to the  authorities concerned to examine the question of settlement of the land under s. 5(1) of  the   orissa  Merged  Territories  (Village  Dr  offices

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Abolition) Act, 1963, with liberty to the village officer to rely upon  such matters  as may  be available  according  to law.]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 577 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated the 4-11-74 of the orissa High Court in M.A. No. 75 of 1970.      G. S.  Pathak, Santosh  Chatterjee and G. S. Chatterjee for the Appellant.      Sachin Chowdhury  (Respondent No.  2) and  Vinoo Bhagat for the Respondent No. 1.      The Judgment of the Court was delivered by      SHlNGHAL J.,  Maguni  Charan  Dwivedi,  the  appellant, filed a  title suit  in  the  Court  of  Munsif,  Sundargarh against the  State of  orissa, for  declaration of his title and recovery  of possession  of plot  No. 99  meaguring 3.80 acres in  khata No.  89 of  village Mahulpali claiming it as his "ganju bhogra" land. The suit was decreed on October 14, 1958, in  respect of  3.45 acres.  The  defendant  State  of orissa, did  not file an appeal and the decree became final. Decree-holder Dwivedi  applied for  its execution.  The case was transferred  to the  court of  the Subordinate  Judge of Sundargarh. An  objection was  taken there  by the  Notified Area  Council,   Rourkela,  respondent  No.  2,  hereinafter referred to  as the  Council, under  ss. 37 and 38 and order XXI rule  58 of  the Code  of Civil  Procedure on the ground that it  was in  actual physical possession of the land. The objection application  was however rejected by the execution court on March 31, 1965. The Council applied for revision or the order  of rejection,  but its  application was dismissed with the  observation that  the Council might file a regular suit for adjudication of its right if it so desired. No suit was filed  by the  Council and decreeholder Dwivedi filed an application on  September S,  1966 for  proceeding with  the execution of his decree. The Council and the State then 77 made an  application under  s.  47  of  the  Code  of  Civil Procedure stating  A that  the  decree  was  not  executable because  the  orissa  Merged  Territories  (Village  offices Abolition) Act,  1963, hereinafter  referred to  as the Act, had come  into force  in the  area on April 1, 1966, and the "bhogra land"  in question had vested in the State free from all  encumbrances.   The  Subordinate   Judge  upheld   that objection and dismissed the execution application.      Decree-holder Dwivedi  felt  aggrieved,  and  filed  an appeal  which   was  heard  by  Additional  District  Judge, Sundargarh, who held by his order dated May 2, 1970 that the decree was  executable. He  therefore set aside the order of the execution court, and the State of orissa and the Council went up  in appeal  to the  High Court.  The High Court held that  as  the  decree-holder  was  not  in  actual  physical possession of  the land,  the tenure had vested in the State free from  all encumbrances  C under  s. 3  of the  Act, the decree was  "rendered non  est", and the Collector could not settle the land with him under s. S of the Act. It therefore allowed the  appeal by  its impugned judgment dated November 4, 1974,  and  ordered  that  the  decree-holder  could  not execute the  decree. He  applied for  and  obtained  special leave, and has filed the present appeal.      It is  not in dispute before us that the appellant held

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the "village  office" within  the meaning  of s. 2(j) of the Act. It  is also not in dispute that it was in that capacity that he  held the  "bhogra  land"  in  question  by  way  of emoluments of his office. Moreover it is not in dispute that the appellant’s village office stood abolished in accordance with the  provisions of s. 3(a) of the Act. The consequences of the  abolition, have been stated in cls. (a) to (g) of s. 3. It  will be sufficient for us to say, for purposes of the present controversy,  that as  a result  of the abolition of the office, all incidents of the appellant’s service tenure, e.g.,  the   right  to   hold  the   "bhogra  land",   stood extinguished by virtue of the provisions of cl. (b) of s. 3, and all  settlements, sanads  and all grants in pursuance of which the  tenure was  being held  by  the  appellant  stood cancelled under  s. 3(c).  The right  of  the  appellant  to receive  the   emoluments  was  also  deemed  to  have  been terminated under  cl. (d),  and by  virtue of  cl.  (f)  his "bhogra land"  stood resumed  and "vested  absolutely in the State Government  free from  all encumbrances." Section 3 of the Act  in fact  expressly provided  that this would be the result,  notwithstanding   anything  in   any  law,   usage, settlement, grant,  sanad or  order  or  "in  any  judgment, decree  or   order  of  a  Court."  All  these  consequences therefore ensued with effect from April 1, 1966 when, as has been stated,  the Act came into force in the area with which we are  concerned. There can be no doubt therefore that from that date  appellant Dwivedi  suffered from  these  and  the other disabilities  enumerated in  s.  3  of  the  Act;  the "bhogra land"  in respect  of which  he obtained  the decree dated October 14, 1958 declaring his title and upholding his right to  possession, was therefore lost to him as it vested "absolutely"  in   the  State   Government  free   from  all encumbrances. The  decree for  possession also thus lost its efficacy by  virtue of  the express  provisions of  the  Act referred to above, and there is nothing wrong if the High rt has held  that it  was rendered  incapable of  execution  by operation of the law. 78      Section S  of the  Act deals with the settlement of the resumed "bhogra  land" and  has been  the subject  matter of controversy before us. It provides as follows:           "5. Settlement  of Bhogra  lands:-(1)  All  Bhogra      lands resumed  under the  provisions of  this Act shall      subject to the provisions of sub-section (2) be settled      with  rights   of  occupancy  therein  on  a  fair  and      equitable rent with the holder of the Village office or      with him  and all  those other persons, if any, who may      be in  the enjoyment of the land or any part thereof as      his co-sharers  or as  tenants under  him or under such      co-sharer to  the extent  that each  such person was in      separate and  actual cultivating possession of the same      immediately before the appointed date.           (2) The  total area  of such land in possession of      each such person shall be subject to a reservation of a      certain fraction  thereof in  favour of the Grama Sasan      within whose  limits the land is situate and the extent      of  such   reservation  shall   be  determined  in  the      following manner, namely:-           Land in possession       Extent of reservation           For the first 10 acres   Nil           For the next 20 acres    5 per cent           For the next 70 acres    10 per cent           For the next 100 acres   30 per cent           For the remaining        40 per cent:           Provided that  the area  reserved shall, as far as

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    practicable be  in compact  block or blocks of one acre      or more." (Emphasis added) . It would  appear that once a "bhogra land" stood resumed and vested absolutely  in the  State Government to the exclusion of the  village officer  concerned, it  was required  to  be "settled", with  rights of  occupancy thereunder,  with  the erstwhile holder  of the village office, or with him and all those other  persons, if any, who may be in enjoyment of the land or any Part thereof as his co-sharer to the extent that each such  person was  in separate  and  actual  cultivating possession of the same immediately before the date appointed for the  coming into force of the Act. The settlement of the land contemplated  by s.  5 had  therefore to  be  with  the holder of  the village office and the other persons who were enjoying it  (or part of it) as his co-sharers or as tenants under him  or his  co-sharers, but  that was to be so on the condition that  "each such person" namely, the holder of the village office, and his co-sharers, or the tenants under the holder of the office or his co-sharers, was in "separate and actual  cultivating  possession"  of  the  land  immediately before April  1, .1966.  There is nothing in sub-section (1) of s. S to justify the argument of Mr. Pathak that we should so interpret  the words "each such person" as to exclude the holder of  the village office  from its purview. In fact the same words  occur in sub-s. (2) of s. S as well, which deals with the  question of  reservation  of  a  fraction  of  the "bhogra land"  in favour  of Grama Sasan, and Mr. Pathak has not found  it possible  to argue that the land in possession of the holder of 79 the village  office was  immune from  the liability  to such fractional reservation.  We have  no doubt therefore that in order to  be entitled to the settlement contemplated by sub- s. (1)  of s.  S, the  village officer  or the other persons mentioned in  the sub-section  had to  be in  "separate  and actual  cultivating   possession"  immediately   before  the appointed date.      It  has  also  been  argued  by  Mr.  Pathak  that  the provisions of s. 3 of the Act were subject to the provisions of s.  5, and  that the  High Court  committee an  error  in losing sight  of that  requirement of  the law. He has urged that if  s. 3  had been  read as  suggested by him, it would have been found that, in spite of the resumption and vesting of the  "bhogra land"  under s.  3, the appellant’s right to possess the  "bhogra land"  in question continued to subsist so long  as it  was not  converted into a right of occupancy under sub-s.  (1) of s. 5. Counsel has gone on to argue that the appellant  was therefore entitled to ignore any trespass on his  possession of  the "bhogra  land", and  to  ask  for execution  of   the  decree   for  possession   against  the respondents as  they were  mere trespassers and were not co- sharers or  tenants within the meaning of sub-s. (1) of s.5. Reference in  this connection  has been  made to  Maxwell on Interpretation of Statutes, twelfth edition, p. 86, where it has been  stated that it is necessary to interpret the words of the  statute so  as to give the meaning "which best suits the scope  and object  of the  statute." It  has been argued that grave  injustice would  otherwise result for, by a mere act of  trespass committed  on the  eve of  the coming  into force of  the Act, a village officer would lose the right of settlement of  his "bhogra  land" under  sub-section (1)  of s.5. It  has also  been argued  that the  words  "each  such person" occurring  in that  sub-section do  not include  the holder of  the village  office himself,  so that  it was not necessary for him to show that he was in separate and actual

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cultivating possession  of his  "bhogra land".  Reliance for this proposition  has been placed on a bench decision of the High Court of Orissa in State of Orissa v. Rameswar Patabisi (Civil Revision  Petition No.  257 of  1974 decided  on June 27,1975) and  on Meharaban  Singh and others v. Naresh Singh and others(1).  As will  appear, there  is no  force in this argument.      Section  3  of  the  Act  expressly  provides  for  the abolition  of   village  offices  under  the  Act,  and  the consequences of  such abolition. We have made a reference to cls. (a) (b) (c) (d) and (f) of that section, and we have no doubt that  the consequences stated in the section in regard to the  abolition of  village offices, the extinction of the incidents  of  the  service  tenures,  cancellation  of  the settlements  and   sanads  etc.   creating   those   office, termination of  the right  to receive any emoluments for the offices, the  resumption and  vesting of  the "bhogra lands" free from  all encumbrances  ensued "with effect from and on the appointed  date" and  were not  put off  until after the settlement provided  for in sub-section (1) of s. 5 had been made. Section  3 in  fact expressly made provision for those consequences and  there is no justification for the argument that they remained suspended or were put off until occupancy rights were settled on the persons concerned. As has been      (1) [1970] 3 S.C.R. 18. 80 stated, sub-section (1) of s. S deals with the settlement of such lands, with rights of occupancy, with the holder of the village office  or with  him and  the other persons, if any, referred to  in the  sub-section, but  such  settlement  was required to be made as a result of the consequences referred to in  s. 3  and not  otherwise. It  is therefore  futile to contend  that  the  appellant  did  not  suffer  from  those consequences merely because the "bhogra land" claimed by him had not  been settled  with rights of occupancy under sub-s. (1) of  s. 5 because it was the subject matter of the decree which had not been executed.      We have gone through the decision in State of Orissa v. Rameshwar Patabisi  (supra) and  it has  no doubt  been held there that  actual cultivating  possession  of  the  village officer was  not necessary  for purposes of sub-s. (1) of s. S, but,  as has  been shown, we have no doubt that the words "each such  person" occurring  in sub-s. (1) of s. 5 include the holder  of the  village office,  so that  in order to be eligible for  settlement of  the land with occupancy rights, he  must   also  be   in  separate  and  actual  cultivating possession of  the  "bhogra  land"  immediately  before  the appointed date.  It appears  that the earlier bench decision to the  contrary, which is the subject matter of the present appeal, was  not brought  to the  notice of  the Bench which decided Rameswar  Patabisi’s  case.  We  have  gone  through Maharabansingh’s(1) case also but that was quite a different case which  was decided in accordance with the provisions of a different Act.      It has  next been  argued by  Mr. Pathak  that the High Court lost  sight of the provisions of s. 9 of the Act which provided  for   submission  of   records  and   delivery  of possession of  other land  but did  not require  delivery of possession of  the "bhogra  land" even after its resumption. The argument  is however untenable because s. 9 was meant to serve  quite   a  different  purpose  inasmuch  as  it  made provision for  the delivery of all records maintained by the village officer  in respect  of the  land or village held by him in relation to his office, the rendering of all accounts appertaining to his office in respect of the dues payable by

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and to  him, and the delivery of possession of all abandoned and surrendered  holdings etc. The section did not therefore have any  bearing on  the question  of the  vesting  of  the "bhogra land"  absolutely in  the State  Government and  the extinction of  the right  of the village officer to hold it. That had  in fact  been. expressly provided in those clauses of s.  3 to  which reference has been made by us already. As it is,  section 9 did not deal with the question of delivery of possession  of the "bhogra land" and its provisions could not justify  the  argument  that  the  village  officer  was entitled to  continue his  possession of  the "bhogra  land" under that  section in spite of the fact that the land stood resumed and  vested absolutely  in the State Government free from all encumbrances under s. 3.      It may  be mentioned that Mr. Pathak has argued further that as  the application which had been filed by the Council under order  XXI r. 58 C.P.C. had been rejected on March 31, 1965 and  the Council  did not  file a suit to establish its right to  the "bhogra  land", the  decree in  favour of  the appellant became final and could not be challenged for 81 any reason whatsoever, and the High Court committed an error in A  taking the  view that  it  was  rendered  inexecutable merely because  of the coming into force of the Act. It will be sufficient for us to say in this connection that whatever might have  been the  consequences of  the rejection  of the Council’s application  under order  XXI r. 58 C.P.C. and the failure  to   institute  a  suit  thereafter,  those  normal consequences  were   rendered  nugatory   by   the   express provisions of  the Act  to which  reference  has  been  made above. The  question of  executability  of  the  decree  has therefore been rightly decided with reference to the Act.      It may  be mentioned  that in a given case there may be no "bhogra  land" to be settled with a village officer, or a village officer  may feel  aggrieved on  the ground that the Act provides  for the  acquisition of property by the State, but we  find that provision has been made in the Act for the payment of  solatium or  compensation under  ss. 8 and 10 in such cases  and it  cannot be  said that they have been left without a remedy.      For the  reasons mentioned  above, we  find no force in the arguments  which have  been advanced  on behalf  of  the appellant.  It   however  appears   to  us   that  there  is justification for  the other  argument of  Mr.  Pathak  that there was  really no  occasion for the High Court to express the view  that the appellant "had no possession of the land" so as  to claim its settlement under s. 5(1) of the Act, and that the Collector could not settle the land with him. As is obvious, that  was clearly  a  matter  for  the  authorities concerned to  examine and  decide under  s. 5 and it was, at any rate,  outside the  purview of  the question relating to the executability of the decree which was the subject matter of the  appeal in the High Court. While therefore the appeal fails and  is dismissed,  the observation  of the High Court that the decree-holder had no possession of the land and the Collector could  not settle the land with him, is set aside, and it  is left  to the authorities concerned to examine the question of  settlement of  the  land  under  s.  5(1).  The appellant may rely on such matters as may be open applellant the law.  In the  circumstances of  this case,  we leave the parties to pay and bear their own costs. S.R.                                        Appeal dismissed 82

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