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PETITIONER: STATE OF BOMBAY

       Vs.

RESPONDENT: SARDAR VENKAT RAO KRISHNA RAO GUJAR

DATE OF JUDGMENT: 06/04/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SARKAR, A.K. SUBBARAO, K.

CITATION:  1966 AIR  991            1963 SCR  (1) 428  CITATOR INFO :  RF         1989 SC1101  (16)

ACT: Abolition  of  Proprietory  Rights-Settlement  of  sites  of holdings  in  abadi-Uncovered ottas and  chabutras,  whether buildings-Buildings,  connotation  of-M.   P.  Abolition  of Proprietary  Rights (Estates, Mahals, Alienated Lands)  Act, 1950 (M.  P. 1 of 1951), s. 5(a).

HEADNOTE: The  proprietary interest of the respondent in  his  village was  abolished by the M. P. Abolition of Proprietary  Rights (Estates,  Mahals,  Alienated  Lands)  Act,  1950,  and  all rights, title and interest were vested in the State by S. 4. Section  5(a) of the Act provide that where any  "buildings" belonging  to  the proprietor exist on any  portion  of  the abadi land, that land together with the land appurtenant  to those  buildings  shall be settled with  the  ex-proprietor. Land covered by ottas and chabutras on which sheds had  been constructed was settled with the respondent but not the land on which open uncovered ottas and chabutras existed. Held,  that the respondent was entitled under  section  5(a) of  the  Act to have the land on which  uncovered  ottas  an chabutras  existed,  as also the land  appurtenant  thereto, settled with him.  Uncovered ottas and chabutras fell within the  term  "buildings" as used in s. 5(a).   The  provisions showed  that  where  the  proprietor  had  spent  money   on constructing something on an abadi site within the limits of the  village  sites, that site had to be settled  with  him. Accordingly the word "buildings" has to be given its literal meaning as something which is built. Moir   v.  Williams,  (1892)  1  Q.  B.  217,  Morrison   v. Commissioners  of  Inland Revenue, (1915) 1 K.  B.  716  and Samuel  Small  v. Parkway Auto Supplies, 49 A. L.  R.  1361, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 455/59. Appeal  by special leave from the judgment and  order  dated

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January 16, 1956, of the former                             429 Nagpur High Court, in Misc.  Petition No. 448 of 1954. N. S. Bindra and D. Gupta, for the appellants. Purshottam  Trikamdas, G. J. Ghate and Naunit Lal,  for  the respondents. 1962.  April 6. The Judgment of the Court was delivered by MUDHOLKAR,  J.-The  respondent  was a  proprietor  of  mauza Bhivapur,  Tehsil Umerer, District Nagpur.  His  proprietary interest in the village was abolished by the Madhya  Pradesh Abolition of Proprietary Rights (Estates, Mahals,  Alienated Lands) Act, 1950 (M.P. 1 of 1951).  By virtue of s. 4 of the Act, ill rights, titles and interests, among others, in  all pathways, village sites, hats, bazars and melas in  Bhivapur vested  in the State of Madhya Pradesh for the  purposes  of the State free from all encumbrances under s. 4(1)(a) of the Act.   Under  the provisions of the  States  Re-organisation Act, 1956 those rights vested in the State of Bombay and now by  virtue of Bombay Re-Organisation Act, 1960 (11 of  1960) in  the State of Maharashtra.  The provisions of s.  4(1)(a) are as follows:- "  All rights, title and interest vesting in the  proprietor or  any  person having interest in  such  proprietary  right through   the  proprietor  in  such  area   including   land (cultivable  or  barren) grass-land, scrub  jungle,  forest, trees,   fisheries,  wells,  tanks,  ponds,   waterchannels, ferries,   pathways,   village  sites,  hats,   bazars   and melas;.........  shall cease and be vested in the State  for purposes  of  the State free of all  encumbrances;  and  the mortgage debt or charge or any proprietary right shall be  a charge  on  the  amount of  compensation  payable  for  such proprietary right to the proprietor under the provisions (if this Act" 430 After   the   Act  came  into  operation   proceedings   for compensation in respect of the village Bhivapur were started in the court of the Compensation Officer, Umrer, in  Revenue case No. 583/1-A-4/1950-51 decided on January 19, 1952.  The Compensation  Officer held that 0. 14 acres of land  out  of Khasra  No. 61/1 which is recorded in the village papers  as abadi  wherein a bazar is held, should be settled  with  the respondent under s. 5(a). On a portion of the land which was used for bazar, ottas and chabutras, with or without sheds, and separated by passages, exist.   It  is  common  ground  that  they  belong  to  the respondent.  It is also common ground that the land  covered by ottas and chabutras on which sheds have been  constructed were ordered to be settled on the respondent in the  revenue case  referred  to  above.   The  respondent’s   contention, however,  was that not only the sheds and the land on  which those  sheds were erected but also the open uncovered  ottas and  chabutras  should also have been settled  with  him  by virtue  of the provisions of s. 5(a) of the Act  along  with the land appurtenant to those structures.  The total area of this land, according to him, is 2.85 acres.  The respondent, therefore,  preferred  an appeal against the  order  of  the Compensation Officer which directed settling only 0.14 acres of land on him.  That appeal was. however, dismissed by  the Additional  Commissioner  of  Land  Reforms  and  Additional Commissioner  of  Settlement, Madhya Pradesh, on  March  28, 1952.   The  respondent thereafter was asked to  remove  his ottas and chabutras. Even  so, the matter of settling land covered. by ottas  and chabutras  on  the  expropriators was  being  considered  by Government.  On May 16, 1952, a press note was issued by the

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Directorate  of  Information and Publicity,  Government,  of Madhya Pradesh the material portion of which runs thus:               "The Government consider that the option               431               given to expropriators to remove the  material               etc.,  might  cause hardship to them  in  such               cases.  Government have, therefore, decided on               the following lines of action in such matters:               (i)   where  the  ottas  and  chabutras  were,               constructed in brick and stone, they should be               allowed  to remain with the exproprietors  and               the  land  thereunder should be  settled  with               them under section 5(a) of the Madhya  Pradesh               Abolition  of Proprietary Rights Act, 1950  (1               of 1951) on terms and conditions determined by               the Government; and               (ii)  where  the  ottas and chabutras  are  in               mud,  the land Under them should be deemed  to               have vested in the State Government. But  after  this  press  note  was  issued  the  Government, apparently  on  the  advice  of  its  law  officers,  issued instructions  to the Deputy Commissioners on June 22,  1954, to give one month’s notice all ex-proprietors to remove  the materials, clear the site of ottas and chabutras other  than those  on which there were sheds.  In pursuance of  this,  a notice was issued to the respondent on July 13, 1954. Feeling  aggrieved  by  this,  the  respondent  preferred  a petition under Art. 226 of the Constitution before the  High Court of Nagpur for issue of a writ of mandamus or certiorari or other appropriate to  writ to quash the orders passed by the Commpensation Officer  and the  appellate authority as well as the order of  the  State Government  of Madhya Pradesh dated June 22, 1954,  and  the notice  issued in pursuance thereto on July 13,  1954.   The High  Court allowed the petition and set aside the  impugned orders  and directed the State Government to settle  the  on tire area of Khasra No. 61 /1 of Bhivapur 432 with  the respondent on such terms and conditions as may  be determined by it.  It may be mentioned that the entire  area of  Khasra  No.  61/1 is 12.85 acres or so.   The  State  of Madhya  Pradesh  sought a certificate from  the  High  Court under   Art.  133(1)(c)  of  the  Constitution.    But   the certificate  was  not granted.  Thereupon  a  special  leave petition  was made before this Court under Art. 136  of  the Constitution.  Leave was granted by this Court by its  order dated  March 18, 1957.  That is how the appeal has  come  up before us. It may be mentioned that the High Court granted the petition of the respondent on the view that ottas and chabutras etc., are  buildings within the meaning of s. 5(a) of the Act  and that  consequently the State Government was bound to  settle the land covered by them with ex-proprietors along with land appurtenant  to those structures.  In the  application  made before  the  High  Court  for  grant  of  certificate,   the following three grounds were raised:               "5. For that the total market area as  claimed               by  the  non-applicant  being  only  2.85  the               entire abadi area of 12.85 acres in Khasra No.               61/1 could not be granted and settled with the               ex-proprietor.               6.    For that the ottas and chabutras in  the               bazar  area could not be held to be  buildings               contemplated  under section 5(1)(a) read  with               section  4  (1) (a) of the Act 1 of  1941  and

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             could  not be settled with  the  ex-proprietor               under the law.               7.    For that the buildings envisaged in  the               provisions  5(1)(a) are those buildings  which               are situated in the abadi and not those stand-               ing  in bazars even though the bazar may  also               be  located  in the abadi and that  ottas  and               chabutras etc., in the bazar being an integral               part thereof are clearly different from  those               other               433               buildings  used for agricultural  or  domestic               purposes." It  would, however, appear from para. 2 of the order of  the High  Court refusing certificate that the learned  Advocate- General for "the State did not challenge the correctness  of the meaning given by the High Court to the word  "buildings" in  s. 5(a) of the Act.  But the contention he  pressed  was that  the words "ottas and chabutras" must be restricted  to structures  standing on the abadi of the  village  excluding that  on which bazar was held, which under s. 4(1)(a)  vests in the State.  Before us however, Mr. Bindra reiterated  the contention  which was originally pressed in the  High  Court that  ottas  and chabutras cannot be regarded  as  buildings within  the  meaning  of that word in s. 5(a)  of  the  Act. According  to  him  the  concession  made  by  the   learned Advocate-General  was on a question of law and the State  is entitled to withdraw that concession. In our opinion the question whether ottas and chabutras fall within  the term "’buildings" is not purely one of  law  and the  State is not entitled to withdraw that concession.   It would also appear from grounds 5 and 6 in the special  leave petition that what was really sought to be urged before this Court  was  the contention actually pressed by  the  learned Advocate-General in support of the application for grant  of certificate.  All the same we allowed Mr. Bindra to urge the contention that ottas and chabutras are not included in  the term "buildings" in s. 5(a) of the Act. The relevant portion of s. 5(a) of the Act reads thus:               "Subject to the provisions in sections 47  and               63  all open enclosures used for  agricultural               of   domestic  purposes  and   in   continuous               possession for twelve years immediately before               1948-49; all open house-sites purchased for               434               consideration;  all  buildings;...............               within the limits of a village site  belonging               to or held by the out going proprietor or  any               other  person, shall continue to belong to  or               be held by such proprietor or other person  as               the case may be; and the land thereof with the               areas  appurtenant  thereto shall  be  settled               with him by the State Government on such terms               and conditions as it may determine;" "Village site" means the abadi in an estate or a mahal. Section 5(a) is an exception to s. 4(1)(a) of the Act.   No. doubt,  s. 4(1)(a) provides for the vesting in the State  of the  land on which bazar is held.  But reading that  section along  with  s. 5(a) it is clear that  where  any  buildings belonging  to  the proprietor exist on any  portion  of  the abadi land that land, together with the land appurtenant  to those  buildings, bad to be settled with the  ex-proprietor. Land on which the bazar is held is part of the village abadi land  and,  therefore, all buildings standing on  such  land would  fall within s. 5(a) of the Act and would have  to  be

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settled with the ex-proprietor. The only question, therefore, is whether ottas and chabutras can  be regarded as buildings.  A perusal of that  provision would  show that where the ex-proprietor has spent money  on constructing  something  within the limits  of  the  village sites,    that  thing had to be settled with him.  The  word "buildings"  should, therefore, be given its literal meaning as something which  is  built.   Mr.  Bindra’s   contention, however,  is  that  for  a structure to  be  regarded  as  a building, it should have walls and a roof and in support  of this  contention  lie relied upon the decision  in  Moir  v. Williams  (1) In that case Lord Esher has observed that  the term building generally means all (1) (1892) 1 Q.B. 217. 435 enclosures of brick and stone covered by a roof.  But he has also made it clear that the meaning to be given to that word must depend upon the enactment in which the word is used and the  context  in which it is used.  There,  what  was  being considered was the provisions of the Metropolitan  Buildings Act,  1855  (10  &  19  Vict.  c.  122)  which  dealt   with residential  houses.   He also relied upon the  decision  in Morrison v. Commissioners of Inland Revenne (1).  That was a case under the Finance (1909-10) Act, 1910 (10 Miw. 7 c. 8). The observations on which he relied are as follows:               "  It  is  quite  clear  that  the  expression               ’buildings’ does not mean everything that  can               by  any means be described as built: it  means               buildings in a more narrow sense than  struct-               ures, because there are other structures of  a               limited class which under the terms of the               sub-section may also be taken into  considera-               tion."               Far  from these observations helping him  they               clearly  show  that the  natural  or  ordinary               meaning  to be given to the word  "Buildings",               is  something  which  has  been  built.   That               meaning would be modified if the provisions of               law   justify  giving  some   other   meaning.               Finally he relied upon the decision in  Samuel               Small  v.  Parkway  Auto  Supplies  (2).   The               observations relied on by him are as follows:               "The  word  ’building’ in its  ordinary  sense               denotes  ’a structure or edifice including  a.               space  within  its walls and  usually  covered               with  a  roof, such as a house,  a  church,  a               shop, a barn or a shed.’               The word ’building’ cannot be held to  include               every  Species  of erection on land,  such  as               fences, gates or other like structures.  Taken               (1) (1915) I K. B. 176 at 722.               (2) 49 A.I.R. 1361 at 1363.               436               in  its  broadest sense, it can mean  only  an               erection intended for use and occupation as- a               habitation  or  for  some  purpose  of  trade,               manufacture,  ornament or use, constituting  a               fabric or edifice, such as a house, a store, a               church, a shed............ These observations must Be considered in the context of  the Act  which was being construed and in the context  in  which they  were  made.  There the Court bad to  consider  whether erection of gasoline pumps and construction of under  ground gasoline  tanks and pits with concrete sides sunken  in  the ground are within a restrictive covenant that no building of

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any  kind  shall be erected or maintained within  a  certain distance  of a street.  In the particular context  buildings had,  according  to  the  Court, to  be  given  its  popular meaning.    That  case,  therefore,  does  not  assist   the appellants. In  our  opinion the High Court was quite right  in  holding that even uncovered ottas and chabutras fall within the term "building"  as  used in s. 5(a) of the Act  and,  therefore, along with the land appurtenant to them they must be settled with the respondent. Mr.  Bindra pointed out that the High Court was in error  in asking the Government to settle the whole of Khasra  No.61/1 on  the respondent because whereas its area is 12.85  acres, the   land   covered  by  the  structures,   including   the appurtenant  land,  does not measure more than  2.85  acres. Mr.   Purushottam   Trikamdas,  learned  counsel   for   the respondent readily conceded this fact and said that the High Court  has committed an error through an oversight and  that all  that  the respondent wants is 2.85 acres  of  land  and nothing  more.   Mr. Bindra then said that it would  not  be proper  to give a direction to the Government to settle  any particular  area  of the land and it should be left  to  the revenue authorities  437 to determine the precise area covered by the structures  and the passages separating these various structures.  We  agree with  him.  It would be sufficient to direct the  Government to settle with the respondent the whole of the land  covered by  the  structures  as well as land  appurtenant  to  those structures  from out of Khasra No. 61/1.  What the  area  of that  land would be is a matter to be determined during  the settlement  proceedings.  With this modification we  dismiss the appeal with costs. Appeal dismissed.