State of Bombay Vs. Sardar Venkat Rao
Krishna Rao Gujar  INSC 125 (6 April 1962)
06/04/1962 MUDHOLKAR, J.R.
CITATION: 1966 AIR 991 1963 SCR (1) 428
CITATOR INFO :
RF 1989 SC1101 (16)
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).
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.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Appeal by special leave from the judgment and
order dated 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
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 Directorate of Information and
Publicity, Government, of Madhya Pradesh the material portion of which runs
"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 there under 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
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 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
"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 outgoing 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 settled with the
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
" 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
"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 underground gasoline tanks and pits with concrete sides
sunken in the ground are within a restrictive covenant that no building of 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
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