Jagannath Behera & Ors Vs. Raja
Harihar Singhmardaraj Bhramarbara Roy [1957] INSC 112 (6 December 1957)
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER KAPUR, J.L.
GAJENDRAGADKAR, P.B.
CITATION: 1958 AIR 239 1958 SCR 1067
ACT:
Merger Agreement-Private Property of
Ruler-Legislation restricting ejectment of tenants-If violates guarantee of
full ownership, use and enjoyment-jurisdiction of Courts in dispute between
Ruler and tenants-Ruler whether a landlordOrissa Tenants Protection Act, 1948
(Orissa III of 1948), SS. 2(a) and (g)-Orissa Merged States (Laws) Act, 1950
(Orissa IV of 1950), SS. 7(a) and (h) -Constitution of India, Arts. 19(1)(f),
363.
HEADNOTE:
The respondent was the Ruler of the erstwhile
State of Khandapara which merged in the State of Orissa on August 1, 1949.
Article 3 of the Agreement of Merger guaranteed that "the Raja shall be
entitled to full ownership, use and enjoyment of all his private
properties". The Orissa Merged States' (Laws) Act, 1950 extended the
Orissa Tenant's Protection Act, 1948 to the merged areas. In 1951 the
respondents evicted certain tenants. The tenants applied to the Revenue Officer
under the 1948 Act for being restored to possession on the allegations that the
respondent was their landlord and that he had unlawfully evicted them. The
Revenue Officer allowed the applications and directed restoration of
possession. The respondent filed a petition under Art. 226 of the Constitution
in the High Court for quashing the orders of the Revenue Officer contending,
(1) that the application of the provisions of the 1948 Act to his private
properties violated the guarantee given under the Agreement, (2) that Art. 363
Of the Constitution barred the Court from dealing with any dispute arising out
of the Agreement, and (3) that the 1948 Act did not apply to him as he was not
a landlord. The High Court accepted these contentions and quashed the
proceedings taken under the 1948 Act:
Held, that the extension of the 1948 Act did
not affect the full ownership, use and enjoyment of his properties guaranteed
to the respondent under the Agreement. The provisions of the Agreement only
protected his rights to the properties declared to be his private properties so
that they could not be claimed at anytime thereafter as State properties. The
guarantee given under the Agreement could not be absolute but could only be
co-extensive with the right to acquire, hold and dispose of property which is
guaranteed to all citizens under Art. 19(1)(f) of the Constitution. State of
Bihar v. Maharajadhiraja Sir Kameshwar Singh of 136 1068 Darbhanga, [1952]
S.C.R. 889 and Visheshwar Rao v. The State of Madhya Pradesh, [1952] S.C.R.
1020, followed.
Held, that the jurisdiction of the Courts to
entertain the applications under the 1948 Act, was not barred by Art.
363 Of the Constitution. The dispute between
the appellants and respondent was not a dispute which arose out of the
Agreement of Merger, and so was not covered by Art. 363.
Held further, that the respondent was a
landlord to whom the provisions of the 1948 Act applied. Whatever may have been
the definition of the terms landlord and tenant in SS.
2(C) and (g) of the 1948 Act the definitions
contained in s. 7(a) of the 1950 Act, made the appellants 'the tenants' and the
respondent 'the landlord' in regard to the lands in question.
CIVIL APPFLLATE JURISDICTION: Civil Appeal
No.309 of 1955.
Appeal from the judgment and order dated
October 7, 1953, of the Orissa High Court in O.J.C. No. 37 of 1952.
C.K.Daphtary, Solicitor-General of India and
B.Sen (B. M. Patnik, Advocate, Orissa High Court with Special Permission of the
Court and R. H. Dhebar), for the appellants, Nos. 1, 3 to 9 and 11 to 16 and
the intervener.
H. Mahapatra and Gyan Chand Mathur, for the
respondent.
1957. December 6. The following Judgment of
the Court was delivered by BHAGWATI J.-This appeal with a certificate under
Arts.
132 and 133(1)(c) of the Constitution arises
out of a writ petition filed by the respondent in the High Court of Orissa
under Art. 226 seeking to quash the proceedings taken by certain tenants of his
private lands under the provisions of the Orissa Tenants' Protection Act, 1948
(Orissa III of 1948), hereinafter referred to as the 1948 Act.
The respondent was the ruler of the erstwhile
Khandapara State which merged with the Province of Orissa under the States'
Merger (Governor's Provinces) Order, 1949 with effect from August 1, 1949. The
respondent had on December 14, 1947 entered into an agreement with the Governor-General
of India art, 3 Whereof provided that:
1069 " The Raja shall be entitled to
full ownership, use, and enjoyment of all private properties (as distinct from
State Properties) belonging to him on the date of the agreement." That
article further provided that if any dispute arose as to whether any item of
property was the private property of the Raja or State property, it shall be
referred to such officer with judicial experience as the Dominion Government
might nominate and the decision of that officer shall be final and binding on
both parties. The respondent claimed a number of properties and the matter was
referred to the Adviser for Orissa States for determining whether all the items
claimed by him could be regarded as his private properties. On June 10, 1949,
the Adviser communicated his decision that the respondent was entitled to 1,643
acres as his Khamar lands and 29 and odd acres as lands settled with his
tenants. The lands comprised in the present proceedings taken under the 1948
Act as aforesaid were declared to be the private properties of the respondent.
On March 3, 1950, the Orissa Legislature
passed the Orissa Merged States' (Laws) Act, 1950 (Orissa IV of 1950)
hereinafter referred to as " the 1950 Act ". Section 4 of that Act
extended inter alia the 1948 Act to the areas merged in the absorbing Province
of Orissa. Section 7 provided for the modification of tenancy laws in force in
the merged States. The relevant provisions of that section so far as they are
material for the purposes of this appeal may be set out herein:
" Notwithstanding anything contained in
the tenancy laws of the merged States as continued in force by virtue of
article 4 of the States Merger (Governor's Provinces) Order, 1949:
(a)all suits and. proceedings between
landlord and tenant as such shall be instituted and tried in revenue courts.
Explanation:In this clause the expression
" landlord" shall mean a person immediately under whom a tenant holds
land, and the expression " tenant " shall mean a person who holds
land under another 1070 person and is or, but for a special contract, would be
liable to pay rent for that land to that person:
(h) when a person holds Khamar, nij-jote or
any other private lands of a Ruler, which has been recognised as such by the
Provincial Government, he shall not be liable to ejectment but shall be liable
to pay such fair and equitable rent as may be fixed by any competent authority
appointed in this behalf by the Revenue Commissioner or the Commissioner,
Northern Division, as the case may be and thereupon he shall acquire right of
occupancy in respect of such lands: " On April 14, 1951, the State
Legislature passed the Orissa Tenants Protection (Amendment) Act, 1951 (Orissa
XVII of 1951) whereby the date the " 1st day of September, 1947 "
wherever it was used in the 1950 Act, was substituted by the "I st day of
August, 1949" for the purposes of the merged States areas and it was
further provided that in such areas where neither the Madras Estates Land Act,
1908, nor the Orissa Tenancy Act, 1913 was in force the special laws or customs
prevailing therein shall be taken into consideration for the application of
that Act.
It appears that certain tenants who were in
occupation of the private lands of the respondent were evicted by him during
the year 1951 and other tenants were inducted by him and put in possession of
the lands. The tenants who were thus evicted applied to the Revenue Officer
some time in 1952 for being restored to possession of their tenancy lands under
the provisions of the 1948 Act, alleging that the respondent was their landlord
and that he had unlawfully evicted them from their lands. These were numbered
as O.T.P. Act Cases Nos. 21 to 25 of 1952, 26 to 28 of 1952, 29 to 32 of 1952
and 33 to 41 of 1952. Notice was issued to the respondent but it appears that
be did not care to enter appearance before the Revenue Officer or to contest
the applications. On the ex parte evidence of the Applicants the Revenue
Officer directed restoration of possession to them holding that they 1071 were
in possession of the lands as tenants on the 1st day of August, 1949, and as
such were entitled to the benefits conferred by the 1948 Act, as amended in its
application to the merged States.
The respondent thereupon filed a writ
petition under Art.
226 of the Constitution in the High Court
seeking to quash the entire proceedings on the ground that in respect of the
disputed lands he was not a " landlord " within the meaning of the
1948 Act. The petition as filed averred that the fundamental right conferred
upon the respondent by Art. 19 of the Constitution was infringed, that the
provisions of the 1948 Act which were inconsistent with that article were void
as being ultra vires the Constitution and the orders passed thereunder by the
Revenue Officer were illegal and liable to be set aside.
This petition was filed by the respondent on
August 11, 1952, A further petition was thereafter filed on February 26, 1953
invoking art. 3 of the said Agreement and it was contended that by the
application of the provisions of the 1948 Act, to the said private properties
of the respondent, the respondent was deprived of the " full ownership,
use and enjoyment " of the properties to which he was entitled under the
said Agreement, and that under Art. 363 of the Constitution, no Court had
jurisdiction to deal with any dispute arising out of any provisions of the said
Agreement. The decision of the Revenue Officer was thus called in question and
it was contended that he had no jurisdiction to decide the dispute as to
whether the tenants had any right to the personal properties of the respondent
and as such the proceedings were liable to be quashed as being without
jurisdiction.
The High Court accepted these contentions of
the respondent and allowed the writ petition. It accordingly directed the issue
of a writ declaring that the proceedings under the 1948 Act taken by the
Revenue Officer were void as being without jurisdiction and that they should be
quashed.
The tenants then filed an application before
the High Court asking for a certificate under Arts. 132 and 1072 133(1)(c) of
the Constitution which was granted by the High Court. The State of Orissa asked
for leave to intervene in the appeal which leave was granted by this Court and
the learned Solicitor-General has appeared before us in support of the appeal,
both on behalf of the tenants who are the appellants herein, and the State of
Orissa, the Intervener.
It may be noted at the outset that no
question has been raised in regard to the vires of the 1950 Act, which extended
inter alia the 1948 Act to the areas merged in the absorbing Province of
orissa. That being so, s. 7(h) of the 1950 Act in terms would apply to the
appellants before us and they would not be liable to ejectment.
The answer of the respondent, however, is
that (1) the Revenue Court had by virtue of Art. 363 of the Constitution no
jurisdiction in the disputes between the appellants and him arising out of the
provisions of the said Agreement dated December 14, 1947, (2) that the full
ownership, use and enjoyment of the properties which was guaranteed to him
under art. 3 of the said Agreement was affected by the application of the
provisions of the 1948 Act, to the said lands and (3) that, he was not a "
landlord " and the appellants were not the " tenants " within
the meaning of the terms as defined in the 1948 Act, and, that in any event,
these lands were not recognised as such by the Provincial Government which
recognition was a condition precedent to the application of s. 7(h) of the 1950
Act to these lands and that therefore the appellants were not entitled to the
protection thereof.
The first two contentions are inter-related
and can be disposed of together. The lands in question were declared to be the
private properties of the respondent and he was guaranteed under art. 3 of the
said Agreement full ownership, use and enjoyment thereof. Article 363 only
ousted the jurisdiction of the courts in regard to the disputes arising out of
any provisions of the Agreement entered into by the Rulers of Indian States
with the Government of India. The dispute which had arisen between the
appellants and the respondent in the present case could hardly be said to 1073
be a dispute arising out of any provisions of the said Agreement. The full
Ownership, use and enjoyment of the properties which were declared to be the
private properties of the respondent was not sought to be affected by extending
the 1948 Act, to the merged State of Khandapara. The properties which had been
declared to be the private properties of the respondent were not claimed as
State properties but the whole legislation proceeded on the basis that the
respondent was the owner of these properties wherein he had inducted tenants
and what was sought to be done was to enact a measure for the protection of
those tenants. A measure for the protection of the tenants inducted by the
respondent could hardly be said to affect the full ownership, use and enjoyment
of these properties by the respondent. It no doubt imposed certain restrictions
on the absolute rights which the respondent claimed in regard to the user and
enjoyment of the said properties; but these measures were imposed upon him in
common with all the citizens of the Union and the justification for the same
could be sought under cl. 5 of Art. 19 of the Constitution.
Similar contentions which had been raised on
behalf of the erstwhile Rulers, whose States had merged with the Provinces,
were answered by this Court in The State of Bihar v. Maharajadhiraja Sir
Kameshwar Singh of Darbhanga (1) and in Visweshwar Rao v. The State of Madhya
Pradesh (2).
PatanjaliSastri C. J.observed in the former
case at page 915:
"But a short and obvious answer is that
there was no contravention of any guarantee or assurance given by the
Government under the covenant of merger, as the estates in question are sought
to be acquired only as the " private property " of the Rulers and not
otherwise. The compensation provided for, such as it is, is in recognition of
their private proprietorship, as in the case of any other owner." Mahajan
J. (as he then was) observed in the latter case at page 1041 :
" It is true that by the covenant of
merger the [1952] S.C.R. 889, 915.
(2) [1952] S.C.R, 1020, 1041, I054.
1074 properties of the petitioner became his
private properties as distinguished from properties of the State but in respect
of them he is in no better position than any other owner possessing private
property. Article 362 does not prohibit the acquisition of properties declared
as private properties by the covenant of merger and does not guarantee their
perpetual existence. The guarantee contained in the article is of a limited
extent only. It assures that the Rulers' properties declared as their private
properties will not be claimed as State properties. The guarantee has -no
greater scope than this. That guarantee has been fully respected by the
impugned statute, as it treats those properties as their private properties and
seeks to acquire them on that assumption. Moreover, it seems to me that in view
of the comprehensive language of article 363 this issue is not
justiciable." Das J. (as he then was) also observed in that case at page
1054:
" The guarantee or assurance to which
due regard is to be had is limited to personal rights, privileges and dignities
of the Ruler qua a Ruler. It does not extend to personal property which is
different from personal rights. Further, this article does not import any legal
obligation but is an assurance only. All that the covenant does is to recognise
the title of the Ruler as owner of certain properties. To say that the Ruler is
the owner of certain properties is not to say that those properties shall in no
circumstances be acquired by the State. The fact that his personal properties
are sought to be acquired on payment of compensation clearly recognises his
title just as the titles of other proprietors are recognised." It is clear
therefore that neither Art. 363 nor Art. 362 of the Constitution would avail
the respondent and the courts would have jurisdiction to entertain the dispute
between the appellants and him which arose out of his action in ejecting them
from his private lands. The provisions of the said Agreement only protected his
rights in the properties declared to be his private properties so that they
could not be claimed at any time thereafter as State properties. The 1948 Act
1075 did not dispute his ownership over the same but proceeded on the basis
that they were his private properties and sought to impose upon him certain
obligations in order to protect the rights of the tenants whom he had inducted
therein and there was no infringement of the guarantee or assurances which had
been given to him under art. 3 of the said Agreement. It could not also be
urged that by imposing reasonable restrictions in the interests of the tenants
on his right to acquire, hold and dispose of properties under cl. 5 of Art. 19
of the Constitution, the 1948 Act affected his rights of full ownership, use
and enjoyment of those properties. If anything was done by extending the 1948
Act to the merged State of Khandapara, it was done in the interests of the
tenants and it was done for the protection of the tenants who were inducted by
him and such restrictions did not affect the full ownership, use and enjoyment
of his private properties, any more than they did in the case of other owners
of lands. As a matter of fact, under the terms of the 1950 Act which extended
the 1948 Act to the merged State of Khandapara, he was entitled to the payment
by "he tenants of such fair and equitable rent as may be fixed by any
competent authority appointed in this behalf by the Revenue Commissioner or the
Commissioner of the Northern Division as the case may be and so long as the
tenants continued to pay such rent he was no worse off than were other
proprietors of lands. The tenants would no doubt acquire rights of occupancy in
respect of such lands but the acquisition of the occupancy rights by the
tenants would not be calculated to affect his right to full ownership, use and
enjoyment of his lands, because he would be entitled to eject the occupancy
tenants also if the tenants used the lands comprised in their holdings in any
manner which rendered them unfit for the purposes of the tenancy or committed a
breach of conditions consistent with the provisions of the tenancy laws in
force in the merged State concerned on breach whereof they were under the terms
of the contract between themselves and the landlord liable to be ejected. As
already stated I37 1076 these restrictions were for the protection of the tenants
who were inducted on the lands by the erstwhile Rulers themselves and by the
extension of the 1948 Act to the merged State of Khandapara, the respondent was
treated in the same manner as any other citizen of the Union. If at all there
was any infringement of his rights to full ownership, use and enjoyment of his
properties that was also in accordance with the provisions of the Constitution
itself and whatever may have been the guarantee or assurance given to him under
the terms of the said Agreement, it could not be absolute but would only be
co-extensive with the right to acquire, hold and dispose of property which is
guaranteed to all the citizens of the Union under Art. 19(1)(f) of the
Constitution. These contentions of the respondent therefore are of no avail.
If, then, the provisions of the 1950 Act
could be validly applied to the merged State of Khandapara in spite of art. 3
of the said Agreement thus attracting the operation of the 1948 Act to his
private lands it remains to consider whether the respondent was a landlord and
the appellants were his tenants within the meaning of the terms as defined in
that Act.
The contention of the respondent, in the
first instance, is that under the terms of s. 2(ii) of the Orissa Tenants
Protection (Amendment) Act, 1951 (Orissa XVII of 1951) which added sub-s. 5 to
s. I of the 1948 Act, in such areas where neither the Madras Estates Lands Act,
1908, nor the Orissa Tenancy Act, 1913, was in force-and the State of
Khandapara was such an area-the special laws or customs prevailing therein
shall be taken into consideration for the application of that Act. It is urged
that the relationship between the respondent and the tenants whom he had
inducted on his private properties was governed by special laws and customs and
that therefore the application of the Act was excluded. It is, however, to be
observed that no such contention was ever taken in the proceedings before the
Revenue Officer or before the High Court and it was urged for the first time in
the course of the arguments before us.
The question is one of fact, 1077 whether any
such special laws or customs were prevailing in the merged State of Khandapara,
and we cannot allow the respondent to urge this contention for the first time
before us. We shall, therefore, proceed on the basis that the 1948 Act was
quite properly extended to the merged State of Khandapara.
It is next contended that the definition of
landlord and tenant given in s. 2(c) and (g) of the 1948 Act did not apply to
the relationship between the parties. The definitions of these terms are as
under:
Section 2 (c).-"landlord" means a
person, whether a proprietor, sub-proprietor, tenure-holder or raiyat or
under-raiyat, either in the raiyatwari area or in the zamindari area or
land-holder or permanent undertenureholder, whose land a person, whether
immediately, or mediately cultivates as a tenant;
Section 2 (g).-"tenant" means a
person who, under the system generally known as Bhag, Sanja, Kata or such
similar expression, cultivates the land of another person on condition of
delivering to that person(i) either a share of the produce of such land, or
(ii) the estimated value of a portion of the cropraised on the land, or (iii) a
fixed quantity of produce irrespective of the yield from the land, or (iv)
produce or its estimated value partly in any one of the ways described above
and partly in another; but shall not include................... " It is
urged that the tenants who were inducted by the respondent on these lands did
not fulfill the terms of this definition and they were therefore not tenants
and, as a logical corollary to that, the respondent could not be a landlord qua
them. It is also contended that even though these lands were declared to be the
private properties of the Respondent under the decision of the Adviser for the
Orissa States, that was a recognition of the lands as such by the Dominion
Government and not by the Provincial Government; which recognition was a
condition precedent of the application of s. 7(h) of the 1950 Act to these lands.
Here 1078 also, the respondent is confronted
with this difficulty that these questions were not mooted either before the
Revenue Officer or the High Court in the manner in which it was sought to be
done before us. It was all along assumed that the appellants had been the
tenants of the respondent but had been ejected by him in the year 1951 and
other tenants were inducted in their place sometime in 1952. The lands in
question were also assumed to have been recognised as the private lands of the
respondent by the Government without making any distinction between the
Dominion Government and the Provincial Government as was sought to be done
before us. Reliance was mainly placed by the respondent in the High Court on
his plea that the jurisdiction of the Revenue Officer was barred under Art. 363
of the Constitution and it was nowhere urged that the appellants were not the
tenants and be was not the landlord within the terms of the definitions
contained in the 1948 Act or that in the absence of recognition of these
private lands of his as such by the Provincial Government, the condition
precedent to the application of s. 7(b) of the 1950 Act was not fulfilled and
that section has no application at all to these lands. The determination of
these questions also requires evidence in regard to the same and it would not
be legitimate to allow these questions to be agitated for the first time at
this late stage.
The matter is, however, concluded by the
provisions of s. 7(a) of the 1950 Act. That section enacts a statutory
extension of the definition of the terms landlord and tenant and provides that
the expression 'Jandlord' shall mean a person immediately under whom a tenant
holds land, and the expression 'tenant' shall mean a person who holds land
under another person and is or, but for a special contract, would be liable to
pay rent for that land to that person.
Whatever may have been the definitions of the
terms landlord and tenant in s. 2(c) and (g) of the 1948 Act, this definition
contained in the explanation to s. 7(a) of the 1950 Act makes the appellants
'the tenants 'and the respondents ' a landlord ' in regard to the lands in
question. This statutory extension of the definition of the terms 1079
'landlord' and ' tenant' therefore is sufficient, in our opinion, to repel the
last contention urged on behalf of the respondent before us.
The respondent further contends that in spite
of s. 7 of the 1950 Act, enacting that all suits and proceedings between
landlord and tenant as such shall be instituted and tried in revenue courts,
the provisions of the 1948 Act in regard to the hierarchy of revenue courts and
the procedure and the penalties provided therein are not attracted to the
merged State of Khandapara. The contention is that the provisions contained in the
1950 Act are special provisions which eliminate the operation of the general
provisions contained in the 1948 Act, and in so far as nothing more is stated
in regard to how the revenue courts are to act in the matter of the institution
and trial of all suits and proceedings between landlord and tenant, there is a
lacuna and the revenue courts as envisaged by the 1948 Act, have no
jurisdiction to entertain the proceedings in question.
The simple answer to this contention of the
respondent is that both these Acts have to be read together. The 1950 Act is an
Act to extend certain Acts and regulations to certain areas administered as
part of the Province of Orissa. The merged State of Khandapara is one of such
areas. By virtue of s. 4 of this Act the 1948 Act is inter alia extended to the
merged State of Khandapara and the provisions thereof are made applicable in
that area. The other sections of this Act enact further provisions which are
applicable to these merged States including the merged State of Khandapara and s. 7, in particular, enacts the modification of the tenancy laws in force in
those merged States. These provisions are therefore supplementary to those
contained in the 1948 Act, and it follows that not only the provisions of the
1948 Act but also the provisions of the 1950 Act are applicable to the merged
State of Khandapara. If both these Acts are thus read together, as they should
be, there is no inconsistency between the provisions of these Acts and it is
clear that the provisions of sub-s. (a) and (h) of s. 7 of the 1950 Act 1080
which applied to the dispute which arose between the appellants and the
respondent read together with the relevant provisions in regard to the
procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to
the Revenue Officer to entertain the dispute between the parties. This
contention of the respondent also therefore fails.
We are therefore, of opinion that the
judgment of the High Court was clearly wrong and is liable to be set aside.
We accordingly allow the appeal, set aside
the order made by the High Court, and restore the orders passed by the Revenue
Officer in the O.T.P. Act Cases Nos. 21 to 25 of 1952, 26 to 28 of 1952, 29 to
32 of 1952 and 33 to 41 of 1952. The respondent will pay the appellants' costs
of this appeal as also of the writ petition in the High Court. The State of Orissa will, of course, bear and pay its own costs.
Appeal allowed.
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