The Additional Settlement Commissioner
Vs. Yeshwant Madhao Mahajan [1961] INSC 333 (29 November 1961)
ACT:
Abolition of Proprietary Rights-Land lying
fallow-When to be regarded as 'home farm'-Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951 (Madh. Pra. 1
of 1951), ss. 2, 4.
HEADNOTE:
In 1947 S conveyed by a sale deed to M an
undivided half share of Land in his village. On the same day S executed a
Kabulayat for 5 years in respect of the same land for cultivation. In 1951 the
Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated
Lands) Act, 1951, came into force and the Compensation Officer started enquiry
about assessment of compensation. M claimed to retain possession of the half
share in all the fallow lands in the village which had been leased by him for
cultivation to S on the plea that these lands were 'home farm'. The claim 711
was rejected by the Compensation Officer and confirmed by the Additional
Settlement Commissioner. The High Court of Nagpur quashed the order. In appeal
to the Supreme the Additional Settlement Commissioner contended that in respect
of an undivided interest in the land, the superior holder is not entitled to
the benefit of s. 4(2) of the Act because it is not a 'holding', alternatively,
that the land which was, at the date of vesting, lying fallow otherwise than in
accordance with the usual agricultural practice could never be regarded as
'home farm'.
^ Held, that a part of a holding or an
undivided interest in a " holding" in Berar may also be 'home farm'
land if it otherwise fulfils the requirement of cl. (i), (ii) or (iii) of sub-
cl. (3) of s. 2(g) of the Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1951.
The land having been granted in lease for
cultivation it is by virtue of s. 4(2) of the Act to be retained in the
possession of the proprietor. Grant of a lease for cultivation evidences an
intention on the part of the proprietor that the land is to be converted to
agricultural purposes, and default on the part of the lessee to cultivate the
land will not deprive the lessor proprietor of the benefit granted to him by
the statute.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 281 of 1959.
Appeal by special leave from the judgment and
order dated October 12, 1955, of the former Nagpur High Court in Misc. Petition
No. 288 of 1954.
H. R. Khanna and R. H. Dhebar, for the
appellants.
S. N. Kherdekar and A. G. Ratnaparkhi, for
respondent No. 1 1961. November 20. The Judgment of the Court was delivered by
SHAH, J.-Out of a total area of 2,375 acres 3 gunthas of Dhanora-an Izara
village in Taluka 712 Pusad in the State of Madhya Pradesh-2,283 acres and 28
gunthas is assessed land and the remaining 91 acres and 15 gunthas is
unassessed. One Surat Singh who was the proprietor of the village, by sale deed
dated May 24, 1947, conveyed an undivided half share in the village to Yeshwant
Madhao Mahajan-hereinafter called Mahajan-for Rs. 25,000/- and on the same day
executed a kabulayat (lease deed) for five years in respect of the same land
for cultivation at an annual rental of Rs. 3,000/-. The Legislature of the
Madhya Pradesh State enacted the Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1 of 1951-hereinafter called the Act-
to provide for acquisition of the rights of proprietors in estates, mahals,
alienated villages and alienated lands in Madhya Pradesh and to make provision
for other matters connected therewith.
The Act was brought into operation on March
14, 1951. The Compensation Officer, Yeotmal started an enquiry about assessment
of compensation in respect of the village Dhanora which had vested by the
operation of s. 3 of the Act in the State Government. Before the Compensation
officer, Mahajan claimed to retain possession of a half share in all the fallow
lands in the village which had been leased by him under the deed (kabulayat)
dated May, 24, 1947, to Surat Singh on the plea that these lands were
"home farm". This claim was rejected by the Compensation Officer and
the order of the Compensation Officer was confirmed in appeal by the Additional
Settlement Commissioner.
Mahajan then applied to the High Court of
Judicature at Nagpur under Art. 226 of the Constitution for a direction
quashing the order of the Additional Settlement Commissioner and the
Compensation Officer and for a declaration that the lands mentioned in Schedule
A attached to the petition be declared home-farm and for a writ of mandamus
against the State of Madhya Pradesh to deliver possession of all the lands
mentioned in that Schedule.
713 The High Court quashed the order of the
Additional Settlement Commissioner in so far as it related to the undivided
half share in Survey Nos. 1 to 91 except those in possession of the specified
tenants and also those already recognised as home- farm and directed the
Compensation Officer to decide the claim made by Mahajan in the light of the
law laid down in the judgment. Against the order passed by the High Court, the
Additional Settlement Commissioner and the State of Bombay, which had by virtue
of the States Reorganization Act, 1956, been substituted for the State of
Madhya Pradesh, have appealed to this Court with special leave.
The dispute in this appeal relates to a half
share in those lands in the village which had remained fallow on the date of
the notification under s. 3 of the Act. By virtue of the sale deed dated May
24, 1947, Mahajan was the proprietor of the undivided half share in the entire
village and under the kabulayat he had granted to Surat Singh a lease for
cultivation of the undivided half share purchased by him. Undoubtedly the lands
specified in Schedule A to the petition were on the crucial date lying fallow.
The question which falls to be determined is whether those lands can be
regarded home-far": if they be so regarded, by virtue of s. 4(2) of the
Act Mahajan will be entitled to retain possession of those lands.
Section 3 of the Act provides, in so far as
it is material, that "on and from a date to be specified by a notification
by the State Government in this behalf, all proprietary rights in an estate,
mahal, alienated village or alienated land, as the case may be, in the area
specified in the notification, vesting in a proprietor of such estate, mahal,
alienated village, alienated land, or in a person having interest in such
proprietary right through the proprietor, shall pass from such proprietor or
such other person to and vest in the State for the purposes of the State free
of all encumbrances." Section 4(1) sets out the 714 consequence of the
vesting. By cl. (a) of s. 4(1), 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), cease and are
vested in the State for the purposes of the State free from all encumbrances.
But sub-s. 2 provides that "Notwithstanding anything contained in
subsection (1), the proprietor shall continue to retain the possession of his
home-stead, home- farm land................" . 'Home-farm land' is
defined, in so far as it is material, in s. 2(g) as:
"(1) x x x x x x (2) x x x x x x (3) in
relation to Berar, all land included in holdings which is- (i) under the
personal cultivation of the superior holder including land allowed to lie
fallow in accordance with the usual agricultural practice;
(ii) held by a lessee from the superior
holder; and (iii) held by a tenant from the superior holder other than a
specified tenant." 'Land' is defined as "including land covered with
water." Section 7 authorises the Deputy Commissioner to take charge of all
lands, other than occupied lands and home-stead lands, and of all interests
vesting in the State under s. 3 on the date of the vesting, and, by s. 8, duty
is imposed on the State Government to pay every proprietor, who is divested of
proprietary rights, compensation in accordance with the rules contained in
Schedule I.
Mahajan was undoubtedly at the date of
vesting the superior holder of the half share in the fallow lands which were
held by Surat Singh as lessee from him. Prima facie the claim of Mahajan 715
was covered by cl. (g) (3) (ii) of s. 2 of the Act, and Mahajan was entitled to
the benefit of the exception in s. 4 (2). But counsel for the State contends
that in respect of an undivided interest in land, the superior holder is not
entitled to the benefit of s. 4(2), because it is not a "holding."
Alternatively, he contends that the land which is, at the date of vesting,
lying fallow otherwise than in accordance with the usual agricultural practice
can never be regarded as home-farm." In our view, there is no substance in
either of these contentions. Schedule A to the petition sets out the
description of the various lands which Mahajan claimed should be treated as
"home-farm" land. Each of these lands is assessed.
The expression 'holding' is not defined in
the Act, but by cl. (d) of s. 2 expressions not defined in the Act in relation
to Berar but used or explained in the Berar Land Revenue Code, 1928, have the
meaning assigned to those expressions in the latter Act. The Berar Land Revenue
Code defines 'holding' as "(a) a parcel of land separately assessed to
land revenue; and(b) in reference to land held by a tenant-a parcel of land
held from a landlord under one lease or set of conditions." Evidently, the
survey numbers included in Schedule A to the petition were "holdings"
within the meanings of the Berar Land Revenue Code and therefore within the
meaning of that expression as used in the Act. It is true that Mahajan was not
entitled to the entire area of each of these holdings but by the definition in
the Act all lands included in holdings in Berar, provided they fulfil the
conditions in cl. (i), (ii) or (iii) of sub-cl. (3), are "home-farm"
lands. In other words a part of the holding or an undivided interest in the
holding may also be "home-farm" land if it otherwise fulfils the
requirements of cl.(i) (ii) or (iii) of sub- cl.(3).
That a half share in the village-which is
included in the Schedule to the petition-was granted 716 to Surat Singh on
lease for cultivation cannot be gain said in view of the express covenants of
the kabulayat. Certain lands in the village, it is true, were lying fallow
wholly or partially at the date of the vesting, but the lands having been
granted in lease for cultivation, in our judgment, they are by virtue of s.
4(2) to be retained in the possession of the proprietor, provision of cl.(1) of
s. 4 notwithstanding. By sub-s. (2) of s. 4 all "home-farm" lands are
to remain in possession of the proprietor: there is no express exclusion of
lands lying fallow from the benefit of s. 4 (2) and none such can be implied
either from the scheme of the Act or the context in which s. 4 (2) occurs. If
Mahajan had remained in occupation as proprietor and had allowed the lands to
remain fallow they may have vested in the State and Mahajan may not have been
entitled to claim the benefit of s. 4 (2) unless his case fell under cls. (i)
and (iii) of s. 2 (g)(3), but the grant of a lease for cultivation evidences an
intention on the part of Mahajan that the land be converted to agricultural
purposes and default on the part of the lessee to cultivate those lands will
not, deprive the lessor-proprietor of the benefit granted to him by the statute.
In our view, the High Court was right in
holding that the words of cl. (ii) of s. 2(g) (3) were explicit and a survey
number which was lying fallow but was held by a lessee from the superior holder
fell within the definition of "home-farm." The appeal, therefore,
fails and is dismissed with costs.
Appeal dismissed.
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