T. V. V. Narasimham & Ors Vs. The
State of Orissa [1962] INSC 296 (24 October 1962)
SUBBARAO, K.
DAS, S.K.
AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 1227 1963 SCR Supl. (1)
750
ACT:
Estates Abolition-Estates recognised by the
Government"Recognition", meaning of-Mere inaction, if amounts to
recognition-Madras Estates Land Act, 1908 (1 of 1908), s. 3(2)(d).
HEADNOTE:
The Government of Orissa, treating the
villages in question as estates, issued notifications under the provisions of
the Orissa Estates Abolition Act, 1952, declaring that the said estates became
vested in the State free from all encumbrances from the dates specified
therein. The inamdar of the respective villages challenged the legality of the,
notifications by filing. petitions in the High Court of Orissa under Art. 226
of the Constitution of India on the ground that the said inams were not estates
within the meaning of s., 3(2) (d) of the Madras Estates Land Act, 1908, as
they were excluded from the assets 751 of the Jeypore Zamindari or Kotpad
Paragana at the time of the settlements, that they were neither confirmed nor
recognised by the British Government, and that, therefore, they were not liable
to be abolished under the Orissa Estates Abolition Act. In respect of the
villages held within the geographical limits of the Jeypore Zamindari, an
enquiry was made by the Government as to whether they should be enfranchised
but, on objections raised by the Zamindar, the Government passed an order on
November 1, 1919, deciding not to take further action. As regards the other
villages, there was no evidence to show that the Government had directed any
enquiry into the titles of the said inams or did any act dehors the enquiry to
recognize their titles.
The High Court took the view that mere
inaction on the part of the Government amounted to recognition of the grants in
favour of the inamdars and that the villages in question were recognized by the
British Government within s. 3 (2) (d) of the Madras Estates Land Act.
Held,that under s. 3 (2) (d) of the Madras
Estates Land Act, 1908, "recognition" meant an acknowledgement by the
Government of the title of a grantee expressly or by some unequivocal act on
its part. Acquiescence in the context of certain surrounding circumstances may
amount to recognition.
but it must be such as to lead to that
inevitable conclusion, Mere inaction dehors such compelling circumstances
cannot amount to recognition within the meaning of the section.
Inam Rules framed by the Government in 1859
providing for an enquiry and directing the confirmation of title on the basis
of possession, laid down only a procedure for ascertaining the titles and did
not proprio vigore confer title on, or recognize the title of, any inamdar.
Held, further, that the order of the
Government dated November 1, 1919, amounted to a recognition of the inamdar's
title, but that as regards the other inamdars in respect of whom no enquiry had
been made, the High Court erred in holding that the Government had recognized their
inams.
Secretary of State for India v. Bhavamurthy,
(1912) 24 M.L. J. 538 and Sam v. Pamalinga Mudaliair, (1916) 1. L R 40 Mad.
664, approved.
Observations in Mantravadi Bhavanarayana v.
Merugu, Venkatadu, I. L. R. [1954] Mad. 116 and P. V. Narayana Rao v. State of
Orissa. I. L. R. [1956] Cuttack 348, that mere inaction on the part of the
Government would constitute recognition, disapproved, 752
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 147 to 157 of 1962.
Appeals from the judgment and order dated
January 3, 1957, of the Orissa High Court in O.I. C. Nos. 71, 95, 75, 68, 69,
72, 74, 108, 70, 66 and 67 of 1954 respectively.
A.V. Visuanatha Sastri and M. S. K.,Sastri,
for the appellants.
H.N. Sanyal, Additional Solicitor-General of
India, J. C. Naik, B. R. G. K. Achar and R. N. Schthey, for the respondents.
1962. October 24. The judgment of the Court
was delivered by SUBBA RAO, J.-These appeals raise the same point, namely, the
true interpretation of the expression "recognised" in s. 3(2)(d) of
the Madras Estates Land Act (1 of 1908), hereinafter called the Madras Act, and
they can be disposed of together.
The facts giving rise to the said appeals may
be briefly stated. The Government of Orissa treating the villages, which are
the subject-matter of these appeals, as "estates" issued
notifications declaring that the said estates became vested in the State free
from all encumbrances from the dates specified therein. The inamdars of the
respective villages filed petitions in the High Court of Orissa under Art. 226
of the Constitution for the issue of an appropriate writ for canceling the said
notifications and for orders prohibit-Inc,, the State from taking possession of
the said villages.
The said villages can be placed in three
groups, namely,
i.
villages
covered by Appeals Nos. 150, 151 and 155 which are admittedly within the
geographical limits of jeypore Zamindari which was settled in the year 1803 ;
ii.
villages
covered by Appeals Nos. 149, 154 and 157 which are within the geographical 753
limits of Kotpad Paragana as settled in 1863, but the ten= whereof were
subsequently modified in 1901-the Kotpad Paragana, though it had separate
existence at the time of the permanent settlement of the jeypore Zamindari in
1803, had become part of the said Zamindari by subsequent events, the details
whereof do not concern us at this stage ;
iii.
villages
covered by Appeals Nos. 147, 148, 152, 153 and 156 of 1962 in regard to which
there is a dispute whether these villages formed part of Kotpad Paragana or of
the Jeypore Zamindari as originally settled in 1803.
The case of the appellants is that the said
villages. which formed part of the original jeypore Zamindari, are presettlement
inams which were excluded from the permanent settlement ; and, as they were
neither confirmed nor recognized by the British Government, they were not
"estates" within the meaning of s. 3(2)(d) of the Madras Act and
there,fore not liable to be abolished under the Orissa Estates Abolition Act,
1952, hereinafter called the Orissa Act. Their contention in regard to the
villages forming part of Kotpad Paragana is the same, namely, that the villages
forming part of the said Paragana were grants made before the said Paragana was
permanently settled in 1863, and, as they were not confirmed or recognized by
the British Government, they were also not "'estates" within the
meaning of the said section. The State pleaded that the said villages, whether
they formed part of the original jeypore Zamindari or of Kotpad Paragana, were
included in the assets of the said Zamindari or the, Paragana at the time of
their respective settlements and,, therefore, they were "'estates"
within the meaning of either s. 3(2)(a) or 3(2)(e) of the Madras Act and were
rightly abolished by the State. They further contended that the third group of
villages formed part of the original jeypore Zamindari, and that if the said
villages formed part of Kotpad Paragana it would not make any difference in the
legal position, 754 as the permanent settlement of that Paragana was not made
under Regulation XXV of 1802, and as such no land was excluded from its assets
at the time of the settlement. To put it differently, their case is that in the
settlement of Kotpad Paragana, the said villages were included in its assets.
The High Court did not give the decision 'on
disputed facts but assumed the correctness of ,the appellants' case, namely,
that the first group. of villages were presettlement inams within the
geographical limits of jeypore Zamindari, as originally settled in 1803, and
that the second and third groups of villages were pre-settlement inams situated
in Kotpad Paragana as settled in 1863, and held that, as the said villages were
recognized by the British Government within the meaning of s. 3(2)(d) of the Madras
Act, they were "'estates" liable to be abolished under the Orissa
Act. On that finding the High Court dismissed the petitions filed by the
appellants. Hence the appeals.
Section 3(2) of the Madras Act reads
"Estate" means(d) any inam village of which the grant has been made,
confirmed or recognised by the British Government, notwithstanding that
subsequent to the grant, the village has been partitioned among the grantees on
the successors in title of the grantee or grantees.
Mr. A. V. Viswanatha Sastri, learned counsel
for the appellants, contends that the expression "confirmed" in the
said cl. (d) of s. 3(2) refers to those inams which were confirmed by the Inam
Commissioner, after investigation of titles, giving up the reversionary rights
of the Government and issuing free-hold title deeds to the inamdars; and the
expression " recognized", to those cases of inams whose tides were
investigated by the Government but the 755 Government, for one reason or other,
did not choose to issue title deeds but recognised the titles by some overt
act. In other words, the expression "recognised" would only apply to
such an inam the grantees' titles or possession whereof could be traced to some
act of the Government done pursuant to the inam inquiry held in respect of the
said titles.
Learned counsel for the State Mr. Sanyal,
agrees with Mr. Viswanatha Sastri in regard to the meaning of the word
"'confirmed". but advances the contention that in regard to
pre-settlement inams, even the inaction of the Government under certain
circumstances amounts to "recognition" of the said inams.
A brief historical account of classes of
inams covered by cl. (d) of s. 3(2) of the Madras Act may be useful in
appreciating its scope. The British Government was confronted with three
classes of grants, namely, (i) those grants made by Hindu or Muslim Kings or
under their authority, (ii) grants made by British Government, and (iii)
unauthorised alienations, i.e., those made by persons who had no authority to
make grants. For the purpose of ascertaining the title of unauthorised alienees
Regulation XXXI of 1802 was passed whereunder rules were made for investigating
into the titles of such alienees and for fixing the assessment thereon. The
preamble to the Regulation expressly recognized the Badshahi grants i.e.,
grants made by kings. Section 2 of the said Regulation exempted from its
operation grants made in certain districts before specified dates. The
Regulation authorised the Collectors to take suitable steps for resuming such
lands, but, for one reason or other, the said Regulation was not implemented in
the manner conceived by its authors. In 1859 another serious attempt was made
by the Government by issuing Inam Rules for investigating the titles of various
inamdars. Under these rules an Inam commissioner was appointed who made an
investigation in regard to the 756 various inams in the State and issued title
deeds.' But some areas were not covered by the enquiry and no enquiry was made
in regard to the inams in these areas ; even in the areas covered by the
enquiry though titles were ascertained, the Government did not enfranchise some
inams, but indicated its intention to continue them. A lucid and precise exposition
of this history is found in the valuable commentary of Vedantachari on the
Madras Estates. Land Act, at p. 51.
It would be seen from the history that when
the Act of 1908 was passed there were five classes of grants of whole inam
villages, namely, (i) villages granted by the British Government; (ii) villages
granted by the previous rulers or persons under their authority; (iii) villages
in the possession of unauthorized alienees whose titles had been ascertained
and confirmed by the British Government; (iv) villages in the possession of
unauthorised alienees whose titles were recognized by the said Government ; and
(v) villages in the possession of unauthorized alienees whose titles were not
recognized by the British Government either because no inquiry in regard to
titles was made or because even if such an inquiry was made the Government, for
one reason or other, did not choose to recognize them.
In this context what is the appropriate
connotation of the word "recognized" in s. 3(2)(d) of the Madras Act.
The decisions cited at the Bar throw some light on the meaning of the said
word. In Secretary of State for India v. Bhanamurthy (1), a division Bench of
the Madras High Court had to consider the scope of the word
"continued" in s. 17 of the Madras Act II of 1894. Under that section
the Government had the right of resumption of a Karnam Service Inam if the said
inam was granted or continued by the State.
Though the word ,,recognized" was not in
the section, some of the (1) (1912) 24 M.L.J. 538, 540.
757 observations in the judgment can usefully
be extracted. In 1860 when the inam inquiry was held, though the village was
confirmed, to the Agraharamdar, the Government did not interfere with the
rights of the persons holding the Karnam Service Inams situated in that
Agraharam. The Special Assistant stated in his, report that the Government did
not interfere with the subordinate tenures though the right of the holder to
them was unquestionable and must be respected by the Agraharamdar, but he did
not consider it necessary to decide that question. Sundara Aiyar, J., speaking
for the Court, observed :
"The result is that in 1860 the
Government merely left the rights of the Karnams, if they had any, undisturbed.
We cannot hold that there was any act done by Government which could be relied
on by the Karnams as a recognition or confirmation of their rights".
Later on, the learned judge proceeded to
state "The principle adopted appears to me to be that in order that
Government may have the right of resumption, the right to the land must either
have in the first instance emanated from Government or the continuance of the.
right must have been due to an act of Government. At any rate there must have
been recognition by Government of the right which could be set up by the holder
in support of his possession." This decision is an authority for the
position that mere inactivity or even leaving open the question for future
decision by Government does not amount to a recognition of the right of an
inamdar to hold possession. Another division Bench of the Madras High Court in
Sam v. Ramalinga Mudaliar (1), though it was concerned with the interpretation
of the expression ire unsettled jaghirs" in s. 3(2)(c) of the Madras
Estates Land Act, 1908, made some useful observations on the meaning of the
word "'recognized".
(1)[1916] I.L.R. 40 Mad. 664,670.
758 Srinivasa Ayyangar, J., observed:
"It is difficult to assign a precise
meaning to the word "recognized"' whether mere acquiescence is enough
or whether something more is required is not clear. I should be inclined to
think that recognition implies something more than mere acquiescence, something
done by the Government, as, for instance, by acceptance of service, jodi,
etc." This decision also insists upon an overt act by the Government in
recognition of an inamdar's title. The decision in Pitchaya v. Secretary of
State (1) does not support the contention of the respondent. That was also a
case under s. 17 of the Madras Proprietary Estates Village Services Act (2 of
1894). There, lands at the inception of the grant were village service inams.
Under s. 4 of Regulation XXV of 1802 they were excluded from the assets of the
zamindari at the time of permanent settlement.
Regulation XXIX of 1802 enabled the
Government to obtain directly the services from the karnams who were previously
under the control of the zamindars. Act 2 of 1894 enabled the Government to fix
wages for the said office. As salaries were fixed for the kamams who were
enjoying the land in lieu of their services, the Government directed the
enfranchisement of the said lands. On the said facts the Court held that as the
Government continued the said inams within the meaning of s. 17, it could
enfranchise them.
Strong reliance was placed upon the following
observations made by the learned judges in considering the decision in Secretary
of State v. Chinnapragada Bhanumurty (2) :
"He (Sundara Aiyar, J.) seems to have
been inclined to the view that some overt act must be shown to have been done
by the Government continuing the land in enjoyment of the office holder as
remuneration for doing the;
services. " (1) A.I.R. 1920 Mad. 748,
479.
(2) (1912) 24 M.L.J. 538, 540.
759 Then the learned judges proceeded to
state "If the learned judge intended to lay down that the facts that the
land was originally service inam, that it was excluded from the assets of the
zamindar in 1802, and that subsequently the Government took service from the
karnam and allowed him to the property, would not enable a Court one law to
draw the inference that there has been a continuance of the grant within s. 17
of Act 2 of 1894, we are unable to agree with him." It will be seen that
this case did not lay down that mere inaction would amount to recognition or
continuance; but on the facts, as there was a clear overt act on the part of
the Government in accepting the services of the karnams, the learned judges
held that there was such a continuance. In Ramalinga Mudati v. Ramaswami Ayyar
(1), a division Bench of the same High Court held that a particular inam must
be taken to have been recognized by the Government in view of Regulation 31 of
1802. Venkatasubba Rao J., observed at p.
543 that the grant was not a grant made by a
previous zamindar but was a royal or badshahi grant and that by the preamble to
Madras Regulation 31. of 1802 all royal grants must be deemed to have been
recognized. A perusal of that preamble clearly shows that such grants were
expressly recognized by the Government. This is a case where there was an express
statutory recognitions In that case apart from any inaction there was an admission
made by a Committee appointed by the State of the holders' title to the inam,
but the court preferred to base its decision on the Madras Regulation 31 of
1802. We have not been able to discover, nor the learned counsel for the
respondent has been able to point out, any observations in the judgments of
either of the two learned judges either (1) A.I. R. 1929 Mad. 529.
760 expressly stating or even indicating
their preference to the view that mere inaction would amount to recognition. A
full Bench of the Madras High Court had to consider in Mantravadi Bhavanarayana
v. Merugu Venkatadu (1) an altogether different question, namely, whether the
existence of minor inams already granted before the grant of the village would
make it anytheless of a grant of the whole village. In the course of the
Judgment, one of the learned judges, Venkatarama Ayyar, J., incidentally
observed :
"It will be noticed that for purposes of
the section, recognition of the grant of an entire village inam stands on the
same footing as its confirmation; and there is authority that some recognition
could be implied from conduct and even from inaction: vide Ramalinga Mudali v. Ramaswami
Ayyar (2)".
But, as we have pointed out, this passage
does not find any support in that judgment. A division Bench of the Orissa High
Court in P. V. Narayana Rao v. State of Orissa (3), on a consideration of the
case law on the subject came to the conclusion that mere inaction or
acquiescence on the part of the Government would constitute recognition within
the meaning of s. 3 (2) (d) of the Madras Act. But the facts of that case
disclose that the Government expressly recognized the title of the inamdar.
Indeed, this Court in appeal against that judgment based its conclusion on that
fact.
The said judgment of this Court was given in
Civil Appeals Nos. 47 and 48 of 1960 on November 20,1961. Therein this Court
observed "it cannot however be disputed that confirmation by the Inam
Commissioner and the issue of an inam title-deed is not the only method by
which a pre-British grant would be (1) I L. R. 1954 Mad 116,152 (2) A. 1. R,
1929 Mad. 529.
(3) I. L. R. [ 1956] Cuttack 348.
761 "confirmed" or
"recognised". In the present case the reason for the exclusion of
this village from the scope of the Inam enquiry is apparent from the records
produced. At the time of the inam settlement there appears to have been a
controversy as to whether the reversionary right in regard to the inam vested
in the Government or in the zamindar, and Government specifically directed the
exclusion of this village from the inam enquiry, passing an order in the course
of which they stated :
"That they resolved to instruct the Inam
Commissioner not to interfere with these villages and to waive their claim to
them on the ground of expediency and grace,"-the right which they waived
being their reversionary right to the inam." "We consider this a
sufficient "recognition" of the grant as to bring this village within
the definition of an "estate" within s.3(2)(d) of the Estates Land
Act." It would be seen from the said passage that the Government initiated
an Inam enquiry in respect of the title of the inamdar, but, in view of the
dispute raised by the zamindar, clearly waived its right to the said reversion;
by so doing, it expressly recognized the title of the Inamdar to hold under the
zamindar. This Court in that case has not expressed any opinion on the wide
proposition accepted by the High Court, but has preferred to base its judgment
on an express recognition of the title of the Inamdar. Another judgment of a
division Bench of the Orissa High Court has been brought to our notice and it
is said that the said decision expressed a contrary view, but the later
decision had not even adverted to it. In that case the only evidence in support
of the 762 contention of recognition adduced was that the Collector realized
cess from the zamindar in respect of the inams in question; there was no other
evidence in support of that "recognition". The Court held that there
was absolutely no evidence to show that the main grant was recognised by the
British Government. This decision, though it did not expressly say that
inaction could not amount to recognition lmpliedly it did not accept such a
contention or otherwise it would have heldthat there was recognition of the
inam by the Government within the meaning of that section. This decision does
not carry the matter further.
The foregoing discussion leads us to the
following conclusion; recognition signifies an admission or an acknowledgment
of something existing before. To recognize is to take congnizance of a fact. It
implies an overt act on the part of the person taking such cognizance.
"Recognition" is, therefore, an
acknowledgment by the Government of the title of a grantee expressly or by some
unequevocal act on its part. Acquiescence in the context of certain surrounding
circumstances may amount to recognition, but it must be such as to lead to that
inevitable conclusion. Mere inaction dehors such compelling circumstances
cannot amount to recognition within the meaning of th e section.
Now coming to the merits of the case, we
shall first deal with the group of villages admittedly lying within the
geographical limits of jeypore zamindari, Inam Commission appointed. by the
Government in 1862 called for and obtained from the zamindar a statement of
pre-settlement and post settlement inams within the geographical limits of the
zamindari; but it did not make any inquiry in regard thereto. But in they car
1907 the Government of Madras directed an inquiry of the inams in the jeypore
zamindari by 763 a Special Deputy Collector by name Meenakshisundaram Pillai.
In the inquiry held by him the zamindar did
not put forward his claim. His report was not full or complete as it should be
and it was simply recorded by the Government in its order dated February 25,
1910.' The Government again by its order dated November 16, 1910, directed
another officer named Burkitt to make a further or detailed inquiry into the
inams of jeypore zamindari, and he submitted his report to the Government which
was recorded by it in its order dated May 19, 1914. On the basis of the said
report the Government gave notice to the Maharaja of jeypore to show cause why
the said villages found to be pre-settlement inams by Burkitt should not be
enfranchised. The Maharaja submitted his objections claiming that all the said
villages formed part of his zamindari and the Government had no right of
reversion therein. On November 1, 1919, the Government issued the following
order No. 2489:
"The Board of Revenue is informed that
the Government have on re-consideration decided to take no further action in
connection with the question of the settlement of pre-settlement inams in the
jeypore Zamindary." In this context the relevant records, namely the
reports of Meenakshisundaram Pillai and Burkitt and the objections filed by the
Maharaja were not filed in the High Court. If they had been produced, as they
should have been, the High Court and this Court would have been in a better
position to appreciate the situation. But the aforesaid facts were given in the
counter-affidavit filed on behalf of the State in O.J.C. No. 68 of 1954 and the
correctness of those facts are not disputed before us. From the foregoing
narration, the factual and legal position was this : The inamdars were holding
the 'said inams under grants made by the jeypore Maharaja prior to 1803.
764 The Government claimed reversionary
rights therein on the basis that these were pre-settlement inams not included
in the assets of the zamindari at the time of the permanent settlement. The
Maharaja claimed that the said villages were part of his zamindari i.e., they
were included in the assets of the zamindari at the time of the permanent
settlement. The Government presumably accepted that claim by deciding not to
take further action in connection with the settlement of the pre-settlement
inams of the Jeypore zamindari. It is not possible to accept the contention
that there was only inaction on the part of the Government in the aforesaid
circumstances. As there were conflicting claims between the Maharaja and the
Government, and by withdrawing further action, the Government accepted the
claim of the Maharaja, namely, that the Inamdars were holding the inams as
under-tenure holders under the zamindar. This was a clear recognition of the
Inamdars' title to hold under the zamindar. We agree with the High Court that
the Government "recognized" the said grants within the meaning of s.
3(2) of the Madras Act.
As regards the second and the third group of
villages there is nothing on the record which discloses any recognition by the
Government of the grants of the said inam villages. It does not appear that the
Government had directed any inquiry into the titles of the said inams or did
any act dehors the inquiry to recognize the said title.
We find it very dimrult to agree with the
High Court that mere inaction on the part of the Government amounts to
recognition of the grants in favour of the Inamdars. But the learned Additional
Solicitor-General contends that the Inam Rules framed by the Government
providing for an inquiry, and particularly the rule directing the confirmation
of title on the basis of possession, would amount to recognition within the
meaning of s.3(2)(d) of the Madras Act. We cannot accept this contention. Inam
Rules were framed by the Government 765 in 1859 for investigating into the
titles of various inamdars and for enfranchising inams. These rules proprio
vigore did not confer title on, or recognize title of, any inamdar. They lay down
only a procedure for ascertaining the titles in those areas where an inquiry
was held for the purposes of investigation of titles and confirmation thereof.
In this case no such inquiry appears to have been held in respect of Korpad
Paragana. These rules do not therefore help the State. In our view the High
Court went wrong in holding that the British Government recognized the said
inams.
Lastly the learned Additional
Solicitior-General contended that a grant of pre-settlement inam villages which
did not fall within the definition of an "estate" in s. 3(2)(d) of
the Madras Act would be an 'estate' within the definition of that expression in
s. 2(g) of the Orissa Act and therefore the Government Validity issued the
notifications under s. 3(1) of the Orissa Act abolishing the aforesaid villages
not recognized by the Government. This contention has been raised for the first
time before us. The contention raised is not a pure question of law, but
depends upon the proof of the conditions laid down in the said cl.(g) of s.2 of
the Orissa Act. We do not think we are justified in allowing the respondent to
raise a plea of mixed question of fact and law for the first time before us.
There must have been very good reasons for the State not raising this extreme
contention in the High Court. We should not be understood to have expressed our
opinion one way or the other on this question.
In the result the Appeals Nos. 150, 151 and
155 are dismissed with costs, (one hearing fee); but unfortunately the rest of
the appeals cannot now be finally disposed of as we have already indicated, the
High Court did not give any findings on disputed questions of fact. We cannot
but observe that these 766 appeals belong to that class of cases where the High
Court should have given definite findings on all the issues, for that would
have prevented the unnecessary prolongation of this litigation and would have
also enabled us to dispose of these appeals finally and more satisfactorily.
But in the events that have happened we have no option but to set aside the
judgment of the High Court and remand the said appeals to it for disposal on
the other questions of fact and law raised therein. Costs of the said appeals
will abide the result of the proceedings in the High Court.
Appeals Nos. 147 to 149, 152 to 154, 156 and
157 remanded.
Appeals Nos. 150, 151 and 155 dismissed.
Back
