Maulana Shamsuddin Vs. Khushi Lal
& Ors [1978] INSC 159 (8 September 1978)
UNTWALIA, N.L.
UNTWALIA, N.L.
FAZALALI, SYED MURTAZA SHINGAL, P.N.
CITATION: 1978 AIR 1740 1979 SCR (1) 582 1979
SCC (1) 121
ACT:
Bhopal State Land Revenue Act, 1932, S.
2(15), "occupant", Whether includes Muafidars Iandlords.
Madhya Pradesh Land Revenue Code, 1959, Ss.
185(1)(iv) (b) and 190, effect on Shikmis.
HEADNOTE:
The appellant was a Muafidar of the disputed
land, in the erstwhile Bhopal State, while the first respondent cultivated the
said lands as his tenant. When the M. P. L.
R. Code, 1959, came into force, the first
respondent claimed that the appellant, as the occupant of the lands within the
meaning of S.2 (15) of the Bhopal State Revenue Act, 1932, had become a
Bhumiswami u/s 158(C) of the Code of l959, while he himself had become an
occupancy tenant u/s 185(1)(iv)(b) and as such, was entitled to conferment of
Bhumiswami rights u/s 190 of the same Code. He' applied to the Tahsildar,
Huzur, for mutation of his name as a Bhumiswarni in the Revenue records. and
was directed to deposit compensation equivalent to 15 times of the land
revenue. Thereafter his name was recorded as a Bhumiswami of the holdings, on
the deposit of the compensation money. The Muafidar appellant's appeal to the
sub Divisional officer, against the Tahsildar's order, and a second appeal to
the additional Commissioner. were dismissed, but the Board of Revenue allowed
his revision application holding that he was not an occupant within the meaning
of S. 2(15) of the Bop Act of ]932. and that consequently the first respondent
was neither a Chime, nor did he become an occupancy tenant under the M.P. Code
of 1959, and therefore conferment of Bhumiswami rights on him was erroneous in
law., The first respondent filed a writ petition against the Revenue Board's
order, which was allowed by the High Court.
Dismissing the appeal by certificate, the
Court
HELD: 1. Under S. 2(15) of the Bhopal State
Land Revenue Act 1932, a person who holds and direct under the Government would
be an `'occupant", in whatever name the payment of money may be described
such as premium, rent, quit-rent etc. On a careful analysis of the definition,
it is legitimate to conclude that a Jagirdar or Muafidar is an occupant. He
holds lands under the Government. On the resumption of the Jagir or the Muafi
rights by the Government, the land reverts back to it. Payment of land revenue
or rent for holding land under the Government was not a sine-qua-non for making
the holder of the land an revenue. [585 A-D, 586 D] Begum Suriya Rashid and
Ors. v. State of Madhya Pradesh [19691] 1 SCR 869 held inapplicable.
2. The rights of Shikmis were enlarged by
operation of tile Madhya Pradesh Land Revenue Code. 1959. Under section
185(l)(iv)(b) a Shikmi became an occupancy tenant, while u/s 190, as an
occupancy tenant, he became entitled, under certain conditions, to conferment
of Bhumiswami rights of the occupant of he holdings. [587 F, 588 A-B] 583
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2295 of 1968.
From the Judgment and order dated 3-2-1967 of
the Madhya Pradesh High Court in Misc. Petition No. 26 of 1966.
Harbans Singh for the Appellant.
Raghunath Singh and Manojswarup for
Respondent No.1.
S.K. Gambhir for Respondents 3-5 and 7.
U. P. Lalit,B.P.Muheshwari and Suresh Sethi
for Respondent No. 6.
The Judgment of the Court was delivered by
UNTWALTA, J. In this appeal by certificate granted by the Madhya Pradesh High
Court the question of law which Lalls for our determination is whether conferral
of Bhumiswalnli rights on Shri Khushi Lal respondent No. 1 in respect of the
lands in question in accordance with Section 190 of the Madhya Pradesh Land
Revenue Code, 1959, hereinafter referred to as the M.P. Code of 1959, by the
Revenue Authorities is correct and sustainable.
Maulana Shamsuddin, the sole appellant in
this appeal, was a Muafidar in the erstwhile State of Bhopal of the disputed
lands in accordance with the Bhopal State Land Revenue Act, 1932 (for brevity,
the Bhopal Act of 1932) .
The first respondent claimed to be a Shikmi
of the appellant in respect of the lands in question. His case was that the
appellant was the occupant of the lands within the meaning of the Bhopal Act of
1932. On the coming into force of the M.P. Code of 1959. the appellant became a
Bhumiswami under clause (c) of section 158 and the respondent became an
occupancy tenant under section 185 (1)(i)(iv)(b).Thus he became entitled to
conferment of Bhumiswami rights under Section 490. He applied before the
Tahsildar, Huzur, respondent No. 5 for mutation of his name as a Bhumiswami in
the Revenue records. The Tahsildar by his order dated the 24th June, 1963
directed Khushi Lal to deposit compensation equivalent to 15 times of the land
revenue on the payment of which his name was to be recorded as a Bhumiswami of
the holdings. It appears his name was so recorded on the deposit of the
compensation money. The appellant filed an appeal before the Sub-Divisional
officers Huzur, respondent No. 4 from the order of the Tahsildar. His appeal
was dismissed by the Sub-Divisional officer on the 12th of December, 1963.
The appellant failed before the Additional
Commissioner, Bhopal, respondent No. 3 on the dismissal of his second appeal on
the 25th August 1996. He went in revision before the Board of Revenue,
(respondent No. 2 ) . The revision was allowed on the 6th of July, 1965. The
584 Board held that the appellant was not an occupant within the meaning of
Section 2(15) of the Bhopal Act of 1932 and consequently the first respondent
was not a Shikmi under the said Act. He did not become an occupancy tenant
under the M.P. Code of 1959 and, therefore, conferral of Bhumiswami rights on
him was erroneous in law. The first respondent filed a Writ Petition in the
High Court and succeeded there.
The High Court held that the Board was not
right in its view of the law. The appellant was an occupant and the respondent
no. 1 was a sub-tenant (Shikmi) under the Bhopal Act of 1932. Conscquently he
became an occupancy tenant entitled to conferment of Bhumiswami rights under
the M.P. Code of 1959.
The appellant has preferred this appeal in
this Court to challenge the decision of the High Court and for restoration of
the order of the Board of Revenue.
Mr. Harbans Singh, appearing for the
appellant, Advanced a very fair and able argument to advocate his cause. He
could now and did not dispute that if the appellant was an occupant, the first
respondent was a Shikmi under the Bhopal Act of l932 and if that be so then the
order of the High Court is unassailable. But he vehemently contended that the
appellant was not an occupant. Learned counsel for the respondents controverted
his argument. Prima facie the argument, as presented, for the appellant
appeared to have substance and force but on a close scrutiny we had no
difficulty in rejecting it.
Section 2 of the Bhopal Act of 1932 is the
definition section and as usual at the outset it uses the phrase "in this
Act, unless there is nothing repugnant in the subject or context,".
Sub-section (5) defines "Alienated land" to mean "land in
respect of which, pursuant to a grant made by His Highness the Ruler,
Government has, in whole or in part, assigned or relinquished its right to
receive land revenue, and includes such village waste and forest as are
mentioned in the sanad of the grant " Thereafter the sub-section
says:-"If the land revenue is assigned the person to whom such assignment
is made is called a "Jagirdar". If the land revenue is relinquished
the person in whose favour such relinquishment is made is called
"Muafidar";". Subsection ( l S) provides:- "
"occupant" means a person who holds land direct from the Government
or would do so but for the right of collecting land revenue having been
assigned or relinquished." It would thus be seen that if pursuant to the
grant made by His Highness the Ruler of Bhopal, Government's right to receive
land revenue was assigned to the grantee then he was called a Jagirdar and 585
it was relinquished then the person in whose favour such relinquishment was
made was called Muafidar. Under the first part of the definition of
"occupant" given in sub-section (IS) a person who holds land direct
from Government would be an occupant and being not a person in whose favour the
right to receive land revenue has either been assigned or relinquished will be
required to pay to the Government land revenue or rent. We are using both the
words revenue' and 'rent' on the assumption that such an occupant being neither
a Jagirdar nor a Muafidar would be required to pay some money to the Government
for being in occupation of the land.
Under the second part of the definition a
Jagirdar or a Muafidar would also be holding land direct from Government but
because the right of collecting land revenue has either been assigned or
relinquished, strictly speaking, he does not hold land direct from the
Government in the sense of paying any land revenue or rent to it because the
Government has parted with the right to collect land revenue from him.
We are of the opinion, in agreement with the
High Court, that on a careful analysis of the definition of the term
"occupant" in section 2(15), it is legitimate to conclude that even a
Jagirdar or a Muafidar is an occupant. He holds land under the Government; on
the resumption of the Jagir or the Muafirights by the Government the land
reverts back to it. Payment of land revenue or rent for holding land under the
Government was not a sine-qua-non for making the holder of the land an
occupant.
"Rent" is defined in sub-section
(19) of Section 2 of the Bhopal Act of 1932 to mean "whatever is payable
to an occupant in money, kind or service by a shikmi for the right to use
land." This would show that strictly speaking a person holding the land
direct from the Government within the meaning of the first part of the definition
in sub- section (IS) is not to pay any money to the Government in the shape of
rent but what he will be required to pay would be the land revenue. But a
Jagirdar or a Muafidar holding the land under the Government is not required to
pay any land revenue. sub-section (21) defines "Shikmi" to mean
"a person who holds land from an occupant and is, or but for a contract,
would be liable to pay rent for such land to that occupant, but does not
include a mortgagee or a person holding land directly from Government."
Respondent no. 1 was inducted upon the land by the appellant in the year 1958.
Since then he had been cultivating the land.
He could not but be a Shikmi within the meaning of sub-section (21 ) .
Mr. Harbans Singh was not right in saying
that he was a mere cultivator and was cultivating the land not as a sub-tenant
or a Shikmi but must be doing so under some special arrangement of cultivating
the land as a servant of the appellant or the like. There is no warrant for
such a contention.
586 Section 46 of the Bhopal Act of 1932 runs
thus .
"(l) All land to whatever purpose
applied and wherever situate, is liable to the payment of revenue to the
Government, except such land as has been wholly exempted from such liability by
a special grant on His Highness the Ruler or by a contract with the Government,
or under the provisions of any law or rule for the time being in force.
(2) Such revenue is called "Land
Revenue"; and that term includes moneys payable to the Government for
land, notwithstanding that such moneys may be described as premium, rent,
quit-rent, or in any other manner in any enactment, rule, contract or
deed." This section lends support to the view which we have expressed
above that a person holding land directly under the Government and not being a
Jagirdar or a Muafidar will be liable to pay land revenue to the Government in
whatever name the payment of money may be described such as premium, rent,
quit-rent etc.
The High Court in its judgment has adverted
to some sections contained in Chapter VI of the Bhopal Act of 1932.
Section 51 provided for disposal of
unoccupied land. Sub- section (1) of section 52 says that a person acquiring
the right to occupy land under section 51 will be called an occupant of such
land and under sub-section (2) all persons who, prior to the commencement of
this Act, had been entered in settlement records as responsible for the payment
of land revenue to the Government, or who, but for a special arrangement, would
have been to responsible, would be deemed to be occupants within the meaning of
Section 52. In our opinion this special arrangement mentioned in sub-section
(2) cannot be squarely equated with the assignment or relinquishment of the
right to receive land revenue envisaged by the Bhopal Act of 1932.
We do not feel inclined to agree with the
High Court that the appellant became occupant under section 52(2) of the Bhopal
Act of 1932 because he was a person who was entered into settlementt records
prior to the coming into force of that Act. Firstly it is not clear whether the
facts so stated in the judgment of the High Court are (quite correct, and,
secondly, it is admitted on all hands that the appellant was a Muafidar and,
therefore, in our opinion he was an occupant within the meaning of Section 2(15).
Section 54 provided that the rights of an
occupant, meaning thereby the occupant as mentioned. in Section 52, were to be
permanent, transferable and heritable. Ordinarily and generally the rights of a
Jagirdar 587 or a Muafidar being occupants within the meaning of Section 2(15)
A read with Section 167 were neither transferable nor heritable and in that
sense the rights were not permanent.
In our opinion, therefore, the type of
occupant who is dealt with in Chapter VI of the Bhopal Act of 1932 is not the
type of occupant having the same kind of incidence as defincd in Section 2(15).
As we have already indicated it is a well- established principle of law that a
particular term defined in the definition section is subject to anything
repugnant in the contact of the other provisions of the Statute. The provisions
of Chapter VI being at variance with the definition clause cannot make the
occupant described in that Chapter the same occupant as defined in Section
2(15).
Our attention was drawn by the learned counsel
for the appellant to Section 167 of the Bhopal Act of 1932 dealing With the
restriction ill the rights of the Jagirdars and Muafidar to transfer such
rights or create encumbrances on them. According to the said Section no
Jagirdar or Muafidar could "transfer his rights as Jagirdar or muafidar,
or, except for such period as he is in possession of his jagir or muafi create
an encumbrance on the income thereof." But inducting a person as Shikmi on
the land was not prohibited under Section 167. On the other hand, Section 194
provide(l that all occupant could make a lease of his holding and under certain
circumstances it could n(lt be for a term of more than 12 years. It was then
argued that the right of a Muafidar being in the nature of a life grant was valid
only for the Life time of the Muafidar. So the Muafidar could not induct a
person as Shikmi who ultimately could become an occupancy tenant entitled to
conferment of Bhumisavami rights later on. This argument has to be staled
merely to be rejected. It may well be that the right of a Shikmi would not have
lasted beyond the duration of the right of the Muafidar. But then, his rights
were enlarged by operation or the welfare legislation enacted by the State
Legislature for the benefit of the cultivators of the soil in the year 1959.
Section 185(1)(iv)(b) of the M.P. Code of
1959 says:- "(1) Every person who at the coming into force of this Code
holds- (iv) in the Bhopal region- (b) any land as a shikmi from an occupant as
defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932):
588 shall be called an occupancy tenant and
shall have all the rights and be subject to all the liabilities conferred or
imposed upon an occupancy tenant by or under this Code." As held by us
above the appellant was an occupant as defined in the Bhopal Act of 1932 and
thus under clause (c) of Section 158 on the coming into force of the Code he
became a Bhumiswami. But his Bhumiswami rights were liable to be conferred,
under certain conditions, on the occupancy tenant under Section 190. As a
matter of fact in accordance with the said provision the Bhumiswami rights were
conferred on respondent no. 1 on payment of compensation being in the amount of
15 times of the land revenue for payment to the appellant. Our attention was drawn
to a recital of facts in the Statement of the case of some of the respondents
that the appellant had withdrawn the said amount of compensation.
But we are not resting our judgment on that
ground as in our opinion, whether he has withdrawn the amount of compensation
or not, he cannot challenge the conferment of his Bhumiswami rights on
respondent no. l. which have been validly and legally conferred.
We may now briefly deal with a few more short
submissions of the appellant. In section 185(1)(iv)(a) of the M.P. Code of 1959
it is provided that if a person who at the time of coming into force of the
said Code was holding any land as a sub-tenant as defined in the Bhopal State
Sub- tenants Protection Act, 1952 shall also be called an occupancy tenant. A copy
of this Act could not be made available for our perusal. But what we get from
the order of the Board of Revenue is that a Sub-tenant as defined in the Bhopal
Act of 1952 means a person who holds a parcel of khud kasta land from a
Jagirdar. Along with this our attention was also drawn to the Bhopal State Sub
Tenants (of occupants) Protection Act. 1954. In this Act, section 2(b) runs
thus: - "The expression "occupant" shall have the same meaning
as in the Bhopal State Land Revenue Act, 1932 (IV of 1932) and, for the
purposes of this Act, it should also include a muafidar, as defined in Bhopal
State Land Revenue Act, 1932 (IV of 1932)".
In other sections of the said Act protection
against ejectment was given to the Shikmis. The argument was that protection to
the sub-tenants of Jagirdars was given in the Bhopal Act of 1952 and protection
to such persons was given in case of sub-tenants of Muafidar under the Bhopal
Act of 1954 by including Muafidar in the expression 'occupant' occurring in the
said Act. Counsel, therefore, submitted that if the 589 term 'occupant' in the
Bhopal Act of 1932 had included a Muafidar then there was no necessity of
expressly and separately including a Muafidar in the definition of the said
expression. in the Act of 1954. In our opinion this argument has no substance.
It may be by way of abundant precaution or for putting the matter beyond any
shadow of doubt that the expression 'occupant' was defined in a comprehensive
manner in the Bhopal Act of 1954. Section 3 of the said Act shows that even a
Muafidar could sub-let a land to a person and induct hi as a Shikmi prior to
the coming into force of this Act. Such a Shikmi got the protection against
ejectment by operation of law engrafted in the Bhopal Act of 1954. After the
passing of this Act? he no longer could be said to be a Shikmi only during the
life time of the Muafidar but was so even beyond it.
The counsel for the appellant called our
attention to a decision of this Court in Begum Suriya Rashid and others v. Stale
of Andhra Pradesh(l). In this case it was held that the muafi grants to the
predecessor-in-interest of the appellants before the Supreme Court were not
hereditary or perpetual and the appellants could not claim title as Muafidars
even though some contradictory Arabic expressions had been used in the document
of grant. This decision does not advance the case of the appellant any further.
For the reasons stated above, we dismiss this
appeal but make no order as to costs.
M.R. Appeal dismissed.
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