Gayaram Patel & Ors Vs. Kailash
Chand Panigrahi [1979] INSC 42 (20 February 1979)
KOSHAL, A.D.
KOSHAL, A.D.
FAZALALI, SYED MURTAZA
CITATION: 1979 AIR 1741 1979 SCR (3) 320 1979
SCC (4) 552
ACT:
Orissa Estates Abolition Act,
1951-S.7-"Intermediary" who is-Gaontia thikadari' whether
intermediary.
HEADNOTE:
The ancestors of a former Zamindar dedicated
their maufi interest in a village in favour of a deity. Acting on behalf of the
deity the ex-zamindar created a lease of thikadari rights in the village in
favour of the appellant for ten years. The lease deed termed the appellant as
"legal guardian of gaontia thikadari patta". While the lease was in
force the Orissa Estates Abolition Act, 1951 which sought to abolish all
intermediaries in land and vest their interest in the State came into force.
The Act however protected certain intermediaries thereby carving out an
exception to the scheme of the Act.
Meanwhile the Managing Trustee of the Board
of Trustees appointed under the Orissa Hindu Religious Endowments Act, 1951 to
look after the affairs of the deity filed a petition under s. 7 of the
Abolition Act claiming that the deity was in Khas possession of certain lands
including the land lease to the appellant and prayed that the same be settled
on the Board of Trustees as an occupancy tenant. The question was eventually
settled in favour of the Trustees and against the appellant.
In the Managing Trustee's application under
s. 145 Cr. P.C. asserting that the appellant was disturbing peaceful possession
of the deity over the land, the Magistrate held that it was the appellant who
was in possession of the land and directed that the land should be restored to
him.
The High Court in revision set aside the
order of the Magistrate.
In appeals to this Court the appellant
contended that it was he and not the deity, who was the thikadar and therefore
an intermediary within the meaning of the definition of that term in the
Abolition Act and was in Khas possession of the land in dispute and so the land
should be restored to him.
Allowing the appeals,
HELD: 1. It was the appellant who had the
Khas possession of the land, and therefore, the land must be deemed to have
been vested in him, and not in the deity, as an occupancy tenant under the
provisions of s. 7 of the Abolition Act. [328 F]
2. Apart from the description of the
appellant as gaontia thikadari patta, condition 8 contains a sure indication of
the nature of the tenancy agreement. It states "that the cultivable lands
cannot be utilised for any other purpose nor can they be transferred or sold or
otherwise dealt with to the hardship of the villagers or the tenants."
[328 B-C] 321
3. The reference to tenants in this condition
points to the land being under the cultivation of persons other than the
appellant at the moment the lease was granted. This position was incompatible
with the grant of an ordinary lease to him. The tenure granted in his favour
was on the other hand one conferring on hint a right to collect the rents from
the tenants of the deity and in lieu thereof pay a fixed sum to it. He was,
therefore, correctly described as gaontia or thinkdar, both of which
expressions describe an intermediary as distinguished from a raiyat or an
actual tiller of the soil. [328 D-E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 286 of 1973.
Appeal by Special Leave from the Judgment and
Order dated 16-5-1973 of the Orissa High Court in Crl. Revision No. 645 of
1972.
AND CIVIL APPEAL No. 2036 of 1973 Appeal by
Special Leave from the Judgment and Order dated 6-3-1973 of the orissa High
Court in O.J.C. No. 491/72.
J. L. Jain and Mrs. S. Gopalakrishnan for or
the Appellants.
G. Dass, Mrs. S. Bhandare and A. N. Karkhanis
for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J. By this judgment we shall dispose of Civil Appeal No. 2036 of 1973
and Criminal Appeal No. 286 of 1973, both of which have arisen from a dispute
over a single piece of land and the facts leading to which may be briefly
stated. Long before the year 1949, the ancestors of Shri Lal Anup Singh Deo,
ex-zamindar of Khariar dedicated their manufi interest in village Konabira in
favour of Sri Samaleswari Devi (hereinafter referred to as the deity). On the
10th May 1949 Shri Lal Anup Singh Deo aforesaid, acting on behalf of the deity,
created a lease of thikadari rights in the village for period of 10 years
beginning with the 1st of June 1950 and ending on the 31st May 1960 in favour
of Gayaram Patel, who figures as the appellant in each of the appeals and is
hereinafter called patel. The deed of lease appears at pages 5 and 6 of the
paper book in Civil Appeal No. 2036 of 1973 and describes Patel thus:
"Gayaram Patel son of Bisram Patel, the
legal guardian of gaontia thikadari patta" The terms on which the lease
was granted to Patel are reproduced below :- (i) That the yearly rent payable
shall be Rs. 109/- to be paid before January of every year.
322 (ii) That in case of non-payment the
lease is liable to be cancelled.
(iii)That all the repairs, upkeep and
development works should be executed and for such works no compensation can be
claimed. All the repairs, maintenance of tanks, garden, buildings, etc., shall
be carried out at your responsibility.
(iv) That no injustice should be done to the
community in maintaining the abovementioned works.
(v) That no transfer is permissible in
respect of the property.
(vi) That the property is to be maintained
for the exclusive welfare of the community with the help, directions, orders
and co-operation of the Estate Officer.
(vii)That the rules and regulations for
forest lands are to be obeyed.
(viii)That the cultivable lands cannot be
utilised for any other purpose, nor can they be transferred or sold or
otherwise dealt with to the hardship of the villagers or the tenants. If any
land is abandoned and (?) takes a new land for cultivation he will be liable
under the law and be subjected to the payment of the usual rent.
The lease was acted upon and while it was in
force, the orissa Estates Abolition Act, 1951 (hereinafter called the Abolition
Act) was promulgated. The object of that Act was to abolish all intermediaries
and rent-receivers, to vest their interest in the State, and to establish a
direct relationship between the State and the tillers of the soil.
Section 3A of the Abolition Act authorised
the State Government to declare by notification that such interests have passed
to and become vested in the State free from all encumbrances. A notification of
that type was issued by the State Government and became effective from the 1st
of June 1959.
In the meantime a Board of Trustees had been
appointed under the Orissa Hindu Religious Endowments Act, 1951 (for short
Endowments Act) with Shri Kailash Chandra Panigrahi as the Managing Trustee to
look after the affairs of the deity on whose behalf an application under
section 7 read with section 8-A (1) of the Abolition Act was made by the
Managing Trustee after the said 323 notification had come into force. It was
claimed in the application that the deity was in "Khas possession" of
certain lands in village Konabira and prayed that the same, be settled on it as
an occupancy tenant. The application was resisted by Patel who claimed that it
was he and not the deity who enjoyed the "Khas possession" of the
said land.
The application was decided by the Tehsildar
Khariar, Tehsil Nawapara, acting as Collector under the Abolition Act. He held
that Patel was in "Khas possession" of only one plot of land which
was designated by No. 5 and had an area of 20.14 acres but that such possession
was held by him on behalf of the deity and not on his own account. In this view
of the matter he passed the order dated 13th June 1962, the operative part of
which runs thus:
"Sir lands in village Konabira bearing
plot No. 5 with an area of 20.14 acres are settled on occupancy rights with
Gayaram Patel s/o Bisram Patel,' of Konabira, P. S. Komna Distt. Kalahandi for
and on behalf of Samaleswari Devi of Kemna, the Maufidar, u/s 7(1) (b) of the
Orissa Estates Abolition Act, 1951. A fair and equitable annual rent of Rs.
6.75 np. is determined from the date of vesting release rent from 1959-60
onwards." On the 21st of October 1963, the Managing Trustee of the deity
made an application to the Assistant Commissioner of Endowments under section
68 of the Endowments Act complaining that he had been resisted by Patel in
obtaining possession of the land of the deity and praying for recovery of
possession thereof from Patel. In his order dated the 12th of January 1970, the
Assistant Commissioner of Endowments allowed the application holding that it
was the deity and not Patel who had been declared to be the occupancy tenant in
the order dated 13th June 1962 abovementioned. Patel went up in revision to the
Commissioner of Endowments but without success and thereafter knocked at the
door of the orissa High Court with a petition under Articles 226 and 227 of the
Constitution of India seeking to have the orders of the Assistant Commissioner
of Endowments and the Commissioner of Endowments set aside. The High Court
however took the same view of the matter as was expressed by authority
appointed under the Endowments Act and negatived the contentions raised on
behalf of Patel, in its order dated 6th March 1973. It is that order which is
challenged before us in Civil Appeal No. 2036 of 1973 instituted by special
leave.
In the meantime litigation had started
between the deity and Patel on the criminal side also. Claiming that the deity
had recovered 324 possession of plot No. 5 abovementioned (which had by then
come to be designated by No. 15 and to have an area of 22.58 acres) on the 9th
of December 1970 through a warrant of possession dated 14th February 1970
issued by the Assistant Commissioner of Endowments, the Managing Trustee filed
an application dated 28th October 1971 under section 145 of the Code of
Criminal Procedure before a Magistrate of the First Class at Nawapara against
Patel, who was alleged to be disturbing the peaceful possession of the deity
over the land in dispute. A Preliminary order attaching the property was passed
by the Magistrate on the same day, i.e., 28th October 1971. That order was
however cancelled and the proceedings were dropped on the 15th November 1971 in
pursuance of a report dated 6th November 1971 made by the officer incharge of
the Police Station, Komna (within the territorial limits of which lay the land
in dispute) to the effect that there was no apprehension of a breach of peace
by the parties. Nevertheless, on the 20th November 1971, another report was
received by the Magistrate from the same officer revealing "an
emergency" whereupon the Magistrate made a direction that the preliminary
order dated 28th October 1971 be given effect to and that the land be attached
along with the crops standing thereon. Ultimately, the proceedings were finalised
through an order dated 21st September 1972 passed by the Magistrate who held
that it was Patel who was in possession of the land in dispute on the 20th
November 1971, and directing that the land be restored to him.
Aggrieved by the order of the Magistrate the
Managing Trustee or the deity went up in revision to the High Court, a learned
Single Judge of which set aside the same and directed delivery of possession of
the land to the deity on the basis of the findings given below:
(1) The proceedings had terminated on the
15th November 1971 and the Magistrate has no jurisdiction to revive them five
days later and to give effect to the order of attachment which already stood
vacated.
(2) There had been a civil suit and a writ
application in respect of the land which has terminated in favour of the deity.
(3) The matter had been taken up by the
Endowments Department which had delivered all properties to the deity before
the 29th April 1970.
It is this order of the High Court which is
impugned in Criminal Appeal No. 286 of 1973 by special leave of this Court.
2. In order to appreciate the rival
contentions of learned counsel for the parties it is necessary to make a
reference to the relevant provisions of the Abolition Act and to determine the
party in whom the occupancy tenancy vests under section 7 thereof. As already
pointed out the object of the Abolition Act was to do away with all
intermediaries and rent-receivers and to establish a direct relationship
between the State and the actual tillers of the soil. The preamble of the Act
states:
"Whereas in pursuance of the Directive
Principles of State Policy laid down by the Constitution of India it is
incumbent on the State to secure economic justice for all and to that end to
secure the ownership and control of all material resources of the community so
that they may best sub-serve the common good, and to prevent the concentration
of wealth and means of production to the common detriment;
"AND WHEREAS in order to enable the
state to discharge the above obligation it is expedient to provide for the
abolition of all the rights, title and interest in land of Intermediaries by
whatever name known, including the mortgagees and lessees such interest,
between the raiyat and the State of Orissa for vesting in the said State of the
said rights, title and interest and to make provision for other matters
connected with;.. " Section 2 contains definitions. Clauses (f), (g), (h),
(hh) and (j) thereof are relevant to the dispute and are extracted below:
(f) "date of vesting" means in
relation to an estate vested in the State the date of publication in the
Gazette of the notification under sub-section (1) of section 3 or sub-section
(1) of section 3-A in respect of such estate and in the case of surrender by an
intermediary under section 4 the date of the execution of the agreement;
(g) `estate' includes a part of an estate and
means any land held by or vested in an Intermediary and included under one
entry in any revenue roll or any of the general registers of revenue-paying lands
and avenue- free lands, prepared and maintained under the law relating to land
revenue for the time being in force or under any rule, order, custom or usage
having the force of law, and includes revenue-free 326 lands not entered in any
register or revenue- roll and all classes of tenures or under- tenures and any
Jagir, inam or maufi or other similar grant;
(h) `Intermediary' with reference to any
estate means a proprietor, sub-proprietor, landlord, landholder, malguzar,
thikadar, gaontia, tenure-holder, under tenure-holder, and includes an inamdar,
a jagirdar, Zamindar, IIaquadar, Khorposhdar, Parganadar, Sarbarakar and
Maufidar including the Ruler of an Indian State merged with the State of Orissa
and all other holders or owners of interest in land between the raiyat and the
State;
(hh) `Intermediary interest' means an estate
or any rights or interest therein held or owned by or vested in an Intermediary
and any reference to `state' in this Act shall be construed as including a
reference to `intermediary interest' also;
(j) "Khas possession" used with
reference to the possession of an Intermediary of any land used for
agricultural or horticultural purposes, means the possession of such
intermediary by cultivating such land or carrying on horticultural operations
thereon himself with his own stock or by his own servants or by hired labour or
with hired stock;
The provisions of section 3A have already
been noted.
Then comes section 7 which is all-important
for the purpose of resolving the present dispute. It states:
"7. (1) on and from the date of vesting-
(a) all lands used for agricultural or horticultural purposes which were in
Khas possession of an Intermediary on the date of such vesting, (b) lands used
for agricultural or horticultural purposes and held by a temporary lessee or
lessees of an Intermediary who owns either as Intermediary or in any other
capacity less than thirty three acres of land in total extent situated within
the State, (c) lands used for agricultural or horticultural purposes and in
possession of a mortgagee, which immediately before the execution of the
mortgage bond were in Khas possession of such intermediary, 327
..........................................
...........................................
shall, notwithstanding anything contained in
this Act, be deemed to be settled by the State Government with such
Intermediary and with all the share holders owning the estate and such
Intermediary with all the share- holders shall be entitled to retain possession
thereof and hold them as raiyats under the State Government having occupancy
rights in respect of such lands subject to the payment of such fair and
equitable rent as may be determined by the Collector in the prescribed manner:
..........................................
................................."
Sub-section (1) of section 8A requires Intermediaries to file their claims in
the prescribed manner for settlement of fair and equitable rent in respect of
land and buildings, which are deemed to be settled with them under section 6 or
section 7, before the Collector within the specified period.
3. It would be seen that clauses (a), (b) and
(c) of sub-section (1) of section 7 protect certain Intermediaries and thus
form exceptions. to the scheme of the Act which, generally speaking, conforms
to the object detailed in the preamble. In the present case we are not
concerned with clause (c). According to learned counsel for Patel his case
falls within the ambit of clause (a). It is claimed on his behalf that he was
not merely a lessee or a temporary lessee under the deity but was a thikadar
and, therefore, himself an Intermediary within the meaning of the definition of
that word occurring in clause (h) of section 2 and that he being in "Khas
possession" of the land in dispute on the date of vesting was an
Intermediary described in clause (a). On the other hand, for the deity it is
argued that Patel was granted only a temporary lease in 1949, that he did not
have any status better than that of a lessee, temporary or otherwise, and that
therefore his case was covered by clause (b) and not clause (a) so that it was
he deity who was entitled to be regarded as the occupancy tenant on and from
the date of vesting. The whole controversy thus turns round the position which
Patel came to hold in respect of the land in dispute under the lease deed of
1949 and in order to assess that position it is necessary to refer to the lease
deed dated 10th May 1949. As noted earlier that deed itself describes Patel as
"gaontia thikadari patta". Learned counsel for the deity has
contended that 328 this description is really not correct and that the
conditions of the lease clearly make out a case of Patel being inducted into
the land as an ordinary lessee who was to till the land against payment of rent.
The contention does not appear to us to have any force. Apart from the
description of Patel as "gaontia thikadari patta" the deed contains a
sure indication of the nature of the tenure granted in condition (8) which
states specifically:
"That the cultivable lands cannot be
utilised for any other purpose, nor can they be transferred or sold or
otherwise dealt with to the hardship of the villagers or the tenants.
.................................................
................................" The
reference to tenants is of considerable significance and points to land being
under the cultivation of persons other than Patel at the moment the lease was
granted. This state of affairs is incompatible with the grant of an ordinary
lease to Patel. The tenure granted in his favour was on the other hand one
conferring on him a right to collect the rents from the tenants of the deity
and in lieu thereof pay a fixed sum of Rs. 109/-per annum to it so that he was
correctly described in the lease deed as a gaontia or thikadar, both of which
expressions describe an Intermediary as distinguished from a raiyat or an
actual tiller of the soil.
4. Once Patel is found to be an Intermediary
his case must fall within clause (b) of sub-section (1) of section 7 as it was
he who had the "Khas possession" of the land now in controversy,
according to the findings contained in the order dated 13th January 1962 passed
by the Collector and mentioned above, which have not been shown to us to suffer
from any infirmity. And if that be so, the land must be held to have vested in
him, and not in the deity, as an occupancy tenant under the provisions of that
section.
5. In the result both the appeals succeed and
are accepted, the order of the High Court impugned in each being set aside and
it being directed that the possession of the land in dispute attached by the
order of the Magistrate in the proceedings under section 145 of the Code of
Criminal Procedure be delivered to Patel as an occupancy tenant under the
State. The parties are however left to bear their own costs throughout.
N.V.K. Appeal allowed.
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