Case: Biswambhar Singh  Vs. The State Of Orissa And Another

the record in support of such an unusual arrangement. If the forests are included within the boundaries of the estate and if the Zamindar of Nagra "holds" the estate under the Raja of Gangpur, he must be holding the forests also under the Raja of Gangpur. The suggestion that the proprietor of Nagra accepted a grant from the Raja of Gangpur only in respect of the collection of Mahals or villages but retained his independent chieftainship with respect to the forest lands interspersed between the villages but situate within the geographical limits of the entire estate is hardly convincing. For the above reasons and those set out in the judgment of the learned Chief Justice we are of the opinion that the forest lands are included within the estate held by the Zamindar of Nagra under the Raja of Gangpur.15. In the view that the Zamindar of Nagra is an intermediary and his territories are an estate it must follow that the appellant Shri Sibnarayan Singh Mahapatra cannot get any relief if the Act is valid. Learned counsel appearing in support of his appeal (No. 169 to 1953) then falls back on the question of the constitutionality of the Act. Here he has a preliminary hurdle to get over, for it the Act is covered and protected by Article 31 - then the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any Provisions of Part III of the Constitution.It has, therefore, been the endeavour of learned counsel for the appellant before us, as it was before the High Court, that Nagra was not an "estate" as defined in Article 31-A (2) (a). The learned Chief Justice took the view that Nagra was an estate as defined and consequently the Act was within the protection of Article 31-A but Narasimham, J., took the opposite view. The third Judge Mahapatra, J., agreed with the learned Chief Justice. In the view we take on the question of the alleged violation of the provisions of Article 14 it is not necessary for us, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of Article 31-A, to the impugned Act.16. On the assumption, then, that Article 31-A is out of the way the Act in question becomes liable to attack both under Article 31(2) and Article 14. Learned counsel appearing before us did not call in aid Article 31(2) but confined himself to Article 14. In the High Court Article 14 was invoked in two ways namely (1) that the provision for assessing and fixing the amount of compensation is discriminatory and (2) that section 3 which gives an unfettered discretion to the State Government to issue or not to issue notification with respect to an estate is discriminatory in that it enables the State Government to issue notification with respect to those Zamindars who opposed the ruling party in the election and to refrain from doing so with respect to others who were loyal to that party. The objection as to discrimination founded on the manner of assessment of the compensation has not been pressed before us and learned counsel confined his arguments to the second ground. Here again the learned Chief Justice held that there was violation of Article 14 while Narasimham, J, took the opposite view. Mr. Justice Mahapatra, however agreed with the Chief Justice. We find ourselves in agreement with the majority view.17. The long title of the Act and the two preambles which have been quoted above clearly indicate that the object and purpose of the Act is to abolish all the rights, title and interest in land of Intermediaries by whatever name known. This is a clear enunciation of the policy which is sought to be implemented by the operative provisions of the Act. Whatever discretion has been vested in the State Government under section 3 or section 4 must be exercised in the light of this policy and, therefore, it cannot be said to be an absolute or unfettered discretion, for sooner or later all estates must perforce be abolished. From the very nature of things a certain amount of discretionary latitude had to be given to the State Government. It would have been a colosal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once. It was, therefore, imperative to confer some discretion on the State Government. It has not been suggested or shown that in practice any discrimination has been made. If any notification or order is made, not in furthereance of the policy of the Act but in bad faith and as and by way of discrimination such notification or order, which by virtue of Article 13(3) comes within the definition of "law", will itself be void under Article 13(2). Learned counsel appearing for the appellant has not shown, by advancing any cogent and convincing argument, how and why the reasonings adopted by the majority of the learned Judges below are faulty or untenable. In the premises, it is not necessary for us to pursue this matter further beyond saying that we find ourselves in agreement with the conclusions of the majority of the learned Judges of the High Court.18. Learned counsel for the appellant referred to another point, namely that the amending Act altering the definition of the date of vesting was invalid as there was no public purpose for taking away the vested right that the original definition of the expression in the Act had given to the persons whose estates had been notified. Learned counsel, however, did not seriously press this objection and nothing further need be said about it.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We have had the advantage of perusing the judgment prepared by our learned brother Bose and we agree, substantially for reasons stated therein, that the appellants Shri Biswambhar Singh and Shri Janardhan Singh are not intermediaries as defined in section 2(h) and their respective properties namely, Hemgir and Sarapgarh are not "estate" within the meaning of section 2(g) and that being so the State Government had no jurisdiction or authority to issue any notification under section 3 with respect to their properties. In this view of the matter no constitutional questions need be considered in Appeals Nos. 167 and 168 of 1953, which will therefore have to beis, therefore, no getting away from the fact that an Ekrarnama had been executed by the Raja of Gangapur and Balki Mahapatra, the predecessor, in tittle of this appellant, under which Balki Mahapatra "held" the estate of Nagra upon terms of payment of an annual rent. Indeed, the appellant Shri Sibnarayan Singh Mahapatra firmly takes his stand on the Ekarnama and its terms.12. A question has been raised that the original Ekarnama of 1879 has not been filed and as no evidence was led to explain the reason for its non-production, secondary evidence of its contents is inadmissible. We see no force in this belated contention. The Rubakari and the other documents referred to above were filed without any objection as to their admissibility on the ground that they are merely secondary evidence of the contents of the Ekarnama. Indeed, in the matter of production and proof of documents the parties undoubtedly proceeded a little informally.It may also be mentioned here that in the grounds of appeal set forth in the petition for leave to this Court no grievance was made that secondary evidence of the contents of the Ekrarnama had been wrongly let in. In the circumstances, this appellant cannot now be heard to complain of admission of inadmissible evidence as to the terms of the Ekrarnama. Apart from this, the recital of the Ekrarnama and its terms in an ancient public document like the Rubakari whose authenticity has not been, nor indeed could be doubted furnishes evidence of the existence and genuineness of the settlement arrived at by the parties.13. Proceeding, then, or the footing that Balki Mahapatra and his descendants including the present proprietor held the Nagra Zamindari Estate under the Ekrarnama on the terms of payment of a fixed annual rent there can arise no question as to the real status of the proprietor of nagra vis-a-vis the Raja of Gangpur since 1879, whatever the position may have been ;prior thereto. It is therefore, quite clear that the proprietors of Nagra are Zamindars within the meaning of the Ekrarnama, call it a deed or "other instrument" as one likes. In this view of the matter the appellant Shri Sibnarayan Singh Mahapatra is an intermediary as defined in section 2(h) of the Act and his estate is an "estate" within the meaning of section 2(g) and consequently there is no escape from the conclusion that the State Government had simple jurisdiction or authority to issue a notification under section 3 of theis no dispute that geographically the forest tract is included within the Nagra Zamindari estate. Out attention was drawn to certain maps or plans which clearly indicate that the forest lands are scattered in blocks within the boundaries of the estate. There is no dispute that the annual rent fixed under the Ekrarnama was so payable in respect of the wholeis no evidence on record that in fixing the annual rent the forests were left out of consideration in the sense that they were treated as a separate item of property. There is no proof on the record in support of such an unusual arrangement. If the forests are included within the boundaries of the estate and if the Zamindar of Nagra "holds" the estate under the Raja of Gangpur, he must be holding the forests also under the Raja of Gangpur. The suggestion that the proprietor of Nagra accepted a grant from the Raja of Gangpur only in respect of the collection of Mahals or villages but retained his independent chieftainship with respect to the forest lands interspersed between the villages but situate within the geographical limits of the entire estate is hardly convincing. For the above reasons and those set out in the judgment of the learned Chief Justice we are of the opinion that the forest lands are included within the estate held by the Zamindar of Nagra under the Raja of Gangpur.15. In the view that the Zamindar of Nagra is an intermediary and his territories are an estate it must follow that the appellant Shri Sibnarayan Singh Mahapatra cannot get any relief if the Act is valid. Learned counsel appearing in support of his appeal (No. 169 to 1953) then falls back on the question of the constitutionality of the Act. Here he has a preliminary hurdle to get over, for it the Act is covered and protected by Article 31 - then the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any Provisions of Part III of thethe view we take on the question of the alleged violation of the provisions of Article 14 it is not necessary for us, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of Article 31-A, to the impugnedis a clear enunciation of the policy which is sought to be implemented by the operative provisions of the Act. Whatever discretion has been vested in the State Government under section 3 or section 4 must be exercised in the light of this policy and, therefore, it cannot be said to be an absolute or unfettered discretion, for sooner or later all estates must perforce be abolished. From the very nature of things a certain amount of discretionary latitude had to be given to the State Government. It would have been a colosal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once. It was, therefore, imperative to confer some discretion on the State Government. It has not been suggested or shown that in practice any discrimination has been made. If any notification or order is made, not in furthereance of the policy of the Act but in bad faith and as and by way of discrimination such notification or order, which by virtue of Article 13(3) comes within the definition of "law", will itself be void under Article 13(2). Learned counsel appearing for the appellant has not shown, by advancing any cogent and convincing argument, how and why the reasonings adopted by the majority of the learned Judges below are faulty or untenable. In the premises, it is not necessary for us to pursue this matter further beyond saying that we find ourselves in agreement with the conclusions of the majority of the learned Judges of the High Court.