Case: Jagannath Behera And Others Vs. Raja Harihar Singhmardaraj Bhramarbara Roy

2. The respondent was the ruler of the erstwhile Khandapara State which merged with the Province of Orissa under the States Merger (Governors Provinces) Order, 1949 with effect from 1-8-1949. The respondent had on 14-12-1947 entered into an agreement with the Governor-General of India Art. 3 whereof provided that:"The Raja shall be entitled to full ownership, use, and enjoyment of all private properties (as distinct from State Properties) belonging to him on the date of the agreement."3. That article further provided that if any dispute arose as to whether any item of property was the private property of the Raja or State property, it shall be referred to such officer with judicial experience as the Dominion Government might nominate and the decision of that officer shall be final and binding of both parties. The respondent claimed a number of properties and the matter was referred to the Adviser for Orissa States for determining whether all the items claimed by him could be regarded as his private properties. On 10-6-1949, the Adviser communicated his decision that the respondent was entitled to 1,643 acres as his Khamar lands and 29 and odd acres as lands settled with his tenants. The lands comprised in the present proceedings taken under the 1948 Act as aforesaid were declared to be the private properties of the respondent4. On 3-3-1950, the Orissa Legislature passed the Orissa Merged States (Laws) Act, 1950 (Orissa IV of 1950) hereinafter referred to as "the 1950 Act". Section 4 of that Act extended inter alia the 1948 Act to the areas merged in the absorbing Province of Orissa. Section 7 provided for the modification of tenancy laws in force in the merged states. The relevant provisions of that section so far as they are material for the purposes of this appeal may be set out herein:"Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of Art. 4 of the States Merger (Governors Provinces) Order, 1949:(a) all suits and proceedings between landlord and tenant as such shall be institute and tried in revenue courts(h) when a person holds Khamar, nijjote or any other private lands of a Ruler, which has been recognised as such by the Provincial Government, he shall not be liable to ejectment but shall be liable to pay such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner, Northern Division, as the case may be and thereupon he shall acquire right of occupancy in respect of such lands:"5. On 14-4-1951, the State Legislature passed the Orissa Tenants Protection (Amendment) Act, 1951 (Orissa XVII of 1951) whereby the date the "1st day of September, 1947" wherever it was used in the 1950 Act, was substituted by the "1st day of August, 1949" for the purposes of the merged states areas and it was further provided that in such areas where neitherthe Madras Estates Land Act,1908, northe Orissa Tenancy Act,1913was in force the special laws or customs prevailing therein shall be taken into consideration for the application of that Act6. It appears that certain tenants who were in occupation of the private lands of the respondent were evicted by him during the year 1951 and other tenants were inducted by him and put in possession of the lands. The tenants who were thus evicted applied to the Revenue Officer some time in 1952 for being restored to possession of their tenancy lands under the provisions of the 1948 Act, alleging that the respondent was their landlord and that he had unlawfully evicted them from their lands. These were numbered as O. T. P. Act Cases Nos. 21 to 25 of 1952, 26 to 28 of 1952, 29 to 32 of 1952 and 33 to 41 of 1952. Notice was issued to the respondent but it appears that he did not care to enter appearance before the Revenue Officer or to contest the applications. On the ex parte evidence of the Applicants the Revenue Officer directed restoration of possession to them holding that they were in possession of the lands as tenants on the 1st day of August, 1949, and as such were entitled to the benefits conferred by the 1948 Act, as amended in its application to the merged States7. The respondent thereupon filed a writ petition under Art. 226 of the Constitution in the High Court seeking to quash the entire proceedings on the ground that in respect of the disputed lands he was not a "landlord" within the meaning of the 1948 Act. The petition as filed averred that the fundamental right conferred upon the respondent by Art. 19 of the Constitution was infringed, that the provisions of the 1948 Act which were inconsistent with that article were void as being ultra vires the Constitution and the orders passed thereunder by the Revenue Officer were illegal and liable to be set aside8. This petition was filed by the respondent on 11-8-1952. A further petition was thereafter filed on 26-2-1953 invoking Art. 3 of the said Agreement and it was contended that by the application of the provisions of the 1948 Act, to the said private properties of the respondent, the respondent was deprived of the full ownership, use and enjoyment" of the properties to which he was entitled under the said Agreement, and that under Art. 363 of the Constitution, no Court had jurisdiction to deal with any dispute arising out of any provisions of the said Agreement. The decision of the Revenue Officer was thus called in question and it was contended that he had no jurisdiction to decide the dispute as to whether the tenants had any right to the personal properties of the respondent and as such the proceedings were liable to be quashed as being without jurisdiction9. The High Court accepted these contentions of the respondent and allowed the writ petition. It accordingly directed the issue of a writ declaring that the proceedings under the 1948 Act taken by the Revenue Officer were void as being without jurisdiction and that they should be quashed10. The tenants then filed an application before the High Court asking for a certificate under Arts. 132 and 133 (1) (c) of the Constitution which was granted by the High Court. The State of Orissa asked for leave to intervene in the appeal which leave was granted by this Court and the learned Solicitor-General had appeared before us in support of the appeal, both on behalf of the tenants who are the appellants herein, and the State of Orissa, the Intervener.

Reasoning: It may be noted at the outset that no question, has been raised in regard to the vires of the 1950 Act, which extended inter alia the 1948 Act to the areas merged in the absorbing Province of Orissa. That being so, S. 7 (h) of the 1950 Act in terms would apply to the appellants before us and they would not be liable to ejectmentThe lands in question were declared to be the private properties of the respondent and he was guaranteed under Art. 3 of the said Agreement full ownership, use and enjoyment thereof. Article 363 only ousted the jurisdiction of the courts in regard to the disputes arising out of any provisions of the Agreement entered into by the Rulers of Indian States with the Government of India. The dispute which had arisen between the appellants and the respondent in the present case could hardly be said to be a dispute arising out of any provisions of the said Agreement17. It is clear therefore that neither Art. 363 nor Art. 362 of the Constitution would avail the respondent and the courts would have jurisdiction to entertain the dispute between the appellants and him which arose out of his action in ejecting them from his private lands. The provisions of the said Agreement only protected his rights in the properties declared to be his private properties so that they could not be claimed at any time thereafter as State properties. The 1948 Act did not dispute his ownership over the same but proceeded on the basis that they were his private properties and sought to impose upon him certain obligations in order to protect the rights of the tenants whom he had inducted therein and there was no infringement of the guarantee or assurances which had been given to him under Art. 3 of the said Agreement. It could not also be urged that by imposing reasonable restrictions in the interests of the tenants on his right to acquire, hold and dispose of properties under Cl. 5 of Art. 19 of the Constitution, the 1948 Act affected his rights of full ownership, use and enjoyment of those properties. If anything was done by extending the 1948 Act to the merged State of Khandapara, it was done in the protection of the tenants who were inducted by him and such restrictions did not affect the full ownership, use and enjoyment of his private properties, any more than they did in the case of other owners of lands. As a matter of fact, under the terms of the 1950 Act, which extended the 1948 Act to the merged State of Khandapara, he was entitled to the payment by the tenants of such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner of the Northern Division as the case may be and so long as the tenants continued to pay such rent he was no worse off than were other proprietors of lands. The tenants would no doubt acquire rights of occupancy in respect of such lands but the acquisition of the occupancy rights by the tenants would not be calculated to affect his right to full ownership, use and enjoyment of his lands, because he would be entitled to eject the occupancy tenants also if the tenants used the lands comprised in their holdings in any manner which rendered them unfit for the purposes of the tenancy or committed a breach of conditions consistent with the provisions of the tenancy laws in force in the merged State concerned on breach whereof they were under the terms of the contract between themselves and the landlord liable to be ejected.As already stated these restrictions were for the protection of the tenants who were inducted on the lands by the erstwhile Rulers themselves and by the extension of the 1948 Act to the merged State Khandapara, the respondent was treated in the same manner as any other citizen of the Union.If at all there was any infringement of his rights to full ownership, use and enjoyment of his properties that was also in accordance with the provisions of the Constitution itself and whatever may have been the guarantee or assurance given to him under the terms of the said Agreement, it could not be absolute but would only by co-extensive with the right to acquire, hold and dispose of property which is guaranteed to all the citizens of the Union under Art. 19 (1) (f) of the Constitution. These contentions of the respondent therefore are of no availIt is, however, to be observed that no such contention was ever taken in the proceedings before the Revenue Officer or before the High Court and it was urged for the first time in the course of the arguments before us.The question in one of fact, whether any such special laws or customs were prevailing in the merged State of Khandapara, and we cannot allow the respondent to urge this contention for the first time before usHere also, the respondent is confronted with this difficulty that these questions were not mooted either before the Revenue Officer or the High Court in the manner in which it was sought to be done before us. It was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952. The lands in question were also assumed to have been recognised as the private lands of the respondent by the Government without making any distinction between the Dominion Government and the Provincial Government as was sought to be done before us. Reliance was mainly placed by the respondent in the High Court on his plea that the jurisdiction of the Revenue Officer was barred under Art. 363 of the Constitution and it was nowhere urged that the appellant were not the tenants and he was not the landlord within the terms of the definitions contained in the 1948 Act or that in the absence of recognition of these private lands of his as such by the Provincial Government, the condition precedent to the application of S. 7 (h) of the 1950 Act was not fulfilled and that section has no application at all to these lands.The determination of these questions also requires evidence in regard to the same and it would not be legitimate to allow these questions to be agitated for the first time at this late stageWhatever may have been the definitions of the terms landlord and tenant in S. 2 (c) and (g) of the 1948 Act, this definition contained in the explanation to S. 7 (a) of the 1950 Act makes the appellants the tenants and the respondent a landlord in regard to the lands in question. This statutory extension of the definition of the terms landlord and tenant therefore is sufficient, in our opinion, to repel the last contention urged on behalf of the respondent before usIf both these Acts are thus read together, as they should be, there is no inconsistency between the provisions of these Acts and it is clear that the provisions of sub-ss. (a) and (h) of S. 7 of the 1950 Act which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties. This contention of the respondent also therefore fails25. We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside.