Case: State Of Bombay Vs. Sardar Venkat Rao Krishna Rao Gujar

1. The respondent was a proprietor of mauza Bhivapur, Tehsil Umrer, District Nagpur. His proprietary interest in the village was abolished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1951). By virtue of S. 4 of the Act all rights, titles and interests, among others, in all pathways, village sites, hats, bazars and melas in Bhivapur vested in the State of Madhya Pradesh for the purposes of the State free from all encumbrances under S. 4 (1)(a) of the Act. Under the provisions of the States Re-organisation Act, 1956 those rights vested in the State of Bombay and now by virtue of Bombay Re-organization Act. 1960 (11 of 1960) in the State of Maharashtra. The provisions of S. 4(1)(a) are asrights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren) grass-land, scrub jungle, forest, trees, fisheries, wells, tanks, ponds, waterchannels, ferries, pathways, village sites, hats, bazars and melas .... Shall cease and be vested in the State for purposes of the State free of all encumbrances: and the mortgage debt or charge or any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act.After the Act came into operation proceedings for compensation in respect of the village Bhivapur were started in the court of the Compensation Officer, Umrer, in Revenue case No. 583/1-A-4/1950-51 decided on January 19, 1952. The Compensation Officer held that 0.14 acres of land out of Khasra No. 61/1 which is recorded in the village papers as abadi wherein a bazar is held, should be settled with the respondent under S. 5(a).3. On a portion of the land which was used for bazar, ottas and chabutras, with or without sheds, and separated by passages, exist. It is common ground that they belong to the respondent. It is also common ground that the land covered by ottas and chabutras on which sheds have been constructed were ordered to be settled on the respondent in the revenue case referred to above. The respondents contention, however, was that not only the sheds and the land on which those sheds were erected but also the open uncovered ottas and chabutras should also have been settled with him by virtue of the provisions of S. 5(a) of the Act along with the land appurtenant to those structures. The total area of this land, according to him, is 2.85 acres. The respondent, therefore preferred an appeal against the order of the Compensation Officer which directed settling only 0.14 acres of land on him. That appeal was, however, dismissed by the Additional Commissioner of Land Reforms and Additional Commissioner of Settlement, Madhya Pradesh, on March 28, 1952. The respondent thereafter was asked to remove his ottas and chabutras.4. Even so, the matter of settling land covered by ottas and chabutras on the exproprietors was being considered by Government. On May 16, 1952 a press note was issued by the Directorate of Information and Publicity, Government of Madhya Pradesh, the material portion of which runsGovernment consider that the option given to ex-proprietors to remove the material etc., might cause hardship to them in such cases. Government have, therefore, decided on the following lines of action in such matters:(i) where the ottas and chabutras were constructed in brick and stone, they should be allowed to remain with the ex-proprietors and the land thereunder should be settled with them under S. 5(a) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950(1 of 1951) on terms and conditions determined by the Government; and(ii) where the ottas and chabutras are in mud, the land under them should be deemed to have vested in the State Government.But after this press note was issued the Government, apparently on the advice of its law officers, issued instructions to the Deputy Commissioners on June 22, 1954, to give one months notice to all ex-proprietors to remove the materials and clear the site of ottas and chabutras other than those on which there were sheds. In pursuance of this a notice was issued to the respondent on July 13, 1954.6. Feeling aggrieved by this, the respondent preferred a petition under Art. 226 of the Constitution before the High Court of Nagpur for issue of a writ of mandamus or certiorari or other appropriate writ to quash the orders passed by the Compensation Officer and the appellate authority as well as the order of the State Government of Madhya Pradesh dated June 22, 1954 and the notice issued in pursuance thereto on July 13, 1954. The High Court allowed the petition and set aside the impugned orders and directed the State Government to settle the entire area of Khasra No. 61/1 of Bhivapur with the respondent on such terms and conditions as may be determined by it. It may be mentioned that the entire area of Khasra No. 61/1 is 12.85 acres or so. The State of Madhya Pardesh sought a certificate from the High Court under Art. 133 (1) (c) of the Constitution. But the certificate was not granted. Thereupon a special leave petition was made before this Court under Art. 136 of the Constitution. Leave was granted by this Court by its order dated March 18, 1957. That is how the appeal has come up before us.

Reasoning:
It would also appear from grounds 5 and 6 in the special leave petition that what was really sought to be urged before this Court was the contention actually pressed by the learned Advocate-General in support of the application for grant of certificate.Section 5(a) is an exception to S. 4(1)(a) of the Act. No doubt, S 4(1)(a) provides for the vesting in the State of the land on which bazar is held. But reading that section along with S. 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the abadi land that land, together with the land appurtenant to those building, had to be settled with the ex-proprietor. Land on which the bazar is held is part of the village abadi land and therefore, all buildings standing on such land would fall within S. 5(a) of the Act and would have to be settled with theperusal of that provision would show that where the ex-proprietor has spent money on constructing something within the limits of the village sites, that thing had to be settled with him. The word "buildings" should, therefore, be given its literal meaning as something which isobservations must be considered in the context of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of underground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street. In the particular context buildings had, according to the Court, to be given it popular meaning. That case, therefore, does not assist the appellants.12. In our opinion the High Court was quite right in holding that even uncovered ottas and chabutras fall within the term "building" as used in S. 5(a) of the Act and, therefore, along with the land appurtenant to them they must be settled with the respondent.