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

1. These three appeals which have been heard together raise the same or similar questions. Appeal No. 167 of 1953 relates to Hemgir of which the appellant Shri Biswambhar Singh is the proprietor. It comprises an area of about 360 square miles out of which 145 square miles are covered by forests. Appeal No. 168 of 1953 is by the appellant Shri Janardhan Singh who is the proprietor of Sarapgrah comprising an area of about 45 square miles. Appeal No. 169 of 1953 relates to Nagra the proprietor whereof is the appellant Shri Sibnarayan Singh Mahapatra. It comprises an area of 545 square miles including 109 square miles of forests.2. All these proprietors are the decendants of Bhuiyan Chiefs and they claim that their ancestors were independent ruling chiefs of their respective principalities. There is no dispute that in course of time they became subordinate vassals of the Raja of Gangapur. It appears from Connollys Report Mukherjees Report and Ramdhyanis Report that neither the Raja of Gangpur nor any of these proprietors was anxious to have their respective rights defined specifically and so the settlement officers made no attempt to do so with the result that their status vis-a-vis the Raja of Gangapur remains undertermined. There is no evidence on record that the ancestors of the proprietors of Hemgir and Sarapgarh ever received or accepted any Sanad or grant from the Raja of Gangpur.There is, however, evidence that the ancestors of the proprietor of Nagra had executed an Ekrarnama in favour of the Raja of Gangpur as to which more will be said hereafter. There is no dispute that the ancestors of each of these proprietors paid every year to the Raja of Gangpur what has been called "Takoli" and the present appellants are continuing this annual payment. This payment has sometimes been called a tribute and sometimes even rent as in the order dated the 9th August 1878 of A. C. Mangles, the Commissioner of Chota Nagpur. These considerable properties are and have been heritable and the rule of primogeniture prevails.3. By a certain process beginning with Agreement of Integration made in December 1947 and ending with the States Merger (Governors province) Order made on the 27th July 1949 by the then Governor-General of India in exercise of the powers conferred on him by section 290-A of the Government of India Act as amended by the Indian Independence Act, 1947 all the feudatory states of Orissa merged into and became part of the State of Orissa, in consequence of such merger the area comprised in Hemgir, Sarapgarh and Nagra as parts of the merged territories became parts of the State of Orissa.4. On the 17th January 1950 a bill which eventually became the Orissa Estate Abolition Act was introduced in the Orissa Legislature. The Constitution of India came into operation on the 26th JanuaryThe bill having been passed by the Orissa Legislature on the 28th September 1951, the Governor of Orissa reserved the same for the consideration of the President. On the 23rd January 1952, the bill reveived the assent of the President and became law as Orissa Act, I 1952. All Act called the Orissa Estates Abolition (Amendment) Act, 1952 was passed on the 5th July 1952 and was assented to by the President on the 27th August 1952.5. The long title of the Act is as followsAct 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 of such interests, 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 therewith".There are two preambles to the Act which recite;"Whereas in pursuance of the Directive Principles of State Policy laid down by the Constitution of India it is incumbent of 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 subserve 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 intermediates by whatever name known, including the mortgagees and lesses of such interest, between the raiyat end the State of Orissa, for vesting in the said State of the said rights, title and interest and to make provision for, other matters connectedmaterial parts of the definition of "Estate" and "Intermediaries" set forth in section 2 are as follows :(g) "estate" --- in relation to merged territories means any collection of Mahals or villages held by the same Intermediary which has been or is liable to be assessed as one unit to land revenue whether such land revenue be payable or has been released or compounded for or redeemed in whole or in part".(h) "Intermediary" --- with reference to the merged territories means a maufidar including the Ruler of an Indian State merged with the State of Orissa a Zamindar, Ilaquedar, Khorposhdar or Jagirdar within the meaning of the Wajib-ul-arz, or any sanad, deed or other instrument, and a gaontia or a thikadar of a village in respect of which by or under the provisions contained in the Wajib-ul-arz applicable to such village the maufidar, gaontia or the thikakar, as the case may be, has a hereditary right to recover rent or revenue from persons holding land in such village".Section 3(1) runs thusThe State Government may, from time to time by notification, declare that the Estate specified in the notification has passed to and become vested in the State free form all encumbrances".As was to be expected the constitutionality of the Act was challenged in a number of petition under Article 226 of the Constitution, but the Orissa High Court pronounced in favour of the validity of the Act. That decision has since been upheld by this Court in --- K, C Gajapati Narayan Deo, v. State of Orissa, AIR 1953 SC 375   (A). During the pendency of the writ petitions before the High Court, the State Government on the 27th November 1952 issued a number of notifications under section 3 covering a large number of estates including those of the three appellants before us and called upon them to deliver up possession. These appellants thereupon filed three separate writ petitions praying in each case for a writ in the nature of a writ of Mandamus directing the State of Orissa and the Collector of Sundargarh not to interfere with their possession of their respective estate or to intermeddle with it or to give effect to the provisions of the Act. These applications were opposed by the State of Orissa.7. The several grounds taken in support of the petitions were, very broadly speaking, (a) that they were not intermediaries, (b) that their properties were not estates (c) that the forest areas within their properties were not estate, (d) that the Act did not come under Article 31-A of the Constitution and was not entitled to its protection, (e) that the Act was discriminatory and offended against the provisions of Article 14. The then Chief Justice of Orissa, again very broadly speaking decided each of these issues against the appellants and was of opinion that the petitions should be dismissed. Narasimhan, J., agreed with the Chief Justice that the appellants were intermediaries and that immovable properties of the petitioners were estates, that the forest areas were included in their estates but he took different view on two important questions.In his view the Act was not covered by Article 31-A and was entitled to its protection and Section 3 of the Act contravened Article 14 of the Constitution and as it was the key section to the whole Act the entire Act was invalid in its application to the immoveable properties of the appellants although it was valid in its application to other estates which come within Article 31-A (2) (a). The learned Judge was accordingly of the opinion that the appellants were entitled to the reliefs prayed for by them. In view of this difference of opinion the applications were directed to be posted before a third Judge for hearing on fresh argument. Mahapatra, J., before whom the applications were reargued agreed substantially with the learned Chief Justice that the Act was protected by Article 31-A and that in any case it did not violate the equal protection clause of the Constitution. In the result the applications were dismissed. Hence the present appeals.Appeal No. 169 of 1953 filed by the appellant Shri Sibnarayan Singh Mahapatra of Nagra appears to us to stand on a different footing. In paragraph 13 of the counter-affidavit filed by the State in opposition to this appellants petition specific reference was made to the Rubakari in the Court of J. F. K. Hewitt, Commissioner of Chota Nagpur, dated the 10th March 1879. At the hearing of the petition that Rubakari was filed in court without any objection. It is document No. 6(g). Evidently the Commissioner sent for both the Raja of Gangpur and Balki Mahapatra of Nagra and after referring to the then outstanding disputes between the then Raja of Gangpur and Balki Mahapatra, the predecessor in title of the appellant Shri Sibnarayan Singh Mahapatra this Rubakari records that,"it was agreed upon that from future Balki Mahapatra would be paying to the Raja of Gangpur Rs. 700 as yearly rent from the year 1935 and thereafter instead of Rs. 425 which he used to pay. This amount of Rs. 700 is the fixed rent".The words rent and fixed rent are significant. It further appears that Rubakari decidedMahapatra and his heirs and successors should ever "hold possession over this Nagra State Zamindari on the aforesaid fixed annual rent and nothing more would be demanded form him except marriage Pancha and Dashra panch would according to local custom and usage he can pay ... That claim of the Raja about Rs. 200 as Raja Bijoy should be discontinued and the Raja should stop granting patta to the Gauntias ofRubakari then concludedEkarnama being signed by them by their own pen was filed before me and they agreed to abide by the terms mentioned in the Ekrarnama. So it has been ordered that copy of it may be sent to the Raja of Gangpur and Balki Mahapatra of Nagra for information andis thus quite clear from the above Rubakari that as far back as 1879 an Ekrarnama had been executed both by the then Raja of Gangpur and Balki Mahapatra of Nagra recording the terms on which the latter would hold" possession of the Nagra Zamindari, namely, that he must pay a fixed annual rent besides certain customary dues.11. Years later, to wit on the 29th March 1943 the Dewan of Gangpur State wrote a letter to the Zamindar of Nagra Estate calling upon him to show cause why the takoli" should not be enhanced. This letter is document No. 6 (r-2). The Zamindar of Nagra to whom this letter was addressed was no other than the appellant Shri Sibnarayan Singh Mahapatra. On the 19th July, 1943 a long reply was sent by the latter.In the heading of this reply after the name of the appellant is added the description "Zamindar of Nagra". In paragraph 3(XV) reference is made to the fact that "takoli" had been fixed in perpetuity and had been finally settled in the year 1879. The whole of Rubkari of J. F. K. Hewitt is set up in extenso in paragraph 14 of this reply. Paragraph 15 statesfrom the Rubakari proceeding of Mr. Hewitt it will appear that the then Raja Raghunath Sekhar Deo of Gangpur and Babu Balki Mahapatra, Zamindar, Nagra, duly signed a deed of compromise in which it has been, clearly and in unequivocal terms, embodied that Gangpur Raja and his successors will be bound by that term and Nagra should only pay Rs. 700 as Takoli every year and nothing more and this Takoli should remain fixed foris then made in paragraph 17 to the proceedings of the 29th June 1891 before W. H. Grimely, the then Commissioner, which is marked as document No. 6 (L). This also refers to the settlement made by J. F. K. Hewitt in 1879.

Court's reasoning:
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.