Case ID: 964

Judgment:
l Appeals Nos. 273 and 274 of 1955. Appeals from the judgment and order dated December 10	 1954	 of the Patna High Court in Appeals from Original Decree Nos. 309 and 310 of 1954. L. K. Jha	 J. C. Sinha	 section Mustafi and R. R. Biswas	 for the appellants. Lal Narayan Sinha	 Bajrang Sahai and R. C. Prasad	 for the respondents 1960. September 19. The Judgment of the Court was delivered by section K. DAS J. These two appeals on a certificate granted by the High Court of Patna are from the judgment and decree of the said High Court dated December 10	 1954. By the said judgment and decree the High Court dismissed two appeals which arose out of two suits	 Title Suit No. 42 of 1950 and Title Suit No. 23 of 1952	 which were tried together and dismissed with costs by the learned Subordinate Judge of Deoghar. The plaintiffs of those two suits are the appellants before us. One of the appellants Thakur Manmohan Deo was the holder of a ghatwali tenure commonly known as the Rohini ghatwali	 situate within the subdivision of Deoghar in the district of the Santa Parjanas. The other appellant Tikaitni Faldani Kumari was the holder of the Pathrole ghatwali also situate in the same sub division. Both these ghatwali tenures were formerly known as Birbhum ghatwalis and were governed by Bengal Regulation XXIX of 1814. In the year 1950 was enacted the Bihar Land Reforms Act 697 1950 (Bihar Act 30 of 1950)	 hereinafter called the Act. The Act came into force on September 25	 1950. The validity of the Act was challenged in the Patna High Court on grounds of a violation of certain fundamental rights and the High Court held it to be unconstitutional on those grounds. The Constitution (First Amendment) Act	 1951	 was enacted on June 18	 1951	 and in appeals from the decision of the Patna High Court	 this Court held in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1) that the Act was not unconstitutional or void on the grounds alleged	 except with regard to the provisions in section 4(b) and section 23(f) thereof The validity of the Act is	 therefore	 no longer open to question on those grounds	 though in one of the suits out of which these two appeals have arisen	 it was contended that the Act was ultra vires the Constitution. The principal issue in the two suits which now survives is issue No. 3 which said: 	Do the provisions of the Bihar Land Reforms Act	 1950	 purport to acquire the plaintiffs ' ghatwalis ? If so	 are they ultra vires in their application to such ghatwalis ? This issue was decided against the appellants by the learned Subordinate Judge and the decision of the learned Subordinate Judge was upheld on appeal by the High Court of Patna in its judgment and decree dated December 10	 1954	 from which decision these two appeals have come to us. Three main points have been urged on behalf of the appellants. The first point is one of construction and the appellants contend that on a proper construction 	of the relevant provisions of the Act	 it does not apply to ghatwali tenures like the Rohini and Pathrole ghatwalis. Secondly	 it is contended that if the provisions of the Act apply to the appellants ' ghatwali tenures	 then the State legislature was not competent to enact it	 because ghatwali tenures like the Rohini and Pathrole ghatwalis	 were of a quasi military nature and if the Act applies to them	 it must be held to relate to items 1 and 2 of the Union List (List I) and	 therefore	 outside the competence of the State (1) 698 legislature. The third contention is that the Act does not purport to repeal Bengal Regulation XXIX of 1814 and in as much as the said Regulation deals 	With special tenures	 the special law enacted with regard to such tenures would not be affected by the general law with regard to land reforms as embodied in the Act. We shall deal with these three conten tions in the order in which we have stated them. But before we do so	 it is necessary to explain	 briefly	 the nature of these ghatwali tenures. We may quote here some of the provisions of Bengal Regulation XXIX of 1814. The Regulation says in section 1 that lands held by the class of persons denominated ghatwals in the district of Birbhum form a peculiar tenure to which the provisions of the existing Regulations are not expressly applicable; it then states that according to the former usages and constitution of the country	 this class of persons are entitled to hold their lands	 generation after generation	 in perpetuity	 subject nevertheless to the payment of a fixed and established rent to the zamindar of Birbhum and to the performance of certain duties for the maintenance of the public peace and support of the police. The Regulation then lays down certain rules to give stability to the arrangement established among the ghatwals and these rules are contained in sections 2	 3	 4 and 5. It would be enough if we quote sections 2	 3	 and a part of section 5. " section 2. A	 settlement having lately been made on the part of the Government with the ghatwals in the district of Birbhum	 it is hereby declared that they and their descendants in perpetuity shall be maintained in possession of the lands so long as they shall respectively pay the revenue at present assessed upon them	 and that they shall not be liable to any enhancement of rent so long as they shall punctually discharge the same and fulfill the other obligations of their tenure. section 3. The ghatwali lands shall be considered	 as at present	 to form a part of the zamindari ' of Birbhum	 but the rent of ghatwals shall be paid direct to the Assistant Collector stationed at Suri	 or to 699 such other public officer as the Board of Revenue may direct to receive the rents. section 5. Should any of the ghatwals at any time fail to discharge their stipulated rents	 it shall be competent for the State Government; to cause the ghatwali tenure of such defaulter to be sold by public sale in satisfaction of the arrears due from him	 in like manner	 and under the same rules	 as lands held immediately of Government	 or to make over the tenure of such defaulter to any person whom the State Government may approve on the condition of making good the arrears due; or to transfer it by grants assessed with the same revenue	 or with an increased or reduced assessment	 as to the Government may appear meet; or to dispose of it in such other form and manner as shall be judged by the State Government proper. " In a number of decisions of the Privy Council the nature of these tenures has been explained and in Satya Narayan Singh vs Satya Niranjan Chakravarti (1) Lord Sumner thus summarised the position at pages 198 199 of the report: "In the Santal Parganas there are for practical purposes three classes of ghatwali tenures	 (a) Government ghatwalis	 created by the ruling power; (b) Government ghatwalis	 which since their 'creation and generally at the time of the Permanent Settlement have been included in a zamindari estate and formed into a unit in its assessment; and	 (c) zamindari ghatwalis	 created by the zamindar or his predecessor and alienable with his consent. The second of these classes is really a branch of the first. The matter may	 however	 be looked at broadly. In itself 'ghatwal ' is a term meaning an office held by a particular person from time to time	 who is bound to the performance of its duties	 with a consideration to be enjoyed in return by the incumbent of the office. Within this meaning the utmost variety of conditions may exist. There may be a mere personal contract of employment for wages	 which takes the form of the use of land or an actual estate in land	 heritable and (1) I.L.R. 3 Pat. 700 perpetual	 but conditional upon services certain or services to be demanded. The office may be public or private	 important or the reverse. The ghatwal	 the guard of the pass	 may be the bulwark of a whole country side against invaders; he may be merely a sentry against petty marauders; he may be no more than a kind of gamekeeper	 protecting the crops from the ravages of wild animals. Ghatwali duties may be divided into police duties and quasi military duties	 though both classes have lost much of their importance	 and the latter in any strict form are but rarely rendered. Again the duties of the office may be such as demanded personal competence for that discharge; they may	 on the other hand	 be such as can be discharged vicariously	 by the creation of shikmi tenures and by the appointment and maintenance of a subordinate force	 or they may be such as in their nature only require to be provided for in bulk. It is plain that where a grant is forthcoming to a man and his heirs as ghatwal	 or is to be presumed to have been made though it may have been since been lost	 personal performance of the ghatwali services is not essential so long as the grantee is responsible for them and procures them to be rendered (Shib Lall Singh vs Moorad Khan (1)). So much for the ghatwal. The superior; who appoints him	 may also in the varying circumstances of the Organisation of Hindostan be the ruling power over the country at large	 the landholder responsible by custom for the maintenance of security and order within his estates	 or simply the private person	 to whom the maintenance of watchmen is in the case of an extensive property	 important enough to require the creation of a regular office. " It is not disputed before us that the Rohini and Pathrole ghatwalis are Government ghatwalis and admittedly they are governed by Regulation XXIX of 1814. The question now is	 does the Act apply to these ghatwalis ? It is necessary now to read some of the provisions of the Act. Section 2 is the definition section	 cl. (o) whereof defines a " proprietor cl. (q) (1) 701 defines a "tenure " and cl. (r) defines a " tenure holder ". The definition of the two expressions "tenure" and "tenure holder" was amended by Bihar Act 20 of 1954. The amendments were made with retrospective effect and the amending Act said that the amendments shall be deemed always to have been substituted. Now	 the three clauses (o)	 (q) and (r) of section 2 are in these terms " section 2(o) " Proprietor " means a person holding in trust or owning for his own benefit an estate or part of an estate	 and includes the heirs and successors interest of a proprietor and	 where a proprietor is a minor or of unsound mind or an idiot	 his guardian	 committee or other legal curator; (q) "tenure" means the interest of a tenure. holder or an under tenure holder and includes (i) a ghatwali tenure	 (ii) a tenure created for the maintenance of any person and commonly known as kharposh	 babuana	 etc.	 and (iii) a share in or of a tenure	 but does not include a Mundari Khunt Kattidari tenancy within the meaning of the Chota Nagpur Tenancy Act	 1908	 or a bhuinhairi tenure prepared and confirmed under the Chota Nagpur Tenures Act	 1869; (r) " tenure holder " means a person who has acquired from a proprietor or from any other tenure holder a right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it and includes (i) the successors in interest of persons who have acquired such right	 (ii) a person who holds such right in trust	 (iii) a holder of a tenure created for the maintenance of any person	 (iv) a gbatwal and the successors in interest of a ghatwal	 and (v) where a tenure holder is a minor or of unsound mind or an idiot	 his guardian	 committee or other legal curator. " The definition clauses (q) and (r) state in express terms 702 that 'tenure ' includes a ghatwali tenure and	 ' tenure holder ' includes a ghatwal ' and the successors in interest of a ghatwal. The argument on behalf of the appellants is that the definition clauses should be so construed as to include zamindari ghatwalis only and not Government ghatwalis. Firstly	 it is pointed out that cl. (r) in its substantive part says that a 'tenure holder ' means a person who has acquired from a proprietor or from any other tenure holder a right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it; this part	 it is submitted	 cannot apply to a Government ghatwal	 because a Government ghatwal does not acquire from a proprietor or from any other tenure holder a right to hold land for any of the two purposes mentioned therein. In this connection our attention has been drawn to el. (o) which defines a 'proprietor ' and it is further pointed out that	 as stated by Lord Sumner	 Government ghatwals were either created by the ruling power or were since their creation and generally at the time of the Permanent Settlement included in a zamindari estate and formed into a unit in its assessment; therefore	 it is argued that Government ghatwalis did not acquire any right from a proprietor or any other tenure holder. Secondly	 it. is Submitted that sub cl. (i) of el. (q) and sub cl. (iv) of cl. (r) must be read in the light of the sub. stantive part of the two clauses	 even though the subclauses state in express terms that a 'tenure ' includes a ghatwali tenure and a 'tenure holder ' includes a ghatwal. It is pointed out that a zamindari ghatwal acquires his interest from a proprietor and the substantive part of clauses (q) and (r) may apply to a zamindari ghatwal and his tenure but the substantive part.of the two clauses cannot apply to a Government ghatwal and his tenure. We are unable to accept this line of argument as correct. Where a statute says in express terms that the expression 'tenure ' includes a ghatwali tenure and the expression ' tenure holder ' includes a ghatwal and the successors in interest of a ghatwal	 there must be compelling reasons to out down the amplitude of the 703 two expressions. The Bihar legislature must have been aware of the distinction between Government ghatwalis and zamindari ghatwalis and if the intention was to exclude Government gbatwalis	 nothing could have been easier than to say in the two definition clauses that they did not include Government ghatwalis. On the contrary	 the legislature made no distinction between Government ghatwalis and zamindari ghatwalis but included all ghatwali tenures within the definition clauses. There are no restrictive words in the definition clauses and we see no reasons why any restriction should be read into them. It is worthy of note that the two definition clauses first state in the substantive part what the general meaning of the two expressions is	 and then say that the expressions shall inter alia include a ghatwali tenure and a ghatwal and the successors in interest of a ghatwal. Thus	 the two definition clauses are artificially extended so as to include all ghatwali tenures and all ghatwals and their successors in interest	 irrespective of any consideration as to whether they come within the general meaning stated in the substantive part of the two clauses. Such artificial extension of the two definition clauses is also apparent from sub cl. (v) of el. (r) and sub cl. (iii) of cl. Sub clause (iii) of el. (q) excludes certain tenures from the definition clause which would otherwise come within the general meaning of the expression 'tenure ' and sub cl. (v) of cl. (r) extends the expression ' tenure holder ' to guardians committees and curators. When we are dealing with an artificial definition of this kind which states " means and shall include etc. "	 there is no room for an argument that even though the definition expressly states that something is included within a particular expression	 it must be excluded by reason of its not coming within the general meaning of that expression. The learned Counsel for the appellants has also called to his aid certain other provisions of the Act in support of the argument that the Act does not apply to Government ghatwalis. He has referred to section 23(1) 704 (f) and section 32(4) of the Act. Section 23 deals with the computation of net income for the purpose of preparing a Compensation Assessment roll	 by deducting from the gross asset of each proprietor or tenureholder	 certain sums mentioned in clauses (a) to (f). It must be stated that what was el. (g) of section 23(1) before has now become el. (f)	 because the original el. (f) of section 23(1) was held to be unconstitutional by this Court in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1). Section 23(1) so far as it is relevant for our purpose states: " section 23(1) For the purpose of preparing a Compensation Assessment roll	 the net income of a proprietor or a tenure holder shall be computed by deducting from the gross asset of such proprietor or tenure holder	 as the case may be	 the following	 namely: (a) (b) (c) (d) (e) (f) any other tax or legal imposition payable in respect of such estate or tenure not expressly mentioned in clauses (a) to (e) or the value	 to be commuted in the prescribed manner	 of any services or obligations of any other form to be rendered or discharged as a condition precedent to his enjoyment of such estate or tenure ". Now	 the argument before us is that el. (f) of section 23(1) cannot apply to a Government ghatwal	 because he can still be asked to perform the services and obligations which he had undertaken by reason of the office which he held. It is submitted that the Act does not purport to abolish the ghatwali office and as the office and the tenure are inseparably connected	 the calculation referred to in el. (f) cannot be made in the case of a Government ghatwali. Our attention has also been drawn to a later decision of the Patna High Court (Election Appeals nos. 7 and 8 of 1958) of March 20	 1959	 wherein a distinction was drawn (1) 705 between acquisition and resumption of a ghatwali tenure and the argument that on the acquisition of the ghatwali tenure the office lapsed was not accepted. We have been informed at the Bar that that decision is under appeal to this Court. Therefore	 we do not propose to say anything about the correctness or otherwise of the view expressed therein. It is enough to point out that assuming that the argument of the appellants is correct and el. (f) of section 23(1) does not apply	 it does not necessarily follow that the appellants ' ghatwali tenures cannot be acquired by the State Government under section 3 of the Act. Section 23(1)(f) provides only for the deduction of a particular item from the gross asset of the tenure holder for the purpose of computing the net income. Even if el. (f) does not apply	 the statute provides for other deductions mentioned in clauses (a) to (e). Those clauses indisputedly apply to a ghatwali tenure and a Compensation Assessment roll can be prepared on their basis. It would not be correct to say that because a particular item of deduction does not apply in the case of a Government ghatwali	 such ghatwali tenure must be excluded from the ambit of the Act; such a view will be inconsistent with the scheme of section 23. The scheme of section 23 is that certain deductions have to be made to compute the net income; some of the items may apply in one case and some may not apply. The section does not contemplate that all the items must apply in the case of each and every proprietor or tenure holder. We now come to section 32 of the Act. Section 32(4) states : "section 32(4) if the estate or tenure in respect of which the compensation is payable is held by a limited owner or the holder of life interest	 the Compensation Officer shall keep the amount of compensation in deposit with the Collector of the district and the Collector shall direct the payment of the interest accruing on the amount of compensation to the limited owner or the holder of the life interest during his lifetime. Such amount shall remain deposited with the Collector until the amount of compensation or 706 portion thereof after making payments	 if any	 under the proviso to this sub section is made over to any person or persons becoming absolutely entitled thereto: Provided that nothing in this sub section shall be deemed to affect the right of any limited owner or the holder of a life interest to apply to the District Judge for the payment of a part of the amount of compensation to defray any expenses which may be necessary to meet any legal necessity. " It is argued that sub section (4) of section 32 is also not applicable to a Government ghatwali	 because the expression 'limited owner ' occurring therein has been used in the sense in which it is understood in Hindu Law and the holder of a Government ghatwali is not a limited owner in that sense. Learned Counsel for the appellants has drawn our attention to the expression " legal necessity ' occurring in the proviso to sub section (4) in support of his argument that the expression 'limited owner ' has the technical sense ascribed to it in Hindu Law. On behalf of the respondent State it has been argued that the expressions 'limited owner ' and 'legal necessity ' are not used in any technical sense and may apply to persons who under the conditions on which they hold the tenure cannot alienate or divide it. Here again we consider it unnecessary to pronounce on the true scope and effect of sub section (4) of section 32. The short question before us is ' are Government ghatwalis excluded from the ambit of the Act by reason of sub.s. (4) of section 32 ? Let us assume without deciding	 that sub section (4) does not apply to ghatwali tenure. What is the result ? Section 32 merely provides for the manner of payment of compensation. If sub section (4) does not apply	 the payment of compensation will have to be made in accordance with sub section (1) of section 32 which says: " section 32(1). When the time within which appeals under section 27 may be made in respect of any entry in or omission from a Compensation Assessment roll has expired or where any such appeal has been made under that section and the same has been disposed of	 the Compensation Officer shall proceed to make payment	 in the manner provide& in this section	 to the 707 proprietors	 tenure ' holders and other persons who are shown in such Compensation Assessment roll as finally published under section 28 to be entitled to compensation	 of the compensation payable to them in terms of the said roll after deducting from the amount of any compensation so payable any amount which has been ordered by the Collector under clause (c) of section 4 or under any other section to be so deducted. " Therefore	 the result is not that Government ghatwalis; will go out of the Act	 because sub section (4) does not apply. The result only is that the holders of such tenures will be paid compensation in a different manner. What rights others having a proprietary interest in a ghatwali tenure have against the compensation money does not fall for decision here. Therefore	 we are of the view that neither section 23(1)(f) nor section 32(4) have the necessary and inevitable result contended for by the appellants	 viz.	 that the appellants '	 ghatwali tenures must be excluded from the operation of the Act even though the definition clauses expressly include them. This brings us to the second point urged before us. That point can be disposed of very shortly. It is contended that if the provisions of the Act apply to Government ghatwalis	 then the Act falls outside the legislative competence of the State Legislature in as much as the Act then becomes legislation with regard to items 1 and 2 of the Union List. These two items are "1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation. Naval	 military and air forces; any other armed forces of the Union. " It is	 we think	 quite obvious that the Act has no con nection whatsoever with the defence of India or the armed forces of the Union. As Lord Sumner had pointed out as far back as 1923	 though ghatwali duties might be divided into police duties and quasi military duties	 both classes find lost their importance and the latter were rarely if ever demanded. This 708 Court had observed in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others (1): "The pith and substance of the legislation	 how. ever	 in my opinion	 is the transference of ownership of estates to the State Government and falls within the ambit of legislative head entry 36 of List II. There is no scheme of land reform within the frame work of the statute except that a pious hope is expressed that the commission may produce one. The Bihar Legislature was certainly competent to make the law on the subject of transference of estates and the Act as regards such transfers is constitutional." (per Mahajan	 J.	 at p. 926 of the report). We think that in pith and substance the legislation was covered by item 36 of List II (as it then stood) and it has no relation to items 1 and 2 of List I. Now	 as to the last argument founded on Regulation XXIX of 1814. In our view the Act in pith and substance related to acquisition of property and consequently no question of the repeal of Regulation XXIX of 1814 arose; nor is it necessary to consider the principle that a special law relating to special tenures is not affected by a subsequent general law of land reforms. Such a principle has no application in the present case. The Act expressly includes all ghatwali tenures within its ambit and provides for the vesting of all rights therein absolutely in the State of Bihar on the issue of a notification under section 3 and under section 4 certain consequences ensue on the issue of such a notification notwithstanding anything contained is any other law for the time being in force. It is worthy of note that the Bengal Permanent Settlement Regulation	 1793 (Bengal Regulation 1 of 1793)	 did not stand in the way of acquisition of other permanently settled estates	 and it is difficult to see how Regulation XXIX of 1814 can stand in the way of acquisition of ghatwali tenures. The point is really covered by the decision of this Court in Raja Suriya Pat Singh vs The State of U. P.(2) where it was observed : (1) (2) ; 	 1078 79. 709 " The Crown cannot deprive a legislature of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists and no court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If	 therefore	 it be found that the subject of a Crown grant is within the competence of a provincial legislature	 nothing can prevent that legislature from legislating about it	 unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally. " For the reasons given above	 we hold that none of the three points urged on behalf of the appellants has any substance. The appeals fail and are dismissed with costs; there will be only one hearing fee. Appeals dismissed.

Summary:
The appellants were holders of ghatwali tenure called Rohini and Pathrole ghatwalis and were governed by Bengal Regulation XXIX of 1814. The Bihar Land Reforms Act	 1950	 was enacted by the Bihar State Legislature and came into force on September 25	 1950. In suits instituted by the appellants the question was raised as to whether under the provisions of the Act the State could acquire their ghatwalis. They claimed (1) that the Act was not applicable to the Government ghatwali tenures like Rohini and Pathrole ghatwalis which could not be acquired by the State under section 3 of the Act	 in view of the definition clause in section 2 and SS. 23 (1) (f) and 32(4)	 (2) that the Act did not purport to repeal Bengal Regulation XXIX of 1814 and inasmuch as the said Regulation dealt with special tenures	 the special law enacted with regard to such tenures would not be affected by the general law with regard to land reforms as embodied in the Act	 and (3) that	 in any case	 ghatwali tenures	 being of a quasi military nature	 must be held to fall under Entries 1 and 2 of List I of the Seventh Schedule to the Constitution of India and	 therefore	 the Act was outside the competence of the State Legislature. Held: (i) that all ghatwali tenures including government ghatwalis came within the definition clause in section 2 of the Bihar Land Reforms Act	 1950	 and that SS. 23(1) (f) and 32(4)	 though they might be inapplicable to the ghatwali tenures in question	 did not have the effect of excluding such tenures from the operation of the other provisions of the Act; (2) that the Act in pith and substance related to acquisition of property and was covered by Entry 36	 List II	 Seventh Schedule to the Constitution and had no relation to Entries 1 and 2 of List I. Consequently	 the State Legislature was competent to enact the Act 89 696 The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others	 	 followed. (3) that the principle that a special law relating to special tenure is not affected by a subsequent general law of land reforms had no application to the Act which in pith and substance related to acquisition of property and no question of the repeal of Regulation XXIX of 1814 arose. Raja Suriya Pal Singh vs The State of U. P. and Another	 	 applied.