Bhondu Singh vs Visheshwar Prasad and others

Jagat Narayan, J.C.

This is an application under Arts. 226 and 227 of the Constitution for quashing an appellate order of the Additional Deputy Commissioner confirming an order of the Tahsildar allotting 9 plots of sir land to respondents 1-3 who were Jagirdars of it till the pawai was resumed on 1-7-53. I have heard the Learned Counsel for the parties and am satisfied that the application must be allowed.

Bhondu Singh applicant was admittedly the sub-tenant of respondents 1-3 of the sir plots in dispute and was continuously in possession of them for over three years on the date of resumption. The only provision for allotting sir or khudkasht land to a Jagirdar upon resumption of his jagir is contained in S. 22, Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 which runs as follows:

''Allotment of sir or khudkasht land.''-(1) A Jagirdar shall be allotted all sir and khudkasht land which he was cultivating personally for a continuous period of three years immediately preceding the date of resumption.

(2) A Jagirdar whose Jagir lands have been resumed under this Act:

(a) who is not allotted any sir or khudkasht land under sub-s. (1), or

(b) who had been allotted any such land which is less than the minimum area, may if he applies in this behalf, be allotted any other sir or khudkasht land in his personal cultivation at the date of resumption or where there is no such land or sufficient area of such land any unoccupied cultivable waste land in the Jagir-land subject to availability of such land, so that-

(i) in a case falling under cl. (a), the total area allotted to him under this subsection is equal to the minimum area, and

(ii) in a case falling under cl. (b), the area allotted to him under this sub-section together with the area allotted under sub-s. (1) is equal to the minimum area.

Explanation''. In this sub-section, the expression ''minimum'' means ten per cent of the total cultivated land in the Jagir-land at the date of re sumption, or 30 acres whichever is greater:

Provided that in no case the minimum area shall exceed 250 acres.

A plain reading of the above section makes it clear that only such sir or khudkasht land can be allotted to a Jagirdar as he was cultivating for a continuous period of three years immediately preceding the date of resumption. In case, however, the area so allotted to him is less than the minimum area as defined in the section he can be allotted Other sir or khudkasht land in his personal cultivation at the date of resumption or where there is no such land or sufficient area of such land any unoccupied cultivable waste land in the jagir can also be allotted, to make up the minimum area. It is clear from the wordings of the section that no sir or khudkasht land can be allotted to a Jagirdar which was not in his personal cultivation at the date of resumption.

The learned Additional Deputy Commissioner was of the opinion that under sub-cl. (1) all sir be longing to Jagirdar can be allotted to him whether or not it was in his personal cultivation on the date of resumption but only such khudkasht can be allotted to him under sub-s. (1) as he was cultivating personally for a continuous period of three years immediately preceding the date of resumption In other words he was of the opinion that the words "which he was cultivating personally for a continuous period of three years immediately preceding the date of resumption" qualified only the word "khudkasht", but did not qualify the word "sir".

It is not possible to put such an interpretation because if all the sir land of the Jagirdar is allotted to him under sub-s. (l) there would be no sir left to be allotted under sub-s. (2). I am accordingly of the opinion that the plain words of the section should be given full effect and only such sir and khudkasht land can be allotted under sub-cl. (1) which the Jagirdar was cultivating personalty for a continuous period of three years immediately preceding the date of resumption. Under sub-cl. (2) he can be further allotted such sir or khudkasht land as was in his personal cultivation at the date of resumption but over which he was not in possession for a continuous period of three years.

Several other provisions of the Act also bear out the above interpretation. Under S. 3(1) (c) one of the consequences of resumption of Jagir land is that all rents in respect of any holding in the jagir land for any period after the date of resumption which, but for such resumption, would have been payable to the Jagirdar become payable to the State Government. That shows that all tenants of sir land at the date of resumption cease to be tenants of the Jagirdar and become the tenants of the State Government.

Section 7(a) provides that the Jagirdar shall continue to remain in possession of the sir and khudkasht land to the extent and subject to the conditions and restrictions specified in Chap. IV. That Chapter contains Ss. 20 to 25. Section 20 prescribes the particulars which a Jagirdar must give in his application for allotment of land. The section is headed "Application by jagirdar for allotment of land for personal cultivation" which shows clearly that land can only be allotted for personal cultivation.

Section 21 deals with the inquiry to be made by the Tahsildar on the application. Section 23 deals with the allotment of sir or khudkasht land. S. 23 relates to terms and conditions of land allotted to Jagirdar under S. 22. Under S. 24 it is laid down that out of sir or khudkasht land granted by a Jagirdar to any person in lieu of maintenance such land as was in his personal cultivation at the date of resumption would become his pattedari tenancy. S. 25 provides for the demarcation of the sir or khudkasht in joint estates. It also lays down that only such sir or khudkasht would be demarcated as was in the personal cultivation of a Jagirdar. If a Jagirdar was only realising rent from sir land at the date of resumption the question of demarcation of it does not arise.

Under S. 7(c) also the Jagirdar is only entitled to retain possession of such groves (excluding mahua groves) or orchards as are in his possession at the date of resumption. It will thus be seen that in all the above provisions the Jagirdar is not allowed to retain possession over any land or grove which he was not actually in possession at the date of resumption.

Difficulty is created by S. 26 which runs as follows :

''Rights and liabilities of tenants and subtenants in sir land''. Notwithstanding anything in Chap. IV, every person who immediately before the date of resumption of any jagir land holds or occupies any land as a tenant of sir land allotted to Jagirdar shall continue to occupy or hold such land as a sub-tenant of the jagirdar and shall be liable to pay such rent as may, subject to any law, or custom having the force of law or any decree or order of any court, be agreed upon by the jagirdar and such person.

On a plain reading the section appears to postulate the allotment of some sir to the jagirdar which was not in his personal cultivation at the date of resumption. The words "immediately before the date of resumption" can only mean "at the date of resumption". If a tenant was in possession of sir land immediately before the date of resumption he must have been in possession of it up to the mid-night of 30-6-1953. At mid-night resumption took place and if the jagirdar took possession after resumption his possession would not be as jagirdar as he ceased to be a jagirdar of that land at mid-night.

As has been shown above no sir land which was not in the personal cultivation of the jagirdar at the date of resumption can be allotted to him under S. 22 which is the only provision for the allotment of sir. Further the provisions S. 26 also are directly in conflict with the provisions of S. 6(c) in which it is clearly laid down that with effect from the date of resumption tenants of sir land would be liable to pay rent to the State.

Section 26 is therefore meaningless and redundant when read along with other sections of the Act. It is contrary to the intention of the legislature as expressed in the other provisions of the Act. If some meaning has to be given to it, it can only be that the legislature enacted this provision by way of abundant caution so that even if by some interpretation not intended by it some other sir is also allotted to the jagirdar which was not in his personal cultivation at the date of resumption the tiller of the soil at that date may not be dispossessed.

For similar ''reasons the opening words of sub-s. (1) of S. 28 namely "subject to the provisions of sub-s. (2) and the whole of sub-s. (2) are redundant and meaningless. Every person who is entered in the revenue records for a continuous period of three years as an occupant of any jagir land at the date of resumption shall be deemed to be a pattedar tenant in respect of such land without any exception. For, sir or khudkasht land which was not in the personal cultivation of the jagirdar cannot be allotted to him under S. 22. Nor is he entitled to retain possession over groves or orchards under S. 7(c) as were not in his possession at the date of resumption.

In ''Rex v. Northumberland Compensation Appeal Tribunal, (1951) 1 K. B. 711 (A), applicant Thomas Shaw sought an order of certiorari for the quashing of a decision reached by the respondents, the Northumberland Compensation Appeal Tribunal, dismissing an appeal by the applicant against'' an award to him by the Gosforth Urban District Council of compensation for loss of his employment as clerk to the West Northumberland Joint Hospital Board payable under the National Health Service (Transfer of Officers and Compensation) Regulations, 1948.

The tribunal had dismissed the appeal by an award or determination which was set out in a document which stated the facts the contentions of the council and how they arrived at the sums awarded by them and that the tribunal agreed with those figures.

The applicant made the present application to the Divisional Court on the ground that the tribunal were in error in computing the compensation to which he was entitled on the basis of his service only as an officer of the board. He also sought an order of mandamus directing the tribunal to hear and determine his application according to law.

The case is reported only on the question whether, the tribunal being found to be in error, the court had jurisdiction to quash the award of the tribunal or to order the tribunal to make a new award on the proper basis. Lord Goddard C. J. held:

The result clearly seems to me to be that a court before whom the order in the present case is brought can examine it. The tribunal have told us what they have taken into account, what they have disregarded, and the contentions which they accepted. They have told us their view of the law, and we are of the opinion that the construction which they placed on this very complicated set of regulations was wrong.

The above decision has been approved by the Supreme Court in a number of cases the latest of which is reported in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, . The order passed by the learned Additional Deputy Commissioner is a speaking order and the error of law committed by him is manifest on the face of it. this Court has accordingly jurisdiction to remove the order upon a writ of certiorari under Art. 226 of the Constitution.

I accordingly allow the application and quash the appellate order of the Additional Deputy Commissioner. The result of this order would be that the appeal which he had disposed of would still be pending before him. He shall dispose of it in the light of this judgment. Parties shall bear their own costs.