Laxmi Kumari vs Radhekishan

T.C. Shrivastava, J.—This Letters Patent appeal is against the order of a single Judge of this Court passed on 6-8-1959 in a miscellaneous petition under Articles 226 and 227 of the Constitution filed by the appellants.

The relevant facts are no longer in dispute. The appellants'' predecessor Durgaprasad was the zamindar of several villages in Jashpur State which merged with Madhya Pradesh in 1948. One of those villages was Jakba where the lands in dispute lie. Respondent No. 1 was given theka of the village in 1928 for several years in the first instance, but after the expiry of that period in 1935, his theka was extended for the period of Settlement. As a thekadar, he was personally cultivating all the disputed lands from 1928 till 1950 when by virtue of the provisions in the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Act No. I of 1951) (hereinafter referred to as the ''Abolition Act'') the rights of the zamindar as also of the thekadar vested in the State. Proceedings for assessing compensation were started and the bulk of the compensation was given to the zamindar except a sum equal to the net income for one year was given to the thekadar.

After this, the Deputy Commissioner suo motu started proceedings for considering the rights of the parties in the Manwar lands. Although the zamindar was never in cultivating possession of the lands, he filed an application u/s 54 (1) of the Abolition Act claiming the whole area. The thekadar filed a similar application. The Deputy Commissioner rejected the claim of the zamindar and gave the whole area to the thekadar. Against this order, Durgaprasad filed an appeal before the Board of Revenue. He died and the present appellants were brought on record in his place. The Board confirmed the order of the Duputy Commissioner. The appellants then filed the petition for a writ which led to the order under appeal.

Before we consider the merits of the controversy, we must decide two preliminary objections raised by Shri A. P. Sen, learned counsel for the respondent. These are firstly that no appeal lies under clause 10 of the Letters Patent against an order of a Single Judge refusing to grant a writ and, secondly the petition as also this appeal must fail, as the Deputy Commissioner has not been impleaded.

On the first point, Shri Sen states that the order refusing a writ is not a final order within the meaning of clause 10 of the Letters Patent. He relies upon the decisions in The Justices of the Peace for the Town of Calcutta vs. Oriental Gas Company. Ltd. 17 Weekly Reporter 364, and Shriram vs. The State ILR 1955 Nag.704. We do not find that these decisions support the wide proposition stated by the learned counsel for the respondent. In the first case, the order under appeal directed a party to join another in initiating proceedings before the Land Acquisition Authorities. It was held that such an order was not "a judgment or final order" within the meaning of clause 15 of the Letters Patent, as writ of mandamus was issued under the order "merely to do certain things or show cause to the contrary" and "does not determine any question whatever between the parties". The second case across in the context of an application for grant of leave under Article 133 (1) of the constitution. There, a petition to challenge of the Central Government adverse to the petitioner in a mining case on the ground that no hearing was given to him was rejected, as it was held that no such hearing was necessary. Such an order, it was held, did not amount to a final order, as it did not determine any controversy between the parties on merits. The instant case stands on a different footing. Here, the controversy related to the rights of the parties in the land depending on the interpretation of the provisions of law. The matter has been decided in favour of one of the parties not on a procedural question but on the merits of their claims. Such a determination is a final order regarding the matters in controversy and does determine the rights of the parties. Accordingly, we hold that an appeal under clause 10 of the Letters Patent is tenable.

The second preliminary objection appears to have considerable force. The petition which was filed before the learned Single Judge and the memorandum of appeal before us show that the Board of Revenue alone was made a party to the proceedings. The Deputy Commissioner, who passed the original order, was not impleaded. Nor was a copy of his order filed. Shri R.S. Dabir, learned counsel for the appellants, tries to meet the objection by saying that the appellants had asked for quashing both the orders and as the whole record is before the Court, the relief could be granted in spite of the omission.

The question was considered by a Division Bench of this Court in Munshi Naziruddin vs. P. S. Lawale 1955 NLJ 732. That was a similar case in which only the Board of Revenue as appellate Court was impleaded. This is what the Court said:

It may also be added that the judgment of the revenue Court at the earlier stage, that is to say, of the Deputy Commissioner, has not been put in, nor has he been impleaded in these proceedings; but that is only a technical matter. We refer to that matter only to bring to the notice of the litigants that if they wish a certain order to be quashed, it is necessary to implead not only the appellate authority but the primary authority also, even though it may be a judgment of affirmance.

It is implicit in these observations that merely because the whole record is before the Court, the omission cannot be cured. We hold that the petition was liable to be dismissed on this ground.

The decision of the controversy between the parties depends upon the interpretation of Section 54 of the Abolition Act and the Rules framed thereunder. These have been quoted in the order of the learned Single Judge. We shall also reproduce them for convenience of reference. Section 54 is as follows:-

(1) Where any land not included in the home farm was under the personal cultivation of a proprietor, the Deputy Commissioner may, in accordance with the rules made by the State Government in this behalf, reserve to such proprietor the rights of a raiyat in the whole or part of such land and shall determine the revenue thereon.

(2) Where the proprietary rights held by an under-tenure vest in the State u/s 3, the Deputy Commissioner may reserve to such under-tenure the rights of a raiyat in the whole or part of the home farm land and shall determine the revenue thereon.

Rule 4 runs thus:

If the Deputy Commissioner finds that the objections are untenable, he shall proceed to determine the area of the land in which the rights of a raiyat should be reserved to the applicant. The area shall be determined by the Deputy Commissioner on the following considerations:-

(i) In the case of land held by Rulers the total area under their personal cultivation shall be reserved to them.

(ii) in the case of land held by (a) tenure holders other than gaontias, thekadars or headmen, (b) hereditary gaontias, thekadars or headmen, and (c) ordinary gaontias who would be eligible for protected status in Central Provinces under Chapter IX of the Central Provinces Land Revenue Act, 1917, on the ground that the applicant or the persons from whom the right of gaontia has devolved upon him by inheritance or survivorship has or have been in lawful possession of such right for a period of not less than twenty years the total area of land under their personal cultivation shall be settled with them or with their co-sharers under whose personal cultivation the land may be.

(iii) In the case of land held by ordinary gaontias, thekedars or headmen -as much of his choice as together with the other land held by them, would not exceed 25 acres;

"Provided that land in excess of this limit may he reserved for special reasons to be recorded in writing such as continuous possession over ten years, substantial improvement in the land or that the piece of land left over is too small to form a separate holding or any other similar reasons."

These Rules have been made under the first sub-section of Section 54: (see page 63 of the Compilation of the Act and Rules). However, Rules 4 deals with the rights of undertenures dealt with in the second sub-section. This is because the first sub-section deals comprehensively with "proprietors" which term includes "under-tenures" and then the second sub-section deals with the rights of under-tenures specifically. The first deals with this genus generally and the second with one particular species of it. The rule making power was correctly granted in the first sub-section and can be exercised to define the rights of under-tenures also.

As regards the rights of the zamindar, the Board of Revenue held that he was not in personal cultivation of the lands within the meaning of Section 2 (g) (2) of the Abolition Act and was not therefore entitled to the lands u/s 53 or Section 34 (1). Shri R. S. Dabir conceded before us that Durgaprasad could neither claim the lands as his home-farm lands u/s 53 nor could he claim them as lands other than home-farm u/s 54 (1) as he was never in personal cultivation. In fact, he made it clear that Durgaprasad''s application u/s 54 (1) was untenable. He, however, stated that the State Government had accepted rent from him for the second kist of 1950 and this act impliedly created a tenancy in his favour. Accordingly, he further argued that the appellants had a right to challenge the grant in favour of the respondent as contrary to the provisions of law. It is not necessary for us, therefore, to discuss the rights of the appellants. Nor need we say anything about his implied tenancy, as that is a matter between him and the Governmeut. Suffice it to observe that he had no rights under the Abolition Act.

In deciding the application of the respondent thekadar, the Board of Revenue held that the case fell under Rule 4, clause (ii) (c). They, therefore, upheld the order of the Deputy Commissioner granting the whole area to the respondnnt thekadar. The learned Single Judge while holding that that clause did not apply found that the grant could be made under the proviso to clause (iii) and therefore refused to interfere.

The question of the applicability of clause (ii) (c) of Rule 4 argued before us again. The first ground against its applicability is that the clause "who would be eligible for protected status in Central Provinces under Chapter IX of the Central Provinces Land Revenue Act, 1917 etc." could not apply to the respondent, as the Act was not extended to the merged States. On reading the clause carefully, we do not agree that the extension oft the Land Revenne Act was necessary for attracting its applicability. That clause is an example of legislation by reference on the basis of a fiction. The provisions of the Land Revenue Act are as it were incorporated bodily in the rule by the reference. They derive their validity not from the Land Revenue Act but from the rules themselves in which they are referred. A criterion is laid down for eligibility by referring to the provisions of the Land Revenue Act instead of repeating them in extenso. In applying such a rule, "gaontia" is fictitiously placed on par with a thekadar in C.P. and the consequences following from the Land Revenue Act are enjoined to be applied to his case. We agree with the decision of the Board of Revenue that the respondent satisfied this criterion of eligibility.

The second ground urged against the application of clause (ii) (c) is that it is applicable to ordinary ''gaontias" only. There is no mention of "thekadars" in that clause. Accordingly, it can be contended that it has no application to the present case. This ground was not raised before the Board of Revenue. We find that the term "gaontia" has not at all been used in the Wajib-ul-arz of Jashpur State, but the functions that are performed elsewhere by gaontias are entrusted to thekadars. The term "gaontia " is not defined in the C. P. Land Revenue Act, 1917. The only reference to it is in Section 2 (13) there of where a gaontia in Sambalpur territory is included in the definition of a proprietor. It appears that the term was of common use in the Sambalpur territory and has found currency in the neighbouring States as also in the zamindaris of Bilaspur and Raipur Districts. We may in this connection refer to Appendix XV giving the "Form of Wajib-ul-Arz for zamindari Estates in the Raipur and Bilaspur Districts" printed on page 163 of the Settlement Report of Bilaspur District, 1886-90. A look at the wajib-ul-arz of the neighbouring States shows that they had copied this Form with slight variations for their own States. Clause 1 in this Form is:

Except where the contrary is used, the term ''goantias'' used in this wajib-ul-arz includes all inferior proprietors, village muafidars and thekadars whether protected or unprotected.

It is thus clear that no distinction was made between gaontia and thekadar for conferral of rights and imposing liabilities on them. Thereafter, the word ''thekadar-gaontia", is used in the Form at several places. Turning to the wajib-ul-arz of different States, we find that the same position exists. Thus, in Raigarh State, the term ''gaontia'' alone is used. The duty to collect rent etc. is given to gaontias. They are classified as ''protected'' and ''unprotected'' and it is stated that a gaontia has a "right to a fresh theka after the expiry of the Settlement" (clause 4). In Khairagarh wajib-ul-arz, clause 3 lays down; "A gaontia is the same as a thekadar..." and reference is made to the theka expiring at the Settlement etc, In Sakti State, gaontias are classified as ''protected'' and ''unprotected'' with similar rights and liabilities as thekadars. A Note below clause 1 says: "The term Gaontia means a lessee or a thekadars also." In Sarangarh, cl. 1 says: "The gaontia of a village means a thekadar." We have referred to the wajib-ul-arz of some of the States in the neigbourhood of Jashpur to illustrate the position. Similar provisions existed in the wajib ul-arz of other marged States also. From this, it appears to us that the term ''gaontia'' as used in these States is synonymous, with ''thekadars''. Their rights and liabilies being the same, a thekadar in Jashpur stands on the same position as a gaontia elsewhere.

The reason for clause (ii) (c) in Rule 4 is easily understood if we compare it with the provisions in the C. P. Land Revenue Act. Sections 107 and 111 respectively state the circumstances under which protected status is given to a thekadar and the lands are allowed to be retained by him on forfeiture of the theka. The language in sub-clause (c) follows closely Section 107. The language in Section 54 (2), which deals with the rights of under tenures, follows closely the first proviso in Section 111. Obviously, the intention was to give similar rights to under tenures in the merged States and the under tenures in Madhya after the abolition Act. There was thus no reason deprive a thakadar who satisfied similar conditions as a goantia. just because the State from where he came did not use the word "gaontia".

Accordingly, we hold that the rights of the respondent could be determined under clause (ii) (c) and there was no error in the order of the Board of Revenue.

The learned single Judge found that clause (iii) in Rule 4 applied and Shri Dabir agrees that this is the correct position. However, he contends that the case could not be brought within the proviso without a determination by the Deputy Commissioner who is the exclusive authority for the purpose. The contention is without any substance in view of the fact that the Deputy Commissioner had considered the applicability of the proviso. That order was not filed by the appellants before the learned single Judge, but it has now been produced before us by the respondent. The Deputy Commissioner in his order, dated 24-3-1952, said:

I hold therefore that he (the applicant) is eligible to have the whole of the manwar (that is 126.01 acres) in rayati right under Rule 4 (ii) of the rules made u/s 54(1) of M.P. A.P.R. Act, Should this rule 4 (ii) not apply in this case, the case would certainly be fully covered by the proviso to Rule 4 (iii) of the same rules.

The last sentence, in our opinion, is a sufficient determination of the applicability of the proviso in the alternative. There is thus no scope for the argument that the matter has not been decided by the Deputy Commissioner.

Shri Dabir contends that the Deputy Commissioner should have recorded an explicit finding on the existence of the conditions in the proviso and he could make a grant only if he found that all of them existed. As we read the proviso, it is not necessary that all the conditions must be satisfied at the same time. They are alternatives and the existence of any one of them entitled the respondent to the benefit of the proviso. Thus, it is enough if it is found that he was in continuous possession over ten years. This fact was never disputed and is enough to support the exercise of the power under clause (iii) by the Deputy Commissioner. The omission to record a formal finding or any special reasons by the Deputy Commissioner would not vitiate the reservation of the rights in favour of the respondent.

In the result, the appeal is a dismissed with costs. Hearing fee is fixed at Rs. 100/- only.