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PETITIONER:

BISWAMBHAR SINGH

Vs.

RESPONDENT:

THE STATE OF ORISSA AND ANOTHERJANARDHAN SINGHV.THE STATE OF

DATE OF JUDGMENT:

18/12/1953

BENCH:

DAS, SUDHI RANJAN

BENCH:

DAS, SUDHI RANJAN

SASTRI, M. PATANJALI (CJ)

MAHAJAN, MEHR CHAND

BOSE, VIVIAN

HASAN, GHULAM

CITATION:

1954 AIR 139 1954 SCR 842

CITATOR INFO :

F 1955 SC 504 (54,87)

R 1955 SC 795 (5)

E&D 1956 SC 346 (3)

R 1956 SC 503 (23)

R 1958 SC 956 (19)

ACT:

Orissa Estates Abolition Act, (Orissa Act 1 of 1952), ss.

2(g), 2(h) and 3-Owners of certain zamindaries - Whether

intermediaries holding an estate within the meaning of ss.

2(g)and 2(h).

HEADNOTE:

The State Government is empowered under s. 3(1) to issue a

notification declaring that the estate specified therein has

passed to the State, but the notification must be in respect

of the' property which is defined as an estate in a. 2(g)

and that estate must be held by an intermediary as defined

in s. 2(h).

In order to be an intermediary according to the definition

in s. 2(h) the person must be, among other things, "a

Zamindar, Ilaquedar, Kherposhdar or Tagirdar within the

meaning of Wajibul-arz or any Sanad, deed or other

instrument."

843

Held, that the proprietors of Hamgir and Serapgarh

properties were not intermediaries as defined in s. 2(h) and

their respective properties were not "estates" within the

meaning of s. 2(g) and therefore Government had no

jurisdiction or authority to issue any notification under s.

3 with respect to their properties.

Held (Per PATANJALI SASTRI C.J.,DAS and GHULAM HASAN JJ.,

MAHAJAN and BOSE JJ., dissenting), as respects the Nagra

Zamindari that the Zamindar (appellant) was an intermediary

as defined in a. 2(h) of the Act and his estate was an

estate within the meaning of s. 2(g) because the

predecessor-in-title of the present Zamindai had

acknowledged the overlordship of Raja of Gangpur and there-

fore the State Government had jurisdiction to issue a

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notification under s. 3 of the Act declaring that the estate

had passed to and become vested in the State.

Per MAHAJAN and BosE JJ.-The words "deed" and "other

instruments" in a. 2(h) are not to be read ejusdem generis

with "Sanad" and thus are not confined to a document of

title like a Sanad in which one party creates or confers a

zamindari estate on another. The words must be read

disjunctively and be inter. preted according to their

ordinary meaning.

With reference to merged territories an intermediary neither

"includes" a zamindar nor "means" a zamindar, but means a

zamindar "within the meaning of" (1) the Wajib-ul-arz (2)

any Sanad (3) any deed or (4) of any others instrument.

The kind of zamindar referred to in s. 2(h) is one who may

be called "a true intermediary" within the meaning of the

four documents set out there, that is to may, persons who

hold an interest in the land between the raiy at and the

overlord of the estate.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 167 and 169

of 1953.

Appeals under articles 132(1) and 133(1) (c) of the

Constitution of India from the Judgment and Order, dated the

7th April, 1953, of the High Court of Judicature of Orissa

at Cuttack in Original Jurisdiction Cases Nos. 65, 67 and 68

of 1952.

N. C. Chatterjee (B. Sen, K. C. Mukherjea and H.S. Mohanty,

with him) for the appellant.

M.C. Setalvad, Attorney-General for India and Pitambar

Misra, Advocate-General of Orissa.(V. N. Sethi, with them)

for the respondents.

1953. December 18. The Judgment of Patanjali Sastri C. J.,

Das and Ghulam Hasan JJ. was delivered by Das J. The

Judgment of Mahajan J. and Bose J. was delivered by Bose J.

DAS J.-These three appeals which have been,-heard together

raise the same or similar questions. Appeal

844

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

Sarapgarh comprising an area of about 45 square miles.

Appeal No. 169 of 1953 relates to Nagra the proprietor

whereof is the appellant, Shri Sibanarayan Singh Mahapattra.

It comprises an area of 545 square miles including 109

square miles of forests.

All these proprietors are the descendants 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 Gangpur. It appears from Connolly's

Report, Mukherjee's Report and Ramdhyani's Report that

neither the Raja of Gangngpur 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 Gangpur remains undetermined. 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

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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 Nagpurr. These

considerable properties are and have been heritable and the

rule of primogeniture prevails.

By a certain process beginning with Agreement of integration

made in December, 1947, and ending with the States' Merger

(Governor's Province) Order made on the 27th July, 1949, by

the then Governor-General

845

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.

On the 17th January, 1950, a bill which eventually became

the Orissa Estates Abolition Act was introduced in the

Orissa Legislature. The Constitution of India came into

operation on the 26th January, 1950. The 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 received the assent of the President and became law

as Orissa Act I of 1952. An 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

The long title of the Act is as follows:

" An Act 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 on 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

846

interest in land of intermediaries by whatever name known,

including the mortgagees and lessees of such interest,

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;"

The material parts of the 'definitions 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

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payable or has been released or compounded for or redeemed

in whole or in part."

(h) " Intermediary.................with referencre 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 appli-

cable to such village the maufidar, gaontia or the thikadar,

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 thus:

" 3. (1) The 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 from all encumbrances.

As was to be expected the constitutionality of the Act was

challenged in a number of petitions- 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 Civil Appeal No. 71'of 1953

(Maharaja Sri Krishna Chandra Gajapati Narayan Deo v. The

State of Orisas(1).During the pendency of the writ petitions

before the

(1) [1954) S.C.R. 1.

847

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.

The several grounds taken in support of the petititions

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

estates' (d) that the Act did not come under article 31A 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. Narasimham 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

a different view on two important questions. In his view

the Act was not covered by article 31A and was not 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 immovable 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

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848

applications were re-argued agreed substantially with the

learned Chief Justice that the Act was protected by article

31A 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.

Section 3(1) authorises the State Government to, issue a

notification declaring that the estate specified therein has

passed to the State. The State Government has no power to

issue a notification in respect of any property unless such

property is an "estate" as defined in section 2(g) A

perusal of the relevant part of that definition which has

been quoted above will at once show that in order to be an

"'estate" the collection of mahals or villages must, amongst

other things, be held by the same "intermediary". An

"Intermediary", according to the definition in section 2(h),

must be, amongst other things, "a Zamindar, Ilaqueder,

Khorposhdar, or Jagirdar within the meaning of the wajib-ul-

arz or any Sanad, deed or other instrument." The point to

note is that in order to be an "intermediary" within the

definition, it is not enough, if the person is a Zamindar,

Ilaquedar, Khorposhdar or Jagirdar simpliciter but he must

fall within one or other of the categories "within the

meaning of the wajib-ul-arz or any sanad deed or other

instrument." accordingly the first head of argument advanced

before is by learned counsel for the appellants is that the

state government had no authority to issue the notification

because they are not intermediaries and, therefore their

properties are not estates. This argument obviously

proceeds on the footing that the Act is intra vires the

Constitution and if it succeeds then no question of

constitutionality will arise.

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 "estates" within the

meaning of section 2(g) and that that being so the State

849

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 be allowed.

Appeal No. 169 of 1953 filed by the appellant Shri

Sibanarayan 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

appellant's 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 Sibanarayan 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 decided, that "Balki Mahapatra and his

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heirs and successors should - ever 'hold' possession over

this Nagra State Zamindari on the aforesaid fixed annual

rent and nothing more would be demanded from him except

marriage Pancha and Dashra Panch which according to local

custom and usage he can pay The claim of the Raja about Rs.

200 as Raja Bijoy should be discontinued and the Raja

should stop granting patta to the Gauntias of Nagra." The

Rubakari then concluded thus:

" This Ekrarnama 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

110

850

of Gangpur and Balki Mahapatra of Nagra,for information and

guidance."

It is 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.

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 Sibanarayan 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 Rubakari of J. F. K. Hewitt is set out

in extenso in paragraph 14 of this reply. Paragraph 15

states :

"That from 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 for ever."

Reference is then made in paragraph 17 to the proceedings of

the 29th June, 1891, before W.H. Grimley, 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.

There is, therefore, no getting away from the fact that an

Ekrarnama had been executed by the Raja of Gangpur and Balki

Mahapatra, the predecessor-in-title of this appellant,.

851

under which Balki Mahapatra "held" the estate of Nagra upon

terms of payment of an annual rent. Indeed, the appellant

Shri Sibanarayan Singh Mahapatra firmly takes his stand on

the Ekrarnama and its terms.

A question has been raised that the original Ekrarnama of

1879 has not been filed and as no evidence was led to

explain the reason for its nonproduction, 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 Ekrarnama.

Indeed, in the matter of production and proof of documents

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the parties undoubtedly proceeded a little informally. The

following extract from the judgment of the learned Chief

Justice will make the position clear:

"As regards some of them, neither the originals, nor the

authenticated copies have been filed before us, but typed

paper books containing unauthenticated copies have been

filed by both sides and have been treated as evidence, with

the mutual consent of the parties. Those typed paper books

have accordingly been placed on the record. Some annual

administration reports of the Gangpur State as well as

certain working plans for the reserved forests of Hemgir,

Nagra and other zamindaris as also the Forest Act of Gangpur

State have been filed and received without any objection

from either side. Quite a number of further documents have

been produced on behalf of the State as per the list of

documents filed along with two affidavits dated the 9th and

10th February, 1953, and certain annexures have been filed

on behalf of the petitioners along with an affidavit dated

the 11th February, 1953. All these have been, without

objection, treated as part of the record excepting one

document to be presently noticed. The only document whose

reception has been objected to is what is referred to as the

Mukherjee's Settlement Report,

852

item No. 18 in the list of documents filed on behalf of

the State."

Further and strictly speaking the appellant Shri Sibanarayan

Singh Mahapatra having in his own letter dated the 19th

July, 1943, referred to above admitted the existence and

contents of the Ekrarnama, secondary evidence is, strictly

speakina. admissible under section 65 (b) of the Indian

Evidence Act. It may also be mentioned here that in the

grounds of appeal set forth in the petition for leave to

this court no grievance war, 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 strong evidence of the existence

and genuineness of the settlement arrived at by the parties.

Proceeding, then, on 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

Sibanarayan 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 ample jurisdiction or authority to issue a notification

under section 3 of the Act.

A subsidiary point was raised that at any rate the forest

lands which are not parts of any Mahal or village and are

not assessed as one unit to land

853

revenue cannot possibly fall within the definition of

estate. This contention was repelled by the High Court and

there was no disagreement between the two learned Judges on

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this question. We find ourselves :in agreement with the

High Court in this behalf. There is no dispute that

geographically the forest tract is included within 'the

Nagra Zamindari estate. Our 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 whole estate. In

those days there was hardly any income from the forests as

at present and, therefore, in those ancient days the

existence of the forest like that of uncultivable waste land

would not affect the assessment of the rent to any

appreciable degree. There is 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 Nagr under the Raja of Gangpur.

In the view that the Zamindar of Nagra is an intermediary

and his territories are an estate it must follow that the

appellant Shri Sibanarayan Singh Mahapatra; cannot get any

relief if the Act is valid. Learned counsel appearing in

support' of his appeal (No. 169 of 1953) then falls back on

the question of

854

the constitutionality of the Act. Here he has a preliminary

hurdle to get over, for if the Act is covered and protected

by article 31 -A 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 provision of

Part III of the Constitution. It has, therefore, been the

endeavour of learned counsel for the appellant before us, as

it was before the High Court, that Nagra was not an "estate"

as defined in article 31 -A (2)(a). The learned Chief

Justice took the view that Nagra was an estate as defined

and consequently the Act was within the protection of

article 31 -A but Narasimham J. took the opposite view. The

third Judge Mahapatra J. agreed with the learned Chief

Justice. In the 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 impugned Act.

On the assumption, then, that article 31-A is out of the way

the Act in question becomes liable to attack both under

article 31 (2) and article 14. Learned counsel appearing

before us did not call in aid article 31 (2) but confined

himself to article 14. In the High Court article 14 was

invoked in two ways namely (1) that the provision for

assessing and fixing the amount of compensation is

discriminatory and (2) that section 3 which gives an

unfettered discretion to the State Government to issue or

not to issue notification with respect to an estate is

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discriminatory in that it enables the State Government to

issue notification with respect to those zamindars who

opposed the ruling party in the election and to refrain from

doing so with respect to others who were loyal to that

party. The objection, as to discrimination founded on the

manner of assessment of the compensation has not been

pressed before us and learned counsel confined his arguments

to the second ground. Here again the learned Chief Justice

held that there was no violation of article 14 while

Narasimham J.' took the opposite view. Mr. Justice

Mahapatra,

855

however, agreed with the Chief Justice. We find ourselves

in agreement with the majority view.

The long title of the Act and the two preambles which have

been quoted above clearly indicate that the object and

purpose of the Act is to abolish all the rights, title and

interest in land of intermediaries by whatever name known.

This is 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

colossal 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 furtherance 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.

Learned counsel for the appellant referred to another point,

namely that the amending Act altering the definition of the

date of vesting was invalid as there

856

was no public purpose for taking away the vested right that

the original definition of that expression in the Act had

given to the persons whose estates had been. notified.

Learned counsel, however, did not seriously press this

objection and nothing further need be said about it.

The result, therefore, is that appeals Nos. 167 and 168 of

1953 are allowed with costs and appeal No. 169 of 1953 is

dismissed with costs.

Bose J.-These three appeals arise out of petitions made to

the High Court of Orissa under article 226 of the

Constitution by the Zamindars of Hemgir, Sarapgarh and

Nagra.

On the 28th of September, 1951, the Orissa State Legislature

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passed the Orissa Estates Abolition Act of 1951* (Orissa Act

I of 1952). The Act was reserved for the assent of the

President and became law on the 23rd of January, 1952, when

the President gave his assent.

The Act enables the State Government to take over' the "

estates " of all " intermediaries " situate in the State of

Orissa. In pursuance of the powers so conferred the State

Government issued notifications from time to time under

section 3 of the Act and among the notifications so issued

are the three which affect the present petitioners.

This action of the State Government was challenged on a

number of grounds, among them the following: (1) that the

Act was invalid as it infringed the fundamental provisions

of the Constitution, (2) that even if it is valid the

notifications are ultra vires because (a) the zamindaris in

question are not " estates " within the meaning of section 2

(g) of the Act and because (b) the petitioners are not "

intermediaries " within the meaning of section 2(h).

We will first deal with the question of " estates and "

intermediaries ". The question assumes importance because of

section 3 (1) which enacts that

"The State Government may, -from time to time by

notification, declare that the estate specified in the

857

notification has passed to and become vested in the State

free from all encumbrances. "

The definition of an "estate" is given in section 2(g) and

is as follows:

"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. "

Intermediary " is defined in section 2 (h)

"Intermediary....... with reference to the merged

territories means a maufidar including the Ruler of an

Indian State merged with the State of Orissa, Zamindar,

Ilaquedar, Khorposhdar or Jagirdar within the meaning of the

wajib-ul-arz, or any sanad, deed or other instrument.

It is admitted that the territories with which we are

concerned are merged territories, so the portions of the

definition that we have reproduced above are all we need

consider. Before any property can be taken over under the

Act it must be an '.'estate" within the meaning of the above

definition and so must belong to an " intermediary " as

defined in clause (h).

We will start with the definition of "intermediary." It is

admitted by both sides that the petitioners are zamindars

but the petitioners contend that they are not

"intermediaries" because the definition does not include all

zamindars but only those who are zamindars, etc., within the

meaning of-

(a) any wajib-ul-arz "

(b) any sanad, deed or other instrument.

We have grouped the last three together because that is how

the appellant's learned counsel says they should be read.

According to him, the "deed" and "other instrument" must be

read ejusdem generis with "sanad" and so must be confined to

a document of title like a sanad in which one party creates

or confers a zamindari estate on another.

We do not agree. In our opinion, the words must be read

disjunctively and be interpreted according to their ordinary

meaning. For example, a document by

111

858

an intermediary acknowledging the overlordship of ,another

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would, in our opinion, fall within the definition.

Now had these zamindars been in what was once British India

there would.be no difficulty because the first part of the

definition in section 2(h) is straightforward and clear.

The petitioners in these case would have fallen under one or

other of the categories mentioned there. But when we come

to the merged territories the definition changes and an

"intermediary " there no longer means this or that (except

in the case of a maufidar) but this or that "within the

meaning of " certain documents. Thus an " intermediary "

neither "includes" a zamindar nor "means" a zamindar, but

means a zamindar within the meaning of (1) the wajib-ul-arz

(2) any sanad (3) any deed or (4) any other instrument. We

take it that this was deliberate and that there was purpose

behind the change.

What then do the words " within the meaning of signify ?

They cannot mean mere mention of A as a zamindar. They

cannot mean that if A is mentioned in one of those documents

and is called or referred to as a zamindar that makes him an

intermediary, for if that had been the intention, the

definition would have said so. In our opinion, the words

have been inserted to include only those documents which

deal, or purport to deal, with true intermediaries, that is

to say, with persons who hold an interest in the land

between the raiyat or actual cultivator and the overlord of

the demesne. Two illustrations will show what we mean.

A may be a zamindar in one State and yet 'May hold lands,

which have no connection with his zamindari, as an ordinary

tenant in another State. Now A may well execute a kabuliat

or enter into a lease with his immediate landlord in that

other State and refer to himself as a zamindar, but that

would not make him a zamindar within the meaning of that

deed because the deed does not purport to deal with

zamindars but with a landlord and his tenant. Though called

a zamindar

859

there, the word would only be descriptive, and he would

really be a tenant within the meaning of that deed.

Consider a second illustration. A ruling Chief might

acquire a zamindari of the intermediary type in a

neighbouring State by purchase or otherwise. In documents

relating to the zamindari he may well be described as the

Raja or Chief of so and so but he would not be a ruling

Chief within the meaning of that document though so called.

He would only be a zamindar. That is the only way in which

we are able to interpret this clause in section 2. We cannot

ignore the change in the two parts of the definition and we

are bound to assign some intelligible purpose to the words "

within the meaning of "

The distinction is of importance because zamindars are of

various kinds; some are true intermediate in that they are

the collectors of the revenue of the State.from the raiyats

and other under-tenants of lands. They have an interest in

the land but not the true fee simple of English law. They

are not the lords of the manor as in England and bear little

or no resemblance to an English landlord though they have

some of his attributes, (See Baden-Powell's Land Systems of

British India, Vol. I, pages 130, 519 and 523); others are

either Ruling Chiefs or court favourites with a mere

courtesy title or just peasant cultivators.

The following description by Baden-Powell at page 508 of

Volume I is illuminating. He is dealing with the decline of

the Moghul Empire in the year 1713 and says that the decline

was marked by a relaxation of control, not only over the

outlying provinces, but over the whole administrative

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machinery, and by the substitution of plans of farming the

revenues of convenient tracts. Then comes this passage-

"Then it was that besides the Rajas, Chiefs and ancient

grantees, who had a real hold over the country, and were

already spoken of as the zamindars, other classes of persons

were employed as farmers, and the same name and the same

designation came to be applied to them also. As a matter of

fact, we find ex-officials

860

possessed of wealth and energy-amils, karoris, etc.also

bankers and court favourites, receiving the name of

zamindar. And-such persons would, besides taking the name,

also ape the dignities and importance of the older

landholders. "

At page 401 he tells us that some of the zamindars were old

Rajas who had a very close connection with the land (see

also page 579) and at page 7 he says that in some parts of

India the term means a petty peasant cultivator. The net

result is that he calls the word zamindar" a "Protean term"

at page 261 because of the variety of shapes which it takes,

not only in different places but at different stages of

history in the same place. At one moment we are dealing

with a rajah or petty chieftain exercising sovereign or

quasisovereign powers, at another with revenue farmers, at

another with landlords of small estates in the English sense

of the term, at another with a petty peasant cultivator and

at times with mere courtesy titles which have no legal

foundations or backing. We do not think the Act can be

applied to peasants who own their own land and cultivate it,

that is to say, to the raiyats, nor do we think it can be

applied, to a landlord in the English sense of the term, the

man who is the true lord of the soil, because the title of

the Act, the preamble and the definitions, all point the

other way. The title and the preamble use the same language

and describe the Act and its purpose as one

" to provide for the abolition of all the rights, title and

interest in land of intermediaries by whatever name known.

We are therefore bound to construe the ambiguous words which

we have examined above in a sense which will carry out the

purpose of the Act and not in a way which will travel beyond

it. We accordingly hold that the kind of zaminder referred

to in section 2 (h) is one who is what we may call a " true

intermediary " within the meaning of the four documents set

out there, that is to say, persons who hold an interest in

the land between the raiyat and the overlord of the estate.

861

It is unfortunate that we should have to call them true

intermediaries " when the whole purpose of the discussion is

to examine what an " intermediary " means but that is a

convenient term and we do not think it will mislead when

read in conjunction with what we have said.

Now the mere fact that the zamindari lands in the present

cases are situate within the boundaries of the Gangpur State

is not conclusive to show that the petitioners who own them

are "intermediaries" because, as the Privy Council has

pointed out in two cases, the mere fact that disputed-lands

are within the geographical boundaries of a larger estate is

not conclusive proof that they are part of that estate [see

Secretary of State for India v. Raja Jyoti Prashad Singh(1)

and Forbes v. Meer Mahomed Tuquee(2)]; nor is the fact that

the Raja of Gangpur exercises a general superintendence over

these zamindars in certain matters necessarily conclusive,

for, as Lord Phillimore says in Secretary of State for India

v. Raja Jyoti Prashad Singh(1) at page 552, care must be

taken not to confound hierarchical superintendence with what

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may be called feudal overlordship.

The contention of the petitioners that they are not

"intermediaries" but are the direct landlords of the soil

will best be understood if we refer again to the Privy

Council decision just cited. The zamindar there claimed to

be the overlord of the Ghatwali Digwars in the same way as

Gangpur is said to be the overlord of the zamindaris in the

present cases. Lord Phillimore said at page 553-

"It is agreed that these digwars have existed from time

immemorial and may be coeval with the Raja and may have been

created or recognised by a sovereign power superior to

both."

The Judicial Committee held that though the Ghatwali lands

they were dealing with fell within the geographical limits

of the Raja's zamindari, they did not form part of it.

(1) I.L.R. 53 Cal. 533 at 547.

(2) (1870) 13 I.A. 438 at 457.

862

Similar questions arose for consideration in Bir Bikram

Deo v. Secretary of State for India(1), where the Privy

Council examined claims made by eight of the Central

Provinces zamindars. They also claimed semi-sovereign

status. The history of the Central Provinces zamindaris was

elaborately set out in the lower courts and copious extracts

from their judgments are given in the report. The lower

courts held that the zamindars in that area were of two

kinds-feudatory and non-feudatory (page 637). The Privy

Council remarking on this at page 657 said-

" The status of the Zamindar of Khariar and the plaintiffs

in the other suits is simply the status of an ordinary

British subject. That matter was determined by the grant in

1864 after ail exhaustive enquiry into the position of the

petty chiefs of the Central Provinces. A few were

recognised as feudatories having some of the attributes of

sovereigntv. The rest were classed as non-feudatories and

declared to be ordinary British subjects."

Now if the State of Gangpur be substituted for the British

Government the claim made by the present petitioners vis-a-

vis the State of Gangpur becomes the same as the claims

which the plaintiffs in the suit made against the Secretary

of State for India. The status of the plaintiffs in that

case vis-a-vis the British Government was settled because

the question had been definitely raised and examined in the

year 1863 and determined in the year 1864 and in 1874 sanads

were granted to and accepted by the ancestors of the parties

to that litigation (page 637). In the present cases the

question of the present petitioners' status vis-a-vis the

State of Gangpur was repeatedly raised and as often

deliberately not decided; and it is an admitted fact that

there are no sanads.

There is another point. The petitioners are Bhuyans and

they have repeatedly claimed that their ancestors were the

original settlers who were 'on the soil long before the

Chiefs of Gangpur came on the scene. Now Baden-Powell sets

out the history of

(1) I.L.R. 39 Cal. 615.

863

the Bhuyans in the Bengal and Chota Nagpur area of what was

once British India in Volume I of his book. At page 577 he

explains that the Bhuyans were the original founders of the

village and at page 581 he says that-

"Anciently the theory was that no bhuinhar (of, an original

founders' family) could ever lose his lands; so that after

years of absence he might return and claim it from the

present holder."

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But he says at page 580 that-

When British rule began, some of the surviving Rajas, chiefs

and grantees, were recognised as "Zamindars" with a

permanent settlement When the old Rajas(or their successors)

became Zamindar landlords they did their best to reduce

to a minimum the rightsof the 'bhuinhars' in their free

allotments; and this led to so much discontent as to cause

rebellion in 1831-32 and again 1858 In 1869 it was deter-

mined to put an end to the uncertainty and discontent which

arose from the encroachments of the landlords who had

ignored the old tenures and infringed the bhuinhari

rights.".

Accordingly, a Special Commissioner was appointed in that

year to examine, define and record all the various classes

of rights and, in accordance with that, determine the status

of the Bhuyans in British India Vis-a-Vis the "zamindars"

who were the surviving Rajas and petty chiefs. This was

done and settlements were made and accepted. But that was

British India. In the present case, every attempt to settle

the same question between the Bhuyan petitioners and the

Ruler of Gangpur ended in failure. No decision has been

reached to this day.

Reference is made to the Bhuyans 'in the Gangpur State in

Dalton's Ethnology of Bengal (1873), pages 139 and 140.

According to that author the Bhuyans in Gangpur possess

proprietary rights under the Chiefs. But he weakens this by

saying in the next sentence that-

864

"They are the barons from whom those Chiefs originally

derived their authority, and are either the support or the

sap of that authority according to the side they take in the

politics of the State. "

This is evidence to indicate that the Bhuyans in Gangpur

were there before the Rulers of Gangpur.

In the' year 1891 a dispute arose between the Raja of

Gangpur and the Zamindars of Hemgir and Nagra. The Bengal-

Nagpur Railway cut through a part of their lands and both

claimed compensation from the railway for timber which was

out from the forests. The Commissioner Mr. W. H. Grimley

refused to pay the Raia any compensation for timber taken

from the zamirndari forests and only paid him for what was

taken from his Khalsa lands. In the course of his decision

be refers to Hewitt's Settlement of 1879 and quotes the

following from the report:

" The contention that the Zamindar of Nagra is merely a

tehsildar or rent-collector subordinate to the Raja is

therefore invalid, and it is established beyond doubt that

the zamindar has a permanent interest in the Nagra Estate

and is practically on the same footing as a zamindar under

permanent settlement in Bengal."

He then concludes-

" The above extracts and remarks show that the zamindars of

Nagra and Hemgir and other zainindars of Gangpur were

regarded by a former Commissioner not only as possessing

permanent rights in their zamindaris but as having full and

exclusive rights over the jungles in their estates. They

seem to be the original settlers of the soil, and their

position appears to be analogous to that of the Mankis in

Lohardugga and Manbhum, who, as aboriginal chiefs, or heads

of the clans holding groups of twelve or more villages,

exercise jungle rights and are independent of the superior

Raja or zamindar, a creature of subsequent growth."

We need not make further extracts from the large volume of

historical material which was placed before us because we

are, not deciding the point' here and it

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865

would be wrong to any more than is necessary for the present

case as the Raja of Gangpur is not before us. It is enough

to say that there is much historical material to indicate

that the Bhuyan tenures had their origin in pre-historic

times and were not the creations of a conquering line of

Rajput Rajahs. As Mr. Forbes put it in Political Suit No.

26 of 1900-1901:

"The British Government had the unquestionable rights of the

conqueror and is in a position to dictate its terms in its

Sanads to the Chiefs. But the Chiefs are very far from

being in a similar position of authority in regard to the

landholders."

Similar observations occur in Hunter's Imperial Gazetteer

Volume 4, page 478, and Sir Richard Temple's Treaties,

Zamindaries, Chieftainships in the Central Provinces, page

18. But we wish to emphasise that this is only one side of

the picture and that there may be much' to indicate the

contrary and in the a sence of,the Ruler of Gangpur it would

not be right to say that this is the full picture especially

as two successive Settlement Officers have refused to decide

the question despite raising of the dispute on the occasions

which we have indicated. Connolly in his Settlement Report

of 1907-1911 says-

"There are four zamindaris in the State..... all held by

Bhuias. No attempt has, been made in this settlement to

determine their relations to the Chief."

Mukherji in his Settlement Report of 1929-36 also says that

"The relations of the zamindars with the Chief have, not

been expressed in any administration paper which is accepted

by the zamindar in each settlement."

In the year 1941 Ramdhyani was appointed an Officer on

Special Duty to report on the Land Tenures and the Revenue

System of the Orissa and Chhattiagarh States. In paragraph

75 of the first volume of his Report he says that the

zamindars on the one hand refuse to accept sanads to

determine their rights and the Rulers on the other hand do

not favour precise laws which will tie their hands. And in

Volume III he says that.

112

866

"No sanads have been issued by the State to the zamindars

and thus there is no clear definition of their rights."

That there can be another side to the picture is evident

from the historical material collected in Kunwarlalsingh v.

Provincial (Government, Central Provinces and Berar(1) and

in Rajkrishna Prasadlal Singh Deo v. Baraboni Coal Concern

Ltd.(1) In many cases, 'even though the zamindars started as

independent sovereigns vis-a-vis the ruling power, their

rights were so whittled away in course of time that whatever

they may once have been their present status has become one

of subordination. Whether that happened in these cases has

never been determined and it would not be right for us to

assume anything one way or the other in the absence of the

Raja of Gangpur. Our object in delving into this mass of

historical material is to show that the mere use of the word

"zamindar" proves nothing and that a passing reference to

the term in the various documents which we will now examine

cannot fix the petitioners' status as "intermediaries" when

the Settlement Reports to which the documents appertain

state in categorical terms that neither side would agree to

a definition of their rights vis-a-vis each other and that

consequently no attempt was made to define them.

The first document on which reliance is placed by the State

is the Wajib-ul-arz. Much research and learning were

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expended on finding out what a Wajibul-arz means and what it

consists of. We do not intend to go into any of that. We

will assume for the purposes of this case (without deciding

the point) that the only document relied on by the State of

Orissa as a Wajib-ul-arz though it is called the Record of

Rights, is a Wajib-ul-arzwithin the meaning of the Act. But

what is that document? It records the rights of the raiyats

and the gaontias vis-a-vis the "Chief or Ilaquedar"; The

word "zamindar" is not used and neither the word "Chief" nor

the word

(1) I.L.R. 1944 Nag. 180 at 215 tO 221.

(2) I.L R. 62 Cal. 346 at 354 & 355.

867

"Ilaquedar" ha-is been gtruck out. All it says is that the

"malguzari" will be paid to the "Chief or Ilaquedar" and

that all lawful orders of the "Chief or Ilaquedar" will

immediately be carried out without any objection. We have

the further fact that the petitioners have been issuing

pattas to the gaontias in their areas apparently in

conformity with this Record of Rights because their pattas

expressly refer to it; also that the petitioners have signed

the pattas as zamindars. A typical patta is in this form:

"Gountia Patta: This Gountia Patta is granted to

you................ according to the rules and conditions

mentioned in the Record of Rights included hereunder.' You

should deposit the malguzari and the cess in the Treasury

according to the kists mentioned below.......

(Sd.) (Signature) Zamindar."

Now when this is read along with Connolly's Settlement

Report of which it forms a part, it is evident that the

document does not pretend to deal with the rights and status

of the petitioners vis-a-vis the Chief of Gangpur, because

Connolly expressly says that those rights were neither

agreed upon nor determined. It is true the petitioners

style themselves as zamindars in the pattas, but the whole

question is what kind of zamindar is meant. That is

deliberately left indeterminate by the continued use of the

words "Chief" or "Ilaquedar". The petitioners' case is that

they are the overlords within the meaning of these documents

an d that the gaontias are their intermediaries and, as we

have seen, there is ground for that contention. We are

therefore unable to hold that the petitioners are

"zamindars" within the meaning of this "Wajibul-arz" (even

if the document is assumed to be a Wajib-ul-arz), taking

"zamindar" to mean, as it must under the definition, what we

have called a "true intermediary".

it was also said that certain Settlement Khewats and

Khatians formed part of the Wajib-ul-arz in this part of the

country.' We were not shown anything to support

868

that beyond the bare assertion, that was so but even if that

is correct we cannot read more into these documents than

what the Settlement Commissioner expressly stated. The

Khatians, for example, merely say that the name of the

person who receives the revenue is "Zamindar so and so of

Khewat No. 2". It is to be observed that the column refers

to the name of the person and not to his designation. But

quite apart from that, we find it impossible to separate the

statements in these documents from the categorical

reservation made by the Settlement Officer in his report.

If it was understood on all hands, and was solemnly recorded

in the Settlement Report, that the dispute about the

relations between the Ruler of Gangpur and the petitioners

was neither agreed to nor decided in these Settlements we

can hardly conclude that despite that solemn assurance a

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number of subsidiary documents settled the matter and that

therefore the petitioners must be taken to be "true

intermediaries" within the meaning of the Wajib-ularz. The

same is true of the Khewats. It is true one of the columns

shows that these petitioners hold under the Chief of Gangpur

and it is possible that the Officer preparing the Khewats

thought that was the true position 'But the final assessment

is in the Settlement Report and that, in our opinion, must

be regarded as the governing factor. Whatever else a Wajib-

ul-arz may be, it is only a part of the Record of Rights and

entries in the Record of Rights have only a presumptive

value. They can be shown to be wrong. And what better

proof can there be of that than the categorical statement of

the Settlement Commissioner who was in charge of those very

returns. Even as late as 1935 we have the Secretary to the

Agent to the Governor-General saying-

"The record of rights of the settlement of Gangpur State of

the year 1911 seems to the Governor-General in the main to

support the contentions of the zamindar as enjoying his

zamindari on the same rights as the State enjous in Khalsa."

We are therefore unable to regard the petitioners as

zamindars within the meaning of the Wajib-ul-arz.

869

We turn next to the portion of the definition in section 2

(h) which refers to a "deed or other instrument." Now even

if the Parchas and Khatians and Khewats are either "deeds"

or "instruments", they are of no assistance in these cases

for the reasons we have just given.

It is necessary in this connection to say that though the

documents filed clearly establish that the petitioners have

been paying a certain sum of money each year to the Chief of

the Gangpur State, that in itself does not show that they

are municipally, as opposed to politically, subordinate to

him. These moneys have been variously described at

different times. Sometimes they are called malguzari, at

others takoli, at others revenue and sometimes rent. But

none of that is conclusive because what we have to determine

is whether the petitioners are "true intermediaries" within

the meaning of certain documents, and there the overriding

factor is the repeated assertions of the Settlement Officer

that at no time has their status inter se been agreed upon

or decided.

Among the documents relied on as "deeds or other

instruments" are the pattas to which we have just referred.

The petitioners are said to have signed them as "zamindars",

or some one else is said to have signed for them. The

signatures were not admitted in all the cases but even if

they were validly signed by or on behalf of the petitioners

that would not make the petitioners "zamindars" within the,

meaning of the pattas. The word "zamindar" under their

respective signatures is merely descriptive and does not in

itself indicate what kind of zamindar is meant and since

everybody agreed that question should be left on the pattas

cannot be taken to mean that the petitioners are the kind of

zamindars about which there is a dispute and that they have

the status which they have stoutly contested at every stage.

The rest of the documents, except one which concerns Nagra

alone, are merely historical material. They are neither,

Wajib-ul-arz nor deeds nor -other instruments. We have

already referred to a number on which the petitioners rely'.

There are others

870

which are more favourable to Gangpur as, for example, a

Political Book of 1831-1833 and an order of the Commissioner

of the Chota Nagpur dated 9th August, 1878. The Imperial

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Gazetteer, Volume IV,' was also relied on by the State but

we do not think that helps it much. The passage in point

says that-

"Included within the State are two Feudatory Chiefships

subordinate to the Raja, Nagra in the East and Hemgir in the

West."

But this appears to point more to political than to

municipal subordination and, that is just what the

petitioners say they are. They claim to be feudatory chiefs

vis-a-vis Gangpur and say that the money they pay to the

Raja is tribute and not revenue. However, these historical

document are not relevant except to show-that the word

"zamindar" has different meanings, one of which lifts them

out of the category of I intermediaries" within the mearing

of that part, of the definition which applies to the merged

territories. We are not called upon to decide the actual

relationship between the Chief of Gangpur and the

petitioners but only to see whether the petitioners are

"zamindars" within the meaning of certain specified docu-

ments. Even if they are "intermediaries" within the broader

sense of the term, they are not so within the meaning of the

specified documents and that the definition to which we are

tied. We do not intend, therefore, to examine them further.

That leaves a document which concerns Nagra. In or about

the year 1,879 the Zamindar of Nagra is said to have

executed an Ekranama in favour of the Raja of Gangpur. The

Ekrarnama has not been produced and there is nothing on

record to show that it has been lost and that despite a

search it cannot be found, nevertheless we are asked to hold

that such a document was executed and to deduce its contents

from a description of it given by Mr. Hewitt, the

Officiating Commissioner in a Rubakari dated 10th March,

1879. In the absence of the document itself we do not think

it would be right to infer that the Zamindar of Nagra had

suddenly surrendered the

871

claims to municipal independence which he had been

contesting for years and which he has continued to contest

to the present day. The immediate cause of the dispute was

about Gangpur's right to grant leases to Gaontias in the

zamindari, about a royalty of Rs. 200, about the Raja's

right to interfere with the policing of the zamindari tract

and about certain taxes. The zamindar agreed to pay the

Raja a fixed yearly sum of Rs. 700 as "rent" while the Raja

agreed that the Nagra Zamindar should police his own estate

and agreed that he, the, Raja, would not grant any more

pattas to the Gaontias in that area; also that the Raja

would not collect taxes from the Kumbars etc., but would

instead settle separately with the zamindar after first

submitting his report about this to the Commissioner.

The only point here against the Zamindar is that the word "

rent " is used instead of " tribute ", but this loses all

its force in view of the fact that the Diwan of the Gangpur

State writing to the Zamindar of Nagra himself called it

Takoli in a letter dated 29th March, 1943. The rights of

the Zamindar regarding Gaontias and the policing of his own

tracts were conceded. Now the right to police a tract of

land is one of the first attributes of sovereignty. The

power can be delegated but that is at the will of the

sovereign and not the other way round; the subject cannot

resist the sovereign's right to police his own State. The

settlement about the taxes is neither here nor there because

that was done as a matter of compromise without either side

admitting the basic rights of the other or surrendering his

own. Read as a whole, the settlement supports the

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Zamindar's claims rather than negatives them. And as to the

word "rent" the English of the document shows that it was

not written or drawn up by an Englishman though it was

signed by one, so no one can know just what was meant. The

Ekrarnama would, we-take it, have been in the vernacular and

unless we know just what term was used there it would be

wrong to assume on the basis of this Rubakari that the

Zamindar had suddenly abandoned the position for which he

had been fighting

872

all this time. If the original word was " takoli ", as it

would seem to have been because of the Gangpur State Diwan's

letter of 29th March, 1943, it is as consistent with tribute

as with revenue, especially when we read it along with the

concessions made by Gangpur about the police powers and the

Gaontias. Takoli is a term which has no fixed meaning and

is what the Zamindars of Hemgir and Sarapgarh also pay the

Raja of Gangpur. The only difference in their cases is that

their Takoli can be enhanced from time to time where. as

that of Nagra cannot; that we think places Nagra in a much

stronger position than the other two and so, far from

showing municipal subordination to Gangpur, indicates the

contrary particularly when read in conjunction with the

police powers which Nagra retained in defiance of Gangpur's

claim. We are accordingly not able to conclude on the basis

of this imperfect secondary evidence that, the meaning of

the Ekrarnama was to define the Zamindar's status as that of

a " true intermediary. "

The result is that there is no deed or other instrument

within whose meaning the petitioners can be said to be the

kind of zamindar's which are " true intermediaries ", and we

so hold. It follows that the petitioners are not "

intermediaries " within the meaning of section 2(h). If

they are not " intermediaries ", Then their lands are not an

" estate" within the meaning of section (2) (g) and so

cannot be taken over by the State of Orissa under section 3.

In view of this, it is not necessary to examine any other

points. The learned Judges of the High Court differed on

the remaining points and so those points were referred to a

third Judge. But on the definition of " intermediary "

there was no difference of opinion. Both the Chief Justice

and Narasimham J. agreed that the petitioners were "

intermediaries. " We disagree for the reasons we have given

above.

The result is that, in our opinion, all three appeals should

be allowed and that the decision of the High Court should be

set aside and a nwndamus issued to the State of Orissa

directing that State not to give

873

effect to.the provisions of the Orissa Estates Abolition Act

of 1951 and not to take possession of the several estates of

the three petitioners under that Act.

The costs of the petitions here and in the High Court

should, in our opinion, be paid by the State of Orissa.

Appeals Nos. 167 and 168 allowed.

Appeal No. 169 dismissed

Agent for the appellants: B. P. Maheshwari.

Agent for the respondents: G. H. Rajadhyaksha.