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PETITIONER:

STATE OF MADHYA PRADESH & ORS.

Vs.

RESPONDENT:

SARDAR D. K. JADHAV

DATE OF JUDGMENT14/12/1971

BENCH:

VAIDYIALINGAM, C.A.

BENCH:

VAIDYIALINGAM, C.A.

MATHEW, KUTTYIL KURIEN

CITATION:

1972 AIR 1530 1972 SCR (2) 864

1972 SCC (1) 402

ACT:

Madhya Bharat Abolition of Jagirs Act Samvat 2008. (Act 28

of 1951), ss. 2(1)(ix) and 5(c)-'Occupied land' what is-

Protection of s, 5(c) whether available where area of tanks

is partly occupied by Jagirdar and ,partly by tenants.

HEADNOTE:

Under s. 5(c) of the Madhya Bharat Abolition of Jagirs Act

Samvat 2008 (Act 28 of 1951) all tanks, trees etc. in or on

'occupied lands' belonging to or held by the Jagirdar or any

other person were excluded from vesting in the State by

virtue of s. 4. The respondent filed a writ petition in the

High Court claiming that certain tanks built by himself and

his predecessor-in-title were on 'occupied land' and

therefore came within the protection of s. 5(c). The

original order passed by the High Court in the writ petition

was set aside, by this Court and the High Court was directed

to decide afresh the claim made by the writ petitioners

under s. 5(c) of the Act. After considering the evidence

before it on this question the High Court held that the'

tanks in question were saved under s. 5(c) and they had not

vested in the State under the Abolition Act. In appeal by

the State to this Court,

HELD: 'Occupied land' as defined in s. 2(1) (ix) of

the Act comprises broadly two types of lands : (1) four

categories of land held under the tenures enumerated in sub-

clauses (a) to (d); and (2) comprised in Khud-Kasht and

'homestead'. To attract cl. (c) of s. 5 the tank must be

shown in the first instance to be on occupied land that is

on land comprised under the tenures enumerated in sub-

clauses (a) to (d) or in the land held as Khud-kasht and

homestead. It is not necessary that the entire tank should

be exclusively situated in the land held as khud-kasht and

land comprised in homestead. The requirement of "he tanks

in question being an occupied land will be satisfied even if

part of the tank is situated in one or the other of the

tenures mentioned in sub-clause,,; (a) to (d) of cl. (ix) of

s. 2(1) and the rest or it is included in the land held as

khud-kasht and the land comprised in a homestead. That is,

the ,entire area of the tank must be comprised in either the

tenures or the khud-kasht or homestead or in both.

Therefore it was not possible to accept the contention

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advanced on behalf of the appellant State that only those

tanks which are on khud-kasht land of the Jagirdar are saved

to him. Acceptance of such a contention will be ignoring

the clear working of cl. (ix) of s. 2(1) which takes in also

lands held on the various tenures referred to therein. [871

D-G]

Therefore in the present case the mere fact that a part of

the tanks was in the occupation of the tenants as tenure-

holders did not detract from the operation of the saving cl.

(c) of s. 5. The expression 'any other person' is

comprehensive enough to take in the persons who were holding

the land on one or the other of the tenures enumerated in

subclauses (a) to (d) of s. 2(1)(ix) of the Abolition Act.

Whatever may be the extent of the tanks in the possession of

the respondent, as his khud-kasht or homestead and in the

possession of the tenure-holders the position ultimately was

that the entire extent of the tanks was in :occupied land'

belonging to or held by the Jagirdar or any other person.

[872 H,873 B]

865

The judgment of the High Court must accordingly be upheld.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

32 of 1971.

Appeal from the judgment and order dated March 12, 1970 of

the Madhya Pradesh High Court in Miscellaneous Petition No.

184 of 1965.

I. N. Shroff, for the appellants.

V. S. Desai, S. K. Mehta, K. L. Mehta, V. K. Sapre and K. R.

Nagaraja, for the respondent.

The Judgment of the Court was delivered by

Vaidialingam, J. The short question that arises for

consideration in this appeal, on certificate, is whether the

High Court has complied with the directions given by this

Court in its judgment dated January 25, 1968 in Civil

Appeals Nos. 1244 and 1245 of 1967 and adjudicated upon the

question whether the claim made by the respondent that the

tanks and wells in question were constructed on "occupied I-

and" belonging to the Jagirdar within the meaning of s. 5(c)

of the Madhya Bharat Abolition of Jagirs Acts, Samvat 2008

(Act 28 of 1951) (hereinafter to be referred as the

Abolition Act).

The facts leading up to the present decision of the High

Court may be stated: In Samvat 1885 the Ruler of the

erstwhile Gwalior State conferred on the predecessor in

title of the respondent the Jagir of Mauza Siroli situated

in Pargana Gwalior. The Abolition Act came into force on

December 4, 1952. Section 3 provides for resumption of

Jagir-lands by the Government. Under sub-section (3), the

date appointed under s. 3 as the date for resumption of

Jagir-lands is "the date of resumption'. After the issue of

notification under s. 3, appointing a date for resumption,

all the property in the Jagirdar including Jagir-lands,

forest, trees, fisheries, wells, tanks, ponds etc. stood

vested in the State under s. 4 of the Abolition Act. But

under s. 5 (c) all tanks, trees, private wells and buildings

in or on the occupied lands, belonging or held by the

Jagirdar or any other person, were excluded from vesting.

After the abolition of Jagirs under the Abolition Act,

proceedings were initiated for determining the compensation

payable to the respondent and the same was determined. Out

of the amount, so determined, certain loans were deducted

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and the balance amount was paid. The Madhya Pradesh Land

Revenue position ultimately was that the entire extent of

the tanks was in 'occupied as the Code) came into force on

October 2, 1959. Section 251

866

of the Code provided for vesting in the State Government all

ranks situated on unoccupied lands, in the circumstances

mentioned therein. The said section made provision for

claiming compensation in the manner laid down therein.

The respondent on April 5, 1961 made an application to the

Collector, Gwalior under s. 251 of the Code claiming com-

pensation for tanks which, according to him, had been built

by himself and his predecessor in title over an area of 1679

bighas and 18 biswas of land. There were various orders

passed by the authorities in connection with the said claim

for compensation.

The respondent moved the Madhya Pradesh High Court under

Art. 226 of the Constitution by two writ petitions to quash

two orders of the Collector of Gwalior and two orders of the

Additional Commissioner, Gwalior Division. The writ

petitions were opposed by the State on the ground that the

four tanks claimed by the writ petitioner were really not

tanks and in any case the tanks were not on "occupied land"

within the meaning ,of s. 5 (c) of the Abolition Act and the

wells claimed by him had also vested in the State under S.

4(1)(a) of the Abolition Act.

The High Court by its judgment dated November 30, 1966

allowed the writ petitions and quashed the four orders,

referred to above, on the ground that the claim made by the

respondent that the tanks were on "occupied land" under s.

5(c) of the Abolition Act, has to be decided by the Jagir

Commissioner in the manner required under s. 17 of the said

Act.

The State challenged before this Court in Civil Appeals Nos.

1244 and 1245 of 1967, the decision of the Madhya Pradesh

High Court. 'Me contention raised on behalf of the State

was that s. 17 of the Abolition Act had no application and

that it was the function of the Jagir Commissioner alone to

inquire whether the claim of the writ petitioner under s.

5(c) of the Abolition Act was well founded on merits and

then refer the matter for the final decision of the

Government under s. 17 of the Abolition Act. After a

consideration of the scheme of the Abolition Act and in

particular of s. 17, this Court accepted the contention of

the State and held that the inquiry contemplated under s. 17

by the Jagir Commissioner relates to compensation to be paid

to the Jagirdar whose Jagir is vested in the State

Government and once the compensation is determined and paid,

no further inquiry under s. 17 is contemplated. In this

view, by its judgment dated January 25, 1968, this Court set

aside the orders passed by the High Court.

This Court further held that the writ petitioner, namely,

the present appellant before us" is, not left without any

remedy to

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agitate his claim that the, tanks and wells claimed by him

were constructed on occupied land and that they have been

saved from vesting in the Government under s. 5(c) of the

Abolition Act. It was held that if the writ petitioner was

able to establish this plea, the State Government will have

no power or authority to take possession of such tanks and

wells, as the title thereto did not vest in it in view of s.

5 (c) of the Abolition Act. It was further held that s. 5

(c) has an over-riding effect on s. 4 of the Abolition Art.

In this view this Court held that it was the duty of the

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High Court to have decided the jurisdictional fact as to

whether the tanks and wells claimed by the present respon-

dent belonged to the Jagirdar within the meaning of s. 5(c)

of the Abolition Act and that, if the High Court accepted

the said contention, the High Court was competent to issue a

writ under Art. 226 of the Constitution directing the State

to hand over possession of the said tanks and wells to the

writ petitioner. Ultimately, for all the reasons given in

its judgment, this Court set aside the decision of the High

Court and remanded the proceedings for deciding afresh the

claim made by the writ petitioner under s. 5(c) of the

Abolition Act. Liberty was given to the parties to place

before the High Court such further evidence, oral and

documentary, as they may desire to give on the point at

issue. The main judgment was given in Civil Appeal No. 1245

of 1967. For the same reasons given in the said judgment,

Civil Appeal 1244 of 1967 was also remanded in accordance

with the directions given in Civil Appeal No. 1245 of 1967.

The said decision of this Court is reported in State of

Madhya Pradesh and others v. Sardar D. K. Jadhav(1).

After remand, when the matter was taken up by the High

Court, both the appellant and the respondent, filed many

documents and examined witnesses with particular reference

to the claim regarding the wells and the tanks made by the

respondent under s. 5(c) of the Abolition Act.

The respondent laid his claim on the ground that the tanks

and wells had been constructed on lands which were his Khud-

kasht lands as also on lands held on tenure by other

persons. But ultimately his claim was on the basis that the

wells and tanks were all on occupied land belonging to the

Jagirdar or any other person, as laid down under s. 5(c) of

the Abolition Act.

The State, on the other hand, denied the right of the

respondent to claim any right in the said tanks and wells on

the ground that they were not located on occupied land

belonging to the Jagirdar, but were situated on lands which

were in the possession ,of tenants. Hence, according to the

State, the said tanks and

(1) [1968] 2 S.C.R 823.

868

wells were not saved to the respondent under s. 5 (c) of the

Abolition Act, and that they have vested in the State, as

rightly held by the Revenue authorities. In short, the

contention of the State appears to have been that only those

tanks and wells, which are on occupied land belonging to the

Jagirdar and in his possession as Khudkasht land alone are

saved under s. 5 (c) of the Abolition Act.

At this stage we may mention that though the respondent laid

claim to certain wells also in addition to the tanks, it is

seen from the judgment of the High Court that during the

stage of arguments, it was represented on his behalf that

three out of five wells were already in his possession and

that no adjudication is necessary regarding those wells.

Regarding the other two wells, it is also seen that the

respondent abandoned his claim before the High Court.

Therefore, the entire controversy, which the High Court had

to decide centred round the claim, regarding the tanks, made

by the respondent under s. 5 (c) of the Abolition Act.

Though various maters have been adverted to by the High

Court in its judgment, its material findings are as follows

: That the four tanks_ as also the pick-up weir are tanks

within the meaning of the Abolition Act. The four tanks as

also the pick-up weir belonged to the respondent at the time

of the resumption of Jagirs under the Abolition Act, namely,

December 4, 1952; Section 5 (c) is clearly attracted it the

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right of ownership or possession of the tanks belonged

either to the Jagirdar or to any other person as against the

said right belonging to the community at large or the State.

The fact that a part of the bed of the tanks may be in the

occupation of tenants is of no consequence in holding in

favour of the respondent under s. 5 (c) of the Abolition

Act; The entire area of the tanks in the possession of the

respondent must as his Khud Kasht land and also in the

occupation of the tenants are both saved under s. 5 (c) and

do not vest in the State under s. 4 of the Abolition Act.

On these findings, the High Court accepted the contention of

the respondent and held that the tanks claimed by him are

saved under s. 5 (c) and they have not vested in the State

under the Abolition Act.

We may state at this stage that the High Court has not

thought it necessary to consider the precise area of each

one of the tanks as the tenants were not parties to the

proceedings. Ultimately, the High Court held that on

resumption of Jagirs under the Abolition Act, the four tanks

and the pick-up weir are saved to the respondent under s.

5(c) of the Abolition Act, subject to certain observations

contained in the judgment. In consequence, the High Court

quashed the four orders of the Revenue authorities, referred

to, in the judgment.

869

Though Mr. I.N.Shroff, learned counsel for. the State, has

raised several contentions, in our view, most of them do not

survive in view of the specific directions contained in the

order of remand passed by this Court. The only two

contentions that have been advanced by him and require to-be

considered are : (1) That the High Court has not complied

with the directions given by this Court in its order of

remand; and (2) The High Court has not found that the said

tanks are situated on "occupied land" so as to be saved

under s. 5(c)of the Abolition Act. The counsel has, no

doubt, pointed out certain other circumstances, which,

,according to him, constitute an infirmity in the judgment

of the High Court.

On the other hand, Mr. V., S. Desai, learned counsel for the

respondent, has pointed out that the directions of this

Court have been fully complied with and that after a very

elaborate consideration of the materials placed before it

by both the parties, the High Court has recorded a finding

that the tanks claimed by the respondent are on "occupied

land" belonging to or held by the Jagirdar or any other

person as required under s. 5 (c) of the Abolition' Act.

The fact that the High Court has not considered is necessary

to adjudicate upon the exact area of the tanks is of no

consequence because that is a matter to be decided as

between the Jagirdar and the other tenure-holders, if any.

Once the requirement that the tanks are on occupied land and

that they belong to the Jagirdar or to,any other person is

satisfied they are saved under s. 5(c) of the Abolition Act.

That was the only point that the High Court was, directed to

adjudicate upon and on. that aspect clear findings have been

recorded by it.

Before we deal with the contentions of the learned

counsel on both sides, it is necessary to refer the material

provisions of the Abolition" Act. The expressions

"Homestead" and "Occupied land" are defined in sub-clauses

(iv) and (ix) of s. 2(1) and they are as follows:

"2 In this Act unless the: context

otherwise requires-

(iv)"Homestead" means a dwelling-house

together with any court-yard, compound or

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attached garden or bari and includes any out-

building used for agricultural purposes and

any tank or well appertaining to the dwelling-

house.

(ix) "Occupied land" means land held

immediately the following tenures, namely,

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870

(a) Ex-proprietary;

(b) Pukhta Maurusi;

(c) Mamuli Maurusi;

(d) Gair Maurusi;

and includes land-held as Khud-kasht and land comprised in a

homestead;"

Section 3 deals with resumption of Jagir lands by the

Government. As we have already mentioned the date of

resumption is December 4, 1952. Section 4 enumerates the

various items which vest in the State, unless the contrary

has been provided in the Abolition Act. Section 5 saves,

from vesting certain items arid clause (c), which is

material is as follows:

"Section 5 : Private wells, trees, buildings,

house-sites and enclosures.-Notwithstanding

anything contained in the last preceding

section-

(c) all tanks, trees, private wells and

buildings in or on occupied land belonging to

or held by the Jagirdar or any other person

shall continue to belong to or, be held by

such Jagirdar or other person.

Regarding the first contention we are satisfied that the

High Court has complied with the directions given by this

Court in its remand order. The High Court was directed to

decide the jurisdictional fact as to whether the tanks and

wells claimed by the respondent belonged to the Jagirdar and

were saved under S. 5(c) of the Abolition Act. Therefore,

the only investigation that had to be made by the High Court

was on the point, referred to above. In fact, it is seen

that the High Court has been very considerate when it

allowed the appellant to raise various other questions, such

as, the locus standi of the respondent, to file the writ

petition, the question of non-impleading of the tenants in

possession of lands over which part of the tanks are

situated and the undue delay in filing the writ petition.

Further, the High Court has allowed the appellant to raise

the question that the respondent is estopped from seeking

relief regarding the tanks under s. 5(c) in view of the

stand taken by him before the Revenue authorities in his

application for award of compensation. These matters should

not have been permitted to have been raised by the

appellant. If these contentions were available to the

appellant, they should have been raised be-fore this Court

in the appeals, referred to earlier. Any how the High Court

has gone into those matters and held against the appellant.

Therefore, far from not complying with

871

the directions given by this Court, it has even allowed the

appellant to raise certain contentions which were. not

available to it at the stage when the matter was being

considered after remand. Therefore, the first contention

will have to be rejected straightaway.

Regarding the second contention, it is also clear from the

judgment of the High Court that it has very elaborately

considered the various aspects presented; to it, both by the

appellant as well as the respondent. After a consideration

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of the materials so placed before it and having due regard

to the provisions of the Abolition Act, the High Court, as

we, have pointed out earlier, has considered, as directed by

this Court, the main question whether the tanks are saved

under s. 5(c) of the Abolition Act. In that connection the

High Court had naturally to consider the scope of the

definition of "Occupied land" under s. 2 (1) (ix) of the

Abolition Act. It is after a consideration of all these

aspects that the High Court has found that the four tanks

belonged to the respondent at the time of resumption. and

the said tanks were on occupied land belonging to the

Jagirdar or any other person. Therefore, it considered the

question properly as per the remand order and has given a

finding on the same. As to whether the said finding is

correct or not, is a different matter. But the criticism

that it has not considered the point regarding the saving of

the tanks under s. 5(c) of the Abolition Act, cannot be

accepted.

Now coming to the merits, it is clear that as and from the

date of resumption, the consequences enumerated under s. 4

will have full effect. Except as otherwise provided in the

Abolition Act, normally under cl. (a) of Section 4(1) the

right, title and interest of every Jagirdar and of every

other person claiming through him in his Jagir lands

including among other items, tanks, shall stand resumed to

the State. The saving is provided under s. 5. If the

respondent is able to establish that the tanks in question

are on occupied land belonging or hold by the Jagirdar or

any other person, then those tanks are saved in favour of

the respondent under s. 5 (c) of the Abolition Act. It may

be mentioned at this stage that though the items are, all

described as tanks, it is in evidence that they get

submerged at times and at other times portions of the same

are being cultivated either by the respondent or by other s

under certain tenures. That is, parts of the tanks are

included and held by the respondent as khud kasht and rest

of it is held by the tenure-holders, who have got tenancy

rights over them.

As the other tenure-holders, namely, the tenants, were not

parties before the High Court, the question of the extent of

the area of the tanks was not decided and it was left open.

But the

872

entire extent of the tanks had been given by the respondent

as 1679 bighas and 18 biswas of land and this claim was

fully known to the Revenue authorities, who raised the

specific plea that the said tanks are not on occupied land.

Therefore, the circumstance that the High Court did not

adjudicate upon the question of the extent of the tanks, is

of no consequence and it is not material for the point in

dispute.

In order to get the tanks in question saved under S. 5 (c)

of the Abolition Act, the respondent will have to establish

They were on occupied land; and (b) They belonged to or were

held by the Jagirdar or any other person.

We have already extracted the definition of "occupied land'.

The essential ingredient of such land is that it must have

been held immediately before the commencement of the

Abolition Act under one or other of the four tenures

mentioned in sub-cls. (a) to (d). We have not been shown

about the, existence of any other type of tenure. The

occupied land will also include as per the definition lands

held by the Jagirdar as khud kasht as well as the land com-

prised in a homestead. Therefore, occupied land comprises

broadly of two types of lands: (1) four categories of land

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held under the tenures enumerated in sub-clauses (a) to (d);

and (2) comprised in khud-kasht and "Homestead". To

attracted cl. (c) of S. 5, the tank must be shown' in the

first instance, to be on occupied land, that is, on land

comprised under the tenures enumerated in sub-clauses (a) to

(d) or in the land held, as khud-kasht and homestead. In

our opinion, it is not necessary that the entire tank should

be exclusively situated in one or other of the tenures

enumerated in sub-clauses (a), to (d) of s.2 (1) (ix) on

exclusively in the land herd as khud-kasht and land-

comprised' in homestead. The requirement of the tanks in

question being ;on occupied land, will be satisfied even if,

part; of the: tanks is situated in one or other of the

tenures mentioned in sub-clauses (a) to (d) of cl. (ix) of

s. 2 (1 ) and the rest of it is included in, the land held

;Is khud-kasht and land comprised in a homestead. That is

the entire area of the tank must be comprised in either the

tennures of the khudkasht and homestead or in both.

Therefore, it is not. possible, to: accept the contention

advanced: on behalf if the appellant State that only those

tanks', which are on khud-kasht land of the Jagirdar are

saved to him.' Acceptance of such a contention will be

ignoring the clear wording of cl (ix) of s. 2(1), which

takes in also lands held on the various tenures referred to

therein.

From this, it follows that the mere fact that a part of the

tanks is in the occupation of 'the tenants as' tenure-

holders does not detract from operation of the saving cl.(c)

of's. 5. There is no controversy that at the material date

the occupied lands on which

873

tanks are situated belonged to or were held by the Jagirdar

or any other person. The expression "any other person" is

comprehensive enough to take in the persons who were holding

the land on one or other of the. tenures, enumerated.in sub-

clauses (a) to (id) of s. 2(1) (ix) of the Abolition Act.

Whatever may be the extent of the tanks in the possession of

the respondent, as his khud-kasht or homestead and in the

possession of the tenure-holders, the position ultimately

is, that the-entire extent of the tanks is in "occupied

land" belonging to or held by the Jagirdar or any other

person. The actual extent and the area held by the Jagirdar

and the tenure holders can be worked out only in the

presence of both those parties.

To conclude, we are satisfied that the High Court has

appealed the correct test. to find out whether the. tanks

are saved under s. ) of the Abolition Act. We, are also in

agreement with the finding of the High Court that the four

tanks and the pick-up weir are saved to the respondent under

s. 5(c) of the Abolition Act.

In the result, the judgment and order of the High Court are

confirmed and this,appeal dismissed with costs

G. C. Appeal dismissed.

874