Biswambhar Singh vs The State Of Orissa

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 167 and 169 of 1953

Decision Date: 18 December, 1953

Coram: M. Patanjali Sastri, Das, Ghulam Hasan, Mehr Chand Mahajan, Vivian Bose

In this case the matter titled Biswambhar Singh versus The State of Orissa and another was decided by the Supreme Court of India on 18 December 1953. The judgment was recorded on that same date. The Court’s bench comprised Chief Justice M. Patanjali Sastri together with Justices Mehr Chand Mahajan, Vivian Bose and Ghulam Hasan. The official author of the report was identified as the bench of Das, Sudhi Ranjan, with the names of the same judges reiterated: M. Patanjali Sastri (Chief Justice), Mehr Chand Mahajan, Vivian Bose and Ghulam Hasan. The citation for the decision appears as 1954 AIR 139 and 1954 SCR 842, with subsequent citations in various law reports such as 1955 SC 504, 1955 SC 795, 1956 SC 346, 1956 SC 503 and 1958 SC 956. The dispute concerned the application of the Orissa Estates Abolition Act, namely Orissa Act 1 of 1952, and specifically the interpretation of sections 2(g), 2(h) and 3 of that Act. The central question was whether owners of certain zamindari estates qualified as “intermediaries” holding an estate within the meaning of sections 2(g) and 2(h). The headnote of the judgment explained that under section 3(1) the State Government is authorised to issue a notification declaring that a specified estate has passed to the State, but such a notification must refer to property defined as an “estate” in section 2(g) and that estate must be held by an “intermediary” as defined in section 2(h). To be an intermediary, a person must, among other criteria, be described as a Zamindar, Ilaquedar, Kherposhdar or Tagirdar within the meaning of Wajib-ul-arz or be named in any Sanad, deed or other instrument. The Court held that the proprietors of the Hamgir and Serapgarh properties were not intermediaries as contemplated by section 2(h) and that their properties did not constitute “estates” within the meaning of section 2(g); consequently, the State Government lacked jurisdiction to issue any notification under section 3 concerning those properties. The Court further held, speaking for Chief Justice Patanjali Sastri, Justices Das and Ghulam Hasan, with Justices Mahajan and Bose dissenting, that with respect to the Nagra Zamindari the Zamindar-appellant was an intermediary as defined in section 2(h) and that his estate qualified as an “estate” under section 2(g). This conclusion was based on the fact that the predecessor in title of the present Zamindari had acknowledged the overlordship of the Raja of Gangpur, thereby giving the State Government authority to issue a notification under section 3 declaring the estate to have passed to and become vested in the State. In the dissenting opinion, Justices Mahajan and Bose explained that the words “deed” and “other instruments” in section 2(h) should not be read ejusdem generis with “Sanad.” They argued that these terms are not limited to documents of title such as a Sanad wherein one party creates or confers a zamindari estate on another. Instead, the words must be read disjunctively and interpreted according to their ordinary meaning. They observed that in the context of merged territories an “intermediary” does not merely include or mean a zamindar, but refers to a zamindar who falls within the meaning of (1) the Wajib-ul-arz, (2) any Sanad, (3) any deed, or (4) any other instrument, indicating the type of zamindar contemplated by section 2(h).

The Court explained that a “true intermediary” is a person who, according to the four documents referred to earlier, holds an interest in land that lies between the raiyat and the overlord of the estate. The appeal was listed under the Civil Appellate Jurisdiction as Civil Appeals Numbers 167 and 169 of 1953. Both appeals were filed under articles 132(1) and 133(1)(c) of the Constitution of India, challenging the judgment and order dated 7 April 1953 of the High Court of Judicature of Orissa at Cuttack in Original Jurisdiction Cases Numbers 65, 67 and 68 of 1952. Counsel for the appellant comprised N C Chatterjee assisted by B Sen, K C Mukherjea and H S Mohanty. For the respondents, M C Setalvad, Attorney-General for India, and Pitambar Misra, Advocate-General of Orissa, were instructed by V N Sethi. The judgment was delivered on 18 December 1953. The judgments of Patanjali Sastri C.J., Das and Ghulam Hasan JJ. were read by Das J., while the judgments of Mahajan J. and Bose J. were read by Bose J. Das J. noted that the three appeals, heard together, raised essentially the same questions.

Appeal Number 167 of 1953 concerned the estate of Hemgir, of which Shri Biswambhar Singh was the proprietor. Hemgir covered roughly 360 square miles, of which about 145 square miles were forested. Appeal Number 168 of 1953 was filed by Shri Janardhan Singh, proprietor of Sarapgarh, an estate of about 45 square miles. Appeal Number 169 of 1953 related to the estate of Nagra, where Shri Sibanarayan Singh Mahapatra was the proprietor; Nagra comprised roughly 545 square miles, including about 109 square miles of forest. All three proprietors claimed descent from Bhuiyan chiefs who, in earlier times, had been independent rulers of their respective principalities. The Court observed that there was no dispute that, over time, these chiefs had become subordinate vassals of the Raja of Gangpur.

The Court referred to the findings of Connolly’s Report, Mukherjee’s Report and Ramdhayani’s Report, noting that neither the Raja of Gangpur nor the proprietors had sought a precise definition of their rights, and consequently the settlement officers had made no effort to define those rights. This lack of definition left the status of the proprietors vis-à-vis the Raja of Gangpur undetermined. No documentary evidence was on record to show that the ancestors of the proprietors of Hemgir and Sarapgarh had ever received or accepted a sanad or grant from the Raja of Gangpur. However, the Court noted that there was evidence that the ancestors of the proprietor of Nagra had executed an ekrarnama in favor of the Raja of Gangpur, a point to be discussed later.

The Court further recorded that the ancestors of each proprietor had, year after year, paid a sum called “Takoli” to the Raja of Gangpur, a practice that continued by the present appellants. The Court observed that this payment had been described in some instances as a tribute and in others as rent, citing an order dated 9 August 1878 issued by A C Mangles, Commissioner of Chota Nagpur. The estates in question were described as hereditary property, governed by the rule of primogeniture.

In this case, the Court explained that the incorporation of the feudal states of Orissa was carried out through a series of steps that began with an Agreement of Integration executed in December 1947 and concluded with the issuance of the States’ Merger (Governor’s Province) Order on 27 July 1949. The Order was made by the then Governor-General of India, who exercised the authority granted to him by section 290-A of the Government of India Act as amended by the Indian Independence Act 1947. By virtue of that Order, every feudatory state belonging to Orissa was merged into, and became a part of, the State of Orissa. Consequently, the territories that comprised Hemgir, Sarapgarh and Nagra were transformed into portions of the newly merged State of Orissa.

On 17 January 1950 a bill was introduced in the Orissa Legislature that would later be known as the Orissa Estates Abolition Act. The Constitution of India came into force on 26 January 1950. After being debated and passed by the Orissa Legislature on 28 September 1951, the Governor of Orissa reserved the bill for the consideration of the President of India. The President gave his assent to the bill on 23 January 1952, and the legislation thereafter became law as Orissa Act I of 1952. Subsequently, an amendment to that legislation, titled the Orissa Estates Abolition (Amendment) Act, 1952, was passed on 5 July 1952 and received the President’s assent on 27 August 1952.

The long title of the Act declared its purpose to be the abolition of all rights, titles and interests in land held by intermediaries—irrespective of the name by which they were known—including mortgagees and lessees of such interests, between the raiyat and the State of Orissa. The Act further provided for the vesting of those rights, titles and interests in the State and for other matters connected therewith. Two preambles prefaced the Act. The first preamble stated that, in accordance with the Directive Principles of State Policy laid down by the Constitution of India, the State was obligated to secure economic justice for all, to obtain ownership and control of all material resources of the community for the common good, and to prevent the concentration of wealth and means of production to the detriment of the public. The second preamble observed that, to enable the State to fulfil those obligations, it was expedient to abolish all intermediary rights, titles and interests in land, including those of mortgagees and lessees, and to vest such rights in the State.

The Act’s definitions in section 2 described the term “estate” with reference to the merged territories as any collection of mahals or villages held by the same intermediary that had been, or was liable to be, assessed as a single unit for land revenue, whether such revenue had been paid, released, compounded, or redeemed in whole or in part. The definition of “intermediary” with reference to the merged territories covered a maufidar, which could be the ruler of an Indian State merged with Orissa, a zamindar, illaquedar, khorposhdar or jagirdar as understood under the Wajib-ul-arz, any sanad, deed or other instrument, as well as a gaontia or thikadar of a village who, by virtue of the provisions of the Wajib-ul-arz applicable to that village, possessed a hereditary right to recover rent or revenue from occupants of land in that village. Section 3(1) empowered the State Government, by way of notification, to declare that a specified estate had passed to and become vested in the State, free from all encumbrances.

The Act defined the term “intermediary” with reference to the merged territories as any mau-fidar, which included the ruler of an Indian State that had been merged with the State of Orissa, a Zamindar, Ilaquedar, Khorposhdar or Jagirdar as understood in the Wajib-ul-arz, any sanad, deed or other instrument, and a gaontia or a thikadar of a village who, by virtue of the provisions of the Wajib-ul-arz applicable to that village, possessed a hereditary right to recover rent or revenue from persons holding land in the village. Section 3(1) provided that the State Government could, from time to time by notification, declare that a specified estate had passed to and become vested in the State free from all encumbrances. The constitutionality of the Act was challenged in several petitions under article 226 of the Constitution. The Orissa High Court upheld the validity of the Act, a decision that was subsequently affirmed by this Court in Civil Appeal No 71 of 1953 (Maharaja Sri Krishna Chandra Gajapati Narayan Deo v State of Orissa). While the writ petitions were pending, on 27 November 1952 the State Government issued a number of notifications under section 3 covering a large number of estates, including those of the three appellants before this Court, and ordered the appellants to surrender possession. The appellants responded by filing three separate writ petitions, each seeking a writ of mandamus directing the State of Orissa and the Collector of Sundargarh not to interfere with their possession or to give effect to the provisions of the Act. The State of Orissa opposed the petitions and raised several broad grounds: that the petitioners were not intermediaries, that their properties were not estates, that the forest areas within their properties were not estates, that the Act did not fall within article 31A of the Constitution and therefore lacked protection, and that the Act was discriminatory and violated article 14. The then Chief Justice of Orissa, in a broadly framed judgment, rejected each of these contentions and held that the petitions should be dismissed. Justice Narasimham concurred with the Chief Justice that the appellants were intermediaries and that the immovable properties of the petitioners constituted estates, and that the forest areas formed part of those estates. However, he differed on two important questions: he concluded that the Act was not covered by article 31A and therefore was not entitled to its protection, and that section 3 of the Act contravened article 14 of the Constitution.

Because of this divergence of opinion, the applications were ordered to be posted before a third judge for fresh argument. Justice Mahapatra, before whom the applications were re-argued, agreed substantially with the Chief Justice that the Act was protected by article 31A and that, in any event, it did not violate the equal-protection clause of the Constitution. Consequently, the applications were dismissed and the present appeals were filed. Section 3(1) authorises the State Government to issue a notification declaring that a specified estate has passed to the State. The State Government, however, has no power to issue a notification in respect of any property unless that property is an “estate” as defined in section 2(g).

The learned Judge held that because section 3 was the pivotal provision of the statute, the entire Act could not be applied to the immovable properties of the appellants, although it remained valid for other estates that fell within article 31-A(2)(a). Accordingly, the Judge concluded that the appellants were entitled to the reliefs they sought. Because this view differed from that of the Chief Justice, the applications were ordered to be placed before a third Judge for fresh argument. Before Mahapatra J, the applications were re-argued, and he agreed substantially with the Chief Justice that the Act enjoyed protection under article 31-A and that, in any event, it did not offend the Constitution’s equal-protection clause. On that basis, the applications were dismissed, giving rise to the present appeals.

Section 3(1) authorises the State Government to issue a notification declaring that a specified estate has passed to the State, but the Government cannot issue such a notification unless the property qualifies as an “estate” as defined in section 2(g). That definition requires the collection of mahals or villages to be held by the same “intermediary.” Section 2(h) defines an “intermediary” as a Zamindar, Ilaquedar, Khorposhdar, or Jagirdar “within the meaning of the wajib-ul-arz or any Sanad, deed or other instrument.” Thus, merely being a Zamindar or similar title does not suffice; the person must fall within one of those categories as interpreted by the referenced instrument. The appellants’ counsel therefore argued that the State Government lacked authority to issue the notification because the appellants were not intermediaries and their lands were consequently not estates. This argument proceeds on the premise that the Act is constitutionally valid, so no constitutional issue would arise if it succeeded. After reviewing the judgment of the learned brother Bose, we agree, for essentially the same reasons, that Shri Biswambhar Singh and Shri Janardhan Singh are not intermediaries under section 2(h) and that their properties, Hemgir and Sarapgarh, do not constitute “estates” within section 2(g). Consequently, the State Government possessed no jurisdiction to issue any notification under section 3 concerning those properties. In this view, no constitutional questions need be addressed in Appeals Nos. 167 and 168 of 1953, and those appeals must therefore be allowed. Appeal No. 169 of 1953, filed by Shri Sibanarayan Singh Mahapatra of Nagra, presents a different factual footing.

In this appeal the State’s counter-affidavit, in paragraph thirteen, specifically referred to a document titled Rubakari that had been presented in the court of J. F. K. Hewitt, the Commissioner of Chota Nagpur, dated 10 March 1879. The record shows that the Rubakari was filed during the hearing of the petition without any objection and it is identified as document No 6(g). From the contents of the Rubakari it appears that the Commissioner summoned both the Raja of Gangpur and Balki Mahapatra of Nagra. After recalling the then existing disputes between the Raja of Gangpur and Balki Mahapatra, who was the predecessor-in-title of the present appellant Shri Sibanarayan Singh Mahapatra, the Rubakari recorded 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 use of the terms “rent” and “fixed rent” was noted as significant. The Rubakari further stipulated that “Balki Mahapatra and his 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 document then concluded: “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 of Gangpur and Balki Mahapatra of Nagra, for information and guidance.” From this description it is evident that as early as 1879 an Ekrarnama had been executed by the then Raja of Gangpur and by Balki Mahapatra of Nagra, setting out the conditions under which the latter would “hold” possession of the Nagra Zamindari, namely the payment of a fixed annual rent together with certain customary dues. Several decades later, on 29 March 1943, the Dewan of Gangpur State addressed a letter to the Zamindar of Nagra Estate, urging him to show cause why the takoli should not be increased; this correspondence is recorded as document No 6(r-2). The Zamindar referred to in that letter was the present appellant, Shri Sibanarayan Singh Mahapatra. He responded on 19 July 1943 with a detailed reply in which, in the heading, his name was followed by the description “Zamindar of Nagra.” In paragraph 3 (XV) of that reply, reference was made to the fact that the takoli had been fixed in perpetuity and had been finally settled in 1879. The entire Rubakari of J. F. K. Hewitt is reproduced verbatim in paragraph 13 of the appellant’s reply, underscoring the long-standing nature of the arrangement whereby the predecessor-in-title held the Nagra estate on the condition of paying a fixed annual rent.

In the reply, paragraph fourteen recorded that the Rubakari proceedings of Mr. Hewitt demonstrated that the then Raja Raghunath Sekhar Deo of Gangpur and Babu Balki Mahapatra, Zamindar of Nagra, had duly signed a deed of compromise which unequivocally stipulated that the Raja and his successors would be bound by the term that Nagra should pay only Rs 700 as Takoli each year and that this amount would remain fixed forever. Paragraph fifteen then referred to the proceedings of 29 June 1891 before W H Grimley, the Commissioner, identified as document No 6 (L), which also related to the settlement made by J F K Hewitt in 1879. Consequently, there was no doubt that an Ekrarnama had been executed by the Raja of Gangpur and by Balki Mahapatra, the predecessor in title of the present appellant, under which Balki Mahapatra “held” the Nagra estate on the condition of paying an annual rent. The appellant, Shri Sibanarayan Singh Mahapatra, firmly relied upon the Ekrarnama and its terms. A question was raised that the original 1879 Ekrarnama had not been produced and that, because no evidence explained its non-production, secondary evidence of its contents should be excluded. The Court found no merit in this delayed objection. The Rubakari and other documents mentioned had been filed without any objection on the ground that they were merely secondary evidence of the Ekrarnama’s contents. Although the parties proceeded somewhat informally in producing and proving documents, the judgment of the learned Chief Justice clarified the position, stating that although originals or authenticated copies were absent, typed paper books containing unauthenticated copies had been filed by both sides, accepted as evidence with mutual consent, and placed on record. Annual administration reports of the Gangpur State, working plans for the reserved forests of Hemgir, Nagra and other zamindaris, and the Forest Act of Gangpur State had also been filed and received without objection. Numerous further documents were produced on behalf of the State, accompanied by affidavits dated 9 and 10 February 1953, and annexures on behalf of the petitioners with an affidavit dated 11 February 1953; all were treated as part of the record without objection, except for one document, the Mukherjee’s Settlement Report (item 18), whose reception was contested.

In this case the Court observed that the appellant, Shri Sibanarayan Singh Mahapatra, had earlier acknowledged the existence and the contents of the document known as the Ekrarnama in a personal letter dated 19 July 1943. Because his own letter admitted both the document and its particulars, the Court held that the Ekrarnama could be proved by secondary evidence, which is permissible under section 65(b) of the Indian Evidence Act. The Court further noted that the petition seeking leave to appeal did not allege any grievance that the secondary evidence of the Ekrarnama had been improperly admitted. Consequently the appellant could not now complain that evidence concerning the terms of the Ekrarnama was inadmissible. The Court added that the Ekrarnama is also referred to in an older public record called the Rubakari, and the authenticity of the Rubakari cannot be doubted; this reinforces the existence and genuineness of the settlement recorded in the Ekrarnama. Proceeding from the premise that Balki Mahapatra and his descendants, including the present holder, possessed the Nagra Zamindari estate according to the Ekrarnama and paid a fixed annual rent, the Court found no doubt about the legal status of the Nagra proprietor in relation to the Raja of Gangpur from the year 1879 onward, irrespective of any earlier position. Hence the proprietors of Nagra are zamindars within the meaning of the Ekrarnama, whether one calls the instrument a deed or any other document. Accordingly, the Court classified Shri Sibanarayan Singh Mahapatra as an “intermediary” within the definition of section 2(h) of the Act, and described his holding as an “estate” under section 2(g). From this classification the Court concluded that the State Government possessed clear jurisdiction to issue a notification under section 3 of the Act. The appellant also raised a subsidiary argument that forest lands, which are not part of any mahal or village and are not assessed as a single unit for land revenue, could not fall within the definition of an estate. The High Court rejected that contention, and both learned judges were in agreement on the point. This Court affirmed the High Court’s view. There is no dispute that, geographically, the forest tract lies within the boundaries of the Nagra Zamindari estate. The Court’s attention was drawn to maps and plans that show the forest lands occurring in scattered blocks inside the estate’s limits. The annual rent fixed by the Ekrarnama was payable for the entire estate, including these forest blocks. At the time the rent was fixed, forest income was negligible compared with present earnings, and therefore the existence of forest as uncultivable waste land did not materially affect the assessment of rent. No evidence was placed on record indicating that the forests had been excluded from consideration when the annual rent was determined.

The Court observed that the forest lands were not excluded from consideration as a separate item of property. No evidence was placed on record to support any arrangement in which the forests were treated apart from the rest of the estate. Since the forests fell within the geographical boundaries of the Nagra Zamindari estate, and the Zamindar of Nagra held the estate from the Raja of Gangpur, the Court concluded that the Zamindar must also have held the forest lands from the Raja of Gangpur. The suggestion that the proprietor of Nagra had accepted a grant from the Raja of Gangpur only for the collection of Mahals or villages, while retaining independent authority over the interspersed forest lands, was found to be unconvincing. Accordingly, and in line with the reasoning set out in the learned Chief Justice’s judgment, the Court held that the forest lands formed part of the estate held by the Zamindar of Nagra under the Raja of Gangpur. Because the Zamindar of Nagra was an intermediary and his territories constituted an estate, the appellant, Shri Sibanarayan Singh Mahapatra, could not obtain any relief if the Act in question was valid.

The Court noted that counsel for the appellant, in support of his appeal (No. 169 of 1953), turned to the constitutional validity of the Act. The first hurdle for the appellant was to demonstrate that the Act was not protected by article 31-A of the Constitution; if the Act were covered by that article, it could not be declared void for inconsistency with or for infringing any rights guaranteed by Part III. Counsel argued that Nagra was not an “estate” as defined in article 31-A(2)(a). The learned Chief Justice had held that Nagra was an estate within the meaning of that provision, thereby placing the Act under the protection of article 31-A, whereas Narasimham J. reached the opposite conclusion. Mahapatra J. agreed with the Chief Justice. The Court stated that, for the purpose of disposing of the appeal, it was not necessary to engage in an extended discussion on the applicability of article 31-A. Assuming, for argument’s sake, that article 31-A did not apply, the Act would then be open to challenge under article 31(2) and article 14. Counsel before the Court did not rely on article 31(2) but limited his attack to article 14. In the High Court, article 14 had been invoked in two ways: first, that the provision for assessing and fixing compensation was discriminatory, and second, that section 3, which gave the State Government unfettered discretion to issue or not issue a notification, was discriminatory. Counsel confined his arguments to the second ground. The learned Chief Justice had held that there was no violation of article 14, while Narasimham J. disagreed; Mahapatra J. again sided with the Chief Justice. The Court aligned itself with the majority view.

It was contended that the provision dealing with an estate was discriminatory because it permitted the State Government to issue a notification against those zamindars who had opposed the ruling party in the election, while allowing it to refrain from issuing a notification against zamindars who were loyal to that party. The objection based on discrimination arising from the method of assessment of compensation was not pressed before this Court, and the counsel for the appellant limited his submissions to the second ground of discrimination only. The learned Chief Justice previously held that there was no breach of article 14 of the Constitution, whereas Justice Narasimham expressed the opposite view. Justice Mahapatra, however, sided with the Chief Justice. The present Court finds itself in agreement with the majority opinion expressed by the learned judges of the High Court.

The long title of the enactment, together with the two preambles quoted earlier, plainly demonstrate that the purpose of the Act is to abolish all rights, titles and interests in land that belong to intermediaries, whatever name they may be known by. This declaration sets out the policy that the operative provisions of the Act are intended to give effect to. Consequently, any discretion conferred on the State Government under section 3 or section 4 must be exercised in accordance with that policy and cannot be characterized as absolute or unfettered, because the ultimate aim is that all estates will inevitably be abolished. By the very nature of the scheme, a limited degree of discretionary latitude had to be granted to the State Government. It would have been an enormous task for the State Government to assume control of every estate simultaneously; such an approach would have overwhelmed the administrative machinery, made it impossible to recruit sufficient staff to manage the responsibilities, and created insurmountable financial difficulties in arranging the necessary funds at one time. For these reasons it was essential to vest the State Government with a measure of discretion.

No evidence has been placed before the Court to show that, in practice, any discrimination of the kind alleged has occurred. Should any notification or order be issued not in furtherance of the policy of the Act but in bad faith and as a means of discrimination, that order, by virtue of article 13(3) and because it falls within the definition of “law”, would itself be void under article 13(2). The counsel appearing for the appellant failed to advance any cogent and persuasive argument demonstrating why the reasoning adopted by the majority of the learned judges below is faulty or untenable. Accordingly, the Court sees no need to pursue the matter further beyond affirming its concurrence with the conclusions reached by the majority of the High Court judges.

The appellant’s counsel also raised another submission, namely that the amending Act, which altered the definition of the date of vesting, was invalid because there was no public purpose for depriving a vested right that the original definition of that expression in the Act had conferred. No further elaboration on this point was made, and the Court accordingly does not address it in detail.

The Court observed that the amendment to the Act, which had originally granted certain rights to the owners of estates that had been formally notified, was not pressed vigorously by the learned counsel, and therefore no further discussion of that objection was required. Consequently, the Court ordered that appeals numbered 167 and 168 of 1953 be allowed with costs, while appeal number 169 of 1953 was dismissed with costs. The three appeals under consideration originated from petitions filed in the High Court of Orissa under article 226 of the Constitution by the zamindars of Hemgir, Sarapgarh and Nagra. The legislative history disclosed that the Orissa State Legislature enacted the Orissa Estates Abolition Act of 1951 on 28 September 1951, which was then placed before the President for assent. The President gave his assent on 23 January 1952, at which point the Act became law. The Act empowers the State Government to take over the “estates” of all “intermediaries” located within the State of Orissa. Pursuant to the authority conferred by the Act, the State Government issued a series of notifications under section 3, and among those notifications were three that directly affected the present petitioners. The State Government’s action was contested on several grounds. First, it was argued that the Act was constitutionally invalid because it violated fundamental provisions of the Constitution. Second, even assuming the Act’s validity, it was contended that the notifications were ultra vires for two reasons: (a) the zamindaris involved did not constitute “estates” within the meaning of section 2(g) of the Act, and (b) the petitioners were not “intermediaries” as defined in section 2(h). The Court indicated that it would first address the precise meanings of “estate” and “intermediary.” This inquiry was crucial because section 3(1) provides that the State Government may, by periodic notification, declare that a specified estate has passed to and become vested in the State, free of all encumbrances. Section 2(g) defines “estate” in relation to merged territories as any collection of mahals or villages held by the same intermediary that has been, or is liable to be, assessed as a single unit for land revenue purposes. Section 2(h) defines “intermediary” with reference to merged territories as a mauphidar, which includes the ruler of an Indian State merged with Orissa, as well as a zamindar, ilaquedar, khorposhdar or jagirdar within the meaning of the wajib-ul-arz, or any sanad, deed or other instrument. The Court noted that it was admitted that the territories in question were merged territories, and therefore the reproduced portions of the definitions were sufficient for analysis. Before any property could be taken over under the Act, it must qualify as an “estate” according to the definition and must belong to an “intermediary” as defined in clause (h). The Court therefore began its examination with the definition of “intermediary.”

In this case the Court examined the definition of “intermediary” contained in section 2(h). Both parties agreed that the petitioners were zamindars, but the petitioners argued that they could not be classified as “intermediaries” because the definition did not encompass all zamindars; it applied only to those who were zamindars within the meaning of (a) any wajib-ul-arz, (b) any sanad, deed or other instrument. The Court noted that the appellant’s counsel grouped the last three terms together and, relying on the principle of ejusdem generis, suggested that the words “deed” and “other instrument” should be read narrowly so as to refer only to documents of title similar to a sanad whereby one party creates or confers a zamindari estate on another. The Court rejected this approach. It held that the words must be read disjunctively and interpreted according to their ordinary meaning. For example, a document executed by an intermediary that merely acknowledges the overlordship of another party would, in the Court’s view, fall within the definition.

The Court further explained that if these zamindars had been situated in former British India, the first part of the definition in section 2(h) would be straightforward and they would clearly fall within one of the categories mentioned therein. However, for the merged territories the definition was altered, and “intermediary” no longer simply meant a zamindar but a zamindar within the meaning of (1) the wajib-ul-arz, (2) any sanad, (3) any deed, or (4) any other instrument. The Court interpreted this change as deliberate and purposeful. The phrase “within the meaning of” could not be understood as a mere mention of a person as a zamindar, nor could it mean that any document referring to a person as a zamindar automatically made that person an intermediary; otherwise the definition would have stated so explicitly. Instead, the Court concluded that the words were inserted to include only those documents that deal, or purport to deal, with true intermediaries—persons who hold an interest in the land between the raiyat or actual cultivator and the overlord of the demesne. To illustrate, the Court presented two scenarios. In the first, a person named A might be a zamindar in one State but hold land in another State as an ordinary tenant. If A executed a lease with his immediate landlord in that other State and described himself as a zamindar, the deed would not render A an intermediary because the deed concerns a landlord-tenant relationship, not a zamindari arrangement. In the second scenario, a ruling chief might acquire a zamindari of the intermediary type in a neighbouring State by purchase. Although documents relating to that zamindari might describe him as a Raja or chief, the Court held that he would not be a ruling chief within the meaning of the document; he would merely be a zamindar. The Court emphasized that this interpretation respects the altered language of the definition and assigns a coherent purpose to the words “within the meaning of.”

In the second illustration, the Court explained that a ruling chief could acquire an intermediary-type zamindari in a neighbouring State by purchase or other means. Even though documents dealing with that zamindari might describe the holder as “the Raja” or “the Chief of so-and-so,” the Court held that the individual would not be a ruling chief for the purposes of the deed; he would merely be a zamindar. The Court said that this interpretation was the only way to understand the clause in section two of the Act. It emphasized that the change in the two parts of the definition could not be ignored and that the words “within the meaning of” had to be given a sensible purpose. The distinction was important because zamindars comprised a variety of persons. Some zamindars were true intermediaries who collected state revenue from raiyats and other under-tenants; they possessed an interest in land but did not enjoy the fee-simple ownership recognized under English law. Such zamindars were not lords of the manor in the English sense and bore little resemblance to English landlords, although they shared some similar attributes, as noted in Baden-Powell’s Land Systems of British India, volume I, pages 130, 519 and 523. Other zamindars were either ruling chiefs or court favourites who held merely courtesy titles, and some were simply peasant cultivators. The Court cited Baden-Powell’s description on page 508 of volume I, which discusses the decline of the Mughal Empire in 1713, noting a relaxation of control over provinces and the administrative machinery, and a shift toward farming revenues of convenient tracts. Baden-Powell recorded that, besides the Rajas, chiefs and ancient grantees who truly held land and were already called zamindars, other classes of persons were employed as farmers and began to be called zamindars as well. He observed that former officials, such as amils and karoris, bankers and court favourites, also received the name zamindar and adopted the dignities and importance of earlier landholders. On page 401 he explained that some zamindars were old Rajas with a close connection to the land (see also page 579), while on page 7 he noted that in certain regions the term meant a petty peasant cultivator. Consequently, Baden-Powell described the word zamindar as a “Protean term” on page 261, because it assumed many forms in different places and at different historical stages within the same area. At one moment the term referred to a rajah or petty chieftain exercising sovereign or quasi-sovereign powers, illustrating the term’s fluid meaning.

In this case, the Court observed that the term “zamindar” had been used in many different ways. At times it referred to powers, at other times to revenue farmers, to landlords of small estates in the English sense, to petty peasant cultivators, and sometimes merely to courtesy titles without any legal foundation. The Court concluded that the Act could not be applied to peasants who owned and cultivated their own land, that is, to the raiyats, nor could it be applied to a landlord in the English sense who was the true lord of the soil. The title, the preamble and the definitions of the Act all indicated a purpose opposite to such applications. The title and the preamble used the same language and described the Act as one “to provide for the abolition of all the rights, title and interest in land of intermediaries by whatever name known.” Consequently, the Court was bound to interpret the ambiguous words examined above in a manner that would fulfill the purpose of the Act and not extend beyond it. Accordingly, the Court held that the kind of zamindar referred to in section 2(h) was one who could be described as a “true intermediary” within the meaning of the four documents set out there, meaning persons who held an interest in the land between the raiyat and the overlord of the estate. The Court noted that it was unfortunate to have to label them “true intermediaries” when the purpose of the discussion was to define “intermediary,” but the term was convenient and would not mislead when read with the Court’s explanation. The Court further held that the mere fact that the zamindari lands in the present cases lay within the boundaries of the Gangpur State did not prove that the petitioners who owned them were “intermediaries.” As the Privy Council had observed in two cases, the mere presence of disputed lands within the geographic limits of a larger estate was not conclusive proof that they formed part of that estate. Likewise, the fact that the Raja of Gangpur exercised general superintendence over these zamindars in certain matters was not conclusive, because, as Lord Phillimore explained in Secretary of State for India v. Raja Jyoti Prashad Singh, care must be taken not to confuse hierarchical superintendence with feudal overlordship. The petitioners’ claim that they were not “intermediaries” but the direct landlords of the soil was best understood by referring again to the Privy Council decision cited. In that decision, the zamindar claimed overlordship of the Ghatwali Digwars in the same way that Gangpur was said to be the overlord of the zamindaris in the present cases.

Lord Phillimore observed on page 553 that “It is agreed that these digwars have existed from time immemorial and may be co-eval with the Raja and may have been created or recognised by a sovereign power superior to both.” The Judicial Committee then held that, although the Ghatwali lands under discussion lay within the geographical limits of the Raja’s zamindari, they did not form part of that zamindari. This finding is reported in I.L.R. 53 Cal. 533 at 547 and in (1870) 13 I.A. 438 at 457. Similar questions were considered in the case of Bir Bikram Deo v. Secretary of State for India, where the Privy Council examined claims advanced by eight zamindars of the Central Provinces who likewise asserted a semi-sovereign status. The lower courts had set out an elaborate history of the Central Provinces zamindaris, and copious extracts from their judgments appear in the report. Those courts classified the zamindars in that area into two categories—feudatory and non-feudatory—on page 637. Commenting on this classification on page 657, the Privy Council explained that “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 an 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 sovereignty. The rest were classed as non-feudatories and declared to be ordinary British subjects.” If the State of Gangpur is substituted for the British Government, the claim made by the present petitioners against the State of Gangpur becomes analogous to the claim made by the plaintiffs in that suit against the Secretary of State for India. The status of those plaintiffs in relation to the British Government had been conclusively settled because the question was definitively raised in 1863, examined in 1864, and finally codified by the sanads granted in 1874 and accepted by the ancestors of the parties, as noted on page 637. In the present proceedings, however, the issue of the petitioners’ status vis-à-vis the State of Gangpur has been repeatedly raised and, according to the record, deliberately left undecided; it is an admitted fact that no sanads exist to define that relationship.

The petitioners identify themselves as Bhuyans and contend that their ancestors were the original settlers who occupied the soil long before the chiefs of Gangpur arrived. Baden-Powell, in Volume I of his history of the Bhuyans in the Bengal and Chota Nagpur area of former British India (I.L.R. 39 Cal. 615), discusses this at length. On page 577 he explains that the Bhuyans were the original founders of the villages, and on page 581 he records the ancient theory that “no bhuinhar (of an original founder’s family) could ever lose his lands; so that after years of absence he might return and claim it from the present holder.” He further observes on page 580 that when British rule began, some of the surviving Rajas, chiefs and grantees were recognised as “Zamindars” under a permanent settlement. When these former Rajas became Zamindar landlords, they endeavoured to minimise the rights of the bhuinhars in their free allotments, a policy that engendered considerable discontent and sparked rebellions in 1831-32 and again in 1858. Consequently, in 1869 it was determined to put an end to the uncertainty and discontent arising from the encroachments of landlords who had ignored the old tenures and infringed the bhuinhari rights. A Special Commissioner was appointed that year to examine, define and record all the various classes of rights and, accordingly, to determine the status of the Bhuyans in British India vis-à-vis the “Zamindars” who were the surviving Rajas and petty chiefs. This exercise resulted in settlements that were accepted by the parties, but those settlements pertained only to British India. In the present case, every attempt to resolve the same question between the Bhuyan petitioners remains uncompleted.

In the work cited on page 580, the author explained that when British rule commenced, the British authorities recognised some of the surviving Rajas, chiefs and grantees as “Zamindars” under a permanent settlement scheme. When the former Rajas, or their successors, assumed the role of Zamindar landlords, they deliberately reduced the rights of the “bhuinhars” in the latter’s free allotments. Such reductions generated great discontent, leading to rebellions in the years 1831-32 and again in 1858. In 1869 the administration decided to end the uncertainty and unrest that had arisen from the encroachments of the landlords who ignored the older tenures and infringed the rights of the bhuinhars. Accordingly, a Special Commissioner was appointed in that year to investigate, define and record all the various classes of rights and, based on that investigation, to determine the status of the Bhuyans in British India in relation to the “Zamindars” who were the surviving Rajas and petty chiefs. The Commissioner completed the inquiry, settlements were made and accepted, and the matter was finally resolved for the period of British India.

However, the present case concerned a different jurisdiction. In the present dispute, every effort to resolve the same question between the Bhuyan petitioners and the ruler of Gangpur failed, and no decision had been reached to date. The judgment referred to Dalton’s Ethnology of Bengal (1873), pages 139-140, which described the Bhuyans of Gangpur as possessing proprietary rights under the Chiefs. The same author qualified his statement by noting that the Bhuyans were the barons from whom the Chiefs originally derived their authority and that they could either support or undermine that authority depending on their political alignment. This observation served as evidence that the Bhuyans in Gangpur existed before the Gangpur rulers.

In 1891 a dispute arose between the Raja of Gangpur and the Zamindars of Hemgir and Nagra when the Bengal-Nagpur Railway cut through a portion of their lands. Both parties claimed compensation from the railway for timber taken from the forests. Commissioner W. H. Grimley declined to award any compensation for timber removed from the zamindari forests, granting compensation only for timber taken from the claimant’s Khalsa lands. In his decision, the Commissioner referred to the Hewitt Settlement of 1879 and quoted the report, stating that the contention that the Zamindar of Nagra was merely a tehsildar or rent-collector subordinate to the Raja was invalid, and that it was established beyond doubt that the Zamindar held a permanent interest in the Nagra Estate, placing him on the same footing as a zamindar under the permanent settlement in Bengal. The Commissioner concluded that the extracts and remarks demonstrated that the zamindars of Nagra, Hemgir and other zamindars of Gangpur were regarded by a former Commissioner as possessing not only permanent rights in their zamindaris but also full and exclusive rights over the jungles in their estates, and that they appeared to be the original settlers of the soil.

The Court observed that the Bhuyan landholders, described as “settlers of the soil,” occupied a position comparable to that of the Mankis in Lohardugga and Manbhum, who, as aboriginal chiefs or heads of clans possessing groups of twelve or more villages, exercised rights over forest lands and acted independently of any superior Raja or zamindar, a status that developed later. The Court noted that it would be unnecessary to reproduce further extracts from the extensive historical material presented, because the present opinion was not required to resolve that issue and, moreover, the Raja of Gangpur was not a party before the Court. It was sufficient to acknowledge that a substantial body of historical evidence indicated that the Bhuyan tenures originated in prehistoric times and were not the product of a conquering line of Rajput rulers. The Court cited Mr. Forbes’s statement in Political Suit No 26 of 1900-1901, which observed that although the British Government possessed the unquestionable rights of a conqueror and could dictate terms in its sanads to the chiefs, those chiefs were far from enjoying a comparable position of authority over the landholders. Similar observations were found in the Imperial Gazetteer of India (Hunter, Volume 4, page 478) and in Sir Richard Temple’s work on treaties, zamindaries, and chieftainships in the Central Provinces (page 18). The Court emphasized, however, that this perspective represented only one side of a complex historical picture and that material existed suggesting an opposing view, particularly because two successive Settlement Officers had declined to decide the question despite the dispute being raised on the occasions identified. Connolly, in his Settlement Report for 1907-1911, remarked that the State contained four zamindaris, all held by Bhuias, and that the settlement made no attempt to determine their relationship to the Chief. Likewise, Mukherji, in his Settlement Report for 1929-1936, noted that the relations of the zamindars with the Chief had not been expressed in any administrative document accepted by the zamindar in each settlement. In 1941, Ramdhyani was appointed Officer on Special Duty to report on the land tenures and revenue systems of Orissa and Chhattisgarh States. In paragraph 75 of the first volume of his report, he observed that zamindars on the one hand refused to accept sanads to define their rights, while rulers on the other hand were reluctant to enact precise laws that would bind them. In Volume III he added that no sanads had been issued by the State to the zamindars, leaving their rights undefined. The Court further noted that the existence of an alternative viewpoint was evident from the historical material gathered in the cases of Kunwarlal Singh v. Provincial Government, Central Provinces and Berar, and Rajkrishna Prasadlal Singh Deo v. Baraboni Coal Concern Ltd., where, in many instances, even though the...

In the earlier period the zamindars functioned as independent sovereigns in relation to the ruling authority. Over time their privileges were gradually reduced, and whatever authority they may have originally possessed has been narrowed to a position of subordination. Whether this diminution of rights occurred in the specific cases before the Court has never been definitively established, and it would be inappropriate to presume either outcome in the absence of the Raja of Gangpur. The Court’s purpose in examining the extensive historical material is to demonstrate that the mere use of the term “zamindar” is not determinative. A casual reference to that word in the various documents under consideration cannot by itself fix the petitioners’ status as “intermediaries,” particularly when the Settlement Reports to which those documents belong state in clear terms that neither party consented to a definition of their mutual rights and consequently no effort was made to define them.

The first document on which the State relies is identified as the Wajib-ul-arz. Considerable research was undertaken to ascertain the meaning and composition of a Wajib-ul-arz, but the Court does not intend to delve into those technicalities. For the purposes of the present case the Court will assume, without deciding the precise issue, that the document relied upon by the State of Orissa—although it is termed a Record of Rights—functions as a Wajib-ul-arz within the meaning of the governing Act. The content of that document is a record of the rights of the raiyats and the gaontias in relation to the “Chief or Ilaquedar.” The words “zamindar,” “Chief,” and “Ilaquedar” are absent from the title, and the term “Ilaquedar” itself has been struck out. The document merely stipulates that the malguzari (land revenue) shall be paid to the “Chief or Ilaquedar” and that all lawful orders issued by the “Chief or Ilaquedar” must be obeyed without objection.

Additional facts show that the petitioners have been issuing pattas to the gaontias in a manner that appears to conform to this Record of Rights, as the pattas expressly refer to it. Moreover, the petitioners have signed these pattas using the designation “zamindar.” A typical patta reads: “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 … (Signature) Zamindar.” When this patta is read together with Connolly’s Settlement Report, of which it forms a part, it becomes evident that the document does not claim to address the rights and status of the petitioners vis-à-vis the Chief of Gangpur, because Connolly explicitly states that those rights were neither agreed upon nor determined. Although the petitioners describe themselves as zamindars in the pattas, the essential question remains as to what type of zamindar is intended. This point is deliberately left unresolved by the continued use of the terms “Chief” or “Ilaquedar.”

In this matter the Court observed that the language of the documents remained uncertain because they continued to employ the terms “Chief” or “Ilaquedar” without defining the precise relationship. The petitioners contended that, according to those documents, they were the overlords and that the gaontias functioned merely as their intermediaries. The Court noted that there was some factual basis for that contention, but nevertheless it could not accept the petitioners as “zamindars” within the meaning of the so-called “Wajib-ul-arz”, even if the document were treated as a Wajib-ul-arz. The Court explained that the term “zamindar” under the definition must denote a “true intermediary”, a meaning that did not fit the petitioners’ claim.

The petitioners also argued that certain Settlement Khewats and Khatians formed part of the Wajib-ul-arz in the relevant region. The Court stated that no evidence was produced to substantiate this assertion beyond a bare claim. Even assuming that the assertion were correct, the Court could not infer more from those documents than what the Settlement Commissioner had expressly recorded. For example, the Khatians merely listed the name of the person receiving revenue as “Zamindar so-and-so of Khewat No. 2”. The Court pointed out that this column identified a person’s name, not his official designation. Moreover, the Court found it impossible to separate the statements in those records from the explicit reservation made by the Settlement Officer in his report.

The Court emphasized that the Settlement Report had solemnly recorded that the dispute concerning the relationship between the ruler of Gangpur and the petitioners had never been agreed upon or decided in the settlements. Consequently, the Court could not conclude that, despite that solemn reservation, a number of subsidiary documents had resolved the matter and thereby established the petitioners as “true intermediaries” within the meaning of the Wajib-ul-arz. The same reasoning applied to the Khewats. Although one column showed that the petitioners held land under the Chief of Gangpur and the officer preparing the Khewats might have believed that to be the correct position, the Court held that the final assessment lay in the Settlement Report and that assessment must be regarded as the governing factor.

The Court further explained that, whatever the nature of a Wajib-ul-arz, it constituted only a part of the Record of Rights, and entries in the Record of Rights possessed merely a presumptive value and could be shown to be erroneous. The most compelling evidence of such an error, the Court observed, was the categorical statement of the Settlement Commissioner who oversaw those returns. The Court cited a 1935 communication from the Secretary to the Agent to the Governor-General, which stated that the 1911 record of rights for the Gangpur settlement appeared, in the Governor-General’s view, to support the zamindar’s claim of enjoying zamindari rights comparable to those of the State in Khalsa. On the basis of this analysis, the Court concluded that it could not regard the petitioners as zamindars within the meaning of the Wajib-ul-arz. The discussion then proceeded to examine the portion of the definition contained in section 2.

In this portion of the judgment the Court considered sub-paragraph (h), which mentions a “deed or other instrument.” The Court observed that even if the Parchas, Khatians and Khewats were regarded as deeds or instruments, they could not aid the petitioners because of the reasons previously explained. The Court noted that the documents on record do show that the petitioners have regularly paid a certain sum of money each year to the Chief of the Gangpur State, but that fact alone does not demonstrate that the petitioners are municipally subordinate to the Chief rather than politically subordinate. The Court explained that the money has been described at various times as malguzari, as takoli, as revenue, and at other times as rent, and that these varying labels do not settle the substantive question. What required determination, the Court said, was whether the petitioners are “true intermediaries” within the meaning of the documents that were relied upon, and the decisive factor was the repeated statements of the Settlement Officer that their mutual status had never been agreed upon or formally decided. Among the documents described as “deeds or other instruments” were the pattas previously mentioned, and the petitioners were said to have signed those pattas as “zamindars,” or, alternatively, someone else was said to have signed on their behalf. The Court pointed out that the signatures were not admitted in every case, and even if the signatures were validly made by or for the petitioners, such signatures would not automatically render the petitioners “zamindars” within the meaning of the pattas. The word “zamindar” appearing under the signatures, the Court stated, is merely descriptive and does not, by itself, indicate which kind of zamindar is intended; because all parties agreed that this question should be decided on the basis of the pattas, the patta signatures cannot be taken to establish that the petitioners belong to the disputed class of zamindars whose status they have consistently denied. The Court further observed that the remaining documents, except for one that concerns Nagra alone, constitute only historical material and are neither Wajib-ul-arz nor deeds nor other instruments. The Court recalled that the petitioners rely on a number of such historical documents, and that there are additional documents more favorable to the State, such as a Political Book covering the years 1831-1833 and an order of the Commissioner of the Chota Nagpur dated 9 August 1878. The State also relied on the Imperial Gazetteer, Volume IV, but the Court found that passage unhelpful. The Gazetteer passage states that “Included within the State are two Feudatory Chiefships subordinate to the Raja, Nagra in the East and Hemgir in the West,” and the Court interpreted this as indicating political rather than municipal subordination, which aligns with the petitioners’ own claim that they are feudatory chiefs in relation to Gangpur and that the money they remit to the Raja is tribute and not revenue. Finally, the Court concluded that these historical documents are relevant only to illustrate that the term “zamindar” has multiple meanings, one of which removes the petitioners from the category of intermediaries within the sense intended by the specific documents under consideration.

In this matter, the Court was not required to determine the actual relationship that existed between the Chief of Gangpur and the petitioners; the only question was whether the petitioners qualified as “zamindars” according to the meaning given in certain specified documents. Even if the petitioners could be described as “intermediaries” in the broader sense of that term, they did not fall within the definition contained in the particular documents that guide the present inquiry, and consequently the Court saw no need to examine that broader characterization further.

The only remaining document for consideration was one that related to Nagra. According to the historical record, around the year 1879 the Zamindar of Nagra is said to have executed an Ekranama in favour of the Raja of Gangpur. That Ekranama has never been produced before the Court, and there is no entry on the record indicating that the document has been lost. Despite a thorough search, the original cannot be located, yet the parties ask the Court to assume that the document was executed and to infer its contents from a description supplied by Mr. Hewitt, the Officiating Commissioner, in a Rubakari dated 10 March 1879. In the absence of the actual document, the Court considered it inappropriate to infer that the Zamindar of Nagra had abruptly abandoned the claims to municipal independence that he had contested for many years and continued to contest up to the present time.

The immediate dispute involved several specific issues: whether Gangpur could grant leases to Gaontias within the zamindari estate, the payment of a royalty of Rs 200, the Raja’s right to intervene in the policing of the zamindari tract, and the assessment of certain taxes. The parties reached a settlement whereby the Zamindar consented to pay the Raja a fixed annual sum of Rs 700 described as “rent”. In return, the Raja agreed that the Zamindar of Nagra would police his own estate, that the Raja would cease granting any further pattas to the Gaontias in that area, and that the Raja would not collect taxes from the Kumbars or similar persons. Instead, the Raja would settle tax matters separately with the Zamindar after first submitting a report on the issue to the Commissioner.

The sole objection raised against the Zamindar concerned the use of the term “rent” rather than “tribute”. However, that objection loses force because the Diwan of the Gangpur State, in a letter addressed to the Zamindar of Nagra dated 29 March 1943, referred to the same payment as “Takoli”. The rights of the Zamindar with respect to the Gaontias and the policing of his own tracts were expressly conceded. The Court noted that the right to police a tract of land is one of the primary attributes of sovereignty; such power may be delegated only at the sovereign’s discretion and cannot be claimed by the subject as a right to resist the sovereign’s authority. The settlement concerning the taxes, therefore, was a compromise that did not require either side to admit the other’s fundamental rights or to surrender any claim.

The Court observed that, when read in its entirety, the settlement favoured the Zamindar’s claims rather than undermining them. Regarding the term “rent” used in the English version of the document, the Court noted that although the document bore the signature of an Englishman, its language indicated it had not been drafted by an English writer, making the precise intention of the term uncertain. The Court explained that the Ekrarnama was presumably written in the local language, and because the exact vernacular word employed was unknown, it would be incorrect to infer from this Rubakari that the Zamindar had abruptly abandoned the position he had long defended. The Court further considered that if the original vernacular term had been “takoli,” as suggested by the Diwan of Gangpur State’s letter dated 29 March 1943, the word could be interpreted either as tribute or as revenue, especially when read together with the concessions granted by Gangpur concerning police powers and the Gaontias. The Court remarked that “takoli” is a term without a fixed definition and that Zamindars of Hemgir and Sarapgarh also paid a takoli to the Raja of Gangpur; however, their takoli could be periodically increased, whereas the takoli payable by Nagra could not be enhanced. This distinction, the Court held, placed Nagra in a considerably stronger position than the other two Zamindars and, rather than indicating municipal subordination to Gangpur, actually demonstrated the opposite, particularly in view of the police powers Nagra retained despite Gangpur’s claims. Consequently, the Court stated that, based on this imperfect secondary evidence, it could not conclude that the Ekrarnama intended to define the Zamindar’s status as a “true intermediary.” The Court found no deed or other instrument that could be interpreted as showing the petitioners to be Zamindars of the “true intermediary” type, and therefore held that the petitioners were not “intermediaries” within the meaning of section 2(h). As a result, their lands could not be characterised as an “estate” under section 2(g) and consequently could not be taken over by the State of Orissa under section 3. In view of this conclusion, the Court deemed it unnecessary to examine any further points. While the learned Judges of the High Court differed on the remaining issues and referred those matters to a third Judge, there was unanimity regarding the definition of “intermediary”: both the Chief Justice and Justice Narasimham had held that the petitioners were “intermediaries.” The Court disagreed with that view for the reasons previously explained. Accordingly, the Court allowed all three appeals, set aside the High Court’s decision, and issued a mandamus directing the State of Orissa not to give effect to the provisions of the Orissa Estates Abolition Act of 1951 and not to take possession of the petitioners’ lands.

The Court ordered that the State of Orissa must refrain from taking over any of the several estates that belong to the three petitioners under the provisions of the Act. In the Court’s view, the expenses incurred in pursuing the petitions, both in the present proceedings and in the earlier proceedings before the High Court, ought to be borne by the State of Orissa. Accordingly, the Court allowed Appeals numbered 167 and 168, while it dismissed Appeal number 169. The agent representing the appellants was identified as B. P. Maheshwari, whereas the agent representing the respondents was identified as G. H. Rajadhyaksha.