Jagannath Behera And Others vs Raja Harihar Singhmardaraj

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 309 of 1955

Decision Date: 6 December, 1957

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, Syed Jaffer Imam, J.L. Kapur, P.B. Gajendragadkar

In this case the petitioner, Jagannath Behera together with other respondents, challenged a petition filed by the respondent, Raja Harihar Singhmardaraj, who was the former ruler of the State of Khandapara that had merged into the State of Orissa on 1 August 1949. Article 3 of the Merger Agreement assured that the Raja would retain full ownership, use and enjoyment of all his private properties. The Orissa Merged States (Laws) Act 1950 extended the provisions of the Orissa Tenants Protection Act 1948 to the territories that were incorporated after the merger, specifically under sections 2(a) and 2(g) of the 1948 Act and sections 7(a) and 7(h) of the 1950 Act.

In 1951 the respondent evicted certain tenants from lands claimed to be his private property. The tenants applied to the Revenue Officer under the 1948 Act, seeking restoration of possession on the ground that the respondent was their landlord and that the eviction was unlawful. The Revenue Officer allowed the applications and ordered that possession be restored to the tenants. The respondent then instituted a petition under article 226 of the Constitution in the Orissa High Court, seeking to set aside the Revenue Officer’s orders. He contended that (1) the application of the 1948 Act to his private property contravened the guarantee of full ownership, use and enjoyment contained in the Merger Agreement; (2) article 363 of the Constitution barred the Court from entertaining any dispute arising out of the Agreement; and (3) the 1948 Act did not apply to him because he was not a landlord within its meaning.

The High Court accepted the respondent’s arguments, held that the extension of the 1948 Act could not affect the rights guaranteed by the Merger Agreement, and consequently quashed the proceedings initiated under the 1948 Act. The Court observed that the guarantee in the Agreement protected only the respondent’s right to acquire, hold and dispose of the property, a right that is also secured for every citizen by article 19(1)(f) of the Constitution. The Court referred to the decisions in State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga [1952] S.C.R. 889 and Visheshwar Rao v. State of Madhya Pradesh [1952] S.C.R. 1020, and held that the extension of the Tenants Protection Act did not diminish the respondent’s full ownership, use and enjoyment of his private property as guaranteed by the Merger Agreement.

The Court held that the power to consider applications under the Orissa Tenants' Protection Act, 1948 was not barred by Article 363 of the Constitution. The dispute between the appellants and the respondent did not arise out of the Agreement of Merger, and therefore it fell outside the scope of Article 363. The Court further held that the respondent was a landlord to whom the provisions of the 1948 Act applied. Although the 1948 Act defined landlord and tenant in sections 2(c) and (g), the definitions in section 7(a) of the 1950 Act were controlling. Under those definitions the appellants were tenants and the respondent was the landlord with respect to the lands in question. The appeal before the Court was Civil Appeal No. 309 of 1955, filed against the order dated October 7, 1953, of the Orissa High Court in O.J.C. No. 37 of 1952. Counsel for the appellants, including the Solicitor-General of India and other authorized advocates, represented appellants numbered 1, 3 to 9, 11 to 16 and the intervener. Counsel for the respondent also appeared and represented the respondent throughout the proceedings in all matters, and presented arguments. The judgment in this appeal was delivered on December 6, 1957, by Justice Bhagwati of the Supreme Court. The appeal was taken up under a certificate granted pursuant to Articles 132 and 133(1)(c) of the Constitution. The appeal originated from a writ petition filed by the respondent in the Orissa High Court under Article 226, seeking to set aside proceedings by tenants of lands under the 1948 Act. The respondent had been the ruler of the former Khandapara State, which merged with the Province of Orissa under the States' Merger (Governor's Provinces) Order, 1949, effective August 1, 1949. On December 14, 1947, the respondent entered into an agreement with the Governor‑General of India to settle their respective rights and obligations. Article 3 of that agreement provided that the Raja would enjoy full ownership, use and enjoyment of all private properties distinct from State properties. The agreement further stipulated that any dispute concerning whether a particular item of property was private or State property should be referred to an officer nominated by the Government. The decision of that officer would be final and binding on both parties and could not be challenged in any other forum. The respondent asserted claims to several properties, and the Adviser for Orissa States determined whether the claimed items could be regarded as his private properties. On June 10, 1949, the Adviser communicated that the respondent was entitled to 1,643 acres as his Khamar lands and approximately 29 acres settled with his tenants, declaring those lands private property. Those lands were the subject of the present proceedings taken under the 1948 Act, and they had been declared private property of the respondent. On March 3, 1950, the Orissa Legislature enacted the Orissa Merged States' (Laws) Act, 1950, which extended the 1948 Act to the merged areas.

In this case the State Legislature enacted the Orissa Merged States’ (Laws) Act, 1950, which is cited as Orissa IV of 1950 and is hereinafter referred to as “the 1950 Act.” Section 4 of that Act extended, among other things, the provisions of the 1948 Act to the territories that had been merged into the Province of Orissa. Section 7 of the same Act dealt with the modification of tenancy law that had previously been applicable in the merged states. Under Section 7 the statute expressly provided that, notwithstanding any tenancy law that continued to operate in the merged states by virtue of article 4 of the States Merger (Governor’s Provinces) Order, 1949, all suits and proceedings between a landlord and a tenant were to be instituted and tried in the revenue courts. For the purpose of this clause the term “landlord” was defined as a person immediately above whom a tenant holds land, and the term “tenant” was defined as a person who holds land under another person and who, but for a special contract, would be liable to pay rent for that land to that person. Another important provision, identified as clause (h) of Section 7, stipulated that when a person held Khamar, nij‑jote or any other private lands of a Ruler that had been recognised as such by the Provincial Government, that person would not be liable to be ejected from the land but would be liable to pay a fair and equitable rent. Such rent was to be fixed by a competent authority appointed for that purpose by the Revenue Commissioner or, as the case might require, by the Commissioner of the Northern Division. Upon payment of that rent the holder would acquire a right of occupancy in respect of those lands. Subsequently, on 14 April 1951, the State Legislature passed the Orissa Tenants Protection (Amendment) Act, 1951, cited as Orissa XVII of 1951. That amendment replaced the reference to “the first day of September, 1947” that appeared in the 1950 Act with the reference to “the first day of August, 1949” for the merged‑state areas, and it further provided that in those areas where neither the Madras Estates Land Act, 1908, nor the Orissa Tenancy Act, 1913, was in force, the special laws or customs prevailing in the area would be taken into consideration for the application of the Act. It was observed that during the year 1951 certain tenants who were occupying the private lands of the respondent were evicted by him, while other tenants were subsequently inducted by the respondent and put into possession of those lands. The evicted tenants filed applications with the Revenue Officer in 1952 seeking restoration of possession under the provisions of the 1948 Act, alleging that the respondent was their landlord and that his evictions were unlawful. These applications were recorded as O.T.P. Act Cases numbered 21 to 25 of 1952, 26 to 28 of 1952, 29 to 32 of 1952 and 33 to 41 of 1952. A notice was served on the respondent, but the records indicate that he neither appeared before the Revenue Officer nor contested the applications.

The Revenue Officer, having received no appearance from the respondent, decided the applications on the basis of the applicant’s ex parte evidence and ordered that possession of the land be restored to the applicants. The officer held that the applicants had been in possession of the lands as tenants on 1 August 1949 and therefore were entitled to the benefits conferred by the 1948 Act, as amended for application to the merged States. In response, the respondent filed a writ petition under article 226 of the Constitution in the High Court, seeking to set aside the entire proceedings on the ground that, with respect to the disputed lands, he was not a “landlord” within the meaning of the 1948 Act. The petition asserted that the respondent’s fundamental right under article 19 of the Constitution had been infringed, that the provisions of the 1948 Act conflicting with that article were void for being ultra vires the Constitution, and that the orders issued by the Revenue Officer were illegal and liable to be set aside. This petition was lodged on 11 August 1952. A further petition was filed on 26 February 1953, invoking article 3 of the Agreement, and contended that the application of the 1948 Act to the respondent’s private property deprived him of the “full ownership, use and enjoyment” to which he was entitled under the Agreement, and that, under article 363 of the Constitution, no court possessed jurisdiction to decide any dispute arising out of the provisions of that Agreement. The respondent argued that the Revenue Officer lacked jurisdiction to determine whether the tenants had any right to the respondent’s personal property and that the proceedings should therefore be quashed as being without jurisdiction. The High Court accepted these submissions, allowed the writ petition, and issued a writ declaring that the proceedings under the 1948 Act taken by the Revenue Officer were void for lack of jurisdiction and should be set aside. Subsequently, the tenants applied to the High Court for a certificate under articles 132 and 133(1)(c) of the Constitution, and the High Court granted that certificate. The State of Orissa then applied for leave to intervene in the appeal; that leave was granted by this Court, and the learned Solicitor‑General appeared before the Court in support of the appeal on behalf of both the tenants, who are the appellants, and the State of Orissa, the intervenor. It may be noted at the outset that no question was raised regarding the validity of the 1950 Act, which extended, inter alia, the 1948 Act to the areas merged into the absorbing Province of Orissa. Consequently, section 7(h) of the 1950 Act was applicable.

In this matter, the Court observed that the statutory provision identified as section 7(h) of the 1950 Act would, if applied to the present appellants, relieve them from any liability to be evicted. The respondent, however, raised three principal objections. First, he contended that the Revenue Court, by reason of article 363 of the Constitution, possessed no jurisdiction to entertain any dispute between the appellants and himself that stemmed from the agreement dated 14 December 1947. Second, he argued that the full ownership, use and enjoyment of the properties, which the agreement under article 3 had guaranteed to him, were being impaired by the operation of the 1948 Act upon those lands. Third, he maintained that he could not be described as a “landlord” and that the appellants could not be described as “tenants” within the meaning of the definitions contained in the 1948 Act; moreover, he asserted that the provincial government had not recognised those lands as falling within the category that would trigger the condition precedent required for section 7(h) of the 1950 Act, and consequently the appellants were not entitled to the protection envisaged therein. The Court noted that the first two contentions were closely linked and could be addressed together. It pointed out that the lands in dispute had been declared private property of the respondent and that, under article 3 of the 1947 agreement, he was assured full ownership, use and enjoyment of those lands. The Court further explained that article 363 merely removed the jurisdiction of courts over disputes arising out of any provisions of agreements entered into by the rulers of Indian States with the Government of India. Accordingly, the Court held that the present controversy between the appellants and the respondent could not be characterised as a dispute arising under any provision of the 1947 agreement. The Court also observed that the extension of the 1948 Act to the merged State of Khandapara was not intended to disturb the respondent’s full ownership, use and enjoyment of the lands already recognised as his private property. The legislation, the Court reasoned, was premised on the fact that the respondent owned the lands and had taken on tenants; the purpose of the statute was to create a protective measure for those tenants. The Court concluded that such a protective measure could not be said to affect the respondent’s full ownership, use and enjoyment of the property, although it necessarily imposed certain restrictions on the absolute rights that the respondent claimed in relation to the use and enjoyment of the land. Those restrictions, the Court noted, were imposed uniformly on all citizens of the Union, and their justification could be traced to clause 5 of article 19 of the Constitution. The Court further indicated that similar arguments raised on behalf of former rulers whose states had merged with provinces had been previously considered by the Court in earlier decisions.

In the earlier decision of State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1) and in the later decision of Visweshwar Rao v. The State of Madhya Pradesh (2), the Court examined the legal effect of the covenant of merger on the private‑property rights of former rulers. Patanjali Sastri, C. J., observed at page 915 of the first case that there was no breach of any guarantee or assurance given by the Government under the covenant of merger because the estates in question were sought to be taken only as the “private property” of the rulers and not as State property. He added that the compensation provided, limited as it might be, was intended to recognize the rulers’ private proprietorship in the same way that compensation is granted to any other private owner. Mahajan J., as he then was, made a similar observation in the second case at page 1041, stating that by virtue of the covenant of merger the petitioner’s holdings became his private property, distinct from State property, but that this status placed him on an equal footing with any other private proprietor. He explained that Article 362 does not forbid the acquisition of property that has been declared private under the covenant, nor does it guarantee that such property will exist forever. The guarantee in Article 362 is limited to ensuring that the rulers’ private estates will not be re‑characterised as State property, and the statute under challenge respected that limitation by treating the lands as private and seeking acquisition on that basis. He further noted that, given the comprehensive language of Article 363, the matter was not justiciable. Das J., as he then was, also commented at page 1054 that the guarantee or assurance referred to by the Constitution is confined to the personal rights, privileges and dignities of the ruler in his capacity as ruler, and does not extend to personal property. He stressed that the constitutional provision creates only an assurance and imposes no legal obligation; the covenant merely recognises the ruler’s title as owner of certain lands. Recognising that title does not preclude the State from acquiring those lands on payment of compensation, just as it does with any other proprietor’s land. Consequently, the Court concluded that neither Article 363 nor Article 362 could be invoked by the respondent to bar the dispute, and that the courts retained jurisdiction to entertain the suit arising from the respondent’s act of ejecting the appellants from his private lands. The covenant of merger protected only the respondent’s rights in lands expressly declared private, ensuring that such lands could not later be claimed as State property.

State properties were the subject of the Court's discussion. The Court observed that the legislation enacted in 1948 did not challenge the ruler’s title to those lands; rather, the statute treated the lands as his private property and imposed certain duties upon him for the purpose of safeguarding the rights of the tenants whom he had settled there. The Court further held that these duties did not contravene the guarantee or assurance that had been provided to him under article 3 of the Agreement. It could not be argued that the imposition of reasonable restrictions, designed to protect the tenants, on his constitutional right to acquire, hold and dispose of property under clause five of article 19 of the Constitution, resulted in a denial of his full ownership, use and enjoyment of the lands. The Court explained that any extension of the 1948 Act to the merged State of Khandapara was undertaken solely in the interest of the tenants and for their protection, and that such restrictions did not impair his complete ownership, use or enjoyment of his private property any more than similar restrictions affect other landowners. Moreover, the Court pointed out that under the provisions of the 1950 Act, which gave effect to the 1948 Act in Khandapara, the ruler was entitled to receive from the tenants a “he tenants of such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner of the Northern Division as the case may be,” and that, provided the tenants continued to pay the rent fixed by the competent authority, his financial position was no worse than that of any other proprietor. The Court recognized that the tenants would inevitably acquire rights of occupancy over the lands, but it held that the acquisition of such occupancy rights would not diminish the ruler’s right to full ownership, use and enjoyment, because the statute also gave him the power to eject an occupying tenant if the tenant used the land in a manner that rendered it unsuitable for tenancy or breached any condition prescribed by the tenancy laws applicable in the merged State. This power of ejection, the Court noted, was consistent with the contractual relationship between landlord and tenant. As previously stated, these restrictions were intended to protect tenants who had been settled on the lands by the former rulers, and by extending the 1948 Act to Khandapara, the respondent was treated in the same way as any other citizen of the Union. Finally, the Court concluded that even if there was any limitation on his right to full ownership, use and enjoyment, such limitation was itself sanctioned by the Constitution, and therefore any guarantee or assurance given under the Agreement could not be interpreted as providing an absolute, unqualified right.

In this case the Court observed that the respondent’s claim that he possessed a right to acquire, hold and dispose of property could only be understood as being limited to the constitutional guarantee of such a right under Article 19(1)(f). Consequently, the respondent’s arguments based on a broader entitlement were held to be ineffective. The Court then considered whether the provisions of the 1950 Act could lawfully be applied to the merged State of Khandapara despite Article 3 of the agreement that had brought the 1948 Act into operation over the respondent’s private lands. Assuming that the 1950 Act could indeed be applied, it remained necessary to determine whether, under the definitions contained in that Act, the respondent was a landlord and the appellants were his tenants. The respondent first contended that, pursuant to Section 2(ii) of the Orissa Tenants Protection (Amendment) Act, 1951—which inserted sub‑section 5 into Section 1 of the 1948 Act—the Act should be applied in areas where neither the Madras Estates Lands Act, 1908 nor the Orissa Tenancy Act, 1913 was in force, and that the State of Khandapara fell within such an area. He further argued that special laws or customs prevailing in that region should be taken into account for the operation of the Act, and that the relationship between him and the persons he had inducted on his private property was governed by those special laws and customs, thereby excluding the Act’s application. The Court noted, however, that this line of argument had never been raised before the Revenue Officer or the High Court and was being advanced for the first time during the present arguments. Since the existence of any special laws or customs was a factual question, the Court could not permit the respondent to introduce it for the first time at this stage. Accordingly, the Court proceeded on the basis that the 1948 Act had been correctly extended to the merged State of Khandapara. The respondent also submitted that the definitions of “landlord” and “tenant” found in Sections 2(c) and 2(g) of the 1948 Act did not apply to the parties. Section 2(c) defines a landlord as any person—whether proprietor, sub‑proprietor, tenure‑holder, raiyat, under‑raiyat, land‑holder, or permanent undertenure‑holder—who, in either a raiyatwari or zamindari area, owns land that is cultivated by another person as a tenant, either directly or indirectly. Section 2(g) defines a tenant as a person who, under a system popularly known as Bhag, Sanja, Kata, or any similar expression, cultivates another’s land on the condition of delivering to the landowner either a share of the produce, the estimated value of a portion of the crop, a fixed quantity of produce irrespective of the actual yield, or a combination of these forms of payment.

The party filing the appeal argued that the individuals who had been placed on the disputed lands by the respondent did not satisfy the statutory description of “tenant” contained in the 1948 Act. Consequently, the appellant maintained that those persons could not be regarded as tenants, and, as a logical consequence, the respondent could not be considered a “landlord” in relation to them. The appellant further contended that, although the Adviser for the Orissa States had declared the lands to be the private property of the respondent, that declaration represented a recognition by the Dominion Government and not by the Provincial Government. The appellant emphasized that such recognition by the Provincial Government was a condition precedent required for the operation of section 7(h) of the 1950 Act on those lands. The appellant also pointed out that the questions concerning the applicability of the definitions and the requisite recognition had never been raised before the Revenue Officer nor before the High Court in the manner now sought before this Court. Throughout the earlier proceedings it had been assumed that the appellants had originally been tenants of the respondent, that they had been expelled by the respondent in 1951, and that new occupants had been inducted in 1952. It was also assumed that the Government had recognized the lands as the respondent’s private property without distinguishing whether such recognition came from the Dominion Government or the Provincial Government, an issue that the appellant said had not been examined previously.

The respondent, when the matter reached the High Court, primarily relied on the contention that the jurisdiction of the Revenue Officer was barred by article 363 of the Constitution. The respondent did not argue that the appellants failed to meet the definitions of “tenant” or “landlord” as laid down in sections 2(c) and 2(g) of the 1948 Act, nor did the respondent claim that the absence of Provincial Government recognition invalidated the condition precedent for the operation of section 7(b) of the 1950 Act. The respondent therefore did not state that that section was inapplicable to the lands in question. The Court observed that resolving the disputed points would require evidentiary material, and it would be inappropriate to permit such issues to be raised for the first time at this advanced stage of the litigation. Nevertheless, the Court noted that the matter was definitively addressed by section 7(a) of the 1950 Act, which provides a statutory extension of the meanings of “landlord” and “tenant.” Section 7(a) explains that “landlord” means a person immediately under whom a tenant holds land, and that “tenant” means a person who holds land under another person and who, but for a special contract, would be liable to pay rent to that person. The Court held that, irrespective of the earlier definitions in the 1948 Act, the explanation to section 7(a) of the 1950 Act thereby classifies the appellants as tenants and the respondent as a landlord.

In relation to the lands that are the subject of this dispute, the statutory extension of the definitions of “landlord” and “tenant” is, in this Court’s view, sufficient to reject the final argument advanced by the respondent. The respondent further asserted that, notwithstanding section 7 of the 1950 Act – which provides that all suits and proceedings between landlord and tenant shall be instituted and tried in revenue courts – the provisions of the 1948 Act concerning the hierarchy of revenue courts, the procedure, and the penalties are not applicable to the merged State of Khandapara. According to the respondent, the 1950 Act contains special provisions that override the general provisions of the 1948 Act, and because the 1950 Act does not specify how revenue courts are to act in instituting and trying such suits, a lacuna exists, leaving the revenue courts envisaged by the 1948 Act without jurisdiction to entertain the present proceedings. The answer to this claim is straightforward: both statutes must be read together. The 1950 Act was enacted to extend certain Acts and regulations to areas administered as part of the Province of Orissa, and the merged State of Khandapara is one of those areas. By virtue of section 4 of the 1950 Act, the 1948 Act is, inter alia, extended to the merged State of Khandapara and its provisions become applicable there. The remaining sections of the 1950 Act introduce further provisions that apply to the merged States, including Khandapara, and section 7, in particular, modifies the tenancy laws in force in those states. Consequently, the provisions of the 1950 Act are supplementary to those of the 1948 Act, and both statutes apply to the merged State of Khandapara. When read together, there is no inconsistency between the two Acts. It follows that sub‑section (a) and sub‑section (h) of section 7 of the 1950 Act, read alongside the relevant procedural and penalty provisions of the 1948 Act, conferred jurisdiction on the Revenue Officer to entertain the dispute between the appellants and the respondent. Thus the respondent’s contention fails. Accordingly, this Court holds that the judgment of the High Court was clearly erroneous and must be set aside. The appeal is allowed, the order of the High Court is set aside, and the orders originally passed by the Revenue Officer in the O.T.P. Act cases numbered 21 to 41 are restored.

In the judgment, the Court set aside the orders that had been passed by the Revenue Officer in the O.T.P. Act cases that were numbered twenty‑one to twenty‑five of the year 1952, twenty‑six to twenty‑eight of 1952, twenty‑nine to thirty‑two of 1952 and thirty‑three to forty‑one of 1952. By restoring those specific orders, the Court effectively reinstated the decisions that had originally been made by the Revenue Officer in each of the listed cases. Regarding the costs of the proceedings, the Court directed that the respondent should bear the expenses incurred by the appellants in connection with this appeal, and that the respondent should also pay the costs that the appellants had incurred in the writ petition that had been filed in the High Court. The Court further observed that the State of Orissa, being a separate party, would be responsible for and would pay its own costs. The allocation of costs reflects the principle that a party who obtains a successful outcome should not be left to shoulder the expenses of the opposing side, and therefore each party bears its own litigation expenses except where the Court specifically assigns responsibility. Consequently, the Court concluded that the appeal was allowed.