Biswambhar Singh and Ors v. State of Orissa

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

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 112 and 113 of 1960

Decision Date: 16 November, 1962

Coram: Sinha, C.J.

In this case the Supreme Court of India heard an appeal filed by Biswambhar Singh and others against the State of Orissa. The judgment was delivered on 16 November 1962. The dispute centred on the constitutionality of the Orissa Estates Abolition Act, 1952 (Orissa 61 of 1952), particularly sections 2(g) and 2(h), and on the effect of the amendment made by Act XVII of 1954. When the 1952 Act came into force in February 1952 the appellants together with another person approached the Orissa High Court under Article 226 of the Constitution, challenging the validity of the Act. The High Court rejected the challenge, holding that the Act was constitutionally valid and that the lands of the appellants could be taken over by the State. On appeal before this Court the Court observed that the 1952 Act did not apply to the proprietors of Hemgir and Sarpgarh because, under section 2(h), they were not intermediaries. By contrast the Zamindar of Nagra was classified as an intermediary because he had acknowledged the overlordship of the Raja of Gangpur. In response the Orissa legislature enacted Act XVII of 1954, which altered the definitions of “estate” and “intermediary” so that they would now encompass the proprietors of Hemgir and Sarpgarh. The appellants, identified as the Zamindars of Hemgir and Sarpgarh, subsequently filed a petition for a writ of mandamus in the High Court against the State of Orissa and the Collector of Sundargarh. They contended that they possessed sovereign status and that the amending Act of 1954 did not apply to them. The High Court dismissed their petitions, concluding that historical developments had stripped the appellants of any remaining sovereign attributes, making them subject to the laws of the Raja of Gangpur. When the Raja merged his State with the State of Orissa the Court held that the appellants were merely subjects without any claim to sovereign power. The High Court also rejected the appellants’ other arguments, including alleged discrimination. The appellants then obtained a certificate of appeal and brought the matter before this Court. The Court held that the appellants or their ancestors had ceased to be sovereigns at the moment when the State of Gangpur merged with the State of Orissa. Their status was that of intermediaries who held or owned interests in land between the raiyat and the State, and consequently their land interests could be acquired by the State under the Act. Although there was no direct evidence of a military conquest of the appellants’ territories by the Raja of Gangpur, the Court found that the former rulers had, over time, submitted to the Raja’s sovereignty as part of a continuous process. The Raja exercised sovereign authority over those territories, and the outward symbols of that sovereignty were evident in the application of the laws of the Gangpur State in Hemgir and Sarpgarh.

The Court observed that, at the time of the merger of the former State of Gangpur with the State of Orissa, all administrative authority lay exclusively with the Raja of Gangpur. Consequently, neither factually nor legally did any element of the appellants’ former sovereignty survive the merger. The Court referred to the precedents set in Biswambhar Singh v. State of Orissa, [1954] S. C. R. 842; Promod Chandra Deb v. State of Orissa, [1962] Supp. I S. C. R. 405; Thakur Amar Singhji v. State of Rajasthan, [1955] 2 S. C. R. 303; and Amarsarjit Singh v. State of Punjab, [1962] Supp. 3 S. C. R. 346 in support of this conclusion.

These two appeals, numbered 112 and 113 of 1960, arose from certificates of fitness that the Orissa High Court had granted on 25 April 1957 in original cases numbered 164 and 181 of 1954. Counsel for the appellants were instructed by N. C. Chatterjee, M. S. Mohanty, A. N. Singh and B. P. Maheshwari, while the respondents were represented by C. B. Agarwala, R. Gopalakrishnan and R. H. Dhebar. The judgment, delivered on 16 November 1962 by Chief Justice Sinha, examined the constitutional validity of the Orissa Estates Abolition (Amendment) Act, 1954, which amended the Orissa Estates Abolition Act, 1952. Because the questions presented before the High Court were identical to those raised in the present appeals, the Court heard the matters together and issued a single, binding decision for both. The appellants, who were Zamindars of the former feudatory State of Gangpur, had invoked Article 226 of the Constitution to seek a writ of mandamus against the State of Orissa and the Collector of Sundargarh, a district created after the merger. Their zamindaris covered roughly 540 square miles. In the proceedings before the High Court, the appellants asserted a sovereign status, relying extensively on historical documents such as the Imperial Gazetteer of W. W. Hunter, Sir Richard Temple’s Treaties, Zamindaries, and Chieftainships in the Central Provinces, as well as other official records. The High Court concluded that the appellants’ ancestors were Bhuiyan Chiefs who originally exercised sovereign authority over the region. When the Rajput rulers of Gangpur entered the area, those chiefs acknowledged the suzerainty of the new rulers, gradually surrendering their sovereign powers and converting tribute payments, known as “Takolis,” into what effectively became land revenue. Their precise legal relationship with the Raja of Gangpur remained ambiguous; however, through successive revenue settlements endorsed by the political department of the Government of India, they were designated as Zamindars and issued Khewats. The High Court, after a detailed examination of the evidence, determined that the appellants had ultimately lost all remnants of sovereign authority and, as a result of the historical process, became subject to the law of the Raja of Gangpur. When the Raja merged his State with Orissa on 1 January 1948, the appellants were relegated to the status of ordinary subjects without any claim to sovereign power. The High Court also held that the forest lands included in the zamindari estates had no separate legal identity, rejected the appellants’ contention that their lands were not “restates” within the meaning of Article 31A(2)(a) of the Constitution, and dismissed the argument that the Act discriminated against them. Accordingly, the High Court affirmed that Article 14 of the Constitution was not violated by the application of the Act to the appellants.

In the revenue settlements made by the Ruler of Gangpur, with the concurrence of the political Department of the Government of India, the petitioners were described as Zamindars and were issued Khewats. The High Court, after a detailed examination of the evidence, concluded that these Zamindars had ultimately lost every trace of sovereignty and, through historical development, had become subject to the laws issued by the Ruler of Gangpur. Consequently, when the Ruler merged his State with the State of Orissa, effective from 1 January 1948, the petitioners were deemed mere subjects without any claim to sovereign authority. The Court also observed that a substantial portion of the land belonging to the petitioners comprised forest areas, but it held that, in the eyes of law, those forest areas did not possess a separate and distinct legal existence. The petitioners’ argument that their lands were not “restates” as defined in Article 31A(2)(a) of the Constitution was rejected by the High Court, and their claim that the Act was discriminatory was also disallowed. Accordingly, the Court held that Article 14 of the Constitution had not been violated, and that the Act was not void on the ground of inconsistency with Article 254(1) of the Constitution. The Court further expressed the view that any alleged violation of Article 17(2) of the Universal Declaration of Human Rights, promulgated by the United Nations General Assembly on 10 December 1948 and to which India is a party, was not justiciable. In light of these findings, the petitions were dismissed and each party was ordered to bear its own costs. The petitioners then approached the High Court, secured the requisite certificate, and filed appeals before this Court. This was not the first occasion on which the present appellants had been litigants in the High Court and in this Court concerning their respective lands. When the Orissa Act 1 of 1952, the principal legislation, was enacted and came into force in February 1952, the Government of Orissa notified that the petitioners’ property also fell within the scope of the Act. The appellants, together with another claimant from Nagra asserting the same rights, invoked Article 226 of the Constitution and moved the High Court to challenge the Constitutionality of the Act. The High Court, by a majority, upheld the validity of the Act and held that, by operation of the Act, the State could take over the lands belonging to the petitioners. The petitioners appealed that judgment to this Court. The judgment of this Court, reported as Biswambhar Singh v. State of Orissa (1), allowed the appeal of the proprietors of Hemgir and Sarpgarh on the ground that they were not “Intermediaries” as defined in section 2(h) of the Act. Regarding the proprietor of the Nagra Zamindari, a majority judgment held that he fell within the definition of an “intermediary,” and consequently his land would be deemed an “estate” under section 2(g) of the Act.

In this case the Court held that the zamindar of Nagra fell within the definition of an “intermediary” under section 2(h) of the Act, and consequently his land was covered by the definition of an “estate” in section 2(g). The Court distinguished the situation of Nagra from that of the zamindars of Hemgir and Sarpgarh because the Nagra zamindar had expressly recognized the overlordship of the Raja of Gangpur. Following the Court’s decision to allow the appeals of the Hemgir and Sarpgarh proprietors and to restrain the State of Orissa from taking possession of those two zamindaries, the Legislature of Orissa enacted the Amending Act (XVII) of 1854, which revised the definitions of the terms “estate” and “intermediary”. The revised definition of “estate” reads as follows: “(g) ‘estate’ includes a part of an estate and means any land held by or vested in an Intermediary and included under one entry in any revenue rolls or any of the general registers of revenue‑paying lands and revenue‑free lands, prepared and maintained under the law relating to land revenue then in force or under any rule, order, custom or usage having the force of law, and includes revenue‑free lands not entered in any register or revenue‑roll and all classes of tenures, under‑tenures and any jagir, inam or muafi or other similar grant.” Explanation I explains that “Land Revenue” comprises all sums and payments, whether in money or kind, by whatever name, received or claimable by or on behalf of the State from an Intermediary in respect of any land held by such Intermediary. Explanation II clarifies that “Revenue‑free land” includes land which, but for a special covenant, agreement, engagement or contract, would have been liable to settlement and assessment of land revenue, or on which the State has power to make laws for settlement and assessment of land revenue. Explanation III adds that, with respect to merged territories, the term ‘estate’ as defined in this clause shall also include any mahal or village, or a collection of more than one such mahal or village, held by or vested in an Intermediary that has been or is liable to be assessed as a single unit for land revenue, whether such revenue is payable, has been released, compounded or redeemed in whole or in part. The amended definition of “intermediary” in clause (h) states: “(h) ‘Intermediary’ with reference to any estate means a proprietor, sub‑proprietor, landlord, land‑holder, malguzar, thekadar, gaontia, tenure‑holder, under‑tenure‑holder and includes an inamdar, a jagirdar, zamindar, Ilaquedar, Khorposhdar, parganadar, Sarbarakar and Muafidar including the Ruler of an Indian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State.” Explanation 1 provides that any two or more intermediaries holding a joint interest in an estate, which is recorded on the revenue‑roll or on the rent‑roll of another Intermediary, shall be deemed a single Intermediary for the purposes of this Act; Explanation II states that the heirs and successors‑in‑interest of an Intermediary, and where an Intermediary is a minor, of unsound mind or an idiot, his guardian, committee or other legal curator, shall be deemed an Intermediary for the purposes of this Act; and all acts done by an Intermediary under the Act shall be deemed to have been done by his heirs and successors‑in‑interest and shall be binding on them.

The Court noted that the Act, by way of Explanation II, expressly provides that the heirs and successors‑in‑interest of an intermediary are themselves deemed to be intermediaries for the purposes of the legislation. Moreover, where an intermediary is a minor, of unsound mind, an idiot, or otherwise incapable of managing his affairs, the guardian, committee or any other legal curator is likewise to be treated as an intermediary. Consequently, every act undertaken by an intermediary under the Act is to be considered as having been performed by his heirs and successors‑in‑interest and is binding upon them. In the statement of objects and reasons accompanying the amendment of the Act, it was explained that these broad definitions were introduced so that the decision of this Court, particularly with regard to the two properties in dispute, would not obstruct the State’s power to acquire them. Although the High Court hearing had involved a wide range of arguments, counsel representing the appellants confined the submissions on appeal to a single essential point. That point was that, despite the amendment, the legislature had failed to achieve its purpose of bringing the lands of the two petitioners within the mischief of the Act. In other words, the appellants contended that they were sovereign rulers and that their States could not be taken over by the State of Orissa even after the amendment. The argument further asserted that the definition of “intermediary” in section 2(h), as amended, would not encompass the appellants’ properties so as to enable the State to acquire them, and that the definition of “estate” in the amended section 2(g) did not cover the appellants’ interests in their respective lands. Accordingly, it was necessary to determine whether the appellants’ interests, for the purpose of acquisition under the Act, could fall within the definition of “intermediary.” The Court found it difficult to accept the contention that the all‑inclusive definition of “intermediary” provided in the amended clause (11) of section 2 would not extend to the appellants’ interests. If, as the Court must agree with the High Court, the appellants were not holders of sovereign States, then it follows that they possessed an “interest in land between the raiyat and the State.” It is undisputed that the appellants are not raiyats. Therefore, whatever their interest may be—whether as proprietors, tenure‑holders, inamdars, jagirdars, khorposhdars, or any other category specifically listed in the definition—they fall within the last clause of the definition and their interest is that of an intermediary, because they stand between the State at the apex and the cultivating raiyat at the base. If the appellants’ interest is not that of a sovereign State, they hold their property as intermediaries, and the payments they made to the Raja of Gangpur, and subsequently to the State of Orissa, are to be characterized as land revenue. The main

In this case, counsel for the appellants argued that the appellants possessed the lands as a sovereign power and that the payment of Takoli to the Raja of Gangpur constituted tribute rather than land revenue. The Court found that argument to be without substance. While it is correct that there is no documentary evidence of an act of State in the form of a conquest by the Raja of Gangpur, nor any explicit agreement by which the Raja imposed his sovereignty on the principalities by force of arms, the Court held that this observation does not preclude the application of the doctrine of “act of State.” The Court referred to the earlier decision in Promod Chandra Deb v. State of Orissa, which explained that an act of State may arise from the acquisition of sovereign powers through conquest, treaty, cession, or other means, and may be effected by a single proclamation or by a gradual historical process extending over many years. Moreover, the acquisition of sovereign powers, including the right to legislate and administer a territory, can occur without the physical territory merging into the new State. Accordingly, the Court emphasized that the High Court had observed that the statutes applicable in Gangpur State were also enforced in Hemgir and Sarapgarh by their own force, not by any inter‑state agreement, and that the administrative departments in those areas were under the direct control of the staff appointed by the Ruler of Gangpur.

The Court therefore concluded that at the moment the Gangpur State merged into the State of Orissa, no fragment of sovereignty remained with the appellants. The Court noted that it was unnecessary to delve into a large body of historical evidence showing that the appellants or their ancestors might once have been sovereign chiefs in ancient times, because those historic rights had, through a prolonged process, become vested in the Ruler of Gangpur, not necessarily by an explicit treaty but by implied conduct over many years. Focusing on the year 1947, the Court found no evidence presented by the appellants that any sovereign authority persisted in them at that date. Their situation was likened to that of the Bhomicharas of Rajasthan, as decided in Thakur Amar Singhji v. State of Rajasthan, and to the Cis‑Sutlej jagir in Punjab, as decided in Amarsarjit Singh v. State of Punjab. Consequently, even though there was no proof of a direct conquest of the appellants’ territories by the Raja of Gangpur, nor of an overt imposition of the Raja’s sovereignty over those lands, the continuous historical process had effectively transferred sovereign authority to the Ruler of Gangpur.

In this case the Court observed that, through a continuous historical process, the former rulers of the territories in question ultimately accepted the sovereignty of the Raja of Gangpur. As a result, the Ruler of Gangpur effectively exercised sovereign authority over those lands. The outward signs of this sovereignty were evident because the laws of the Gangpur State were applied in the Hemgir and Sarpgarh areas, not by any orders issued by the appellants but by the force of the Ruler of Gangpur. The High Court had already examined all the relevant evidence and noted these facts, and the present Court found no need to repeat that analysis. Administrative control of the territories likewise passed into the hands of the Ruler of Gangpur. Consequently, by the year 1947 there was no factual or legal remnant of the appellants’ sovereignty, although the precise mechanism and exact date of this transition could not be pinpointed and appeared to have occurred over many years. At the close of 1947, just before the integration of the State of Gangpur with the State of Orissa, the territories were no longer independent sovereign entities; they had become part of the Ruler of Gangpur’s domain. The law recognizes no intermediate category between a fully sovereign state and a state that is not sovereign at all. The former rulers were therefore either sovereign in their own right or had become subjects of the Ruler of Gangpur, and all indications show that they had become subjects before the Ruler’s territory merged with Orissa. On the finding that the petitioners or their ancestors had ceased to be sovereign states on the eve of that merger, the Court held that their status corresponded to that of intermediaries who held an interest in land between the raiyat and the state, as defined in section 2(h) of the Act. The “Takoli” they paid to the Ruler of Gangpur and later to the State of Orissa constituted land revenue within Explanation I read together with Explanation III to section 2(g), which defines “estate”. Accordingly, their interest in the lands was liable to be acquired under the Act. No other point was raised before this Court, and the sole point advanced lacked any substance. For these reasons the appeals were dismissed as having no merit, and the appellants were ordered to pay costs and one set of hearing fees.