State of Bombay vs Sardar Venkat Rao Krishna Rao Gujar

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 455/59

Decision Date: 06/04/1962

Coram: J.R. Mudholkar, A.K. Sarkar

In the appeal titled State of Bombay versus Sardar Venkat Rao Krishna Rao Gujar, the Supreme Court of India rendered its judgment on the sixth day of April, 1962. The case was reported in the 1966 All India Reporter at page 991 and in the 1963 Supreme Court Reports, first series, at page 428, with a later citator reference of RF 1989 SC1101 (16). The bench that heard the matter comprised Justice J. R. Mudholkar, Justice A. K. Sarkar, and Justice K. Subbarao. The petitioner was the State of Bombay and the respondent was Sardar Venkat Rao Krishna Rao Gujar.

The central issue concerned the abolition of the respondent’s proprietary interest in the village of Bhivapur, situated in the Tehsil of Umerer, District Nagpur, under the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. 1 of 1951). Section 4 of that Act transferred all rights, titles and interests belonging to the proprietor in pathways, village sites, hats, bazaars and melas, together with all related lands, to the State of Madhya Pradesh, free of any encumbrances. Section 5(a) stipulated that where any “buildings” belonging to the proprietor existed on any portion of the abadi land, that land and the land appurtenant to those buildings should be settled with the ex‑proprietor. The respondent’s claim was that the land on which uncovered ottas and chabutras stood, although not sheltering sheds, fell within the meaning of “buildings” and therefore should be settled with him under section 5(a). The Court examined whether uncovered ottas and chabutras could be considered “buildings” within the literal sense of the word, that is, something that has been constructed. Relying on the principle that the term must be given its plain meaning, the Court held that structures erected by the proprietor, even if open and uncovered, constitute buildings. Consequently, the land on which such uncovered ottas and chabutras existed, together with the adjoining land, was to be settled with the respondent. The Court distinguished earlier authorities such as Moir v. Williams (1892) 1 Q.B. 217, Morrison v. Commissioners of Inland Revenue (1915) 1 K.B. 716 and Samuel Small v. Parkway Auto Supplies, 49 A.L.R. 1361, which did not address the literal construction of “buildings” in the context of the statute.

This appeal, designated as Civil Appeal No. 455 of 1959, was filed by special leave from the judgment and order dated the sixteenth of January, 1956, of the former Nagpur High Court in Miscellaneous Petition No. 448 of 1954. Counsel for the appellant was identified as the representative for the State, while counsel for the respondents were the representatives for the private party. The judgment, delivered by Justice Mudholkar, affirmed that the respondent’s proprietary interest had been lawfully extinguished under section 4, but that the provisions of section 5(a) required the settlement of the specific parcels of land occupied by uncovered ottas and chabutras with the respondent, thereby granting him compensation for the value of the constructed structures and the land appurtenant thereto.

Under section 4(1)(a) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, the rights that had originally vested in the State of Bombay were transferred to the State of Maharashtra by the provisions of the States Re‑organisation Act, 1956 and thereafter by the Bombay Re‑organisation Act, 1960 (Act 11 of 1960). Section 4(1)(a) provides that “All rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass‑land, scrub jungle, forest, trees, fisheries, wells, tanks, ponds, water‑channels, ferries, pathways, village sites, hats, bazaars and melas… shall cease and be vested in the State for purposes of the State free of all encumbrances; and the mortgage debt or charge or any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act.” After the Act became operative, proceedings for compensation with respect to the village of Bhivapur were instituted before the Compensation Officer at Umrer. The matter was recorded as Revenue case No. 583/1‑A‑4/1950‑51 and was decided on 19 January 1952. The Compensation Officer held that only 0.14 acre of land out of Khasra No. 61/1, which is recorded in the village records as an “abadi” where a bazar is held, should be settled with the respondent under section 5(a). The officer observed that a portion of the land used for the bazar contained ottas and chabutras, with or without sheds, and that these structures were separated by passages. It was accepted that these ottas and chabutras belonged to the respondent and that the land on which sheds had been constructed over them had already been ordered to be settled on the respondent in the revenue case.

The respondent argued that the settlement under section 5(a) should not be limited to the sheds and the land on which they stood but should also include the open, uncovered ottas and chabutras and the land appurtenant to those structures. He claimed that the total area to be settled was 2.85 acres. Consequently, he appealed the Compensation Officer’s order which had directed settlement of only 0.14 acre. The appeal was dismissed by the Additional Commissioner of Land Reforms and the Additional Commissioner of Settlement, Madhya Pradesh, on 28 March 1952. Following the dismissal, the respondent was instructed to remove his ottas and chabutras. Nevertheless, the question of settling the land covered by those structures remained under consideration by the Government. On 16 May 1952, the Directorate of Information and Publicity, Government of Madhya Pradesh issued a press note stating that the Government recognized that requiring ex‑propriators to remove such materials could cause hardship. The note outlined two courses of action: (i) where the ottas and chabutras were constructed of brick or stone, they would be allowed to remain with the ex‑propriators and the land beneath them would be settled with them under section 5(a) on terms and conditions to be determined by the Government; and (ii) where the ottas and chabutras were of mud construction, the land beneath them would be deemed to have vested in the State Government.

In the press note issued by the Directorate of Information and Publicity, Government of Madhya Pradesh, it was declared that where ottas and chabutras had been constructed of brick or stone, the ex‑proprietors should be permitted to retain those structures and the land underlying them should be settled with the ex‑proprietors under section 5(a) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (Act 1 of 1951) on terms and conditions that the Government would determine; conversely, where the ottas and chabutras were of mud, the land on which they stood was to be deemed vested in the State Government. Subsequent to the publication of this note, the Government, apparently acting on the advice of its law officers, issued instructions on 22 June 1954 to the Deputy Commissioners directing that all ex‑proprietors be given one month’s notice to remove the structures and to clear the sites of ottas and chabutras, except where sheds were present on those structures. Pursuant to those instructions a notice was served on the respondent on 13 July 1954. Feeling aggrieved by the notice, the respondent filed a petition under article 226 of the Constitution before the High Court of Nagpur, seeking a writ of mandamus, certiorari, or any other appropriate writ to set aside the orders of the Compensation Officer, the appellate authority, and the State Government dated 22 June 1954 together with the notice issued on 13 July 1954. The High Court allowed the petition, quashed the impugned orders and directed the State Government to settle the land corresponding to Khasra No. 61/1 in Bhivapur with the respondent on such terms and conditions as the Government might determine. The total area of Khasra No. 61/1 was approximately 12.85 acres. The State of Madhya Pradesh thereafter applied for a certificate under article 133(1)(c) of the Constitution, but the certificate was not granted. Consequently, a special leave petition was filed before this Court under article 136 of the Constitution, and leave was granted by this Court on 18 March 1957, bringing the appeal before us. The High Court had granted the respondent’s petition on the ground that ottas and chabutras were “buildings” within the meaning of section 5(a) of the Act and therefore the State Government was obliged to settle the land covered by those structures together with the land appurtenant thereto. In the application for a certificate, three specific grounds were raised: first, that the total marketable area claimed by the non‑applicant was only 2.85 acres, rendering it unreasonable to grant and settle the entire 12.85‑acre area of Khasra No. 61/1 with the ex‑proprietor; second, that the ottas and chabutras situated in the bazar area could not be regarded as “buildings” contemplated under section 5(1)(a) read with section 4(1)(a) of the 1941 Act and therefore could not be settled with the ex‑proprietor; and third, that the term “buildings” envisioned in the provisions of section 5(1)(a) was intended to refer only to structures located within the abadi and not to those standing in the bazar, even though the bazar might be part of the abadi, and consequently the ottas and chabutras in the bazar, being integral to that market area, were distinct from buildings used for agricultural or domestic purposes.

In this case, the Court examined the argument that the term “buildings” in section 5(a) of the Act should be interpreted to include only those structures that are situated within the abadi, and not those that stand in bazaars, even when a bazaar lies within the abadi. The contention further asserted that ottas, chabutras and similar structures located in a bazaar are an integral part of the market area and are therefore distinct from other buildings that are used for agricultural or domestic purposes. The Court noted that paragraph 2 of the High Court’s order refusing the certificate indicated that the learned Advocate‑General for the State did not dispute the High Court’s construction of the word “buildings” in section 5(a). Instead, the Advocate‑General argued that the expressions “ottas and chabutras” should be limited to structures standing on the village abadi, excluding those situated on the bazaar land, which under section 4(1)(a) is vested in the State. Before the Supreme Court, counsel for the petitioner, Mr Bindra, reiterated the position originally advanced in the High Court that ottas and chabutras cannot be regarded as “buildings” within the meaning of section 5(a). He maintained that the concession offered by the Advocate‑General was a matter of law and that the State was therefore free to withdraw it. The Court, however, held that the question of whether ottas and chabutras fall within the term “buildings” is not a pure question of law, and consequently the State could not unilaterally retract the concession. The Court also observed that grounds 5 and 6 of the special leave petition showed that the real issue before this Court was the same contention advanced by the Advocate‑General in support of the certificate application. Nevertheless, the Court permitted counsel to argue that ottas and chabutras are excluded from the definition of “buildings” in section 5(a). For reference, the Court reproduced the relevant portion of section 5(a) which states: “Subject to the provisions in sections 47 and 63, all open enclosures used for agricultural or domestic purposes and in continuous possession for twelve years immediately before 1948‑49; all open house‑sites purchased for consideration; all buildings … within the limits of a village site belonging to or held by the outgoing proprietor or any other person, shall continue to belong to or be held by such proprietor or other person as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine.” The statute defines a “village site” as the abadi in an estate or a mahal. Section 5(a) operates as an exception to section 4(1)(a), which vests the bazaar land in the State. When both provisions are read together, it becomes clear that any buildings owned by the proprietor on a portion of the abadi, together with the land appurtenant to those buildings, must be settled with the proprietor.

The Court observed that the land on which the bazar is situated forms part of the village abadi land. Accordingly, every building that stands on that land falls within the scope of section 5(a) of the Act and must therefore be settled with the ex‑proprietor. The remaining issue, the Court said, was to determine whether the structures known as ottas and chabutras can be classified as “buildings.” A careful reading of the provision reveals that whenever the ex‑proprietor has expended money to erect something inside the limits of a village site, that thing is required to be settled with him. Consequently, the word “buildings” should be given its plain, literal meaning – that is, something that has been built. Counsel for the petitioner, however, argued that a structure should be regarded as a building only if it possesses both walls and a roof. To support this view, he relied upon the decision in Moir v. Williams. In that case, Lord Esher observed that the term “building” generally denotes enclosures of brick or stone that are covered by a roof. He further emphasized that the meaning of the word must be determined by the particular enactment in which it appears and the context of its use. The case under consideration involved the Metropolitan Buildings Act, 1855, which dealt specifically with residential houses.

Further reliance was placed on the judgment in Morrison v. Commissioners of Inland Revenue, a matter decided under the Finance (1909‑10) Act, 1910. The observations quoted from that decision stated that the expression “buildings” does not encompass everything that can be described as built; rather, it refers to a narrower category than “structures,” because certain limited classes of structures may also be taken into consideration under the subsection. These observations, the Court noted, reinforce the ordinary or natural meaning of the word “buildings” as something that has been constructed. The Court added that this ordinary meaning would be altered only if the relevant legislation expressly demanded a different interpretation. Lastly, counsel cited Samuel Small v. Parkway Auto Supplies. The passage quoted from that case defined “building” in its ordinary sense as “a structure or edifice including a space within its walls and usually covered with a roof, such as a house, a church, a shop, a barn or a shed.” It further clarified that the term does not extend to every type of erection on land, such as fences, gates, or similar structures, and that, in its broadest sense, “building” refers only to an erection intended for habitation, trade, manufacture, ornament, or other purposeful use, constituting a fabric or edifice such as a house or a store.

In this part of the judgment, the Court noted that the earlier observations about a church and a shed must be read in the context of the statute that was under interpretation and also in the context in which those observations were made. The Court then examined whether the erection of gasoline pumps and the construction of underground gasoline tanks and concrete‑sided pits sunk in the ground fell within a restrictive covenant that prohibited the erection or maintenance of any building within a certain distance of a street. The Court held that, for the purposes of that inquiry, the word “building” had to be given its ordinary, popular meaning. Consequently, the earlier case did not aid the appellants. The Court further agreed with the High Court that even uncovered ottas and chabutras are included within the term “building” as employed in section 5(a) of the Act. Accordingly, the land that is appurtenant to those structures must also be settled with the respondent. Counsel for the petitioner, Mr. Bindra, observed that the High Court erred in directing the Government to settle the entire parcel identified as Khasra No. 61/1 in favour of the respondent. He explained that while the total area of Khasra No. 61/1 is 12.85 acres, the portion actually occupied by the structures and the land appurtenant to them does not exceed 2.85 acres. Counsel for the respondent, Mr. Purushottam Trikamdas, readily admitted this point and acknowledged that the High Court had made an oversight, adding that the respondent sought only the 2.85 acres and nothing beyond that. Mr. Bindra then submitted that it would be inappropriate for the Court to specify a precise area for settlement and that that determination should be left to the revenue authorities, who are best placed to measure exactly the extent of the structures and the passages that separate them. The Court concurred with that view. The Court therefore directed that the Government should be ordered to settle with the respondent the entire area occupied by the structures and the land appurtenant to those structures out of Khasra No. 61/1, leaving the exact measurement of that area to be fixed during the settlement proceedings. With this modification, the Court dismissed the appeal, ordered costs, and entered a final order of dismissal.