T. V. V. Narasimham and Others 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. 147 to 157 of 1962
Decision Date: 24 October 1962
Coram: S.K. Das, N. Rajagopala Ayyangar, Subba Rao
In this case the petitioners identified as T. V. V. Narasimham and others challenged the State of Orissa. The judgment was delivered on 24 October 1962 by the Supreme Court of India. The bench that heard the matter comprised Justice S. K. Das, Justice N. Rajagopala Ayyangar and Justice K. Subbarao. The decision is reported in 1963 AIR 1227 and 1963 SCR Supl. (1) 750. The legal issue concerned the interpretation of the term “recognition” under section 3(2)(d) of the Madras Estates Land Act, 1908, particularly whether mere governmental inaction could be deemed recognition of estates for the purposes of the Orissa Estates Abolition Act, 1952.
The Government of Orissa, acting on the belief that certain villages constituted estates, issued notifications pursuant to the Orissa Estates Abolition Act, 1952. Those notifications declared that the estates in question vested in the State free of all encumbrances from the dates specified in the orders. The inamdars of the respective villages filed petitions in the High Court of Orissa under article 226 of the Constitution of India. Their challenge was based on the contention that the inams were not estates within the meaning of section 3(2)(d) of the Madras Estates Land Act, 1908. The petitioners argued that the lands had been excluded from the assets of the Jeypore Zamindari or Kotpad Paragana at the time of settlement, that the British Government had neither confirmed nor recognised them, and consequently that the lands could not be subjected to abolition under the Orissa Estates Abolition Act.
Regarding the villages situated within the geographic limits of the Jeypore Zamindari, the Government had conducted an enquiry to determine whether the lands should be enfranchised. However, after objections were raised by the Zamindar, the Government issued an order on 1 November 1919 stating that no further action would be taken. For the remaining villages, the record showed no evidence that the Government had ordered any enquiry into the titles of the inams or had performed any act outside an enquiry that would amount to recognition of those titles.
The High Court concluded that the Government’s mere inaction amounted to recognition of the grants in favour of the inamdars and held that the villages were recognised by the British Government as estates within section 3(2)(d) of the Madras Estates Land Act. The Supreme Court, however, set out a different view. It held that “recognition” under section 3(2)(d) means an express acknowledgement by the Government of a grantee’s title, either directly or through some unequivocal act. While acquiescence in certain surrounding circumstances may amount to recognition, such acquiescence must inevitably lead to the conclusion of recognition. Mere inaction, in the absence of compelling circumstances, cannot be equated with recognition within the meaning of the statutory provision.
The Court further observed that the Inam Rules framed by the Government in 1859, which provided for an enquiry and directed confirmation of title on the basis of possession, merely established a procedure for ascertaining titles. Those rules did not, by themselves, confer title or operate as a recognition of title in the sense contemplated by section 3(2)(d) of the Madras Estates Land Act, 1908.
The Court observed that the Government order dated 1 November 1919 constituted a recognition of the title of the specific inamdar named in that order. However, the Court held that the High Court had been wrong to conclude that the Government had recognized the inams of other inamdars for whom no enquiry had been conducted. In reaching this conclusion, the Court relied upon the authority of Secretary of State for India v Bhavamurthy (1912) 24 M.L. J. 538 and Sam v Pamalinga Mudaliair (1916) 1 L R 40 Mad. 664, both of which were approved. The Court expressly disapproved the observations made in Mantravadi Bhavanarayana v Merugu, Venkatadu, I.L.R. [1954] Mad. 116 and P. V. Narayana Rao v State of Orissa, I.L.R. [1956] Cuttack 348, which had held that mere governmental inaction could amount to recognition.
These appeals, numbered 147 to 157 of 1962, arose from the judgment and order of 3 January 1957 rendered by the Orissa High Court in O.I.C. Nos. 71, 95, 75, 68, 69, 72, 74, 108, 70, 66 and 67 of 1954. The appellants were represented by counsel for the petitioners, while the respondents were represented by counsel for the State, including an Additional Solicitor‑General of India. The judgment was delivered on 24 October 1962 by Justice Subba Rao.
The factual background presented to the Court involved the Government of Orissa treating the villages that formed the subject matter of the appeals as “estates” and issuing notifications that these estates had become vested in the State, free from all encumbrances, from the dates specified in those notifications. The inamdars of the respective villages responded by filing petitions before the Orissa High Court under Article 226 of the Constitution, seeking a writ to cancel the notifications and to obtain orders preventing the State from taking possession of the villages.
The Court grouped the villages into three categories. The first category, covered by Appeals 150, 151 and 155, comprised villages that were indisputably within the geographical limits of the Jeypore Zamindari settled in 1803. The second category, covered by Appeals 149, 154 and 157, consisted of villages situated within the Kotpad Paragana as settled in 1863; although the Paragana had a separate existence at the time of the permanent settlement of the Jeypore Zamindari in 1803, subsequent events—specifically a modification in 1901—had incorporated it into the Jeypore Zamindari. The third category, covered by Appeals 147, 148, 152, 153 and 156, involved a dispute as to whether these villages formed part of the Kotpad Paragana or the original Jeypore Zamindari settled in 1803.
In the appellants’ submission, the villages that were originally part of the Jeypore Zamindari were described as pre‑settlement inams that had been excluded from the permanent settlement. Because these inams had never been confirmed or recognised by the British Government, the appellants argued that they did not constitute “estates” within the meaning of section 3(2)(d) of the Madras Act and consequently were not subject to abolition under the Orissa Estates Abolition Act, 1952 (the Orissa Act). The same line of reasoning was advanced with respect to the villages that lay in Kotpad Paragana. The appellants maintained that those villages were grants made before Kotpad Paragana was permanently settled in 1863 and, having likewise escaped confirmation or recognition by the British Government, they also fell outside the definition of “estate” in the same statutory provision.
The State countered that, irrespective of whether the villages formed part of the original Jeypore Zamindari or of Kotpad Paragana, they had been incorporated into the assets of the respective zamindari or paragana at the time of their settlements. Accordingly, the State contended that the villages qualified as “estates” under either section 3(2)(a) or section 3(2)(e) of the Madras Act and were therefore lawfully abolished by the State. The State further argued that the third group of villages, even if they were considered part of Kotpad Paragana rather than the Jeypore Zamindari, would not alter the legal situation because the permanent settlement of Kotpad Paragana had not been made under Regulation XXV of 1802, and no land had been excluded from its assets at the time of that settlement. In other words, according to the State, the settlement of Kotpad Paragana had included those villages within its assets.
The High Court, however, did not resolve the factual disputes. Instead, it proceeded on the assumption that the appellants’ version of the facts was correct. The Court accepted that the first group of villages were pre‑settlement inams situated within the geographical limits of the Jeypore Zamindari as originally settled in 1803, and that the second and third groups of villages were pre‑settlement inams located in Kotpad Paragana as settled in 1863. Based on that assumption, the High Court held that the villages had been recognised by the British Government within the meaning of section 3(2)(d) of the Madras Act, and therefore qualified as “estates” liable to be abolished under the Orissa Act. On that finding, the High Court dismissed the petitions filed by the appellants, leading to the present appeals.
Section 3(2) of the Madras Act provides the definition of “Estate” and reads: “Estate” means—(d) any inam village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant the village has been partitioned among the grantees or their successors in title of the grantee or grantees.”
The counsel for the appellants submitted that the expression “confirmed” in clause (d) of section 3(2) should be interpreted to refer only to those inams that were confirmed by the Inam Commissioner after a thorough investigation of titles, whereby the government relinquished any reversionary rights it might have retained.
In the discussion of the term “confirmed,” counsel for the appellants explained that it referred to the Government’s practice of investigating the title of an inam and then issuing a free‑hold title deed to the inamdar. Regarding the term “recognized,” the same counsel argued that it applied only to those inams whose titles had been examined by the Government but, for whatever reason, the Government chose not to issue a deed and instead acknowledged the title through some explicit act. In other words, “recognized” would be appropriate only where the possession or title of the grantee could be traced to a clear governmental act that followed an inquiry into that title. Counsel for the State, Mr. Sanyal, accepted the definition of “confirmed” as set out by the appellants but put forward an additional contention. He maintained that, in the case of pre‑settlement inams, the mere inaction of the Government under certain circumstances could also be deemed sufficient to constitute “recognition” of those inams.
A concise historical overview of the various categories of inams falling within clause (d) of section 3(2) of the Madras Act helps to clarify the scope of the expression. The British administration dealt with three broad classes of grants: (i) grants made by Hindu or Muslim sovereigns or under their authority; (ii) grants made directly by the British Government; and (iii) unauthorised alienations, meaning grants made by individuals who lacked any legal authority to convey land. To determine the titles of the unauthorised alienees, Regulation XXXI of 1802 was enacted, providing rules for investigating such titles and for fixing assessments. The preamble to that regulation expressly acknowledged the so‑called Badshahi grants, i.e., those made by kings. Section 2 of the regulation exempted from its operation grants that had been made in certain districts before specified dates. Although the regulation empowered collectors to take appropriate steps to resume such lands, it was never implemented in the way its drafters had intended. In 1859 the Government launched another major effort by issuing Inam Rules to investigate the titles of various inamdars. Under those rules an Inam Commissioner was appointed, who examined the titles across the State and, where appropriate, issued title deeds. Nevertheless, some regions were left out of the inquiry and no investigation was conducted for the inams situated therein; even in areas where the inquiry was carried out and titles were ascertained, the Government sometimes refrained from enfranchising certain inams, opting instead to indicate that those inams would continue. A clear and detailed narration of this historical development is recorded in Vedantachari’s commentary on the Madras Estates Land Act (page 51). From this background it emerges that, at the time the 1908 Act was passed, five distinct categories of whole‑village inam grants existed: (i) villages granted directly by the British Government; (ii) villages granted by former rulers or persons acting under their authority; (iii) villages held by unauthorised alienees whose titles had been examined and confirmed by the British Government; (iv) villages held by unauthorised alienees whose titles had been recognised by the Government; and (v) villages held by unauthorised alienees whose titles were neither examined nor recognised, either because no inquiry was made or because the Government, for any reason, chose not to recognise them.
In the passage under consideration, the Court described the fifth class of villages as those that were held by unauthorised alienees whose titles had not been recognised by the British Government. The non‑recognition could have resulted either because no formal inquiry into the titles had been conducted, or because an inquiry had been made but the Government, for whatever reason, had chosen not to acknowledge the titles. The Court then posed the question of what meaning should be attached to the term “recognised” as used in section 3(2)(d) of the Madras Estates Land Act. To illuminate this issue, the Court referred to several authorities cited earlier. One such authority was the case of Secretary of State for India v. Bhanamurthy, where a division bench of the Madras High Court examined the scope of the word “continued” in section 17 of the Madras Act II of 1894. That provision gave the Government a right of resumption over a Karnam Service Inam if the inam had been granted or continued by the State. Although the word “recognised” did not appear in the statutory language, the Court found that useful observations could be drawn from the judgment. The case concerned an inam inquiry held in 1860; although the village involved was confirmed in favour of the Agraharamdar, the Government refrained from interfering with the rights of those holding Karnam Service Inams within that Agraharam. The Special Assistant’s report noted that the Government did not meddle with these subordinate tenures, stating that the holders’ rights were unquestionable and ought to be respected by the Agraharamdar, yet it stopped short of deciding the matter definitively. Justice Sundara Aiyar, speaking for the bench, observed that in 1860 the Government had simply left the Karnams’ rights, if any existed, undisturbed, and that no governmental act could be said to constitute a “recognition” or “confirmation” of those rights. He further explained that for the Government to possess a right of resumption, the land right must either have originally arisen from the Government or its continuance must have resulted from a governmental act; in any event, there must have been a governmental recognition of the right that the holder could rely upon to support his possession. This pronouncement established that mere governmental inactivity or a decision to defer the question to a later time did not amount to a recognition of an inamdar’s right to hold the land. The Court also cited another division bench decision, Sam v. Ramalinga Mudaliar, which, while dealing with the expression “unsettled jaghirs” in section 3(2)(c) of the same Act, offered observations on the meaning of “recognised”. Justice Srinivasa Ayyangar remarked that the precise meaning of “recognised” was difficult to pinpoint, and he was inclined to think that recognition required more than simple acquiescence; it demanded an overt governmental act, such as acceptance of service or a formal acknowledgment, rather than passive tolerance.
In this passage the Court observed that assigning a precise definition to the term “recognized” is difficult, and it is not clear whether mere acquiescence by the Government is sufficient or whether a more substantive act is required. The Court expressed a preference for the view that recognition must involve something beyond simple acquiescence, such as an overt governmental act like acceptance of service, a jodi, or a similar acknowledgment. The Court further emphasized that an explicit act by the Government is necessary to constitute recognition of an inamdar’s title.
The Court then turned to the decision in Pitchaya v. Secretary of State, noting that this authority does not support the respondent’s argument. That case also arose under section 17 of the Madras Proprietary Estates Village Services Act, 1894. In Pitchaya, the lands at the time of grant were classified as village‑service inams. Under section 4 of Regulation XXV of 1802, those lands were excluded from the zamindari assets at the time of the permanent settlement. Regulation XXIX of 1802 enabled the Government to obtain the services of the karnams directly, rather than through the zamindars, and Act 2 of 1894 authorized the Government to fix wages for that office. Because salaries were fixed for the karnams who held the land in lieu of services, the Government ordered the enfranchisement of those lands. On those facts the Court held that, since the Government continued the inams within the meaning of section 17, it was empowered to enfranchise them.
The Court placed strong reliance on observations made by the learned judges in Secretary of State v. Chinnapragada Bhanumurty. The judges noted that Justice Sundara Aiyar appeared inclined to the view that an overt act by the Government must be shown to continue the land in the enjoyment of the office‑holder as remuneration for services. The learned judges further stated that if a judge were to conclude that the mere facts that the land was originally a service inam, that it was excluded from zamindar assets in 1802, and that subsequently the Government took service from the karnam and allowed him to retain the property, would not permit a court to infer a continuance of the grant under section 17 of Act 2 of 1894, then such a conclusion could not be accepted. The Court clarified that this precedent did not establish that inactivity alone amounted to recognition or continuance; rather, on the specific facts, a clear overt act by the Government—accepting the karnams’ services—demonstrated a continuance.
Finally, the Court referred to Ramalinga Mudati v. Ramaswami Ayyar, where a division bench of the same High Court held that a particular inam must be deemed recognized by the Government in view of Regulation 31 of 1802. Justice Venkatasubba Rao, at page 543, observed that the grant was not made by a former zamindar but was a royal or Badshahi grant, and that the preamble to Madras Regulation 31 of 1802 expressly deemed all such royal grants to have been recognized by the Government.
In the matter before the Court, it was observed that the land in question had not been granted by a former zamindar but rather constituted a royal or Badshahi grant. According to the preamble to Madras Regulation 31 of 1802, every royal grant was to be deemed recognised by the Government. A careful reading of that preamble makes it clear that the Government expressly acknowledged such grants. The present case therefore involved an explicit statutory recognition of the title. Apart from any possible inaction, the Committee appointed by the State expressly admitted the holder’s title to the inam, yet the Court chose to base its decision primarily on the provisions of Madras Regulation 31 of 1802. Neither the present judgment nor the submissions of counsel for the respondent contain any reference to any observation by either of the two learned judges that mere inaction might amount to recognition, nor is there any indication in the cited authorities that such a view was entertained.
A full Bench of the Madras High Court, while dealing with Mantravadi Bhavanarayana v. Merugu Venkatadu, addressed a different issue: whether the existence of minor inams granted before the grant of an entire village would affect the validity of the village grant. In that judgment, Justice Venkatarama Ayyar, incidentally, remarked that, for the purposes of the relevant section, recognising a grant of an entire village inam was equivalent to confirming it, and that some authority suggested that recognition could be inferred from conduct or even from inaction, citing Ramalinga Mudali v. Ramaswami Ayyar. However, a careful examination shows that the cited passage finds no support in the actual judgment. Similarly, a division Bench of the Orissa High Court, in P.V. Narayana Rao v. State of Orissa, examined case law on the subject and concluded that mere inaction or acquiescence by the Government would constitute recognition within the meaning of section 3(2)(d) of the Madras Act. The factual matrix of that case, however, demonstrates that the Government expressly recognised the inamdar’s title, and this Court, in an appeal against that judgment, based its conclusion on that express recognition. The appellate judgment, delivered in Civil Appeals Nos. 47 and 48 of 1960 on 20 November 1961, observed that confirmation by the Inam Commissioner and the issuance of an inam title‑deed were not the sole methods by which a pre‑British grant could be “confirmed” or “recognised”. In the present case, the reason for excluding the village from the scope of the inam enquiry is evident from the records produced. At the time of the inam settlement there appears to
In this case there had been a dispute over whether the reversionary right to the inam belonged to the Government or to the zamindar, and the Government had expressly directed that this village be omitted from the inam enquiry. In the order effecting that direction the Government stated: “That they resolved to instruct the Inam Commissioner not to interfere with these villages and to waive their claim to them on the ground of expediency and grace,” the right that was waived being the Government’s reversionary right to the inam. The order further said: “We consider this a sufficient ‘recognition’ of the grant as to bring this village within the definition of an ‘estate’ within s.3(2)(d) of the Estates Land Act.” From that passage it is clear that the Government had started an inam enquiry concerning the title of the inamdar, but because of the dispute raised by the zamindar it chose to waive its reversionary claim. By waiving that claim the Government expressly acknowledged that the title of the inamdar rested with the zamindar. The Court in the earlier judgment did not comment on the broader proposition advanced by the High Court; instead it based its decision on the explicit acknowledgment of the inamdar’s title. A later decision of a division bench of the Orissa High Court was brought to the Court’s attention. That decision was said to express a contrary view, yet the later judgment did not even refer to the earlier one. In the Orissa case the only proof offered for the allegation of recognition was that the Collector had collected cess from the zamindar in respect of the inams concerned; no other evidence of a formal “recognition” was presented. The Court held that there was absolutely no evidence that the original grant had been recognised by the British Government. Although that decision did not expressly declare that mere inaction could not amount to recognition, it implicitly rejected that contention; otherwise it would have concluded that the Government’s inaction amounted to recognition under the relevant section. The decision therefore did not advance the issue further. The discussion above leads to the conclusion that “recognition” means an admission or acknowledgement of something that already exists. To recognize is to take cognizance of a fact, which requires an overt act by the person taking such cognizance. Consequently, recognition is an acknowledgement by the Government of a grantee’s title, either expressly or through an unequivocal act. Acquiescence may amount to recognition when the surrounding circumstances inevitably lead to that conclusion, but mere inaction absent compelling circumstances cannot satisfy the definition of recognition in the statute. Having settled the legal meaning of recognition, the Court now proceeds to the merits of the present case, beginning with the group of villages that are admittedly within the geographical limits of the Jeypore zamindari, for which an Inam Commission had been appointed by the Government in 1862.
The commission first called for and obtained from the zamindar a statement detailing both pre‑settlement and post‑settlement inams that lay within the geographical limits of the zamindari, but it made no further inquiry into the matter. In the year 1907 the Government of Madras directed a special inquiry into the Jeypore inams by appointing a Special Deputy Collector named Meenakshisundaram Pillai. During the inquiry conducted by Pillai the zamindar did not advance any claim of his own, and the report prepared by Pillai was neither full nor complete as would have been expected; nevertheless the Government recorded the incomplete report in an order dated 25 February 1910. Subsequently, by an order dated 16 November 1910, the Government instructed another officer, Burkitt, to carry out a more detailed investigation of the Jeypore inams. Burkitt submitted his report, and the Government entered it into the official record through an order dated 19 May 1914. Relying on Burkitt’s findings, the Government served a notice on the Maharaja of Jeypore, requiring him to show cause why the villages identified as pre‑settlement inams should not be enfranchised. The Maharaja responded with objections, asserting that all the villages in question formed an integral part of his zamindari and that the Government possessed no right of reversion over them. On 1 November 1919 the Government issued Order No. 2489, informing the Board of Revenue that, after reconsideration, it had decided to take no further action concerning the settlement of pre‑settlement inams in the Jeypore Zamindary. The reports of Meenakshisundaram Pillai and Burkitt, together with the Maharaja’s objections, were never filed in the High Court; had they been produced, as the law required, both the High Court and this Court would have been in a better position to assess the facts. Nevertheless, those facts were set out in the counter‑affidavit filed on behalf of the State in O.J.C. No. 68 of 1954, and none of the facts presented therein are disputed before this Court.
From the foregoing narrative the factual and legal position can be summarised as follows: the inamdars were occupying the inams under grants that the Jeypore Maharaja had made prior to 1803. The Government claimed reversionary rights over those lands on the basis that they were pre‑settlement inams and therefore had not been included in the assets of the zamindari at the time of the permanent settlement. In contrast, the Maharaja contended that the villages were part of his zamindari and had been incorporated into the zamindari’s assets at the time of the settlement. By deciding, through Order 2489, not to pursue any further action on the settlement of those pre‑settlement inams, the Government effectively accepted the Maharaja’s claim. It cannot be characterised merely as governmental inaction, because there were competing claims between the Maharaja and the Government, and the Government’s withdrawal of further steps amounts to a recognition of the Maharaja’s position that the inamdars held the inams as tenurial holders under the zamindar. This acceptance constitutes a clear acknowledgment of the inamdars’ title within the meaning of the relevant statutory provision.
In this case the Court observed that the Inamdars were possessing the inams as under‑tenure holders belonging to the zamindar, and that such possession amounted to a clear acknowledgment of the Inamdars’ title to hold the lands under the zamindar. The Court concurred with the High Court that the Government had “recognized” those grants in the sense prescribed by section 3(2) of the Madras Act. Regarding the second and third groups of villages, however, the Court found no evidence on record showing any governmental recognition of the grants pertaining to those inam villages. It appeared that the Government had neither ordered an inquiry into the titles of those inams nor taken any action outside the scope of an inquiry that would amount to recognition of title. Consequently, the Court could not agree with the High Court’s view that mere governmental inaction could be construed as recognition of the grants in favour of the Inamdars. The learned Additional Solicitor‑General argued that the Inam Rules issued by the Government, which provided for an inquiry and specifically directed confirmation of title based on possession, should be treated as recognition within the meaning of section 3(2)(d) of the Madras Act. The Court rejected that argument, noting that the Inam Rules were framed in 1859 solely to investigate the titles of various Inamdars and to facilitate the enfranchisement of inams. By their very operation, these rules did not confer title upon, nor did they recognize the title of, any Inamdar; they merely prescribed a procedure for ascertaining titles in those areas where an inquiry was actually conducted for the purpose of investigation and confirmation. In the present matter, no such inquiry had been held with respect to Korpad Paragana, and therefore the Rules could not be said to assist the State. In the Court’s view, the High Court erred in holding that the British Government had recognized the said inams.
The learned Additional Solicitor‑General further contended that a grant of pre‑settlement inam villages, which did not fall within the definition of an “estate” in section 3(2)(d) of the Madras Act, should nevertheless be regarded as an “estate” under the definition contained in section 2(g) of the Orissa Act, and that consequently the Government had the authority to issue notifications under section 3(1) of the Orissa Act abolishing those villages that were not recognized by the Government. The Court noted that this contention was being raised for the first time before it and that it was not a pure question of law; rather, it depended upon proof of the conditions laid down in clause (g) of section 2 of the Orissa Act. The Court therefore declined to permit the respondent to introduce a mixed question of fact and law at this stage, observing that there must have been compelling reasons why the State had not advanced this extreme contention before the High Court. The Court made clear that it was not expressing any opinion either for or against that argument. As a result, the Court dismissed Appeals Nos. 150, 151 and 155, ordering costs and one hearing fee, while indicating that the remaining appeals could not be finally disposed of at this juncture.
In the circumstances, the Court observed that the appeals could now be finally disposed of, as it had already indicated, because the High Court had failed to make any findings on the disputed questions of fact. The Court further noted that these appeals fell within a category of cases in which the High Court was required to give definite findings on every issue, and that such findings would have avoided the needless extension of the litigation and would have permitted a more complete and satisfactory disposal of the appeals. However, given the state of affairs, the Court found that it had no alternative but to set aside the judgment of the High Court and to remit the same appeals to that Court for determination of the remaining questions of fact and law that had been raised. The Court directed that the costs of the remanded appeals would be governed by the outcome of the further proceedings in the High Court. Accordingly, Appeals numbered 147 to 149, 152 to 154, 156 and 157 were ordered to be remanded, while Appeals numbered 150, 151 and 155 were ordered to be dismissed. Consequently, the matters would proceed before the High Court under the applicable procedural framework to resolve the pending issues.