Appeal by the State against a Nagpur High Court order holding fallow lands, held by a proprietor under a lease for cultivation on an undivided half share, to be 'home farm'. The Supreme Court construed the 1951 Act's definitions and dismissed the appeal with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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710 SUPREME COURT REPORTS [1962] SUPP.
11111 on another decision of this Court in Sakharam alias Tr;mkl. DamMilurr Bapu.saheb Narayan Sa1UJ8 v . . Mcmikchand Motichand
Ro·j>inkaF Shah (' ). In that case the Court was called upon .. Anaram Hir01Mnl to consider the question as to whether the provi-
Patti sions of ft. 88 of Bombay Act LXVII of 1948 were retrospective in operation or not, and it has been held that the said provisions are prospective. However, we do not think that the position with regard to the provisions contained in s. 88 can be said to be analogous or similar to the position wit.h regard to the relevant provisions of the amending Act XXXIII of-1952 with which we are concerned in the present appeal. Therefore, we do not think that Mr. Bengeri can make any effective use of the said decision.
In the reb11lt t.he appeal fails and is dismissed with costs.
Appeal di8111illsed.
IHI
THE ADDITIONAL SETTLEMENT COMMISSIONER
v.
YESHWANT MADHAO MAHAJAN
(K. N. WANCHOO and J.C. SH.AH, JJ.)
Abolition of Propritf4ry Right.-Land lying faUoUJ-When to ic regarrb.d aa 'horn. farm '-Madhya l'raduh Abolilwn of Pr<>pri.14ry Right. ( E•lalu, Mahala, Alienated Land.) Act, 1961 (Madh. l'ra. 1of1961), u. 2, 4.
In 1947 S conveyed by a sale deed to M an undivi<kd half share of Land in his village. On the same day S executed a Kabulayat for 5 years in respect of the same land for cultivation. In 1951 the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, came into force and the Compensation Officer started enquiry about assessment of compensation. M claimed to retain possession of the half share in all the fallow lands in the village which had been lca.cd by him for cultivation to Son the pica that thc.c lands were •home farm'. The claim (ll [1962] 2 S, C.R. 59.
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711
-I I
I
(1) s.c.R. SUPREME OOURT REPORTS
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was rejected by the Compensation Officer and confirmed by the AdditiMal Settlement Commissioner. The High Court of Nagpur quashed the order. In appeal to the Supreme the Additional Settlement Commissioner contended that in respect of an undivided interest in the land, the superior holder is not entitled to the benefit of s. 4(2) of the Act because it is not a 'holding', alternatively, that the land which was, at the date of vesting, lying fallow otherwise than in accordance with the usual agricultural practice oould never be regarded as 'home farm'.
1961
Thi Additiunal Sdtlmient Commissioner
V, T u~ivant M adhao Mal,4jan
Held, that a part of a holding or an undivided int.rest in a "holding" in Berar may also be 'home farm' land if it otherwise fulfils the requirement of rl. (i), (ii) or (iii) of subcl. (3) of s. 2(g) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951.
The land having been granted in lease for cultivation it is by virtue of s. 4(2) of the Act to be retained in the possession of the proprietor. Grant of a lease for cultivation evidences an intention on the part of the proprietor that the land is to be converted to agricultural purposes, and default on the part of the lessee to cultivate the land will not deprive the lessor proprietor of the benefit granted to him by the statute.
CrvIL APPELLATE JURISDICTION : Civil Appeal No. 281 of 1959.
Appeal by special leave from the judgment and order dated October 12, 1955, of the former Nagpur High Court in Misc. Petition 1\o. 288 of 1954.
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H. R. Khanna and R. H. Dhebar, for the appellants.
S. N. Kherdekar and .4. G. Ratnaparkhi, for respondent No. l. ·
SHAH, J.-Out of a tot.a.I area of 2,375 acres 3 gunthas of Dhanora-an Izara village in Ta.Iuka
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712 SUPREME COURT REPORTS [1962] SUPP.
1110
TM Additin•l Sellkmtnl CommisJion1r
v. Ytsltwont M«tihno Mahajan
Sluzh J.
Pusad in the State of Madhya Pradesh-2,283 acres 1md 28 gunthas is assessed land nnd the remaining 91 acres and 15 gunthas is unassesged. One Surat Singh who was the proprietor of the village, by sale deed dated May 24, 1947, conveyed an undivided half share in the village to Yeshwant Madhao Mahajnn--hereinafter called Mahajan--for Ha. 25,000/- and on the same day executed a kabulayat (lease deed) for five years in respect of the same land for cultivation at an annual rental of Rs. 3,000/-. The Legislature of the Madhya Pradesh St11te enacted the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahala, Alienated Lands) Act. l of 1951-hereinafter called the Actto provide for acquisition of the rights of proprietors in eRtates, mahn!P, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connect<-d therewith. The Act was brouvht into operation on March 14, 1951. The Compensation Officer, Yeotmal sta1ted an enquiry about assessment of compt>nsation in respect of the village Dhnnora which had vested by tho operation of s. 3 of the Act in the State Government. Before the Compensation Officer, Mahajan claimed to retain posaession of a half share in all the fallow lands in the village which had been leased by him under the deed (kabulayat) dated May, 24, 1947, to Surat Singh on the plea that those lands were "home farm". This claim was rejected by the Compensation Officer and the order of the Compensation Officer was confirmed in appeal by the Additional Settlement Commissioner. Mal:ajan then applied to the High Court of Judicature at Nagpur under Art. 226 of the Constitution for a direction quashing the order of the Additional Settlement Commissioner and the Compensation Officer and for a declaration that the lands mentiune•l in Scheclu le A attached to the petition be declared home-farm and for a writ of mandamus aga.inst the State of Madhya Pradesh to deliver possession of all the lands mention<>d in that Schedule.
(1) S.C.R. SUPREME COURT REPORTS
713
The High Court quashed the order of the Additional Settlement Commissioner in so fa.r as it related to the undivided half share in Survey Nos. 1 to 91 except those in possession of the specified tenants and also those already recognised as home-farm and directed the Compensat.ion Officer to decide the claim made by Mahajan in the light of the law laid down in the judgment. Against the order passed by the High Court, the Additional Settlement Commissioner and the State of Bombay, whic-h had by virtue of the States Reorganization Act, 1956, been substituted for the State of Madhya Pradesh, have appealed to this Cuurt with special leave.
IHI Tlr1 .A.i</111-1 8ettt.ml1U Comtniuilrur v. r uhwant MaJM. M""4jan SMllJ.
The dispute in this appeal relates to a half share in those lands in the village which had remained fallow on the date of the notification under s. 3 of the Aot. By virtue of the sale deed dated May 24, 1947, Mahajan was the proprietor of the undivided half share in the entire village and under the kabulayat he had granted to Surat Singh a lease for cultivation of the undivided half share purchased by him. Undoubtedly the lands specified in Schedule A to the petition were on the crucial date lying fallow. The question which falls to be determined is whether those lands oan be regarded as "home-farm" : if they be so regarded, by virtue of s. 4(2) of the Act Mahajan will be entitled to retain possession of those lands.
Section 3 of the Act provides, in so far as it is material, that "on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pae11 from suoh proprietor or such other person to and veftt in the State for the purposes of the State free of all encumbrances." Section 4( l) sets out the
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714 SUP:rtEME OOURT REPORTS (1962) SUP
Jg8J
'IMA'4iti""41 s...- <Amatiuiatwr Y, T u.\zrMnl MadMt Mwj .. SWJ,
consequence of the vesting. By cl. ( e.) of e. 4( I ), all righte, title and interPBt veeting in the proprietor or any person having interest in such proprietary right through the proprietor in euch area including land (cultivable or barren), ceaee e.nd are vested in the State for the purposes of the State free from all encumbrances. But sub-a. 2 provides that "Notwithstimding anything contained in subsection (I), the proprietor shall continw~ to retain the posseBSion of hie home·stead, home-farm le.nd .................. ", 'Home.farm land' ie defined, in so far as it is material, in s. 2(11) as :
"(l) x x x x x x (:!) x x x x x x (3) in relation to Berar, all lan<l included in holdings which is-
(i) under the personal cultivation of the euperior holder including land allowed to lie fallow in e.ocordanoe with tho usue.l agricul· ture.l practice;
(ii) held by a leBBee from the ~uperior holder; and
(iii) held by a tenant from the superior holder other than e. specified tenant.''
'Land' ie nefined as "including land covered with water." Section 7 authorises the Deputy Commissioner to take charge of all lande, other than occupied lands and home·St<'ad lande, and of a.II intercets vesting in the State under s. 3 on the date of the vesting, e.nd, by e. 8, duty is imposC'd on the State Government to pay t<very proprietor, who is diveeted of proprietary rights, compenee.tion in accordance with the niles contained in SchC'dule I.
Me.haje.n was undoubtedly e.t the date of vesting the superior holder of th11 half share in th11 fallow le.nds which were held by Sure.t Singh as Jessee from him. Prima facie the cle.im of Mahajan
715
(1) s.c.R. SUPREME COURT REPORTS
was covered by cl. (g) (3) 1ii) of e. 2 of the Act, and Mahajan was entitled to the benefit of the exception in e. 4 ( 2). But counsel for the State contends that in respect of an undivided interest in land, the superior holder is not entitled to the benefit of s. 4(2), because it is not a "holding." Alternatively, he contends that the land which is, at the .date of vesting, lying fallpw otherwise than in accordance with the usifal agricultural practice can never be regarded as r•home·fann." In our view, there is no substance in either of these contentions. Schedule A to the petition sets out the description of the various lands which Mahajan cla.imed should be treated as "homefann" land. Each of these lands is assessed. The expreSBion 'holding' is not defined in the Act, but by cl. (d) of s. 2 expressions not defined in the Act in relation to Berar but used or explained in the Berar Land Revenue Code, 1928, have the meaning assigned to those expressions in the latter Act. The Berar Land Revenue Code defines 'holding' as "(a) a parcel of land separately assessed to land revenue; and(b)inreference to land held by a tenant-a parcel of land held from a landlord under one lease or set of conditions." Evidently, the survey numbel'tl included in Schedule A to the petition were "holdings" within the meanings of the Berar Land Revenue Code and therefore within the meaning of that expression as used in the Act. It is true that Maha.jan was not entitled to the entire area of each of these holdings but by the definition in the Act all lands included in holdings in Berar, provided they fulfil the conditions in cl. (i), (ii) or (iii) of subcl. (3), are "home-farm" lands. In other words a part of the holding or an undivided interest in the holding may also be "home-farm" land if it otherwise fulfils the requirements of cl.(i) (ii) or (iii) of eub-ol.(3 ).
IHI
TlllAdditi-1
S11t"-1
c.mmuu.-
••
2"11.\wat Madlia
.llaltajon
""" "·
That a half· share in the Tillage-which is included in the Schedule to the petition-was granted
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716 SUPREME COURT REPORTS [1962) SUPP.
JB8J
T1" AdditiOMI S,tt""""' CommUNwtr
•• T•*'-' M UJra. M~ ..
S"4/IJ,
to Surat Singh on lease for cultivation cannot be gain said in view of the exprcsa covenants of the kabtdayat. Certain lands in the village, it is true, were lying fallow wholly or partially at the date of the vesting, but the lands having been granted in lease for cultivation, in our judgment, they are by virtue of s.4(2) to be retained in the poll!lCssion of the proprietor, provision of cl.(!) of s. 4 notwithstanding. By sub-s. (2) of s.4 all "home-form" lands are to remain in possession of the proprietor : there is no express exclusion of lands lying fallow from the benefit of s.4 (2) and none such can be implied either from the scheme of the Act or the cc•ntext in which s.4 (2) occurs. If Mahajan had remained in occupation as proprietor and h~d allowed the lands to remain fallow they may have vPsted in the State and Mahajan may not have boen entitled to claim the benefit of s.4 (2) unless his ell.Be fell under els. (i) and (iii) of s. 2 (g)(3), but the grant of a lease for cultivation evidences an intention on tho part of Mahaj1m that the land be converted to agricultural purposes and default on the part of the lessee to culth·ato those lands will not. deprive the lessor-proprietor of the ben<>fit granted to him by the statute.
In our view, the High Court was right in hold· ing that the words of cl. (ii) of s. 2 (g) (3) were explicit and a survey numb,:r which was lying fallow but wa.~ hJld by a lessee from the superior holder fell within the definition of "home-farm."
The appeal, therefore, fails and is di8mi~scd with costs.
App«al di,mii6sed.
2 issues framed by the court
Whether an undivided interest in a holding can be 'home farm' land under s. 2(g)(3) read with s. 4(2) of the 1951 Act.
Whether land lying fallow at vesting but leased for cultivation qualifies as home-farm retained by the proprietor.
Colour shows how this judgement treated each authority
Sakharam Bapusaheb Narayan Sambare v. Manikchand Motichand Rojinkar ShahDistinguished¶5
[1962] 2 S.C.R. 59 · Who else cites this
4 provisions across 2 enactments
The Additional Settlement Commissioner
Yeshwant Madhao Mahajan
K. N. Wanchoo
J. C. Shah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
