STATE Vs. RAMRIJHAWAN

JUDGEMENT

(1.) THIS second appeal has been filed by the State Government against the concurring judgments of the Courts below decreeing the claim of the respondent for possession in respect of the suit lands.

(2.) THE respondent Ramrijhawan was the proprietor of the village Bitkuli, Tahsil Bemetara and District Durg, where the lands in suit lie. After the proprietary rights in the village vested in the State Government, the lands in suit were settled with the respondent under Section 40 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Act, 1950 (No. 1 of 1951) - hereinafter referred to as the Abolition Act -by the Deputy Commissioner Land Reforms Bemetara; on 18. 1. 1953/6 -3.1923. Subsequently; a Nistar Officer was appointed to make enquiries regarding the customary rights existing in the village and he passed an order on 3 -9 1954 declaring that the suit land vested in the State and thus set aside the previous order of the Deputy Commissioner, Land Reforms. The respondent, therefore, filed the present suit for cancellation of the order passed by the Nistar Officer, on the gorund that it was without jurisdiction, and also for a declaration that he held the lands in occupancy rights.

(3.) THE first question which arises in this appeal is whether the Nistar Officer had jurisdiction to cancel the order passed by the Deputy Commissioner, Land Reforms, on 18 -1 -1953/6 -3 -1953 settling the lands with the respondent under Section 40 of the Abolition Act. An attempt was made by Shri H. L. Khaskalam, Government Advocate, for the State to support the order under Section 48. He contended that the Nistar Officer acted under clause (b) of sub -section (1) of that Section in reserving the lands for grazing of cattle. In the first place, no such order reserving the lands for grazing purposes has been passed. What the Nistar Officer has actually done is to order correction of the annual papers of the village removing the name of the respondent and directing the lands to be recorded in the name of the State Government. The reasons given in the order are that the entries in the khasra showing that the respondent was cultivating the lands in 1950 -51 were false and the lands could not therefore be settled under Section 40 of the Abolition Act. Obviusly the Nistar Officer was not acting under Section 48. If the lands in the village reserved for grazing are found to be insuffisient, it is still open to the Deputy Commissioner to Act under that Section and declare the suit lnds, which are held by the proprietor under Section 40, as reserved for grazing. In that case, compensation will have to be paid to the proprietor under sub -section (2) of Section 48. Shri Khatkalam points out that as the lands were never brought under cultivation, the compensation would be nil and therefore the order should be considered to have been validly passed by the Nistar Officer. This contention cannot be accepted. It is different that a nominal amount may be fixed for compensation, as nothing had been spent by the proprietor; but the procedure indicated by Section 48 of the abolition Act will have to be followed before the lands could be reserved for pasturage. It will have to be first declared, after due, enquiry that the lands reserved for pasturage in the village are insufficient and secondly that the necessary lands cannot be found from the area vesting in the State and situate within the limits of the village. It is after this that the area settled with the proprietor under Section 40 can be reserved for pasturage. The question for giving compensation will then have to be determined. I am clear that the action of the Nistar Officer cannot be supported under Section 48 of the Abolition Act.