GADE RAJAGOPALARAO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE are petitions under Art. 226 of the Constitution of India in the following circumstances: The present petitioners in O.J.C. 144/54 are in possession and enjoyment, as absolute owners, of about 60 acres of inam lands in the village of Rajavallipalli, Purushottampur Taluk in the district of Ganjam. The petitioners in O.J.C. 317/54 are in possession of 160 acres of Inam lands of the same village. They claim that the lands in suit along with other lands were the subject -matter of grants during the Mahomedan period in the year 1743 A.D. The grants consisted of areas from three different adjoining villages of Damodarpalli, Sahapur and Bhatakumurada. As the lands granted were situate at one place they constituted the separate village of Rajavallipalli long after 1743 but before the Permanent Settlement. During the enquiry by the Inam Commissioner in the year 1862 the said grants of the year 1743 were confirmed and Inam Title Deed No. 5794 was issued. The confirmation was indeed subject to the payment of Rs. 102/ - as quite rent. The petitioners aver that even though at the time of the Permanent Settlement the village was entered in the revenue accounts as Rajavallipalli Mokhasa. the Inam grant was never of any named village nor of a whole village, and, as such, the Inam grant does not constitute an 'estate' within the meaning of S. 3(2)(d), Madras Estates Land Act, 1908 (hereinafter called the Madras Act), as amended by Orissa Act 17 of 1947. The Government of Orissa issued Notification No. 2620 -XV -2/54 -E.A dated 1 -7 -1954, under S. 3, Orissa Estates Abolition Act, 1951 (Orissa Act 1 of 1952), hereinafter called the Act, on the basis that village Rajavallipalli is an 'estate', and, as such, since the date of the notification it has vested in the State of Orissa. The petitioners, therefore, have come with this petition for quashing the notification as illegal inasmuch as village Rajavallipalli is not an 'estate', and for issue of Writ of Mandamus restraining the State of Orissa from taking possession of the village.

(2.) THE question to be determined is whether the Inam village Rajavallipalli is an 'estate' within the meaning of the Act. Section 2(g) of the Act defines an estate as : " 'Estate' means any land held by an Intermediary and included under one entry in any of the general registeres of revenue -paying lands and revenue -free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes revenue -free lands not entered in any register and all classes of tenures or under -tenures or an inam estate or part of an estate and in relation to merged territories means any collection of Mahals or villages held by the same Intermediary which has been or is liable to be assessed as one unit to land revenue whether such land revenue be payable or has been released or compounded for or redeemed in whole or in part;" As the definition makes specific provisions for including Inam estates as an estate within the meaning of the Act, we shall have to concentrate upon the question whether the village in question in an Inam estate. Indeed Inam estate has not been defined in the Act; but there is a provision under S. 2(q) of the Act running to the effect : "all words and expressions used in this Act but not defined in it, shall have, with reference to any part of the State of Orissa, the same meaning as defined in the tenancy laws and rules for the time being in force and in the absence of written laws and rules as recognised in the custom for the time being obtaining in that part of the State of Orissa". In accordance with the provisions of S. 2(q) of the Act, therefore, we shall have to search for the meaning of the Inam estate in the tenancy laws prevailing in that part of the country. The Madras Act dues not define in so many terms inam estate', but in the definition of 'estate' in S. 3 of the Madras Act it is sufficiently made clear by the provisions of S. 3(2)(d) under what circumstances an Inam village can be taken to be an estate within the meaning of the Madras Act. Clause (d) of S. 3(2) of the Madras Act, as amended by Orissa Act 17 of 1947, stands thus : "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 the successors in title of the grantee or grantees. "Explanation (1) - Where a grant as an inam is expressed, to be of a named village, the area which forms the subject -matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes." For the purpose of this case we are not concerned with Explanations 2 and 3.

(3.) OUR task in this particular case is, therefore, to see if at the time of the grant it was in respect of an entire village.We have, in this connexion, that best evidence which is entitled to very great weight, that is, the Fair Inam Register prepared on enquiry by the Inam Commissioner in the year 1862.The register itself indicates that it was prepared on a thorough enquiry into the matter and the grants were produced before the Inam Commissioner. It is only after this thorough enquiry that the grants were confirmed. Some portions of the entries should be quoted here : "The whole village was not given in one occasion. It was given on, three occasions. One Katti of land from Damodarapalli, three Kattis from Sahapur and one Katti from Bhatakumurada, Two Sanads are produced. The whole land is in one place. A village was erected before the permanent settlement and it is entered as a distinct village in the account of permanent settlement. The person in cl. 13 acquired ( ) and one Katti was acquired by his brother which also lapsed to the present family. A Katti varies from 21 to 32 acres. The value of the village - as per account of - as per account of - as now stated by (1) Damodarapalli (2) Bhatakumurada (3) Sahapur Under the above circumstances, I propose to adopt the assessment at Rs. 500/ - which is nearly 1? rupee an acre for dry and 3 an acre for wet and rupee one/fourth an acre for wise. Some of the Inams entered in col. 16 that is those marked 'X' are also entered in the account of Fasli 1226, but they are all subsequent to the Mokhasa grant. There was no village before the grant Inams were given on three occasions and a village has been subsequently erected in it. Consequently it must be treated as subsequent. If this village had been in existence before it was granted as a Mokhasa, the entry in the accounts of Fasli 1226 may be taken as proved that the Inam is perhaps older than the Mokhasa." The entries in the Fair Inam Register prepared in the year 1862 are of great value as pronounced by the highest authorities. We will, in the first instance, refer to a decision of their Lordships of the Privy Council in the case of Arunachallam v. Venkatachalapathi, reported in AIR 1919 PC 62 (C). We will quote the passage appearing at p. 65 of the report : "It is true that the making of this register was for the ultimate purpose of determining whether or not the lands were tax -free. But it must not be forgotten that the preparation of this register was a great act of State, and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissioners through their officials made enquiry on the spot heard evidence and examined documents, and with regard to each individual property, the Government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself. While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases, yet the Board when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register." This passage was quoted with approval by the same Board in the case of N. Sankaranarayan Pillayan v. Board of Commissioners for the Hindu Religious Endowments, Madras, 74 Ind. App. 230 : (AIR 1948 PC 25) (D). The quotation appears at p. 241 (of Ind App) : (at p. 30 of AIR) of the report. Their Lordships further observed that : "it is true that when the terms of the grant are available, the inam title deeds are not evidence as to the effect of the grant, which must depend on the language used in the instrument and the circumstances of the grant itself." But in the present case, the grants being untraceable, we will attach great importance to the oldest document on record describing the circumstances under which the grants were made and that different grants were made from different villages which subsequently constituted a village before the Permanent Settlement, and as such in the Permanent Settlement papers it appears as a separate Inam village as Rajavallipalli. A similar pronouncement was made by the Judicial Committee in the case of Secretary of State v. Varada Thirta, AIR 1942 PC 21 (E).