1. This is a petition under Article 226 of the Constitution for quashing the order of the Board of Revenue passed in a case arising under the Berar Land Revenue Code. The relevant facts are briefly these:
In the year 1868, the Government of India confirmed and continued the grant, of 22 bighas of land, then assessed at Rs. 14 situate in mouza Sirala, taluq and district Amravati, in favour of one Nujjumoddin son of Bodroddin for performing the services of Kazi and Khatib. An Inam Certificate was accordingly issued in his favour. In column 19 of the Certificate it is stated 'For the service of Gazee and Katib' and in column 21 'To be continued as heretofore and so long as Government shall see no cause for resumption on ground of misappropriation'. In. the last column dealing with the amount of quit-rent and the cess payable to Government the entry is 'None'. Thus the Inam is for rendering services and is hereditary, but liable to resumption. It was also at the time of the grant made rent-free i.e. not liable, to pay any assessment to Government.
2. Respondent No. 2 is admittedly the present certificate-bolder and is a person claiming through the original certificate-holder of the Inam. According to the petitioners he has not been rendering service either personally or through his deputy as required by the terms of the grant, but that on the other hand he is misappropriating the income realized by him from the land covered by the grant. The petitioners, representing the muslims of Sirala, therefore, made an application to the Deputy Commissioner under Section 190 of the Berar Land Revenue Code of 1928, for forfeiture of the grant. The Deputy Commissioner after hearing both the parties allowed the application. Against the order of the Deputy Commissioner respondent No. 2 preferred an appeal before the Board of Revenue. That appeal was accepted on the ground that Section 190 of the Berar Land Revenue Code stands repealed by Sections 67 and 68 of the Madhya Pradesh Abolition, of Proprietary Rights Act, 1950 (I of 1951), and the order of the Deputy Commissioner was consequently set aside.
3. The petitioners challenge the correctness of the decision and now want us to quash the order of the Board of Revenue.
4. It is contended on behalf of the petitioners that Sections 67 and 68 of the Abolition of Proprietary Rights Act do not affect the provisions of Section 190 of the Berar Land Revenue Code and further that the land in question had ceased to be alienated land even prior to the coming into force of the Abolition of Proprietary Rights Act and, therefore, remained unaffected by the provisions of that Act.
5. Sub-section (1) of Section 190 of the Berar Land Revenue Code reads thus:
If alienated land has been granted on condition that the holder shall render certain services or incur expenditure for the benefit of the community or any section thereof, and the holder fails to render such services or to incur such expenditure to the satisfaction of the Deputy Commissioner, or, if the holder transfers the land in such a manner that, in the opinion of the Deputy Commissioner, the purpose of the grant is likely to be defeated, the Deputy Commissioner may declare such land to be forfeited.
Sub-section (2) says that land forfeited under this section shall vest in the State free of all encumbrances and shall be regranted on the original conditions in accordance with rules made under the law. We need not refer to Sub-section (3) as it is not relevant.
6. The argument of the learned Counsel for the petitioners is that respondent No. 2 being a successor of the original certificate-holder, must be deemed to: be a grantee of the land from Government, and that since he is an alienee or n grantee find since the laud was alienated in favour of a predecessor-in-title subject to certain stipulations, that alienation is liable to be forfeited for failure to carry on those stipulations. Now, the term 'alienated land' has been defined thus in Sub-section (2) of Section 2 of the Berar Land Revenue Code:
'alienated land' means land in respect of which the Crown has assigned in whole twin part its right to receive land revenue equal in amount to the fair assessment, and the person to whom such assignment is made is called the 'superior holder'.
Thus, the land in question would undoubtedly fall within the definition. The question of liability of land to pay land revenue is dealt with by Section 49(1) of the Code which reads-
All land, to whatever purpose applied and wherever situate, is liable to the payment of revenue to the Crown, except such land as has been wholly exempted from such liability by special grant of, or contract with the Crown, or under the provisions of any law or rule for the time being in force.
This provision was amended by the Central Provinces and Berar Revocation of Land Revenue Exemptions Act, 1948 (Act XXXVII of 1948). Sub-section (2) of Section 4 of that Act provides that the words
except such land as has been wholly exempted from such liability by special grant of or contract with the Crown or under the provisions of any law or rule for the time being in force
The expression 'alienated land' as used in the Berar Land Revenue Code, 1928, and in any other law or rule for the time being in force in which it has been used in the same sense shall, from the commencement of this Act, mean the land which immediately before such commencement was alienated land and notwithstanding the revocation of the assignment in respect of land revenue payable for such land, the provisions of Section 190 of the said Code shall continue to apply to such land in so far as forfeiture of the land for failure to observe any of the conditions of the grant by the holder thereof is concerned.
7. Now, the effect of amendment of Section 49(1) is to place alienated land as defined in the Berar Laud Revenue Code on the same footing as unalienated land in the matter of payment of land revenue. In view of the definition of 'alienated land' contained in the Berar Land Revenue Code Section 190 would no longer have been available for taking action against a person who was alienee or grantee for failure, to observe the stipulated condition, to which he was subject under the terms of the grant. In order to obviate such a result, Sub-section (5) of Section 3 was added and it specifically provides that despite the revocation of the exemption from payment of land revenue, the provisions of Section 190 shall still apply to the grant.
8. According to the learned Counsel for the petitioner, after the revocation of exemption from land revenue, lands like those with which we are concerned in this petition ceased to be alienated lands and immediately became unalienated lands. In support of this argument the learned Counsel particularly relies on the words 'was alienated' ocurring1 in Sub-section (5) of Section 3. His contention is that since the past tense is used, the intention of the Legislature was to treat lands of this kind as unalienated land as and from the date on which the exemption from payment of land revenue was revoked. In our opinion, there is no justification for this contention. Section 2 of the Act says that expressions used in the Act shall, unless there is anything repugnant in the subject or context, have the meanings assigned to them in the Berar Land Revenue Code, Therefore, while reading Sub-section (5) of Section 3, for the words 'alienated land', we have to read the definition contained in Sub-section (2) of Section 2 of the Code. If we read this provision in that way, it will be clear that the past tense was used in connection with land defined as 'alienated land' in Sub-section (2) of Section 2 of the Code, and not 'alienated land' in its most general sense i.e. land in respect of which all the rights have been transferred by Government or the grantor. In other words, this provision does not mean that from the date on which the Act same into force all land granted by Government as Inams or Jagir ceased to be alienated land in the most general sense of the term and became unalienated land. Thus, even subsequent to the coming into force of the Act the grantee continued to have all other rights to those lands which were conveyed to him under the grant, as for example, rights to trees referred to in Section 47 of the Code. Since that is the position, it would follow that the land was still alienated land when the Abolition of Proprietary Bights Act came into force. On the date of vesting specified in that Act all such land vested in the State and those who were proprietors of such land ceased to be proprietors as from that date, the new proprietor being the State itself.
9. As a result of this provision, quite apart from the provisions of Sections 67 and 68 of the Abolition of Proprietary Rights Act, the inam lands in this village became unalienated lands. Since they became unalienated lands, Section 190 of the Berar Land Revenue Code, which specifically applies to alienated lands, ceased to apply. In fact, as a consequence of the coming into force of the Abolition of Proprietary Eights Act this provision has become obsolete, and probably that is the reason why it has not been introduced in the new Madhya Pradesh Land Revenue Code which came into force on October 1, 1955. However, all that we have stated here should not be construed to mean that as a consequence of the coming into force of the Abolition of Proprietary Rights Act, and in particular of the provisions of Section 3 of Act XXXVII of 1948 and Sections 67 and 68 of the Abolition of Proprietary Rights Act, all the terms and conditions of the original grant ceased to have any force. We would, however, not express any opinion on this question, as in the view we take it does not fall for consideration. The proper remedy, if any, for the petitioners would be either by a civil suit or an action under some other provision of law, but certainly not under Section 190 of the Berar Land Revenue Code
10. For these reasons we dismiss the petition with costs.