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Mehr Taj Nawab Sultan Vs. the State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 211 of 1971
Judge
Reported inAIR1977MP193; 1977MPLJ467
ActsConstitution of India - Articles 226, 226(3) and 363; Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 - Sections 9 and 10; Madhya Pradesh Land Revenue Code, 1959
AppellantMehr Taj Nawab Sultan
RespondentThe State of M.P. and ors.
Appellant AdvocateAkhtar Sayeed, ;Fakruddin and ;O.P. Namdeo, Advs.
Respondent AdvocateM.C. Nihalani, Adv. General and ;S.L. Saxena, Govt. Adv.
DispositionPetition dismissed
Cases ReferredIn Maharaja Pravir Chandra Bhanj Deo Kakativa v. State of Madhya Pradesh
Excerpt:
.....holder who on the appointed day holds land in excess of the ceiling area shall in respect of all land held by him including exempted land, if any, furnish within a period of three months from the appointed day to the competent authority a return containing the following information .section 10 enacts thus :if any person holding land in excess of the ceiling area fails to submit the return under section 9, the competent authority may, by a notice in such form and served in such manner as may be prescribed, require such person to furnish the return within the time specified in the notice and on his failure to do so, obtain the necessary information in such manner as may be prescribed. the present proceeding is not an original suit nor like an appeal arising from a suit. 18. we are..........but has not submitted the return. section 11 contains provisions for preparation of statement of land held in excess of the ceiling area. section 12 declares that all surplus land shall be deemed to be needed for a public purpose and shall vest in the state absolutely free from all encumbrances with effect from the commencement of the agricultural year next following the date on which it is declared surplus. the open and substantive part of section 9 reads thus : ''every holder who on the appointed day holds land in excess of the ceiling area shall in respect of all land held by him including exempted land, if any, furnish within a period of three months from the appointed day to the competent authority a return containing the following information ............' section 10 enacts thus.....
Judgment:

Shiv Dayal, C.J.

1. With a view to provide for a more equitable distribution of land, the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (Act No. 20 of 1960, hereinafter called the 'Ceiling Act') was enacted to fix ceiling on existing holdings as well as on future acquisition of Agricultural lands. The surplus land vesting in Government is to be allotted on payment of occupancy price to needy persons and co-operative farming societies in certain priorities. Section 7 of the Act prescribes the maximum extent of land to be held by a person or family. Section 9 requires submission of a return by person holding land in excess of ceiling. Section 10 empowers the Competent Authority to require a person to furnish the return, if he holds land in excess of the ceiling area, but has not submitted the return. Section 11 contains provisions for preparation of statement of land held in excess of the ceiling area. Section 12 declares that all surplus land shall be deemed to be needed for a public purpose and shall vest in the State absolutely free from all encumbrances with effect from the commencement of the agricultural year next following the date on which it is declared surplus. The open and substantive part of Section 9 reads thus :

''Every holder who on the appointed day holds land in excess of the ceiling area shall in respect of all land held by him including exempted land, if any, furnish within a period of three months from the appointed day to the competent authority a return containing the following information ............'

Section 10 enacts thus :

'If any person holding land in excess of the ceiling area fails to submit the return under Section 9, the competent authority may, by a notice in such form and served in such manner as may be prescribed, require such person to furnish the return within the time specified in the notice and on his failure to do so, obtain the necessary information in such manner as may be prescribed.'

2. The petitioner, Her Highness Mehr Taj Nawab Sultan, daughter of His Late Highness Nawab Hamidulla Khan, condom Ruler of Bhopal, received a notice from the Competent Authority calling upon her to furnish returns of all lands held by her containing information required under Section 9 of the Act.

3. In compliance with the aforesaid notice, the petitioner furnished returns containing the required information in respect of the lands held by her in 'Bhumiswami' rights. She, however, did not furnish return in respect of such agricultural lands as she claimed to be holding as 'Ruler's private property'. She claimed immunity from the Act. Her contention was that the Act did not apply to her private properties, which she held as 'Ruler's private properties'. It was urged on her behalf that she was not a 'holder' in respect of those lands and as such, she was not bound to furnish a return in respect of the lands held by her as 'Ruler's private property.' She challenged the jurisdiction of the Competent Authority, to require her to furnish a return in respect of such properties.

4. By his order, dated January 7, 1969, (Annexure B), the Commissioner directed the petitioner to furnish the required information. The petitioner preferred an appeal against this order to the Board of Revenue. That appeal was dismissed by order, dated January 7, 1971, (Annexure A). Finding herself without any other remedy, she filed this Writ Petition under Article 226 of the Constitution.

5. The petitioner's case is this : Bhopal was a princely State ruled by His Highness Nawab Hamidullah Khan Sahib. In the year 1947, the said Nawab executed an instrument of Accession, which was accepted by the Governor-General of India. On April 30, 1949, a Merger Agreement was signed, whereby the administration of the State of Bhopal was transferred to the Government of India with effect from June I, 1949. By virtue of Article V of the Merger Agreement, it was provided that 'the Nawab shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him immediately before the date of transfer.' It was further agreed that 'an inventory of all the immovable property, securities and cash balances held by the Nawab as such property immediately before the date of transfer will be prepared and agreed upon between the Government of India and the Nawab, and such inventory shall be final and shall not be called into question.'

6. In pursuance of the above Article, an inventory was prepared of the private properties of Ruler and it was accepted by the Government of India (hereinafter called the 'Inventory'). The H. H. Nawab Hamidullah Khan died on February 4. 1960. The petitioner was recognised as Ruler of Bhopal in succession to the deceased Nawab, on January 12, 1961, with retrospective effect from February 4, 1960. On July 30, 1964, proceedings under the Ceiling Act were started by the Competent Authority, i. e. the Commissioner of Bhopal Division.

7. The petitioner's case is that such lands, as are included in the inventory are the 'Ruler's private property' and, for that reason, the petitioner is not a 'holder' of those lands within the meaning of the Act. That being so, Section 9 is inapplicable to such lands.

8. 'Holder' means a tenure or an occupancy tenant or a Government lessee of land within the State and the expression to hold land or 'holding land' shall be construed accordingly (Section 2 (h) of the Act). 'Holding' means all land held by a holder in any one or all of the capacities specified in Clause (h) within the State. 'Land' means land held for an agricultural purpose, but does not include land diverted to or used for non-agricultural purpose.

9. It is maintained for the petitioner that she is neither a 'tenure holder', nor an 'occupancy tenant', nor a 'Government lessee'. It is also not the case of the State Government that she is either an occupancy tenant or a Government lessee. The petitioner contends that she is not a tenure-holder because she does not hold the land from the Government. The expression 'tenure-holder' is not defined in the Act, but by virtue of Clause (p) of Section 2 of the Act the definition of that expression has to be borrowed from the Madhya Pradesh Land Revenue Code; 1959 (No. 20 of 1959) (hereinafter called the 'Revenue Code'). Clause (z) of Section 2 of the M. P. Land Revenue Code defines 'tenure-holder' thus:--

' 'tenure-holder' means a person who holds land from the State Government and who is or is deemed to be a Bhumiswami under the provisions of this Code.'

It is urged for the petitioner that she is the owner of the land and does not hold the land from the State Government. She derives title from Article 5 of the Covenant and the Inventory made thereunder. Under Section 157 of the Land Revenue Code, 1959, there is only one class of tenure-holders of lands held from the State to be known as Bhumiswami. The petitioner's case is that she is not a Bhumiswami because she does not hold the lands in question from the State. She holds them in her own title.

10. Before the Merger Agreement, the Nawab of Bhopal had sovereignty rights. When, by virtue of the Covenant His Highness handed over the administration to the Government of India, it was agreed between the parties that the Nawab would be entitled to full ownership, use and enjoyment of all private properties, as distinct from the State properties, belonging to him immediately before the date of transfer. Thus, before the date of transfer, there was no distinction between his private properties and his State properties. The distinction had to be there on the date of transfer. With that object, there was an agreement between the parties that an inventory of immovable properties would be prepared and agreed upon between the Government of India on the one hand, and His Highness, on the other. The inventory once made and accepted by the parties would be final and could not be called into question.

11. Thus, it is crystal clear that the properties which were included in the inventory drawn up in pursuance of Article 5 of the Covenant, became and were recognised as the private properties of the Nawab Sahab. Any property, which was included in the inventory, was his private proverty 'as distinct from State properties.' The purpose of the inventory was to recognise Nawab Sahab's title to the properties included in the inventory and they were to be distinct from the State properties. This position was created on June 1, 1949. Consequently, in the eye of law, the lands which were included in the inventory remained in the absolute ownership of Nawab Sahab from June 2, 1949 to October 1, 1959. These lands belonged to Nawab Sahab just as any other individual was absolute owner of the lands belonging to him. Before October 2, 1959, an individual could be entitled to the full ownership, use and enjoyment of his private properties, including lands.

12. However, on October 2, 1959, when the Land Revenue Code of 1959 was enacted, by force of Section 57 of the Act, 'ownership' in al! lands vested in the State Government. That section runs thus :--

'57. State ownership in all lands.-- (1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals, and forests reserved or not; and all rights in the sub-soil of any land are the property of the State Government.

Provided that nothing in the section shall ba deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.

(2) Where a dispute arises between the State Government and any person in respect of any right under Sub-section (1) such dispute shall be decided by the Sub-Divisional Officer.

(3) Any person aggrieved by any order passed under Sub-section (2) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order.

(4) Where a civil suit has been instituted under Sub-section (3) against any order, such order shall not be subject to appeal or revision.'

The State of Madhya Pradesh is the owner paramount of all lands situate within its territory and Section 57 confers ownership in the State Government. The proviso to Section 57 (1) preserves any 'rights' of any person subsisting at the coming into force of the Code, in such properties.

13. The petitioner's contention is that her 'rights' have been preserved by the proviso to Section 57 (1). Her 'rights' were of full ownership. Therefore, she continues to be the full owner and, consequently, it cannot be said that she is holding the lands from the State Government.

14. The case for the State Government is that the word 'rights' has been employed in the proviso, in contradistinction to 'ownership.'

The rights preserved by the proviso are rights of mere enjoyment of the lands, but not ownership in the lands. On that basis it was urged by the learned Advocate General that the ownership vests in the State Government and other rights which the Nawab had are subsisting in the petitioner.

15. Learned counsel for the petitioner lays a great deal of stress on the Government orders vide memorandum dated April 18, 1961, and memorandum dated January 7, 1964. In the first memorandum, Clause (i) reads as follows :--

'........Where pacca Tenants' rights are recorded the Rulers shall be Bhumiswamis under Section 158 of the Madhya Pradesh Land Revenue Code, 1959, any land held as muafi will also be now held in Bhumiswami right under the said section. Under the Madhya Pradesh Land Revenue Code. 1959, there is only one tenure, i. e. Bhumiswami. The State Government are, therefore, pleased to direct under Section 263 of the Madhya Pradesh Land Revenue Code, 1959, that all lands with respect to which the tenure is not specified, shall be held by the Rulers in Bhumiswami tenure.'

In Clause (iv) an exception was declared in the case of the Ruler of Bhopal in these words :--

'The lands held by the Ruler of Bhopal as private property shall be declared to be held in Bhumiswami rights, but no land revenue shall be recovered nor shall any right be given to his lessees. Tbe immunity will, however, apply only to such of the lands constituting the personal property of the Nawab of Bhopal as happen to be inherited by the person who is recognised as his successor as Ruler of Bhopal, and not to the lands inherited by his heirs other than his successor.'

This exception makes it very clear that although such property of the Ruler of Bhopal (us included in the inventory under Article 5 of the Covenant) shall be held in Bhumiswami rights by the petitioner, yet, no land revenue shall be recovered, nor any right be given to her lessees. These were her 'rights' within the meaning of the proviso to Section 57. Tt was then clarified that these rights were given only to the recognised successor of Nawab of Bhopal, but not to other beirs who may inherit His High-ness's property of this category.

16. By the subsequent memorandum dated January 7, 1964, the State Government said as follows:

'In partial modification of the orders contained in Item No. (iv) of this Department Memo. No. 3028/VII/NII, dated the 18th April 1961, the State Government are pleased to direct that the lands held by the Ruler of Bhopal as private property under the Integration Agreement should be recorded as 'private property of the Ruler of Bhopal' in the land record papers.'

This subsequent memorandum does not nullify the previous memorandum. It is not said in the subsequent memorandum that the lands will not be held by His Highness the Nawab as 'Bhumiswami'. All that is said in the subsequent memorandum is that the lands should be recorded as 'private property of the Ruler of Bhopal.' The object of the subsequent memorandum is obvious enough. It was to recognise and identify the nature and character of the lands which were included in the inventory. These lands were not to lose their 'identity' as private properties of the Ruler 'as distinct from the State properties' (See Article V of the Covenant). When the learned counsel reads the subsequent memorandum to nullify the earlier memorandum, he is not right. It would be a misreading of the subsequent memorandum because the latter does not say that the Nawab would not hold the land-as Bhumiswami.

17. This proceeding before us is under Article 226 of the Constitution. We have, therefore, to see merely whether the Competent Authority acted without jurisdiction or in excess of jurisdiction when it rejected the petitioner's objection. The present proceeding is not an original suit nor like an appeal arising from a suit. We must, therefore, examine the present case having regard to the scope of the proceeding before the Competent Authority under the Ceiling Act.

18. We are clearly of the view that the Competent Authority under the Ceiling Act cannot adjudicate upon the question of ownership. The Ceiling Act has not conferred any, such jurisdiction upon him. In order to determine whether a person is a 'holder' within the meaning of Section 9 of the Ceiling Act, the Competent Authority can only proceed on the basis of the revenue record. It is the correct position to state that in respect of every land which belongs to the State Government, a person can be either a tenure holder or an occupancy tenant or a Government lessee. Under the Land Revenue Code of 1959 there is only a single class of tenure holders, called the 'Bhumiswami.'

19. It is an argument that when the Land Revenue Code has established and recognised only one class of tenure-holders and lands of all private individuals have vested in the State Government by virtue of Section 157 there is nothing to show, either in the Land Revenue Code or in the Ceiling Act, or in any other enactment, that the Ruler of the erstwhile Bhopal State or any other Ruler would have ownership in the lands or would be immune from the Ceiling Act. In respect of lands held by a Ruler which were recognised to be his private properties, as distinct from State properties, ownership was never conferred, nor preserved by the Land Revenue Code or the Ceiling Act, Ownership vested in the State, but rights, such, as 'no land revenue shall be recovered. . . .' seem to have been preserved. Neither the memorandum of April 18, 1961, nor of January 7, 1964, conferred or recognised ownership in her Highness the Nawab of Bhopal.

20. For the reason already stated, we would not go into that question in these proceedings. For the purposes of the special jurisdiction of the Competent Authority under the Ceiling Act the above material was enough for him to proceed under the Ceiling Act. It cannot be said that he exceeded his jurisdiction. The Competent Authority could enter into the niceties of the dispute of ownership arising between the parties.

21. On the petitioner's own showing she had the alternative remedy under Clauses (2) and (3) of Section 57 of the Land Revenue Code. It has been maintained on her behalf that the Word 'rights' in the proviso to Sub-section (1) of Section 57 is comprehensive enough to include 'right of full ownership.' If that be granted, then the word 'right' in Clause (2) also includes 'full ownership', and the dispute is within the jurisdiction of the Sub-Divisional Officer and, thereafter a civil suit can be instituted.

22. It is not necessary to deal with the further objection of the learned Advocate General that the bar contained in Article 363 of the Constitution is attracted. Suffice to mention that in Visveshwar Rao v. State of Madhya Pradesh, 1952 SCR 1020 at p. 1041 (AIR 1952 SC 252 at p. 302) their Lordships have said thus:

'Article 363 takes away the jurisdiction of the Courts regarding disputes arising out of treaties, agreements, covenants, engagements, sanads etc. It is true that by the covenant of merger the properties of the petitioner became his private properties as distinguished from properties of the State but in respect of them he is in no better position than any other owner possessing private property. Article 362 does not prohibit the acquisition of properties declared as private properties by the covenant of merger and does not guarantee their perpetual existence. The guarantee contained in the article is of a limited extent only. It assures that the Ruler's properties declared as their private properties will not be claimed as State properties. The guarantee has no greater scope than this. That guarantee has been fully respected by the impugned statute, as it treats those properties as their private properties and seeks to acquire them on that assumption. Moreover, it seems to me that in view of the comprehensive language of Article 363 this issue is not justiciable.'

In Maharaja Pravir Chandra Bhanj Deo Kakativa v. State of Madhya Pradesh, (1961) 2 SCR 501 at p. 505 : (AIR 1961 SC 775 at p. 777) it was observed:--

'Two questions in the main were urged before us (1) whether the appellant is a proprietor within the meaning of that expression in the Act and (2) whether the villages in question came within the definition of the word 'mahal' contained in the Act. On behalf of the appellant it had also been urged that the Act could not defeat the right of the appellant guaranteed under Article 3 of the Merger Agreement. It seems clear to us, however, that in view of the provisions of Article 363(1) of the Constitution any dispute arising out of the Merger Agreement or the Instrument of Accession is beyond the competence of the Courts to enquire into. The High Court rightly decided this point against the appellant.'

23. In final analysis, it must be held that within their limited jurisdiction, the Competent Authority and the Board of Revenue were not in error when they regarded the petitioner as a tenure-holder (Bhumiswami) for the purposes:of the Ceiling Act and, therefore, a 'holder' within the meaning of Sections 9 and 10 of that Act. The petitioner has no case for a writ. She may, if so advised, take recourse to appropriate remedy for declaration that she is still entitled to 'full ownership' of the lands inquestion (Which are contained in the inventory made and agreed upon under Article V of the, Merger Agreement).

24. A preliminary objection was raised bythe learned Advocate General that the petitioner alternative remedy under theCeiling Act and, therefore, this petition is hitby Clause (3) of Article 226 of the Constitution. Hisargument is that as soon as it is found in astatute that remedy is provided, the bar ofCl. (3) of Article 226 of the Constitution comesinto play and the bar subsists even though theremedy so provided has been exhausted. Weare unable to accept this contention. In ourview an 'alternative remedy', within the meaning of Clause (3) to Article 226, is one which can beresorted to in order to obtain the substantialrelief claimed in the writ petition. What is tobe seen is whether there is an alternative remedy, by taking recourse to which the petitioner can seek redress from the injury hecomplains of, as a result of the order of theBoard of Revenue. Today, it is not to beseen whether a remedy is provided in the statute against the order of the Competent Authority. Today, the petitioner is aggrieved by the order of the Board of Revenue and since there is no remedy provided in the statute against the order of the Board of Revenue passed in appeal, it cannot be said that she has an alternative remedy within the meaning of Clause (3) of Article 226. The respondent's objection is without substance.

25. The petition is dismissed. Parties shall bear their own costs. Security amount shall be refunded to the petitioner.


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