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Hari Hara Singh Vs. Harihar Patnaik and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 37 of 1952
Judge
Reported inAIR1954Ori101; 19(1953)CLT491
ActsTenancy Law; Orissa Tenants Protection Act, 1948 - Sections 3; Code of Civil Procedure (CPC) , 1908; Orissa Merged States (Laws) Act, 1950
AppellantHari Hara Singh
RespondentHarihar Patnaik and ors.
Appellant AdvocateK. Patnaik and ;G.G. Das, Advs.
Respondent AdvocateAdv. General and ;R. Das, Adv.
DispositionPetition allowed
Excerpt:
.....gita banik, 1996 (2) glt 246, are not good law]. - as already pointed out this sub-section specifically says that the special laws or customs prevailing in an area where the madras estates land act or the orissa tenancy act does not apply (like the state of khandapara) shall be taken, into consideration in applying the act......issue of a writ to quash the proceedings taken by the sub-deputy collector, khandapara, under the orissa tenants protection act, 1948 (orissa act 3 of 1948) in orissa tenants protection act cases nos. 23 to 30, 32 to 34 and 36 to 41. in all these cases the sub-deputy collector held that the petitioner had violated the provisions of section 3, orissa tenants protection act and directed him to restore possession of the disputed lands to the opposite parties within a week of the receipt of his order. he further directed the petitioner to show cause why the penalty of fine under section 10 of the said act should not be imposed on him. the petitioner did not take part in the proceedings before the sub-deputy collector as, according to him, they were without jurisdiction.2. a contention was.....
Judgment:

Panigrahi, C.J.

1. This is a writ application filed by the Ruler of Khandapara praying for the issue of a writ to quash the proceedings taken by the Sub-Deputy Collector, Khandapara, under the Orissa Tenants Protection Act, 1948 (Orissa Act 3 of 1948) in Orissa Tenants Protection Act Cases Nos. 23 to 30, 32 to 34 and 36 to 41. In all these cases the Sub-Deputy Collector held that the petitioner had violated the provisions of Section 3, Orissa Tenants Protection Act and directed him to restore possession of the disputed lands to the opposite parties within a week of the receipt of his order. He further directed the petitioner to show cause why the penalty of fine under Section 10 of the said Act should not be imposed on him. The petitioner did not take part in the proceedings before the Sub-Deputy Collector as, according to him, they were without jurisdiction.

2. A contention was raised on behalf of the petitioner that the Orissa Tenants Protection Act constituted a violation of Article 19 of the Constitution. This extreme position was, however, not pressed at the Bar. Learned counsel for the petitioner ultimately rested his case on Arts. 362 and 363 of the Constitution and urged that the Sub-Deputy Collector had no jurisdiction to decide the dispute as it related to the rights of the petitioner arising under the agreement entered into between him, as the ruler of the ex-State of Khandapara, and the Governor-General of India on 14-12-47. On behalf of the opposite parties it is urged that the Orissa State Legislature has the power to regulate the relations between 'landlord' and 'tenant' and that they being 'tenants' under the petitioner, were, entitled to claim protection under the provisions of the Orissa Tenants Protection Act.

3. The State of Khandapara was one of the States which acceded to the Indian Dominion after India became independent in August 1947. On 14-12-1947 there was an agreement executed between the Governor-General of India and the petitioner as the Ruler of that State, whereby the latter ceded to the Dominion of India full and exclusive authority, jurisdiction and powers in relation to the governance of the State, and agreed to transfer the administration of the State to the Dominion Government on 1-1-1948.

Article 2 of the agreement provides for the payment of an annual privy purse to the Ruler. Article 3, which is relied on by the petitioner is as follows:

'The Raja shall be entitled to full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this Agreement.'

Article 4 guarantees to the Raja and the members of his family the enjoyment of all personal privileges. Article 5 guarantees the succession, according to law and custom, to the gadi of the State and to the Raja's personal rights, privileges, dignities and titles.

4. On 24-12-1947 the Extra-Provincial Jurisdiction Act, 1947 (Act 47 of 1947) was passed by the Central Legislature empowering the Central Government to exercise extra-provincial jurisdiction over the State areas which remained outside the jurisdiction of the Provinces created by the Government of India Act, 1935. Sub-section (2) of Section 3 empowered the Central Government to delegate its jurisdiction to any officer or authority in such manner and to such extent as it thought fit.

Section 4 empowered the Central Government to make such orders as may seem to it expedient for the effective exercise of any extra-provincial jurisdiction of the Central Government. The power thus conferred upon the Central Government under the Act was delegated to the Provinces and in exercise of this delegated power the Provinces enacted laws for the administration of such States. The Administration of Orissa States Order, 1948 was passed on 1-1-1948, in exercise of this delegated power.

5. On 12-1-1949 the Constituent Assembly of India amended the Government of India Act, 1935, and inserted two new sections, namely, 290A and 290B. Section 290A provided that the Governor-General may by order direct that a State shall be administered in all respects as if it formed part of a Governor's Province specified in the Order. Section 290-B empowered the Governor-General to direct, by an order, that any area included within a Governor's Province shall be administered in all respects by a neighbouring acceding State as if such area formed part of such a State. In exercise of the power vested in him under Section 290-A the Governor-General issued an Order, on 27-7-1949, styled as the States' Merger (Governor's Provinces) Order 1949.

Article 3 of that Order says:

'As from the appointed day the States specified in each of the sphedules shall be administered in all respects as if they formed part of the Provinces specified in the heading of that schedule.'

Schedule 6 to the Order gives a list of the States that were merged in the Province at Orissa and Khandapara is one of them. Article 4 of the Order provides for the continuance of all laws in force in a merged State until repealed, modified or amended, by a competent Legislature.

Article 8 which is important runs thus:

'Without prejudice to the special provisions contained in Article 7 any contract, made or deemed to be made, before the appointed day by, or on behalf of, the Dominion for purposes connected with the governance of a merged State shall, as from that day, have effect as if it has been made by, or on behalf of, the absorbing Province, unless it is wholly or in part for central purposes.'

The 'appointed day' referred to in the Order is 1-8-1949. So far it is clear. That the States were administered by orders issued by the Central Government under the Extra-Provincial Jurisdiction Act, or by the Provincial Government as the delegated authority of the Central Government. After the appointed day, however, namely 1-8-1949, the States became a part of the Provinces and came under the regular administration of the Provincial Governments.

6. Article 3 of the agreement entered into between the Governor-General of India and the Raja of Khandapara on 14-12-1947, guarantees full ownership, use and enjoyment of all the private properties belonging to the Raja'. The Raja claimed a number of items as his private properties and the matter was referred to the Adviser for Orissa States for determining whether all the items claimed by him could be regarded as his private properties. On 10-6-1949 the Adviser communicated his decision that the Raja was entitled to 1643 acres as his Khamar lands and 29 and odd acres as lands settled with his tenants. It is the admitted case of both parties that the lands comprised in the present proceedings taken under the Orissa Tenants Protection Act have been declared to be the private properties of the Raja.

7. On 26-1-1950 the Constitution of India came into force and the relevant Articles on Which reliance is placed by the petitioner's counsel, are Articles 362 and 363. Article 362 is as follows:

'In the exercise of the power of Parliament or the Legislature of a State to make laws, or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Clause (1) of Article 291, with respect to the personal rights, privilege's and dignities of the Ruler of an Indian State,'

'Indian State' is defined in Article 363(2)(a) as meaning 'any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State', and 'Ruler' is defined in Article 363(2)(b) as including 'the Prince, Chief or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State.'

Article 291 makes provision for the payment of the sum guaranteed as privy purse under the agreement entered into by the Ruler before the commencement of the Constitution. Article 363 bars the jurisdiction of the Courts to decide any dispute in respect of any right accruing under or any liability or obligation arising out of, any of the provisions of the Constitution relating to a treaty, agreement, covenant, engagement, or other similar instrument which was entered into or executed by any Ruler of an Indian State and the Government of the Dominion of India.

8. On 3-3-1950 the Orissa Merged States' (Laws) Act (Orissa Act 4 of 1950) was passed by the State Legislature, replacing the Merged States' (Laws) Ordinance (No. 4 of 1949). This Act extended the operation of several Provincial Acts to the merged areas and repealed and amended the laws then in force in the merged States. Section 7 of the Act modifies the tenancy laws in force in the merged States.

It provides:

(a) That all suits and proceedings between landlord and tenant as such shall be instituted and tried in revenue courts;

(b) confers the right of transfer of a holding belonging to an occupancy tenant and the full right to trees standing on his holding;

(c) prohibits the enhancement of cash rents except in accordance with the tenancy laws continued in force in the merged State concerned;

(d) provides against eviction of an occupancy tenant except in execution of a decree for ejectment on stated grounds;

(e) declares the interest of an occupancy tenant in his holding to be heritable;

(f) declares the tenant of a homestead as entitled to the rights of an occupancy tenant;

(g) deals with service tenures created by the Ruler and the rights accruing to the tenants under such tenures; and

(h) lays down the law to be applied to the Khamar lands of the Ruler.

The last item is in the following terms:

'When a person holds Khammar, nijjote and any other private lands of a Ruler which has been recognised as such by the Provincial Government he shall not be liable to ejectment but shall be liable to pay such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner, or the Commissioner Northern Division as the case may be and thereupon he shall acquire the right of occupancy in respect of such land.'

There was a proviso to this clause but it has been omitted by Orissa Act 31 of 1951. The schedule to Act 4 of 1949 shows that the Orissa Tenants Protection Act, 1948, is one of the Acts extended to the State of Khandapara.

9. It will now be convenient to refer to the provisions of the Orissa Tenants Protection Act and see how far they are applicable to the merged State of Khadapara. The Act purports 'to provide temporary protection to certain classes of tenants in the Province of Orissa'. This object has to be borne in mind in interpreting Section 2 which defines the term 'tenant' to whom the Act would be applicable. Section 3 of the Act declares that a person who was cultivating any land as tenant on 1-9-1947 shall not be liable to eviction and shall be entitled to continue to have the right to cultivate such land.

I have already pointed out earlier that the State of Khandapara became merged in the Province on 1-8-1949 under the States Merger (Governor's Provinces Order 1949). It would be anomalous to hold that the Orissa State Legislature purported to legislate extra-territorially in respect of an area which did not form part of the Orissa Province till 1-8-1949 and gave protection to tenants in such areas with effect from 1-9-1947. The argument adduced by the opposite parties that the State Legislature being competent to enact laws with retrospective effect, Section 3, Orissa Tenants Protection Act should be held to have come into force in the merged State of Khandapara from 1-9-1947, the date from which the Act is deemed to have operated, appears to me to be fantastic and deserves no consideration whatsoever.

On the other hand, the circumstances that led to the passing of the subsequent amending Act, namely, the Orissa Tenants Protection (Amendment) Act 1951 (Orissa Act 17 of 1951) would indicate that the Legislature realised its mistake and made the necessary amendments in order to make the Tenants Protection Act applicable only from the date of merger, namely, 1-8-1949. This is evident from the fact that by Section 2 of the Amendment Act of 1951 a new subsection was added after Sub-section (4) of Section 1 of Act 3 of 1948.

This new sub-section numbered as '(5)' reads as follows:

'(5) (1) for the purpose of the merged States areas to which this Act has been extended by the Orissa Merged States (Laws) Act, 1950:

(i) for the words, letters and figures '1st day of September, 1947' wherever they occur the words, letters and figures '1st day of August, 1949' shall be substituted;

(ii) for the words, letters and figures '30th November, 1947' as they occur in item (3) of Clause (g) of Section 2, the words, letters and figures '1st day of August, 1949' shall be substituted.

(2) In such areas where neither the Madras Estates Land Act 1908 nor the Orissa Tenancy Act 1913 is in force special laws or customs prevailing therein shall be taken into consideration for the application of the said Act.'

These provisions make it absolutely clear that the Orissa Tenants Protection Act applies to the merged State areas only with effect from 1-8-1949 & that so far as the State of Khandapara is concerned any special law or custom prevailing therein has to be taken into consideration before the Act is applied. Section 8, Orissa Merged States' (Laws) Act (Act 4 of 1950) also makes a similar provision and gives the power to a Court to adapt & apply any Provincial Act, shown in the schedule thereto, with such alterations as may be necessary.

10. It is in the context of the antecedent history of this legislation that we are to consider whether the guarantee given to the petitioner, under Article 3 of the Agreement entered into by him on 14-12-1947 with the Governor-General of India, that he shall be entitled to lull ownership, use and enjoyment of his private properties was intended to be extinguished by the State Legislature by a side wind, by extending the applicability of the Orissa Tenants Protection Act to the State areas from a date anterior to the 'appointed day' mentioned in the States Merger (Governor's Provinces) Order of 1949, namely, 1-8-1949.

The Constitution expressly respects the sanctity of the agreement and says that in making laws due regard shall be had to the assurances and guarantees given under such agreements. It is true that the State of Khandapara as such has ceased to exist. But the existence of the Ruler of that State has been expressly recognised by the Constitution. It is not inconceivable that there can be a Ruler without a State, even as there can be a State without a Ruler. The agreement thus entered into between the Ruler and the Government of India must continue to receive effect unless and until it is expressly terminated by the mutual consent of parties, or possibly by an Act of State.

Where a State enactment appears to be in conflict with the agreement, the canon of construction applicable to such legislation is that it must not be deemed to take away or extinguish the existing right of the Ruler (the petitioner in this case) unless it appeared, by express words that it was the intention of the State Legislature to do so. In order to have the effect of extinguishing the right of the petitioner, it is not enough to show that the protection given to tenants under the Act, and extended to the merged State areas,' will automatically put an end to such right. It must further be shown that the Legislature has authorised such a thing to be done at all events, and irrespective of its possible interference with existing rights.

The Orissa Merged States' (Laws) Act, 1950 (Act 4 of 1950) expressly makes provision in respect of the private lands of the Ruler and creates a machinery for the decision of disputes between him and his tenants in respect of Khamar lands. Any tenant in respect of such lands can only acquire a right of occupancy after a fair and equitable rent has been fixed by a competent authority appointed by the Revenue Commissioner. This provision cannot be deemed to have been abrogated by the Schedule to the Act which extends the operation of certain Acts already in force in the Province. The function of the interpreter should be to see whether the two provisions can exist side by side. The existence of the petitioner's right in his private lands and the protection of the tenant's interests in the State lands are not inconsistent and both the Orissa Merged States' (Laws) Act 1950 (Act 4 of 1950) and Orissa Tenants Protection (Amendment) Act 1951 (Orissa Act 17 of 1951) justify this interpretation.

Section 8 of the former Act expressly empowers a Court to so construe the Acts cited in the Schedule annexed thereto, as not to affect the substance of the parent Act itself. On a strict interpretation of the words 'landlord' and 'tenant' as denned in the Orissa Tenants Protection Act I am disposed to think that the petitioner cannot be regarded as a 'landlord' so far as his private lands guaranteed under the agreement are concerned; nor is the cultivator thereof to be regarded as a 'tenant'. We have therefore to refer to the new Sub-section (5) (2) introduced by the Amendment Act of 1951 (Orissa Act 17 of 1951) for guidance. As already pointed out this sub-section specifically says that the special laws or customs prevailing in an area where the Madras Estates Land Act or the Orissa Tenancy Act does not apply (like the State of Khandapara) shall be taken, into consideration in applying the Act.

It may be noted that even in the State of Orissa the Act does not apply to some areas notably the district of Sambalpur. There can therefore be no warrant for assuming that the Act should necessarily apply to the Rulers and their private lands. In the circumstances, I and inclined to hold that the application of the Orissa Tenants Protection Act is limited to the State lands as distinct from the private lands of the Ruler,

11. Another canon of construction that may be called in aid is that where there are provisions in a special Act which are inconsistent with a prior general Act, the provisions of the general Act must yield place to those of later special enactment. The Orissa Merged States' (Laws) Act of 1950 is admittedly a special enactment which declares the laws that are to be in force in the merged areas, and introduces modifications and amendments to the existing law. The provisions of the Acts extended to the State areas must be read as subject to those made in the special Act. The Legislature could not have intended at the time the Orissa Tenants Protection Act was passed that it should apply to the tenants of State areas.

The definitions of 'landlord' and 'tenant' given in the Act should, therefore, be extended only to those classes of persons who answer the description of landlord and tenant in those areas, and not to a Ruler who was not a landlord at any time. This construction would give protection to tenants of 'landlord' as defined in the Tenants Protection Act, and also respect the guarantees given under Article 3 of the agreement executed between the petitioner and Governor-General on 14-12-1947.

Any other interpretation would have the effect of permitting the tenants to treat the agreement as a nullity. In order to have that effect, the words of the enactment should be clear and explicit, so as to leave no doubt about the intention of the legislature. As I have already pointed out that could never have been the intendment of the legislature.

12. If I am right so far in my interpretation of the two Acts, the conclusion must follow that the provisions of the Orissa Tenants Protection Act are inapplicable to the private lands of the petitioner. The adjudication of any dispute concerning such land should be left to the special machinery set up under Orissa Act 4 of 1950. The Sub-Deputy Collector was therefore in error in calling upon the petitioner to restore possession of the lands to the opposite parties and to show cause why he should not be fined.

13. In the view that I have taken that the provisions of the two Acts are not inconsistent with each other, it is not necessary to discuss whether Article 363 applies to the facts of this case.

14. We should accordingly allow this petition and issue of a writ declaring that the proceedings under the Orissa Tenants Protection Act taken by the Sub-Deputy Collector, Khandapara are void as being without jurisdiction and that they should be quashed. The petitioner shall be entitled to the costs of this application which we assess at Rs. 100/- (One Hundred Rupees only).

Mohapatra, J.

15. I agree.


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