1. This is a petition under Art. 226 of the Constitution by the owner of Killa Aul for a declaration that the provisions of the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) do not apply to Killa Aul and for other consequential reliefs.
2. The petition was filed on 17-12-52 and in that petition the validity of the said Act was challenged on various grounds. These are very similar to those taken by the zamindars of Ganjam in -- 'Gajapati Narayana Deo v. State of Orissa', AIR 1953 Orissa 185 (A), which have been negatived by the Supreme Court on 29-5-1953, vide -- 'Gajapati Narayan Deo v. State of Orissa', AIR 1953 SC 375 (B). The limited question for consideration at present is whether Killa Aul is an 'estate' as defined in Section 2(g), Orissa Estates Abolition Act, and whether the petitioner is an 'Intermediary' as defined in Section 2(h) of that Act.
3. In the suit brought by the Raja of Kanika -- 'O. S. No. 1 of 1953 (Orissa) (C), the same question has been discussed at some length in respect of Killa Kanika which is adjacent to Killa Aul. There it was pointed out that for the purpose of deciding whether Killa Kanika was an 'estate' within the meaning of Section 2(g) Orissa Estates Abolition Act, one has to examine whether it was an 'estate' as defined in Section 3(2)(a), Bengal Land Registration Act, 1876 and in Section 3(7), Orissa Tenancy Act.
In the present petition also the same reasonings apply and the success or failure of the petition will ultimately depend on whether Killa Aul is any land subject to the payment of land revenue for the discharge of which a separate engagement has been entered into with Government as defined in Section 3(2), Bengal Land Registration. Act, 1876.
4. The petitioner has relied on the ancient history of Orissa and claimed descent from Raja Mukunda Deb, the last independent Hindu king of Orissa, who ruled over Orissa in the middle of the 16th century. This is, however, of purely historical interest. For the purpose of the present petition it is sufficient to say that when the British army entered Cuttack after defeating the Maratha army of the Bhonsla Rajas of Nagpur in October 1803 they granted Kaool-Namas to various local Chieftains including the then Rajas of Kanika and Aul. The terms of the Kaool Nama granted to the Raja of Aul are not on record but it is admitted that they were identical with the Kaool-Nama granted to the Raja of Kanika reproduced at p. 348 of Aithison's Treaties, Vol. II, 5th edition.
By virtue of that Kaool-Nama, a certain sum. known as peshkus was fixed in perpetuity payable by the Raja of Aul to the British Government. It also appears that some sort of limited sovereign rights in Killa Aul were allowed to remain with him at the time of the execution of the Kaool-Nama and its counter-part, namely, the treaty engagement in November, 1803. But with, the gradual pacification of the country the then Governor-General in Council promulgated Regulation XII of 1805 for settlement of public revenue. The provisions of this Regulation have been dealt with at some length in my judgment in --O. S. No. 1 of 1953 (Orissa) (C).
For the purpose of this petition, however. I may quote Clauses 1 and 2 of Section 35 of that Regulation.
'35. First: The late Board of Commissioners having concluded a settlement of the land revenue with certain zamindars, whose estates are situated chiefly in the hills and jungles, for the payment of a fixed annual quit rent in perpetuity, those engagements are hereby confirmed, and no alteration shall at any time be made in the amount of the revenue payable under the engagements in question to government.
Second: The following is a list of the mohauls to which the provision in the preceding clause is applicable :
The first clause stated that the late Board of Commissioners had concluded a settlement of land revenue with certain zamindars for the payment of a fixed annual quit rent in perpetuity and it confirmed those engagements. The 'late Board of Commissioners' mentioned in this clause were Lieut. Col. Harcourt and Mr. Melville who executed the Kaool-Nama of 1803 for the purpose of 'settlement and pacification' of the old Soobah of Orissa. In Clause 2 of Section 35 a list of the mahals in respect of which settlements were made was given and Killa Aul is the first in that list. Thus if the first and second clauses of Section 35 are read together it is clear that by the law of the land it was expressly declared that the settlement made in 1803 with the Raja of Aul was nothing else but settlement of land revenue and that settlement was confirmed by Regulation XII of 1805.
The power of the Governor-General to make such a Regulation in 1805 in respect of Killa Aul has not been challenged and consequently whatever might have been the historical importance of the Raja of Aul and whatever might have been the true significance of 'peshkus' payable by him to the Rulers of Orissa prior to 1805, the fact remains that by the law of the land he was reduced to the position of a zamindar liable to pay land revenue fixed in perpetuity and the engagement entered into between him and thp British : Government in 1803 was confirmed as settlement of land revenue in respect of Killa Aul.
5. Mr. Dhal on behalf of the petitioner, however, contended that in Regulation XII, 1805, the expressions 'quit rent', 'land revenue', 'tribute' were used somewhat indiscriminately and that consequently merely because in Clause 1 of Section 35 the expressions land revenue' and 'quit rent' occur they could not be given the same meaning which they have at present. In support of this argument he invited my attention to the provisions of Section 36 of the said Regulation in which while referring to the estates which subsequently became' Tributary mahals it was stated that they were 'jungle or hilly zamindaries' and that the payment made by the 'proprietors' of those estates were 'quit rent' or 'tribute'. He also invited my attention to Section 37 (since repealed) where while referring to the territory of Mayurbhanj it was stated that the Collector of the Zilla should conclude a settlement with the proprietor of that estate for the payment of a fixed annual 'quit rent'.
But as against this argument, it should be pointed out that Regulation 36, while extending to the whole of the conquered territory of Orissa including Killa Aul, the Regulations in force in the old Province of Bengal, excluded the jungle and hilly zamindaries (Tributary mahals) from the operation of those Regulations on the ground that these zamindaries were occupied by a 'rude and uncivilized race of people'. Similarly, Section 37 excluded Mayurbhanj also from the operation of all the Bengal Regulations, It is thus clear that though the expressions 'zamindar', 'mahal', 'quit rent' were used in respect of the Tributary mahals also those mahals were excluded from the operation of the laws which were applied to the conquered territories of Orissa.
But Section 35 dealing with Killa Aul did not exclude that Killa, from the operation of those Regulations. On the other hand, the words 'land revenue' are used only in Section 35 and not in Section 36 or Section 37. It is true that in Clause 1 of Section 35 the ambiguous expression 'quit rent' is also used. But in the same clause that expression has been explained as nothing else but land revenue and there can be no doubt about the meaning; of the expression 'land revenue'. Moreover, after 1805 the Rajas of Aul never exercised sovereignty of even a limited nature within Killa Aul, though they have maintained some show of roval dignity due to their descent from the ancient Hindu Kings and the consequent respect shown to them by the residents of Killa Aul.
They submitted themselves to the jurisdiction of the Civil Courts established in Cuttack and at page 418 (para 608) of Maddox's Settlement Report it is stated that Aul estate remained under the attachment and administration of the Civil Court for sixteen years from 1868 to 1883. Again, at page 419 of the same book it is stated that though the Raja of Aul had first objected to the settlement operations taking place in that portion of Killa Aul which was known as Utihar Kotavshahi subsequently he himself made an application under s. 101(2), Bengal Tenancy Act, before the Collector.
This application by the proprietor under Section 101(2), Bengal Tenancy Act, for settlement of rent in a portion of his Killa clearly implies an admission that his Killa is nothing else but an 'estate' as defined in Section 3(4), Bengal Tenancy Act.
6. The land revenue as fixed in the Kaoolnama of 1803 (converted into rupees) has all along been paid except for a slight change which is not material. During the Provincial Settlement of 1890-1900 the survey and preparation of record-of-rights in Killa Aul were ordered by a notification dated 12-12-1892 (see Maddox's Settlement Report p. 419, para 608) under Section 101(1), Bengal Tenancy Act, 1885, which was in force then. This shows that Killa Aul was treated as an 'estate' as defined in Section 3(4), Bengal Tenancy Act, which is identical with the definition of an 'estate' in the Orissa Tenancy Act. During the Revision Settlement of (1922-32) also Killa Aul was re-surveyed and record-of-rights was revised under Chapter XI of the Orissa Tenancy Act (see page 3, para 4 and pp. 139 to 140 of Dalziel's Settlement Report),
The then proprietor of Killa Aul Raja Braja Sundar Deb accepted this settlement and filed several applications before the settlement authorities under Section 128, Orissa Tenancy Act (para 400 of Dalziel's Settlement Report) for settlement of fair and equitable rent thereby admitting his position to be that of the proprietor of an 'estate' as defined in that Act. His name was also entered in the khewat. In Register-D his name was entered on 30-7-1931. After the death of Raja Braja Sundar Deb, the petitioner's name was mutated on 1-7-1947 in Register-D. The application of the petitioner for mutation of his name involves an admission that Killa Aul is an 'estate' as defined in the Bengal Land Registration.
The Government of Orissa have also filed copies of the plaints filed by the petitioner's father in rent suits under Section 193, Orissa Tenancy Act, against his tenants which show that Raja Braja Sundar Deb took advantage of the settlement entries and the provisions of the Orissa Tenancy Act for the purpose of realising rents from the tenants.
7. Thus apart from the provisions of Section 35 of Regulation XII of 1805 the khewat, the entry in Register-D & the conduct of the petitioner & his father show that there was a clear admission on their part that Killa Aul was an 'estate' as defined in the Bengal Land Registration Act and the Orissa Tenancy Act. It is, therefore, an 'estate' as defined in the Orissa Estates Abolition Act and the petitioner's status is that of an 'Intermediary' as defined in that Act.
8. The petition is, therefore, dismissed with costs. Hearing fee is assessed at Rs. 50/-.
9. I agree.