G.K. Misra, C.J.
1. The writ application was filed on 1-2-1974. The petitioner filed several affidavits on 15-7-1974, 16-10-1974 and 8-11-1974 making statements of further facts. His case may be stated in short.
2. The pelnr. was the Thekadar of the three villages of Budhamunda, Tara and Chuinara in the ex-State of Bolangir, Three Pattas, one for each village, had been issued to him in 1936 for a period of fifteen years from 1-4-1936 to 31-3-1950.
As Thekadar the petnr. was in possession of Bhogra lands along with his co-sharers. The Bhogra lands in villages Budhamunda, Tara and Chuinara were respectively 41.79 acres, 93.82 acres and 40.87 acres, in all 176.48 acres. The ex-State of Bolangir merged in the State of Orissa on 1-1-1948. The Government of Orissa took a decision in 1949 for abolition of Thekadari system with effect from 1-4-1950 after the expiry of the Thekadari Pattas. Accordingly Bhogra conversion proceedings were initiated. The principles to be followed were that five acres of Bhogra lands to be selected by the revenue authorities would be reserved for settlement as service inam jagirs for village offcers and those lands which were treated as Bhogra on account of surrender or abandonment by tenants would be settled with those tenants. The other Bhogra lands were to be settled with the Thekadars or their co-sharers according as they were found to be in possession. Subsequently it was decided that those reserved five acres would be temporarily given to the Grama Panchayats to be leased out on annual auction. In the year 1973 a decision was taken that those reserved five acres would be distributed amongst landless persons. Bhogra conversion proceedings were started in April, 50 and concluded on 10-3-1953. Bhogra lands were settled in the three villages as indicated hereunder :
Village Budhamunda1.Gopaleswar Dharua s/o. Chaitan DharuaAc. 5.552.Raicharan Dharua s/o. Chandala DbaruaAc.15.363.Jani Dharua s/o. ChandalaAc. 5.894.Khaman Dharua s/o. JudhesthiAc. 2.965.Rana Gauda s/o. SankirtanAc. 7.036.Jagir (reserved)Ac. 5.00
Ac.41-79Village Tara1.Gopaleswar Dharua s/o. Chaitan DharuaAc.32.322.Dingar Dharua s/o. Chaitan DharuaAc.37.343.Gopi Dharua s/o. Chaitan DharuaAc.10.554.Madhab Dharua s/o. Sadhu DharuaAc. 8.615.Jagir (reserved)Ac. 5.00
Ac.93.82Village Chuinara1.Laxman Dharua s/o. Padamona DharuaAc.29.592.Madhab Dharua S/o. Sadhu DharuaAc.6.283.Jagir (reserved)Ac. 5.00
The petitioner does not challenge the legality of the settlement of some of the Bhogra lands with his co-sharers who were found to be in possession of those lands and on some of the tenants whose lands had been treated as Bhogra in 1936 on account of their surrender or abandonment. The challenge is confined only to the reserved five acres in each of the three villages. Thus the subject-matter of the writ application is confined to 15 acres of Bhogra lands out of 179.48 acres of Bhogra lands in all the three villages. The legality of the settlement in respect of the residual 161-48 acres is not challenged.
Pelnr.'s stand is that he is still in possession of these 15 acres of reserved Bhogra lands in the three villages and that he had acquired occupancy right in those lands by virtue of Section 7 (g) of the Orissa Merged States (Laws) Act, 1950 (Orissa Act IV of 1950) (hereinafter to be referred to as the Act) which came into force on 3-3-1950 and that a writ of mandamus and an injunction should be issued against the opposite parties not to interfere with his possession.
Petnr. does not dispute that there were Bhogra conversion proceedings in which his signatures were taken as evidence of his assent to settlement of Bhogra lands in the three villages as indicated above and that he executed agreements on 13th June, 1951 whereby he surrendered his Thekadari right and the Bhogra lands to the State. He, however, takes the stand that he did not know his legal rights and his signatures in the Bhogra conversion proceedings and the agreements were taken by threat and coercion.
3. The case of the opposite parties may be stated in brief. After the Government took a decision in 1949 for abolition of Thekadari system and for conversion of Bhogra lands into raivati lands, Bhogra conversion proceedings were initiated in presence of the petnr. He was a signatory to the settlement made after verification of possession. He executed agreements surrendering his Thekadari rights and the Bhogra lands in the three villages. Section 7 (g) of the Act has no application to Bhogra lands held by the Thekadars in the ex-State of Bolangir. The settlement was finalised in 58. Parchas were distributed and the reserved 15 acres of and remained in the Khas possession of the Government which were leased out on annual auction. Subsequently the lands were given to Grama Panchayats temporarily. The lands have been taken back and distributed amongst the landless persons in 1973. Bhogra lands belong to the State. The Gountia had no right in them. After the abolition the petnr. a acquired raiyati right only in those lands which were settled with him. He has no right in the lands settled with the co-sharers and the tenants and reserved by the Government. He ceased to be in possession of the lands from 1953 onwards. Both before and after the petnr. surrendered the Bhogra lands and the Thekadari right he has no title or possession in the reserved five acres of land in each of the villages. He is estopped from questioning the settlement and the agreements. The writ application is liable to be dismissed both on merits and as having been filed 21 years after the final settlement of the Bhogra lands in Bhogra conversion proceedings.
4. The following questions arise for consideration in this writ application :
(i) What was the nature of right the Thekadar had in the Bhogra lands during the tenure of the settlements from 1-4-1936 till 31-3-1950? (ii) Has Section 7 (g) of the Act any application to Bhogra lands of the Thekadars in the ex-State of Bolangir?
(iii) Were the Bhogra conversion proceedings conducted in presence of the petnr? Was he voluntarily a signatory to the ultimate settlement made in the year 53?
(iv) Did the petnr. voluntarily execute agreements in 51 surrendering his Thekadari rights and the appurtenant Bhogra lands? (v) Is the writ application barred by the principles of estoppel and waiver? (vi) Is the writ application liable to be dismissed on the ground of laches and delay?
5. Before examining the aforesaid questions it would be appropriate to notice the relevant provisions of the Patna State Land Revenue Act, 1940 (Act III of 1940) (hereinafter to be referred to as the Land Revenue Act). Section 3 is the Interpretation clause. So far as relevant it runs thus :
'3. In this Act unless there is anything repugnant in the subject or context:
(ii) 'Bhogra land' means the land allotted by the Government of the State to a Thekadar in a village in lieu of remuneration for the management of such village and includes all lands recorded as Bhogra under Section 53 of the Act.
(v) 'Government' means the Government or administration of the Maharaja and Ruler of the Patna State.
(xiii) 'Rent' means whatever is paid, delivered or rendered, in cash or kind by a tenant on account of the use or occupation of land let to him and also includes any service rendered by him.
(xvi) 'Tenant' (raiyat) means primarily a person who holds land for the purpose of cultivating it by himself or by member of his family or by hired servant and is, or, but for a special contract, would be liable to pay rent or cesses or both for such land and includes also the successors in interest of such persons but not a farmer or Thekadar,
(This definition was introduced in the Patna State Land. Revenue (Amendment) Act, 1942 (Act VIII of 1942)).
(xvii) 'Tenure-holder' means and includes a Zamindar, Khorakposhakdar, Umrao, an Asli or Shikmi Thekadar and a Muafidar holding a Sanad or Patta from the Government,
(xviii) 'Thekadar' means a person who under the provisions of this Act has accepted, or is deemed to have accepted, the assessment of a village and includes his successors as recognised in accordance with the provisions whom a settlement has been made before this Act comes into force, and his successor as recognised in accordance with the provisions of this Act; the term includes both 'Asli' and 'Shikmi' Thekadars.'
6. Chapter XI of the Land Revenue Act deals with village servants. Section 100 gives the various categories of village officers. It runs thus:
'100. There may be the following village servants in respect of each inhabited village--
(a) The Thekadar (Asli or Shikmi).
(b) The Thekadar's village Agent, if any.
(c) The Village Watchman (Chowkidar or Jhanker).
(d) The Waterman (Nariha).'
Section 101 prescribes the incidents of tenure of a Thekadar which may be extracted.
'101. The incidents of the tenure of a Thekadar shall be as follows-
(a) the tenure shall be heritable during the currency of a settlement; It shall not be saleable in execution of any decree, nor shall any decree be passed for the sale thereof;
It shall not be partitioned and shall devolve on one member only of the Thekadar's family unless the Government directs otherwise.
Explanation-- Private arrangements may be made by the Thekadar with his co-sharers for the enjoyment of Bhogra lands but these will not be recognised or enforced by the Revenue Courts.
(b) x x x x
(c) the tenure shall not be transferable by sale, gift, mortgage, dower, lease or ill any other way in whole or part provided that the Thekadar may lease out the Bhogra lands in the village to bona fide cultivators on annual leases during the currency of a settlement but no title can be acquired by such a lessee over such Bhogra lands even though the same were leased out to him for more than a year.
(d) A Thekadar may surrender his tenure in writing before a Revenue Officer not below the rank of an Officer of the first grade and similarly a Thekadar within a Zamindari, Khorakposhakdari or Umrai area may also surrender his tenure to his respective Zamindar, Khorakposhakdar or Umrao.' Section 102 deals with rights and privileges of Thekadars. Section 102 is as follows: '102. (a) No Thekadar shall be ejected otherwise than by an order of a competent Revenue Court passed in accordance with the provisions of Section 103.
(b) x x x x
(c) x x x x
(d) The Thekadar may exercise and enjoy the rights and privileges conferred on him by his Patta and the Wajib-ul-arz of his village.'
By Section 103 a Revenue Officer of the first grade may eject any Thekadar on the ground that he has failed to pay the village demand legally payable by him.
Section 104 prescribes the other grounds on which a Thekadar may be ejected.
Section 106 lays down the duties of a Thekadar.
7. During the currency of the settlement a Patta is to be granted to the Thekadar and he is to execute a Kabuliyat. A sample copy of the Thekadari Kabuliyat is to be found in Appendix J (I) of the Final Report on the Land Revenue Settlement of the Patna State, 1937. Whatever has been prescribed in the Land Revenue Act in the various sections has been incorporated in the Kabuliyat. A Patta is granted to him on similar terms. A sample copy of the Patta is to be found in the Wajib-ul-arz in Appendix I of the Final Report.
8. From the aforesaid provisions it would be clear that a Thekadar in the ex-State of Bolangir was not a tenant and was a mere tenure-holder. He had rights and obligations as mentioned in the Patta and the Kabuliyat during the currency of the settlement. He had no title in Bhogra lands. He had no right of alienation. There was no right of possession except during the currency of the settlement. He was liable to eviction on various grounds during the currency of the settlement. During the period for which the settlement was valid the Thekadar had a precarious right. At the close of the settlement he had no right. All that was prescribed was that until the next settlement he would continue to collect the land revenue and discharge the duties. The legal position that existed in the ex-State of Bolangir prior to the coming into force of the Act on 3-3-1950 was that the Thekadar had no right, title and interest in the Bhogra lands except that he was in possession thereof towards the remuneration for management of the village.
9. The next question for consideration is whether the petnr. acquired occupancy right in the Bhogra lands under Section 7 (g) of the Act. Clauses (g) and (h) of Section 7 of the Act as they stood before the amendment by Orissa Act 22 of 1962 may be extracted.
'7. (g) when land is held as service tenure, either under the Ruler or any member of his family the liability of the holder of such tenure to render service for the use and occupation thereof shall cease, and he shall, on payment of such rent as may be assessed by the State Government as fair and equitable, acquire occupancy right therein;
(h) when a person holds Khamar, Nijjote or any other private land of a Ruler, which has been recognised as such by the State 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, Northern Division, as the case may be and thereupon he shall acquire right of occupancy in respect of such lands.'
10. It is contended for the petitioner, that he held the Bhogra lands as service-tenure under the Ruler and as the Thekadari system had been abolished he had on payment of such rent as might be assessed by the State Government as fair and equitable acquired occupancy right therein.
The question for consideration is whether the Bhogra lands were held as service-tenure under the Ruler. The expression 'Ruler' has been used in collocation with the words 'any member of his family'. The construction to be given to the word 'Ruler' must, therefore, take its colour from the disjunctive words 'any member of his family'. The Bhogra lands attached to the Thekadari right are not the private properties of the Ruler. They belong to the State: towards remuneration for the management of the village the Bhogra lands are given during the period of settlement to the Thekadar. There was no, nor can there be any, service-tenure in respect of lands belonging to the State under any member of the Ruler's family. Consequently the expression 'land held as service-tenure' cannot refer to any land held under the State. It must be confined to the private lands held by the Ruler or any member of his family.
It is to be noted that under Section 100 of the Land Revenue Act there were four classes of village servants. They were the Thekadar (Asli or Shikmi), the Thekadar's Village Agent, the village watchman (Chowkidar or Jhankar) and the waterman (Nariha). They were all public servants doing service to the community being appointed by the State and they cannot be put in the same category as persons doing private service and getting remuneration by way of grant of land.
A Ruler or a member of his family had several classes of persons doing private service. They were barbers, washermen, Choukidars to watch their lands, persons who fan the Ruler or member of his family, and persons who prepare sandle paste. The aforesaid instances are merely illustrative but not exhaustive. Section 7 (g) purported to abolish these classes of service-tenures doing private service either to the Ruler or members of his family. In Section 3 (v) of the Land Revenue Act 'Government' means the Government or administration of the Maharaja and Ruler of the Patna State. Merely because the ex-Maharaja of Patna was the Ruler of the State it does not mean that distinction was not maintained in respect of service tenures under the Government and those under the Ruler in his private capacity.
11. Reliance was placed on Section 7 (h) of the Act to show that therein clearly it was mentioned that a person holding Khamar, Nij-jote or any other private lands of the Ruler would acquire occupancy right in certain circumstances. Section 7 (h) would throw no light on the construction of Section 7 (g). It was well known that there were many tenants having no occupancy right in respect of Khamar, Nij-Jote or any other private lands of the Ruler. In respect of lands held directly under the State persons had occupancy right, so clear provision had to be made in respect of Khamar, Nij-jote or private lands of the Ruler. Merely because in Section 7 (h) the classes of land were specifically expressed, it does not follow that in the absence of similar expression in Section 7 (g) the service tenures would be extended to the lands belonging to the State and not to be restricted to lands held by the Ruler in his private capacity. The Legislature made the position clear that the expression 'any member of his family' in collocation with the word 'Ruler' would carry the meaning that the abolition of service tenures dealt with in that clause related to the private lands of the Ruler. This is so because no member of the Ruler's family had any other land excepting Khamar, Nij-jote or any other .private land. They could not have any service tenure in respect of the lands belonging to the State.
This view had been taken by a Bench of this Court in ILR (1974) Cut 909 = (AIR 1975 Orissa 139), (Bhagaban Gouda v. Ukia Dei) with reference to Nariha Jagir lands in the ex-State of Bamra State. In paragraph 9 thereof the following observation was made :
'Thus, Section 7 (g) does not apply to all lands held on service tenure. It has application to service tenure held either under the Ruler or any member of his family.'
12. Mr. Das, however, placed reliance on a Bench decision of this Court consisting of Narasimham, C. J. and J. K. Misra, J. in (1960) 26 Cut LT 187, (Krushna Ch. Meher v. Hrushikesh Meher). In paragraph 26 their Lordships observed as follows:
'Statutory recognition to the conversion of Bhogra lands into ryoti lands in Bolangir district is given in Clause (g) of Section 7 of the Orissa Merged States (Laws) Act, 1950.'
To that case the State of Orissa, was not a party, the contest was between the ex-Thekadar and his co-sharers in a suit for partition. The co-sharers claimed a share which was challenged by the ex-Thekadar. It was to the benefit of both the parties in that case to contend that they had acquired occupancy right on the strength of Section 7 (g). The point raised before us was not canvassed therein and it was assumed that Section 7 (g) applies to Bhogra lands attached to the Thekadari tenure which was abolished. The aforesaid observation made by their Lordships is contrary to law and to that limited extent the decision is hereby overruled.
In 26 Cut LT 216 = (AIR 1961 Orissa 15), (Diriu Patra v. Minaketan Patel) J. K. Misra, J. sitting single also held that the plaintiff in that case acquired occupancy right under Section 7 (g). The plaintiff was an ex-Thekadar and lands were settled with him by the State of Orissa during Bhogra conversion proceedings. His Lordship held:
'So, both under this law and by the resettlement proceeding the plaintiff acquired a new title to the Bhogra holding as a tenant.'
The observation that the plaintiff acquired occupancy right under Section 7 (g) was not based on any discussion. The State was not a party to that case. That part of the observation does not lay down good law.
In (1968) 34 Cut LT 1360, (Mahadeb Patnaik v. Dula Dei) the applicability of Section 7 (g) was also incidentally raised. There also the State was not a party. The nature of the service tenure whether it was held under the State or under the Ruler is not clear from the judgment. That case, therefore, furnishes no useful guide for determination of the question in issue.
In 1972 (1) Cut WR 178, (Bhatri Kisan v. Antaryami Mahakud) A. Misra, J. dealt with a case of Chakran Maufi or service tenure in the ex-State of Benai. The judgment does not make clear whether Chakran jagir land was held under the Ruler or any member of his family or under the State. It was assumed that Section 7 (g) applies to Chakran jagir. The distinction pointed out by us was not raised or examined in that case.
13. The same conclusion would be reached if we notice the genesis and history of Section 7 (g) of the Act.
In the Orissa Merged States (Laws) Ordinance, 1949 (Orissa Ordinance No. IV of 1949) which came into force on the 30th December, 1949, Sub-clauses (h) and (i) of clause 7 were inserted as follows :
'7. Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of Article 4 of the States Merger (Governor's Provisions) Order, 1949--
XX X X (h) when land is held as service tenure, either under the Ruler or any member of his family the liability of the holder of such tenure to render service for the use and occupation thereof shall cease, and he shall, on payment of such rent as may be assessed by the Provincial Government as fair and equitable, acquire occupancy right therein;
(i) when a person holds khamar, nij-jote or 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 right of occupancy in respect of such lands:
Provided that such liability of the holder of any service tenure shall not cease and no occupancy right shall acquire to him therein if, on the application of the Ruler the Provincial Government direct that the holder shall continue to render such service.'
Though the proviso was placed under sub-clause fi) it was really a proviso to sub-clause (h). The proviso prescribed that the liability of the holder of any service tenure shall not cease and no occupancy right shall accrue to him therein that the holder should continue to render such service. This proviso in unmistakable term indicates that the service tenure referred to in Sub-clause (h) was in respect of the private lands of the Ruler and not in respect of the lands belonging to the State in which there was service tenure for public purposes. All the ex-States in Orissa excepting Mayurbhanj merged in the State of Orissa on 1-1-48. By December, 1949 when the Ordinance came into force the Rulers had lost their sovereignty and they had no voice or say as to service tenures in respect of lands vesting in the State of Orissa. The proviso conferred certain privilege on the Rulers and not even on the members of their family. If the Rulers so liked they could retain the service tenures and in such a case the holders of the service tenures would not be entitled to occupancy right and the services would continue
In the Orissa Merged States (Laws) Act, 1950 Sub-clauses (h) and (i) of the Ordinance were retained as Section 7 (g) and (h) word for word without any alteration and the proviso continued as before under Clause (h) though really it was a proviso to Section 7 (g).
In the Orissa Merged States (Laws) (Amendment) Act, 1951 (Orissa Act XXXI of 1951) the proviso in clause (h) of Section 7 of the Act was omitted.
Thus the history of the legislation regarding insertion of the proviso and its subsequent deletion clearly indicates that initially a privilege had been conferred on the Rulers to retain service tenures in respect of their private lands. This privilege was taken away by the Orissa Act XXXI of 1951.
Reliance was placed by Mr. Das on AIR 1959 SC 909, (Raghubar Sarup v. State of U. P.). We are unable to understand why the decision was cited. Therein Thekadari tenures were abolished by legislation. Certain leases had been granted to the Thekadars by the ex-Ruler of Ranpur. Their Lordships held that the Thekadars could not claim any right in those leases which were terminated by the Thekadari Act.
14. We would sum up our conclusion by saying that Section 7 (g) of the Act has no application to Bhogra lands attached to the Thekadari tenure of the petitioner. Those lands belonged to the State and not to the Ruler in his private capacity. They were attached to the tenure as remuneration towards the work of management of the village by the Thekadar.
15. We now proceed to examine the course of events relating to Bhogra conversion. Annexure 1 is the copy of letter No, 1548 dated 5th February, 1949 from the Secretary to the Government of Orissa, Revenue Department, to the Secretary to the Chief Administrator and Commissioner. The subject was conversion of Bhogra lands into rayati in Patna State. Detailed reference need not be made to this letter as in partial modification thereof Annexure C, a copy of letter No. 14340/S-Sl.-Ten. 114/49 dated the 19-12-1949, from the Secretary to Government, Revenue Department, to the Commissioner, Northern Division, Sambalpur, was issued. The entire Annex-C is extracted hereunder:
'Copy of letter No. 14340/R-Sl.-Ten. 114/ 49, D/- 19-12-1949 from the Secretary to Government, Revenue' Department to the Commissioner, Northern-Division, Sambalpur.
Ref.:-- Your letter No. 5721 Rev. D/-29-8-1949.
Sub :-- Conversion of Bhogra lands into rayati in Patna State.
In partial modification of the Government Order No. I458/R dated 5-2-1949 on the subject noted above I am directed to convey the following decision of Government.
The Thikadari system in Bolangir Patna should be abolished as soon as the present pattas lapse i.e., on 1-4-1950.
2. All lands recorded as Bhogra in the 1936 settlement excepting items mentioned hereunder will be settled in rayati tenancy with the Thikadar and his co-sharers according to their present possession. The possession will be determined entirely by Revenue authorities and the decision of the Commissioner, Northern Division shall be final in this regard:
Items to be omitted from Bhogra are :--
(a) Lands recorded as Bhogra in the 1936 settlement from the abandoned holdings of tenants and the surrendered holdings, and
(b) Five acres of Bhogra lands to be selected by the Revenue Authorities subject to confirmation reserved for settlement as service Inam (Jagirs) for Village Officers.
3. Such of the Thikadars as are required to continue collection till 1951 should do so on the usual terms of collection.
4. Abandoned holdings and surrendered holdings recorded as Bhogra in the settlement of 1936 as mentioned in Clause 2 (a) above shall be settled preferably with the tenants who originally surrendered or abandoned the holdings or their heirs on suitable terms. Government desire that proposals in this respect should be sent to Government for approval before final orders are passed.
5. The five acres of reserved land mentioned in Clause 2 (b) above shall be assigned as service jagir to a village officer who is expected to discharge all the miscellaneous duties mentioned in Section 106 of the Patna State Land Revenue Act banning the duty of collection of rent and cess. The. office will preferably be given to the Thikadar or one of his co-sharers to be selected by the Revenue Authorities.
6. In order to avoid all legal complications the Thikadars should be presuaded to surrender the Thikadari on the broad conditions that have been accepted by Government. A deed of agreement will be taken from each Thikadar on that basis after the forms have been duly approved by the Law Department. A draft deed of agreement may please be furnished to Government as early as possible.
7. Government have also been pleased to order that in case Government cannot set up an alternative machinery for revenue collection work and such other work of preparing list of lands held by Thikadars and cosharers as well as preparing uptp date accounts of the assessment of village; the Thikadars have to continue till 1-4-1951 on the usual terms of collection.
Steps may please be taken as early as possible to implement the decision of Government mentioned above.'
16. The Bhogra conversion proceedings in respect of the three villages were separately started on 4-4-1950. We would refer to the order sheets relating to village Budamunda only and not to the order sheets of the proceedings relating to the other two villages as they were similar. On 4-4-1950 notice was issued to the Thekadar of Budamunda by the Superintendent of Land Records (S. L. R.) giving out the details of instruction of the Revenue Department and inviting objections, if any, within fifteen days from the date of service of notice. The Thekadar was required to submit papers such as Village Akapadia, Bhogra settlement and List of encroachment within one month from the date of service of the notice. Notice was served on 29-4-1950. The order sheet dated 9-6-1950 shows that no objections were filed and no settlement papers as required under the notice were submitted. On 16-5-1950 correction list of persons then possessing the Bhogra land and list of alienation were prepared in presence of Gopaleswar Dharua (petnr.), Thekadar, which were read over to him. He signed the list with an endorsement that he had understood the contents thereof. On 8-2-1951 notice was issued and duly served on the villagers. The Bhogra lands were verified regarding possession by the Patwari and had been checked by the Revenue Inspector (R. I.) on 3-2-1951. The Tahsildar submitted separate settlement forms to the S. L. R. for confirmation. The order-sheet dated 4-2-1951 shows that Gopaleswar Dharua (petnr.) and his co-sharers signed the resettlement statement of the Bhogra lands on the abolition of the Thekadari system with the endorsement to the effect that the aforesaid settlement of Bhogra land was read over to them and they agreed to the settlement of Bhogra land and 'put their signatures in token of their assent. The settlement as was made in favour of the petnr., his co-sharers and the tenants and the five acres of reserved land has already been extracted. Thus the petnr. was a party to the reservation of five acres of land out of the total Bhogra lands. On 15-3-1951 the ptnr. filed an objection before the S. L. R. not to settle the Bhogra lands with his cosharers on raiyati basis. This objection was rejected by the S. L. R. by his order dated 7-4-1951 passed on the back of the objection petition. The petnr. signed the agreement on 13-6-1951, the contracting parties being himself and the Governor of Orissa whereby he surrendered the Bhogra lands settled on him in the year 1936 as appurtenant to the office of the Thekadar. The terms of the agreement would be referred to at a later stage. On 30-10-1951 the proposed settlement was submitted to the Collector. On 22-11-1951 notice was issued to the petnr. and others wherein it was recited that they had executed an agreement on 13-6-1951 to surrender the Thekadari right and the Bhogra lands and that they had agreed on 8-2-1951 to possess the Bhogra lands as mentioned therein. They were intimated that settlement statement was being sent to the Member, Board of Revenue, Sambalpur, for final confirmation and it was open to them to file objection, if any, within fifteen days of the date of receipt of the notice, before the Member, Board of Revenue. On 25-3-1952 the Member, Board of Revenue confirmed the same and passed the following order:
'The Thikadar and the co-sharers in possession have agreed to the distribution of the old bhogra and the new bhogra as finalised in this regard by the Collector. By notice they were given an opportunity to bring to my notice errors if any in the arrangement. The time-limit has expired and no objection has been filed within the time. Arrangement proposed is reasonable and is hereby confirmed. Collector will arrange issue of patta and taking of cabuliyat accordingly. The jagir reserved will be in khas possession of the State and will be leased out temporarily on auction and for one year only for cultivation. Khas collection of rent in the village has already started on 1st January, 1952.'
After receipt of the order of the Member, Board of Revenue, the Collector passed the following order on 5-4-1952:
'Informed the S. D. Os. about the jagir land which required to be auctioned before agricultural season. Immediate auction. Put up Parcha for signature and enter the details in the Maintenance Register.'
On 10-3-1953 there was distribution of Parchas and all other work was finished and the proceeding was completed.
17. It would 'thus appear that the petnr. was a party to the Bhogra conversion proceeding. With his full knowledge settlement of some Bhogra lands was made on co-sharers and. tenants and five acres were reserved. He raised no objection and signed the statement. There was no evidence of any threat or coercion in the case, and the entire proceeding was closed in 1953. The five acres of reserved land were directed by the Member, Board of Revenue to be in Khas possession of the State and were to be leased out temporarily on annual auction. The collection of rent by the Thekadar also came to an end by the first January, 1952. The Collector also directed the S. D. Os. to auction the five acres of reserved jagir land before the agricultural year.
As has already been stated, the State had title in the Bhogra lands and the petnr. had none. Only during the currency of the settlement he was to enjoy the lands towards his remuneration for the management of the village. The settlement came to an end on 1-4-1950. All through he had a precarious right and he had no right after 1-4-1950. Lest any legal complication may arise, an agreement was taken from the Thekadar who surrendered the Thekadari right and the appurtenant Bhogra lands to the State. This was merely by way of abundant caution and was not necessary in law after the expiry of the period of settlement on 1-4-1950. The decision of the State Government under Annex-C to abolish Bhogra lands was an executive act. The petnr. was fortunate that the State Government decided to confer occupancy right on him in respect of Bhogra lands which were in his possession. This was done on just and equitable ground as since long the Thekadars and their co-sharers were in possession of the Bhogra lands towards their remuneration. They had, however, no right to claim. If the State Government had decided otherwise, the entire Bhogra lands could have been disposed of by the State Government in any manner they chose.
18. The agreement between the petnr. on the one hand and the Commissioner, Northern Division acting on behalf of the Governor of Orissa on the other runs thus:--
'An agreement made this the 13th day of June, 1951 between the Governor of Orissa (hereinafter called 'the Governor' which expression unless repugnant to the context shall include his successors and assigns) on the one part and GUPALESWARDHARUA son of late CHAITAN DHARUA of CHHUINARA P. S. BELAPARA District Bolangir (hereinafter called 'the Thikadar' which expression unless repugnant to the context shall include his heirs, administrators, executors and assigns) of the other part;
Whereas the abolition of the Bhogra system of land tenure and the conversion of the same into Raiyati holdings will be to the best interest of the Thikadar;
And whereas the abolition of the said Bhogra system of land tenure shall confer permanent rights on the Thikadar and his heirs;
And whereas the Governor has decided to abolish the said Bhogra system of land tenure and the Thikadar has agreed to surrender his Thikadari interest to the Governor;
Now these presents witness and the parties hereto hereby agree as follows :--
(1) That the lands recorded as Bhogra in the settlement operation of 1936 (hereinafter called 'the said lands') which are in the possession and enjoyment of the Thikadar and his Co-sharers by virtue of his holding the office of the Thikadar shall be surrendered to the Governor along with the said office of the Thikadar.
(2) The said lands shall be re-settled with the Thikadar and his co-sharers or any other tenant on Raiyati basis or otherwise on such terms and conditions as the Governor may consider expedient or proper.
(3) That the holdings abandoned or surrendered by tenants prior to 1936 and recorded as Bhogra land in the settlement of 1936 shall not be treated as part of the Bhogra tenure and may be resettled with the original tenants who abandoned or surrendered the holdings on Raiyati basis or with any other person or tenant in any manner as the Governor may decide.
(4) That the Thikadar shall continue to hold temporarily the office of the Thikdar, if required to do so, under a temporary patta for such period as the Governor may determine;
It is hereby expressly agreed by and between the parties hereto that if in the matter of this agreement any dispute or difference arises, the same shall be referred to the Revenue Commissioner, Orissa whose decision shall be final and binding on the parties.
In witness whereof the parties hereto have put their hands and seals the day and year first above written. Sd/- Gupaleswar Dharia Signature of the Thikadar.
In the presence of Seal.
Witnesses (1) Sd/- Sobnath Thikadar
Rajibhata (2) Sd/- Narasingha Sahuvill. Laherjuri. Seal Sd/- Illegible signature of the Commissioner, Northern Division, Orissa acting in the permises for and on behalf of the Governor of Orissa.In the presence of Witnesses (1) Sd/- Illegible
Dy. Collr. (2) Sd/- Somanath PaniTahasildar.'
The preamble to the agreement itself shows that the abolition of the Bhogra system of land tenure and the conversion of the same into raiyati holdings would be to the best interest of the Thekadar and the abolition confers permanent rights on the Thekadar and his heirs. It is on this consideration that the Thekadar agreed to surrender his Thekadari interest to the Governor. In the body of the agreement there is no term regarding reservation of five acres of land as was directed in Annex-C. It was accordingly contended that five acres of land could not have been reserved. The contention is without any substance. Para 6 of Annex-C itself made provision for such agreement to avoid legal complications. The source of the authority was Annex-C notice of which was given to the petnr. It was not necessary in the agreement to make any provision for reservation of five acres of land.
19. The position, therefore, is that the petnr. cannot have any title in any Bhogra lands other than those which were settled with him on raiyati basis. The State could reserve five acres of land for disposal in any manner it liked.
20. These five acres of land, were at first regained in the Khas possession of the State. Subsequently they were given to the Gram Panchayats and in 1973 they have been distributed amongst landless persons. In 1963 the Government of Orissa in the Revenue Department in their letter (substituted for that Department letter No. 24214/R dated 12-4-1963) gave the following direction regarding settlement of reserved Bhogra lands in the ex-State of Bolangir. The relevant portion runs thus :--
'I am directed to say that after the abolition of Thikadary system in the ex-State of Patna in the district of Bolangir, 5 acres or 25 per cent, of Bhogra land whichever was less was reserved for Gram Panchayats. Though in the meantime the Gram Panchayats have started functioning these lands continued to be under the management of Government and were being settled by annual auction with the highest bidders. It is the settled policy of Government to make over these reserved Bhogra lands to the Gram Panchayats. In conformity with this policy Government have now been pleased to transfer the reserved Bhogra lands in the ex-State of Patna to the control and management of the Gram Panchayats on the following condition viz. x x x x'
These reserved lands were directed to be brought back to the control of the Revenue Department and distributed amongst landless persons in accordance with the existing lease principles. The letter is extracted hereunder:
'Copy of letter No. EA-I-No.- 6/73-19492/R dated 17-3-1973 from Sri P. R. Chandra, Deputy Secretary to Government, Revenue Department, Orissa, Bhubaneswar addressed to the Land Reforms Commissioner, Orissa, Cuttack.
............. Sub:-- Leasing out of reserved Bhogra lands of the ex-State of Patna in the district of Bolangir brought back to the control of Revenue Department from Gram Panchayats.
Ref:-- This Department letter No. 36415-R dated 3-7-1970.
I am directed to say that Government have been pleased to decide that the reserved Bhogra lands which after abolition of thicadari system in the ex-Patna State had been given to the Gram Panchayats, and were subsequently brought back to the control of the Revenue Department by the above mentioned Government order, should be settled with the landless persons in accordance with the existing lease principles. It appears that these lands have not been leased out for the year 1972-73. Necessary instructions may, therefore, be issued to the Collector, Bolangir for implementing the above decision with immediate effect.'
It would thus appear that five acres of reserved land are all through in the possession of the State from 1952 to the date of the filing of the writ application and the petnr. has not been able to produce an iota of evidence in support of his case of continuance in possession. The petnr. is not entitled to any injunction. Moreover, the State Government are in possession of the reserved five acres of land for more than the statutory period of 12 years in their own right, title and interest and the petnr. has no subsisting title even assuming that originally he had acquired occupancy right under Section 7 (g) of the Act which we have negatived.
21. The petnr. was a party to the Bhogra conversion proceedings. When Bhogra lands in possession of different persons were ascertained he assisted the revenue authorities. He signed the allotment sheets. He executed agreements surrendering the Thekadari tenure; and the appurtenant Bhogra lands. Even assuming that Section 7 (g) of the Act applies, he is precluded from raising the validity of the settlements and reservation of the fifteen acres of land after a long lapse of more than twenty years. The principle of estoppel and waiver fully applies to this case.
22. The writ application has been filed about twenty years after the finalisation of the Bhogra conversion proceedings and the consequential settlement on co-sharers and tenants on raiyati basis and reservation of five acres of land in each of the villages, in ILR (1973) Cut 339 = (AIR 1973 Orissa 199), (Bishnu Charan Mohanty v. State of Orissa) the following principles were laid down after examining all the relevant Supreme Court decisions. In paragraph 14 thereof their Lordships observed thus :
'14. The various considerations to be kept in mind while determining whether a writ application is liable to be dismissed on account of laches and delay may be summed up, on an analysis of the principles enunciated in the aforesaid decisions, as follows :
(i) The limitation Act has no application to writ petitions. Where, however, a suit for identical relief would be barred by the law of limitation, the Court would ordinarily refuse to exercise discretion to grant relief under Article 226.
(ii) Even if a suit for the same relief is not barred by limitation under the Limitation Act, yet the High Court may refuse to issue a writ, if otherwise the delay is not explainable by satisfactory reasons.
(iii) The important circumstances to be borne in mind in all such cases are : The length of the delay, and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as it relates to the remedy.
(iv) Where by the conduct of the party, the delay might fairly be regarded as equivalent to a waiver of the remedy, the relief under Article 226 would be refused.
(v) Even if the conduct or act is not equivalent to a waiver, if the neglect of the petitioner put the opposite party in a situation in which it would not be reasonable to place him if the remedy is afterwards granted, the relief under Article 226 should be refused on account of delay and laches, (vi) Utmost expedition is the essence for a claim under Article 226, and (vii) No hard and fast rule can be laid down. Each case is to be determined on its own facts and circumstances.'
We endorse the aforesaid principles as representing the correct law. Most of these principles apply to the facts of this case. The writ application has been filed about twenty years after the finalisation of the Bhogra conversion proceedings. The delay in filing the writ application has not been explained by any satisfactory reason. The delay in this case is equivalent to a waiver of the remedy. We do not find any sufficient reason to interfere in this case in exercise of our jurisdiction under Article 226 of the Constitution.
23. Our conclusions may now be summed up :
(i) The Thekadars in the ex-State of Bolangir had a precarious right in the Bhogra lands. They were in enjoyment thereof during the currency of the settlement having no right, title and interest therein and were evict-able under certain conditions. After the expiry of the tenure they had no rights to continue in the lands. (ii) Section 7 (g) of the Act has no application to such Bhogra lands.
(iii) The petnr. was a party to the Bhogra conversion proceedings and voluntarily accepted the settlement after surrendering the Thekadari tenure and appurtenant Bhogra lands on execution of agreements with the Governor of Orissa.
(iv) Ever since the finalisation of the settlement the reserved lands are in the possession of the Government. Even if Section 7 (g) of the Act was applicable to Bhogra lands the petnr. has lost title to the lands by adverse possession.
(v) The writ application is barred by the the principle of estoppel and waiver.
(vi) The writ application is liable to be dismissed on the ground of laches and delay.
24. On the aforesaid analysis, the writ application is dismissed; but in the circumstances, parties to bear their own costs.
25. I agree.
26. I agree.