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Victor Fernandez Vs. Francis Fernandez Albert Fernandes and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKerala High Court
Decided On
Case NumberA.S. No. 461 of 1964
Judge
Reported inAIR1971Ker168
ActsConstitution of India - Article 31A
AppellantVictor Fernandez
RespondentFrancis Fernandez Albert Fernandes and ors.
Advocates: T.N. Subramonia Iyer, Adv.
Cases Referred and K. Kunhikoman v. State of Kerala
Excerpt:
property - estate - article 31a of constitution of india - whether 'pandarapattam' lands considered to be estates under article 31 a (2) (a) - to be considered estate person holding lands must be proprietor of soil and be in direct relationship with state paying land revenue to it except where it is remitted in whole or in part -'pandarapattam' lands be regarded as ryotwari lands and covered within definition of estate under article 31-a (2) (a). - - 4. the proclamation of 1040 runs thus :proclamation by his highness the maha raiah of travancore, issued under date the 2nd june 1865. corresponding to the 21st edavam 1040. whereas we earnestly desire that the possession of landed as well as other property in our territory should be as secure as possible; and whereas we are of opinion.....raman nayar, c.j. 1. the questionput to us by the bench of three judges that was hearing this appeal was whether pandarapattam lands (otherwise known as pandaravakapattam or sirkarpattarn lands) of the travancore area, not falling within clause (iii) of the inclusive limb of the definition of, 'estate' in article 31-a(2)(a) of the constitution, were estates within the meaning of the definition --with regard to lands that fall within the clause, there could, of course, be no doubt, and that must have been why the question was so framed. on the 17th november 1970, we answered this question in the affirmative. we did not then give our reasons. we do so now. 2. the definition reads thus : '31-a. (2) in this article,-- (a) the expression 'estate' shall, in relation to any local area, have the.....
Judgment:

Raman Nayar, C.J.

1. The questionput to us by the bench of three Judges that was hearing this appeal was whether pandarapattam lands (otherwise known as pandaravakapattam or sirkarpattarn lands) of the Travancore area, not falling within Clause (iii) of the inclusive limb of the definition of, 'estate' in Article 31-A(2)(a) of the Constitution, were estates within the meaning of the definition --with regard to lands that fall within the clause, there could, of course, be no doubt, and that must have been why the question was so framed. On the 17th November 1970, we answered this question in the affirmative. We did not then give our reasons. We do so now.

2. The definition reads thus :

'31-A. (2) In this article,--

(a) The expression 'estate' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include--

(i) any Jagir, inani or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any Janmam right;

(ii) any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;'

In Govindaru Namboodiripad v. State, 1962 Ker LT 913 = (AIR 1963 Ker 86 FB) a bench of three Judges of this Court had held that pandarapattam lands of the Travancore area--we shall not repeat this qualification hereafter--were not estates within the meaning of the definition--Clauses (ii) and (iii) were not there then, they were added only subsequently (albeit with retrospective effect) by the Constitution (Seventeenth Amendment) Act, 1964. It was thought that this decision required reconsideration and that was why the question was referred to a larger bench.

3. The argument before us has proceeded, on all hands, on the footing that before the issue of what is known as the Royal Proclamation of 1040 M. E. by the Maharaia of Travancore, the holders of pandarapattam lands--what the term means is lands held on pandarapattam and what is really material is the nature of the holding--were mere tenants at will having no proprietary rights whatsoever in the land, the full proprietary rightsvesting in the Sirkar or the Government as distinguished from the Maharaia inhis personal capacity. (This is quite in keeping with what is stated in paragraph 9 of the Settlement Proclamation of 1061 M. E., namely, that those lands were originally the absolute property of Government, the tenants being mere tenants at will, but that, by the Royal Proclamation of 1040, Government generously waived all right to those lands and declared them to be the private, heritable, saleable, property of the holders. But it is not quite in keeping with the observations of Rajagopala Ayyangar J. in Purushothaman v. State of Kerala, AIR 1962 SC 694 at p. 714, where, as a matter of construction of the Proclamation of 1040, his Lordship said that the Proclamation speaks of the re-linquishment or withdrawal of the right of the State and not of the conferment of a right on the ryot so as to render the ryot a grantee from the State, just in line with the Hindu Law theory of the proprietorship of the soil vesting in the occupant-cultivator). We are of the view that if, as held in 1962 Ker LT 913 = (AIR 1963 Ker 86 FB), the lands in question are not caught by the body of the definition as answering the local equivalent of the expression, 'estate', they can hardly escape the claws of Clause (ii) of the inclusive limb of the definition as lands held under ryotwari settlement.

4. The Proclamation of 1040 runs thus :

'PROCLAMATION

By His Highness the Maha Raiah of Travancore, issued under date the 2nd June 1865. corresponding to the 21st Edavam 1040.

Whereas we earnestly desire that the possession of landed as well as other property in Our territory should be as secure as possible; and whereas We are of opinion that, with this view, Sirkar Pattom lands can be placed on a much better footing than at present so as to enhance their value; We are pleased to notify to Our ryots--

1stly. that the Sirkar hereby and for ever surrenders, for the benefit of the people, all optional power over the following classes of lands, whether wet, garden or dry, and whether included in the Ayacut accounts or registered since :

Ven Pattom,

Vettolivoo Pattom,

Maraya Pattom,

Olavoo Pattom,

Mara Pattom,

and all such Durkast Pattom the tax of which is understood to be fixed till the next Survey and Assessment;

2ndly, that the ryots holding these lands may regard them fully as private, heritable, saleable, and otherwise transferable, property;

3rdly, accordingly, the sales, mortgages, &c.; of these lands will henceforward be valid; may be effected on stamped cadjans and will be duly registered; the lands may be sold for arrears of tax, in execution of decrees of Courts and such other legitimate purposes, and may also be accepted as security by the Sirkar as well as by private individuals;

4thly, that the holders of the lands in question may rest assured that they may enjoy them undisturbed so long as the appointed assessment is paid;

5thly, that the said holders are henceforth at full liberty to lay out labour and capital on their lands of the aforesaid description to any extent they please, being sure of continued and secure possession;

6thly, that the aforesaid description of lands will be resumable by the Sirkar like Jenmom and other private lands only for purely public purposes, as for instance, for making roads, canals, public buildings, &c.;, and when resumed for such purposes, compensation will be paid by the Sirkar not for improvements only as heretofore, but equal to the full market value of such lands;

7thly, that the foregoing concessions are not however to be understood to affect in any way the rights of the Sirkar to regulate the land tax, to resume escheats, to confiscate the property of criminals, and generally such rights as have heretofore been exercised upon all property in general;

8thly, that it is to be understood that when Pattom land being a portion of a holding, is transferred to a pauper with the view of defrauding the Sirkar of the tax due to it, the Sirkar will have the right of apportioning the tax so as to prevent loss of revenue; and;

9thly, (Repealed by Proclamation dated the 5th Karkadakam 1059).

5. The question is whether--whatever might have been the position until then--with the issue of this Proclamation, pandarapattam lands became estates within the definition in Article 31-A(2)(a) of the Constitution.

6. We shall first consider whether the lands qualify under the body of the definition. The expression, 'estate' does not occur in 'the existing law relating to land tenures in force' in the Travancore area--notwithstanding the implication of Article 3GG (10) that it must be enacted law we should think that, in the context of Article 31-A(2)(a), the term, 'existing law' means any law, whether statutory or otherwise, which was in existence at the commencement of the Constitution --and the search must, therefore, be for its local equivalent. If there is in the existing law in force in the area concerned an expression conforming to the basic or ideal concept of an estate, then thatwould be the local equivalent within the meaning of the definition. So much so, if the expression, 'estate' does not occur in the local law, the name given to any thing (if there is such a thing in the area) that answers the basic concept of an estate would be the local equivalent and that thing would be an estate within the meaning of the article. Put more directly, the basic concept of an estate would be the definition for that area. It is as simple as that--see AIR 1962 SC 694 and K. Kunhikoman v. State of Kerala, AIR 1962 SC 723 Pr. 10.

So. if what is called, 'pandarapattam. land' conforms, in its content, to the basic concept of an estate, then pandarapattam lands would be estates within the meaning of the definition. The aforesaid decisions also tell us--

'that the basic concept of the word 'estate' is that the person holding the estate should be the proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part'.

Let us now consider whether pandarapattam lands answer this basic concept.

7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that, even after the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil. The preamble to the Proclamation and Clause 5thly thereof ensure continued and secure possession of the lands to the holders; under Clause 1stly the Government surrenders, for the benefit of the holders, all optional power over the lands; Clause 2ndly says that the holders may regard the lands (the lands themselves, not merely an interest therein) fully as private, heritable saleable and otherwise transferable, property, implying that they shall have property in the soil, not merely the right to enjoy it: Clause 3rdly shows that it is the lands themselves, not merely an interest therein, that is liable to be sold for the debts of the holders; Clause 6thly, that there is no question of a determination of tenancy and that the Government can take the lands only for purely public purposes, paying the full market value of the lands (not of the holder's interest therein) iust as in the case of janmam and other private lands, and Clauses 4thly and 7thly, that what is collected by the Government from the holders of the land is assessment or land tax and not rent.

8. As we have already seen, paragraph 9 of the Proclamation of 1061 says,with reference to sirkarpattaro or pandarapattam lands, that--

'these lands were originally the absolute property of Government, and the tenants were mere tenants-at-will; but, by the Royal Proclamation of the 21st Edavam 1040, Government generously waived all right to these lands, and declared them to be the private, hereita-ble, saleable property of the holders.'

If this were a law, it would be a law declaratory of the fact that the holders of pandarapattam lands are proprietors of the soil. They would be proprietors of the soil in direct relationship with the State paying land revenue to it and there could be no doubt that the lands would answer the basic concept of an estate and would, therefore, fall within the 'local equivalent' of the definition. In other words, the lands would be estates for the purposes of Article 31-A(2)(a).

9. But, so far as this statement in the Proclamation of 1061 is concerned, it might, perhaps, be said that a Royal Proclamation need not necessarily be legislative in character. It can be, and often is, executive or administrative in character, sometimes even judicial. Or, it might be compounded of these elements. Not infrequently it embodies a statement of introductory facts. The extract given in the preceding paragraph from the Proclamation of 1061 seems really to be a statement of introductory facts, something in the nature of a statement of objects and reasons of a modern statute. But, even so, coming as it did from the Government which undisputedly was the owner of the lands in question, one should have thought that it was well-nigh conclusive. Of course, it cannot operate as an admission as against the plaintiff in this case, the holder of the land in question (although we should imagine that he would have been the first to rely on it had the Government chosen to assert proprietary rights in his land), but nobody has a case that it proceeded on a misconception of the true import of the Proclamation of 1040.

10. With regard to the Proclamation of 1040, it might be said that there is nothing in it which shows that the Government divested itself of the ownership of the lands and that all that the Proclamation did was to secure to the holders the undisturbed possession and enjoyment of the lands so long as they paid the land revenue. Therefore, if before the Proclamation the Government was the owner of the lands, it continued to be the true owner in law even if, for all practical purposes, it was as if the holder was virtually a proprietor and had most of the characteristics of a proprietor. In that view, it might be said that that is why Clause 2ndly of the Proclamation does not assert that the lands are the private, heritable, saleable, and otherwisetransferable, property of the holders, but only says that the ryots holding the lands may regard them fully as private heritable, saleable, and otherwise transferable, property. Also why by Clause 6thly the Government had to place upon itself the self-denying ordinance that it would resume the land only for purely public purposes and only after payment of the full compensation just as in the case of janmam and other private lands--that would not have been necessary if by the earlier clauses the Government had transferred ownership to the holders. Legally, the right and title of the holders was not made the same as the right and title of the holders of janmam and other private lands.

11. If that be so, if legally the Government, and not the holders of the lands, continued to be the true owner of the soil, it might be that the lands do not answer the basic concept of estate and cannot, therefore, fall within the body of the definition. But then, they would, in that event, necessarily fall within Clause (ii) of the inclusive limb of the definition, namely, as lands held under ryotwari settlement. We have already shown how, in the face of the Proclamation of 1040, it is impossible to regard the holders of these lands as tenants in the strict sense of that term having only the right to enjoy the land and no interest in the land as such. We have also drawn attention to the fact that what they pay to the Government is, under the very terms of the Proclamation, assessment or land tax, in other words, land revenue, and not rent properly so-called. As stated in 1962 Ker LT 913 = (AIR 1963 Ker 86 FB). with reference to contemporary documents, the avowed purpose of the Proclamation of 1040 was to place pandarapattam lands on the same footing as ryotwari lands in the neighbouring province of Madras, and wo have no doubt that it succeeded in doing so. If the relations between the holder of a land and the Government are placed on the same footing as the relations between the holder of ryotwari land and the Government, it seems to us that it necessarily follows that the land is held under ryotwari settlement--it is the factual relationship and not the label that counts and no concept of legal rights is involved.

12. In the words of Rajagopala Ayyangar J. in AIR 1962 SC 694. (para 52 end) the essential features of the ryotwari system are: (1) the direct relationship between the State and the cultivator, there being no intermediary to intercept the raja bhagam or land revenue, and (2) the absence of any grant or alienation of the State's right to revenue in favour of the grantee. We have already emphasised that what is collected by the Governmentunder the Proclamation of 1040 is land revenue, and we have no doubt that the lands here in question are held on terms satisfying the essential features of the ryotwari system. If these essential features are satisfied, the lands would be, 'land held under ryotwari settlement' and whether or not the holders are proprietors of the soil would be immaterial.

13. It is said that the right to relinquish is an essential feature of the ryotwari system, and it is pointed out that the Proclamation of 1040 does not confer any such right on the holders of pandarapattam lands. It is true that there is no express reference to any such right; but it does not follow therefrom that the holders of pandarapattam lands are precluded from relinquishing the land. If they had that right before the Proclamation--after all a lease can be surrendered though not unilaterally--there is nothing in the Proclamation to take it away, and it is by no means clear that the right to relinquish does not exist. Even under the ryotwari system a relinquishment has to be accepted in order to be effective and the right to relinquish, if right it may be called, is by no means a unilateral or unconditional right.* Moreover, it does not appear that the right to relinquish is an essential feature of the ryotwari system--it is, at best, only an incident thereof.

The reference in AIR 1962 SC 723, to the possibility of a ryotwari pattadar relinquishing or abandoning his land in favour of Government is only for the purpose of showing that if he could relinquish the land in favour of Government, he could not be the legal proprietor of the land so as to make his holding conform to the basic concept of an estate--the legal proprietor must be the Government. There is nothing in that decision to indicate that a unilateral right of relinquishment is an essential feature of the ryotwari system. On the contrary, it says that the--

'basic idea of a ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survey number for a period of years which is usually thirty and each occupant of such land holds it subject to his paying land-revenue fixed on that land.'

What the decision emphasises is that while, on the one hand, it is not correct to say that a ryotwari pattadar is an ordinary tenant of the Government--that is only a theory propounded by some authorities--on the other, it is not correct to hold that he is legally the proprietor of the soil although he is virtually like a proprietor and has many of the advantages of a proprietor.

14. A reference to Baden-Powell's Land-Systems of British India, which is relied upon in the above decision will also show that the lands we are here considering namely, pandarapattam lands, answer the description of land held under ryot-wari settlement.

Mathew, J.

15. The question referred to this Bench is whether 'Pandarapattom' land in the Travancore area of Kerala State would fall within the definition of the word 'estate' in Article 31-A(2)(a) of the Constitution.

16. Article 31-A(2)(a) reads :

'In this article--

(a) the expression 'estate' shall. In relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include--

(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala any janman right;

(ii) any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans.'

The content of the expression 'estate' may not be identical in all areas in the country and that the said concept may not be described by the same word by the relevant existing law; and so the decision of the question as to what an 'estate' is has been deliberately left elastic. If there is a definition of the word 'estate' in the existing law prevailing in the State, then we need not seek for a local equivalent of the word 'estate', because if there is a definition, that would determine the nature of the property. But if there is no definition in the relevant existing law defining the word 'estate' as such, then alone we need enquire whether there is a local equivalent; and in this connection it would be necessary to consider the character of the interest of the holder in the property and also the attributes. There is no definition of the word 'estate' in the existing law relating to land tenure in the Travancore area of the State. Therefore, it is necessary to consider the character of the interest of the holder of pandarapattom land and also the attributes of that property and see whether it is a local equivalent of the basic concept of the word 'estate'.

17. Originally pandarapattom lands wore the absolute property of the State; and the persons in occupation were tenatnts-at-will. By the Proclamation of 1040 certain rights were conferred uponthe holders of these lands. If, by the terms of the Proclamation full proprietary right was conferred upon them, then the lands would be 'estate' within the meaning of Article 31-A(2)(a) of the Constitution. The Proclamation in question provided :

'Whereas We earnestly desire that the possession of landed as well as other property in Our Territory should be as secure as possible; and whereas We are of opinion that, with this view, Sirkar Pattom lands can be placed on a much better footing than at present so as to enhance their value; We are pleased to notify to Our Ryots--

1st. That the Sirkar hereby and for ever surrenders, for the benefit of the people, all optional power over the following classes of lands, whether wet, garden or dry, and whether included in the Ayacut accounts or registered since;

Ven Pattom, Vettolivoo Pattom, Maraya Pattom, Olavoo Pattom, Mara Pattom,and all such Durkast Pattom, the tax of which is understood to be fixed till the next Survey and Assessment.

2ndly. That the Ryots holding these lands may regard them fully as private, heritable, saleable, and otherwise transferable, property.

3rdly. Accordingly, the sales, mortgages, etc., of these lands will henceforward be valid, may be effected on stamped cadjans, and will be duly registered. The lands may be sold for arrears of tax, in execution of decrees of Courts and such other legitimate purposes, and may also be accepted as security by the Sirkar as well as by private individuals.

4thly. That the holders of the lands in question may rest assured that they may enjoy them undisturbed so long as the appointed assessment is paid.

5thly. That said holders are henceforth at full liberty to lay out labour and capital on their lands of the aforesaid description to any extent they please, being sure of continued and secure possession.

6thly. That the aforesaid description of lands will be resumable by the Sirkar like Jenmon and other private lands only for purely public purposes, as for instance, for making roads, canals, public buildings, etc., and when resumed for such purposes, compensation will be paid by the Sirkar not for improvements only as heretofore, but equal to the full market value of such lands.

7thly. That the foregoing concessions are not however to be understood to affect in any way the rights of the Sirkar to regulate the land tax, to resume escheats, to confiscate the property of criminals, and generally such rights as have heretofore been exercised upon all property in general.

8thly. That it is to be understood that when Pattom land, being a portion of a holding, is transferred to a pauper with the view of defrauding the Sirkar of the tax due to it, the Sirkar will have the right of apportioning the tax so as prevent loss of revenue; and

9thly. (Repealed by Proclamation dated the 5th Karkatakom 1059).'

To my mind the terms of the Proclamation leave no doubt that full proprietary interest has been conferred upon the holders of pandarapattom lands. The Full Bench case reported in 1962 Ker LT 913 = (AIR 1963 Ker 86 FB), after referring to the terms of the Proclamation concluded that since the full proprietary right has not been conferred upon the holders of these lands, they became only perpetual lessees of the State. By Clause (1) of the Proclamation the Sirkar surrendered for ever all optional power over the classes of lands enumerated. The optional power referred to is the power to resume such lands at will. Clause (2) is the pivotal clause; and it provides that the ryots holding such lands may regard them fully private, saleable and otherwise heritable and transferable property. Clause (4) guarantees the continued undisturbed enjoyment of the land so long as the appointed assessment is paid. Clause (6) makes it clear that the lands will be resumable by the State like other jenmom or private land only for public purpose and when resumed for such purposes compensation will be paid by the Sirkar not only for the improvements but also for the full market value of the property. Clause (7) provided that the rights conferred by the Proclamation would not in any way affect the right of the Sirkar to regulate land tax or to resume escheats or to confiscate the property of criminals.

Clauses (6) and (7) are very significant. What are reserved to the Sirkar by Clauses (6) and (7) are not anv proprietary rights in the land. The rights which inhere in every sovereign in respect of every property within his jurisdiction like eminent domain, the right to impose or regulate tax, to resume escheats, to confiscate property of criminals, are alone reserved by those clauses. They not only do not derogate from the grant of full proprietary interest made by Clauses (1), (2) and (4), but would highlight that no proprietary rights have been reserved to the State. If the sovereign was careful to reserve to himself in respect of these lands only those rights which appertain to sovereignty and not any right which relates to dominium, that is a clear indication that no right relating to dominium was intended to be retained by the Sirkar. Even if the clauses were absent, the Sirkar would have those rights as they appertain to sovereignty and not to dominium. In other words, if by way ofabundant caution the clauses reserved to the Sirkar only rights which appertain to sovereignty, there was absolutely r.o reason why the rights, if any, relating to dominium or ownership were not reserved, if the sovereign intended to retain any right in respect of the lands.

The Full Bench observed in paragraph 11 of the judgment that there is no clause in the Proclamation by which the Sirkar parted with all the rights in favour of the tenants, and that in the absence of such a provision, the holders of such lands can only be holding such lands on perpetual leases. With great respect, if all the bundle of rights which goes to make a person proprietor has been transferred by Clauses (1), (2) and (4)--and that is put beyond doubt by Clause (6) --it is difficult to understand what other proprietary rights remained with the Sirkar to be parted with. It is said that Clause (2) only says that the holders of the lands may regard them fully as theirprivate, heritable, saleable or otherwise transferable property, and that that would indicate that the Proclamation did not assert that the lands are the private, heritable, saleable property of the holders. I think, this is to make a distinction without a difference. I could have understood this scholastic distinction, if in the context it would lead to any practical or even juristic consequence. Clause (3) is a gloss on the amplitude of the rights conferred by Clause (2). If a purchaser gets title to the property by the purchase, or if the heir becomes the owner when the holder of the land dies--and that is precisely the effect of Clause (2) as explained by Clause (3) -- it passes my comprehension how Clause (2) can be construed as not conferring the rights of transfer and herit-ability, the cardinal ingredients of property or ownership.

I am at a loss to understand after reading the Proclamation what rights in the lands are reserved to the Sirkar. The option to resume is surrendered: the right to undisturbed possession as against the whole world is guaranteed: the power to sell or otherwise transfer the land has been granted: the land is declared to be heritable. And when land is acquired for public purpose full market value of the land has to be paid to the holder. What are reserved are only the rights appertaining to sovereignty and not to property. Salmond said :

'Summing up the conclusions to which we have attained, we may define the right of ownership in a material thing as the general, permanent, and inheritable right to the uses of that thing.' (See 'Jurisprudence' by Salmond, 10th Edn., page 427.)

I think, a holder of pandarapattom land satisfies even the orthodox definition ofownership by Austin. Austin defines the right of ownership as a--

'right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration, over a determinate thing.' (See 'Jurisprudence' by Austin, 3rd Edn., page 817.)

The mention of 'assessment' and 'tax' in the Proclamation is a significant pointer that the tenants are not perpetual lessees.

18. The Revenue Settlement Proclamation of 1061 M. E. contains a clause, which, if I may say so, amounts in modern terminology to a 'parliamentary exposition' of the scope of the rights conferred and reserved by the Proclamation of 1040. Speaking about nadavakoor. Clause (9) of that Proclamation says among other things :

'Nor is this all: the reasons which at one time rendered this remission necessary and just no longer exist. It was applicable chiefly to Sirkar Pattom lands. These lands were originally the absolute property of Government, and the tenants were mere tenants-at-will. But by the Royal Proclamation of the 21st Edavom 1040, Government generously waived all right to these lands and declared them to be the private, heritable, saleable property of the holders.'

This, I think, must put the matter beyond doubt. I doubt, whether if this clause had been noticed by the Full Bench, the Bench would have said that Sirkar has not parted with all the rights in pandarapattom lands.

19. The basic concept of 'estate' is that the person holding the estate should be the proprietor of the soil and should be in direct relationship with the State by paying land revenue to it except where it is remitted in whole or in part. See AIR 1962 SC 694. As I have said the pattom Proclamation conferred full proprietary rights on tenants of pandarapattom lands, and they are also in direct relation with the State by paying land revenue. Since there is no definition of the word 'estate' in the existing local law relating to land tenure, pandarapattom land is the local equivalent of 'estate,' because its attributes conform to the basic concept of the term.

In AIR 1962 SC 694, the Supreme Court had occasion to consider the question whether lands held by tenants of pandarapattom lands in Cochin area of the State would be 'estate' within the meaning of Article 31-A(2)(a). The Supreme Court looked into the terms of the Proclamation by the Maharaja of Cochin on March 10, 1905. and came to the conclusion that the terms of the Proclamation conferred upon the tenants the full proprietary interest in the lands, and so, notwithstanding the fact that there is no definition of the word 'estate' in the existing local Jaw relating to land tenurein that State, the lands would be local equivalent of the basic concept of the term 'estate'.

20. I do not know whether there was a ryotwari settlement in the Travan-core area of the State and whether a perpetual lessee without proprietary rights in the soil can be a ryot. It is also unnecessary for my conclusion to say whether any option to relinquish or abandon the land in the pattadar is a necessary incident or ingredient of rvot-wari land. Baden Powell quotes the following statement in the 'Settlement Manual' with approval :

'Under the raiyatwari system every registered holder of land is recognized as its proprietor.....He is at liberty to sublet his property or to transfer it by gift, sale, or mortgage. He cannot be elected by Government so long as he pays the fixed assessment, and has the option of (annually) increasing or diminishing his holding or of entirely abandoning it.....The raiyat under this system is virtually a proprietor on a simple and perfect title, and has all the benefits of a perfect lease without its responsibilities, in as much as he can at any time throw up his lands.' (See 'Land Systems of British India' by Baden Powell, Vol. III, page 130).

This is what Wanchoo J., said in AIR 1962 SC 723, relying on Baden Powell:

'Though therefore the ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government. It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta. though he had many of the advantages of a proprietor.'

Nor is it necessary for my purpose to decide whether the holder of pandara-pattom land, in the absence of a unilateral right of abandonment or relinquishment of his land can be said to hold the land under a ryotwari settlement, or be even a ryot.

I would overrule the Full Bench decision in 1962 Ker LT 913 = (AIR 1963 Ker 86 FB), on this aspect of the matter and hold that pandarapattom land in the Travancore area of the State is 'estate' within the meaning of Article 31-A(2)(a) of the Constitution.

Gopalan Nambiyar, J.

21. I agree that the question posed before us by a bench of three Judges be answered in the way indicated by My Lord the Chief Justice. Whether the prior decision of the Full Bench of three Judges of this Court in Govindaru Namboodiri's case, 1962 Ker LT 913 = (AIR 1963 Ker 86 FB), be correct or not, in holding that the holders of Pandarapattom lands in the Travancore area of this State are not proprietors of the soil, even after theRoyal Proclamation of 1040 M. E., there seems to be no escape from the conclusion that such lands should be regarded as ryotwari lands and therefore answer the definition of 'estate' within the meaning of Article 31-A(2)(a) of the Constitution after its Seventeenth Amendment. The circumstances against the correctness of the conclusion in Govindaru Namboodiri's case, 1962 Ker LT 913 = (AIR 1963 Ker 86 FB), have been marshalled in the judgment of the learned Chief Justice and have been highlighted in the judgment of my learned brother Mathew J. But in view of the conclusion with which I agree, a pronouncement on the correctness or otherwise of the decision would be quite academic and futile.


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