Orissa High Court
Biswambhar Singh And Anr. vs The State Of Orissa And Anr. on 25 April, 1957
Equivalent citations: AIR 1957 ORISSA 247, ILR (1957) CUT 299
JUDGMENT Narasimham, C. J. 1. These are two petitions under Article 228 of the Constitution by owners of large tracts of land situated in the District of Sundergarh which was formerly part of the Feudatory State of Gangmir. The petitioner in O. J. C. 164 of 1954 Biswambar Singh may conveniently be described as the Zamindar of Hemgir though his status as a zamindar is one of the points for decision in these petitions. For the same reason the petitioner in O. J. C. 181 of 1954. Janardan Singh may conveniently be described as the Zamindar of Sarap-garh. The zamindari of Hemgir extends to about 392 sq. miles consisting; of about 139 villages and about 40 per cent. of the total area of the zamindari (145 sq., miles) consists of reserved forests. The zamindari of Sarapgarh extends over 46 sq. miles only and includes 32 villages. 2. The well known Orissa Estates Abolition Act (Orissa Act 1 of 1952) (hereinafter referred to as the Act) came into force in February 1953, and the Government of Orissa tried to take over these zamindaris under Section 3 of the Act Thereupon, these zamindars, along with the zamindar of Nagra filed application under Article 226 of the Constitution (O. J. Cs. Nos. 65, 67 and 68 of 1952) challenging the constitutional validity of the Act, These applications were heard by a Division Bench of this Court consisting of the then Chief Justice, Hon'ble B. Jagannadhadas and myself. As there was difference of opinion between us on some of the material points my learned brother, Justice Mohapatra, as the third Judge, re-heard the matter and subsequently agreed with the then Chief Justice. Hence, by a majority it was held that the Act was valid and that these estates could be taken over under its provisions. On appeal the Supreme Court (See Biswambar Singh v. State of Orissa, 1934 SCR 842: (AIR 1954 SC 139) (A) (hereinafter referred to as the Supreme Court Judgment)) dismissed the appeal of the zamindar of Nagra but allowed the appeals of the zamindars of Hemgir and Sarapgarh and prohibited the Government from taking over possession of these two zamindaris under the provisions of the Act. The Supreme Court allowed the appeals of the zamindars of Hemgir and Sarapgarh (the present petitioners) on the ground that they were not 'intermediaries' within the meaning of the wazib-ul-arz of Sundergarh district, as defined in Clause (h) of Section 2 of the Act. Soon after the decision of the Supreme Court was given, the Orissa Legislature by the amending Act of 1954 (Orissa Act XVII of 1954) re-cast the definitions of the two expressions 'estate' and 'intermediary' by giving a very wide meaning to those expressions. The material portions of the definitions are as follows: "(g) 'estate' includes a part of an estate and means any lands held by or vested in an intermediary, and included under one entry in any revenue-roll or any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law relating to land revenue for the time being in force, or under any rule or custom or usage having the force of law and includes revenue-free lands not entered in any register or revenue roll and all classes of tenure or under-tenure and any jagir, inam or muafi or other, similar grant; EXP. I:--Land revenue means all sums and payments in money or in kind, by whatever name designated or locally known, received or claim-able by or on behalf of the State from an intermediary on account of or in relation to any lands field by or vested in such intermediary ; EXP. II--Revenue-free land includes land which is or but for any special covenant agreement, engagement or contract, would have been, liable to settlement and assessment of land revenue, or with respect to which the State has power to make laws for settlement and assessment of revenue; Exp. III :--In relation to merged territories estate us defined in this clause shall also include any mahal, or village, or collection of more than one such mahal or village held by, or vested in, an intermediary, which has been or is liable to be assessed as one unit, to land revenue whether such land revenue be payable or has been realised or compounded for, redeemed in whole or in part." "(h) 'Intermediary' with reference to any estate means a proprietor, sub-proprietor landlord, landholder, malguzar, thikadar, gaontia, tenure-holder, under tenure-holder, and includes as inam-dar, jagirdar, zamindar, illaquedar, khorposhdar, panjadar, sarbarakar, muafidar, including the Ruler of an Indian State merged with the State of Orissa. and all other holders or owners of interest in land between the ryot and the State." In the statement of objects and reasons of the amending Bill it was made clear that these wide definitions were given to the expressions so that the decision of the Supreme Court may not stand in the way of the acquisition of these estates. I should also state that the Act was further amended by Orissa Act XV of 1956. 3. I may now briefly refer to the amendments made from time to time to the relevant provisions of the Constitution. In the year 1951 the power of a State Legislature to make laws for the acquisition of zamindaris was derived mainly from Entry 36 of List II of the Seventh Schedule which was as follows: "Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of Entry 42 of List in." Entry 42 of List III (concurrent list) was as follows: "principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given." By the Constitution (Seventh Amendment) Act 1956, entry 36 was omitted from List II and Entry 42 of List III was re-cast as follows: "Acquisition and requisitioning of property". Hence, at present the legislative power to pass the Act is derived from entry 42 of List III and the provisions of the Act should, therefore, be held to be with respect to a matter in the Concurrent List. 4. Article 31 of the Constitution also has undergone several amendments in consequence of the decisions of some of the High Courts and of the Supreme Court. As the Article stood in 1951 no property could be acquired for a public purpose under any law unless that law provided for compensation for the property acquired, and either fixed the amount of compensation or specified the principles and the manner in which compensation was to be determined (Clause (2) ). Clause (3) required that such a 'law should be assented to by the President before it could have any effect. Clause (4) conferred a special immunity against any challenge to the validity of such a law on the ground of contravention of Clause (2) of Article 31, provided that a Bill containing such a provision on which was pending at the commencement of the Constitution had after being passed by the Legislature, been assented to by the President. Clause (2) of Article 31 was amended by the Constitution (Fourth Amendment) Act 1955 by which any law providing for compulsory acquisition of property for a public purpose was protected from challenge in any Court on the ground that the compensation provided by that law was not adequate. 5. By the Constitution (First Amendment) Act 1951, a new Article, namely 31A, was inserted in the Constitution by which a law providing for the acquisition by the State of any estate or of any rights therein, if assented to by the President was protected from challenge on the ground that it was inconsistent with any of the Fundamental Rights conferred by Part III. The necessity for such a special provision arose chiefly because the immunity under Clause (4) of Article 31 was solely limited to challenge on the ground of contravention of Article 31(2) and not on the Eround that the law was inconsistent with the other Fundamental Rights such as those described in Article 14 or Article 19. In Article 31A(2)(a) a special definition was given to the expression 'estate' as follows: "(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 any jagir, mam, muafi or other similar grant;" Article 31A was recast by the Constitution (Fourth Amendment) Act 1955 and the Constitution (Seventh Amendment) Act 1956, but these amendments are not material for our present purpose. 6. In these two petitions no new facts were alleged, and the paper book in the previous applications was with the consent of the parses, taken as cart of the record. Hence, as regards the origin of these two zamindaris and other facts relevant for the disposal of these petitions the findings in our previous judgment and in the Supreme Court judgment may be taken as haying concluded the master. Similarly, on the various questions of law, the decision of the majority of the Judges of this Court which was accepted by the Supreme Court may also be taken as conclusive, except, where, as urged by Dr. Pal due to the subsequent decisions of the Supreme Court and the amendments made to the Constitution, a new line of attack was opened up. 7. The remote ancestors of the petitioners were Bhuivan Chiefs who originally settled in the area and in due course of time became chieftains of the place exercising sovereign powers. Subsequently, when the Rajput Rulers of Gangpur settled there, these zamindars accepted their suzerainty and gradually surrendered their sovereign right. They used to pay annual takolis' which though originally tributes subsequently became indistinguishable from land revenue. But their status vis-a-vis the Ruler of Gang-our was never defined though in the successive settlements made by the Ruler of Gangpur with the concurrence of the then Political Department of the Government of India they were described as zamindars and khewats were issued to them. Dr. Pal. however, contended that these chiefs never completely surrendered all their sovereign rights and that the relationship between them and the Ruler of Gangpur was similar to that between the Ruler of Gangpur and the British Government and that the Chiefs were not mere subjects of the Ruler, There is however, nothing on record to show that any vestige of sovereignty wan left with these chiefs in recent times whatever might have been their status in the remote past. It may be as stated by them in their petition, that originally the Ruler of Gangpur was only their suzerain, but in course of time he became their sovereign as well. In Clause (g) of paragraph 7 of the application of the Zamindar of Hemgir (O. J. C. 164 of 1945) though it was stated at first that the zamindar exercised the powers of a sovereign, such as regulation of internal and external trade, construction and maintenance of roads, provision of schools, and imparting of education and also levy of taxes on his people, he admitted that later on under the orders of the British suzerain power and for the sake of efficient and good Government, the various departments of administration were placed in the hands of staff maintained and supervised by the Ruler of Gangpur. Since then, the petitioner's father and after him the petitioner have been making compensatory contribution to the Gangpur Durbar till merger. This admission that the departments of administration were entrusted to the Ruler of Gang-our would indicate that even the last vestige of sovereignty which these chiefs might have exercised was surrendered to the Ruler of Gangpur. Moreover the various laws which were in force in Gangpur State, a list of which was given in the Annual Administration Report of Gangpur State for 1946-47 (pages 185 to 191 of the Paper Book -- Part I in the previous litigation) remained in force in Hemgir and Sarapgarh, not by virtue of any special orders passed by these chiefs, but by their own force, once they were made laws by the Ruler of Gangpur with the approval of the British Government. It is nowhere asserted in the petitions that a fresh act of sovereignty, that is to say a formal application of these laws to Hemgir by the Chief of Hemgir, was necessary to bring them into force in that area. Similarly, there is no allegation that the collections made by these chiefs from their subordinate tenants of ryots within their tract was in the nature of a 'tax'. It was merely rent fixed in the successive settlements. It will, therefore, be idle for these petitioners to contend that prior to the merger on the 1st January, 1949, these Chiefs exercised any sovereign powers at all. The relationship between them and the Ruler of Gangpur was merely that of a subject and his sovereign. This is made clear in para. 19 of judgment of Das C. J. (page 210 of the paper book, part I) and also in paragraph 7 of my judgment (pages 254-256 ibid) in the previous litigation. The fact that the relationship between these chiefs and the Ruler of Gangpur Was left undetermined by the settlement authorities, did not in any way affect their political status as mere subjects of the Ruler of Gangpur. 8. As regards the forests of Hemgir it was strenuously contended before the High Court in the previous application that they were distinct from the zamindari and that in any case they would not come within the definition of 'estate' as given in the Act. In our previous judgment we unanimously repelled this argument and held the forests as forming part of the estates of Hemgir and Sarapgarh. In the Supreme Court this question was discussed by Das J. (as he then was) while considering the zamindari of Nagra. He held that the forests also formed part of that zamindari. The zamindari of Nagra differed from the zamindaris of Hemgir and Sarapgarh mainly because there was an Ekrarnama executed between the Zamindar of Nagra and the then Ruler of Gangpur in 1879 by which the Zamindar of Nagra agreed to hold the estate of Nagra on payment of an annual rent. The relevant passage in the Supreme Court judgment at page 853 (of SCR): (at p. 144 of AIR) may be acoted: "There is no dispute that geographically the forest tract is included within Nagra Zamindari estate. Our attention was drawn to certain maps or plans which clearly indicate that the forest lands are scattered in blocks within the boundaries of the estate. There is no dispute that the annual rent fixed under the Ekrarnama was so payable in respect of the whole estate. In those days there was hardly any income from the forests, as at present and therefore in those ancient days the existence of forests like that of uncultivable waste land, would not affect the assessment of rent to any appreciable degree. There is no evidence on record that, in fixing the annual rent the forests were left out of consideration in the sense that they were treated as a separate property. There is no proof on record in support of such an unusual arrangement. If the forests are included within the boundaries of the estate and if the zamindar of Nagra, "holds" the estate under the Raja of Gangpur, he must be holding the forests also under the Raja of Gangpur. The suggestion that the proprietor of Nagra accepted a grant from the Raja of Gangpur only in, respect of the collection of mahals or villages, but retained his independent chieftainship with respect to the forest lands interspersed between the villages, but situated within the geographical limits of the entire estate, is hardly convincing. For the above reasons, and 'those set up in the judgment of the learned Chief Justice' we are of opinion that the forest lands are included within the estate held by the zamindar of Nagra under the Raja of Gangpur.'' Dr. Pal urged that the aforesaid reasonings of the Supreme Court would not apply to the zamindaris of Hemgir and Sarapgarh inasmuch as in these two zaminclaries there was no Ekrarnama executed between the zamindars and the Ruler of Gangpur. He also filed an affidavit to the effect that in Hemgir zamindari forest lands were not scattered in blocks throughout the area but formed a separate compact block within which there was no ryot at all. He, therefore, urged that some of the reasonings of their Lordships of the Supreme Court (quoted above) in the case of Nagra would be wholly inapplicable and he reiterated the argument) advanced in the previous applications to the effect that these forests do not form part of the estate. I am however unable to accept) this argument. In our previous discussion on this question we aid not take into consideration the distinguishing feature of Nagra, namely the existence of an Ekrarnama between the zamindar and the Ruler of Gangpur in 1879. All the three zamindaris (Hemgir, Sarapgarh and Nagra) were dealt with together and it was held, for other reasons also which need not be repeated here, that the forests formed part of these estates. Those reasons would apply with equal force even now. Their Lordships of the Supreme Court also appear to have accepted those reasons as correct in the last sentence (underlined here into ' ') in the passage quoted above. 9. I may new briefly notice a new argument raised by Dr. Pal. In the definition of the expression intermediary (see Section 2(h) of the Act, as amended in 1954), it was mentioned that "all other owners or holders of interest in land between the ryot and the "State" were intermediaries. Dr. Pal. therefore, contended that unless there is a ryot below and the State above, there could be no 'intermediary', and as it is not challenged that in respect of the reserved forests of Hemgir there is no tenant or ryot, the right of the petitioner in respect of these forests could not be the right of an 'intermediary'. This argument overlooks the fact that the entire area of Hemgir was treated as one unit and "takoli" was paid for the whole area. There was no splitting up of the area into reserved forests and non-reserved forests, nor was 'takoli' fixed on the basis of the Income from cultivated area only. The income from forests was also taken into consideration and 'takoli' was fixed at 5 per cent of the total Income-vide letter No. 1408-G dated the 4th April, 1916, from the Political Agent to the Ruler of Gangpur referred to in paragraph 9 of my previous judgment. It is hot necessary that in an "estate" as defined in the Act there must be a ryot below the intermediary in every square inch of the estate. There may be vast areas within an estate where there may be no ryots or tenants at all and yet they would not cease to be part of the estate. in K. C. Gajapati Narayana Deo v. State of Orissa. ILR (1953) Cut 71 : (AIR 1953 Orissa 185) (B) this point was discussed and it was pointed out at page 109 (of ILR Cut) : (at p. 197 of AIR) : "It appears to me, therefore, that it is a mistake to equate the word "intermediary'' as defined, with a person who holds an intermediate status between the tiller and the State though in a general way it is so even as regards these specified in the first clause of the definition, or to confine that connotation only to such lands in respect of which such an intermediate position of the landholder obtains." With respect I would agree with the aforesaid observations of the previous Chief Justice and it is unnecessary to elaborate the point further. I would accordingly hold that the forests of Hem-gir also form part of that zamindari. 10. Dr. Pal fairly conceded that the non-forest areas of Hemgir and Sarapgarh would come within the expanded definition of the expression 'estate' as given in the Act as amended in 1954. In view of my decision in the preceding paragraph to the effect that the forest areas cannot be separated from the non-forest areas, it may be taken as well established that the two zamin-daries are 'estates' within the meaning of the Act and the two petitioners are also 'intermediaries' as defined in the Act. The petitioners cannot therefore succeed in these petitions unless their challenge to the constitutional validity of the Act can be upheld. 11. Dr. Pal's contentions on the constitutional question may be broadly divided into the following classes: (i) Hemgir and Sarapgarh are not 'estates' as defined in Article 31A(2) of the Constitution and consequently the Act does not get the protection of that Article. (ii) The Act is highly discriminatory, especially in respect of big zamindars and, therefore, offends Article 14 of the Constitution. (iii) The Act is incons'stent with the Land Acquisition Act and is void under Article 245(1) and is not saved by Clause (2) of that Article. (iv) The Act violates Article 17 (2) of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on the 10th December 1948 to which India was a party. 12. In our previous Judgment there was a sharp difference of opinion between Das C. J. and myself as to whether Hemgir and Sarapgarh were 'estates' within the meaning of Article 31A(2)(a) of the Constitution. Das C. J. held that in the record of rights for Gangpur State, prepared during the Durbar regime these properties were described as, 'estate' and that the said record of rights should be taken as "existing law" relating to land tenures within the meaning of Article 31A(2)(a). I however held that the record of rights, namely, Khewat. Khatian etc. were not "existing law" bearing in mind the definition of that expression, as given in Article 366(10) of the Constitution and that consequently those properties would not be 'estates' within the meaning of Article 31A(2)(a). The third Judge, namely, Mohapatra J. agreed with Das C. J. In the Supreme Court judgment this question was not decided and their Lordships disposed of the appeals on the assumption that even if the properties are not 'estates' within the meaning of Article 31A(2)(a) yet the Act did not contravene Article 14. Apart from the arguments on this question which have been summed in our previous judgment, Dr. Pal raised two new points. (a) The expression 'existing law' should ordinarily be construed in the light of the definition given in Article 366(10) of the Constitution and when so construed it would mean only statute law and not mere custom or usage embodied in the record of rights. The ordinary dictionary meaning of that expression would however be 'law which exists' that is to say, law which is in force. If such a dictionary meaning is given to that expression in Article 31A(2)(a) the words 'in force' occurring in the phrase "in the existing law relating to land tenure in force in that area" would become redundant: and as one should not readily assume that the framers of the Constitution would be guilty of tautology, the dictionary meaning of the expression "existing law" is wholly inapplicable in that Article. Consequently the special meaning given to that expression in Article 366(1) should apply and there is nothing in the context of Article 31A(2)(a) to give a wider meaning to that expression. For the reasons already given by me in 'my previous Judgment I would accept this argument. (b) The second contention of Dr. Pal is based on the decision given in the Supreme Court. There their Lordships unanimously held that these petitioners were not 'intermediaries' within the meaning of the wazib-ul-urz. In the Judgment of Bose J. it was made clear that the expression "wazib-ul-urz" included all records-of rights prepared during the settlements of Gang-our State, including Khewats and Khatian. In our previous judgment the majority held that the record of rights was "existing law relating to land tenures in force" in Gangpur State. Hence, ac-cording to Dr. Pal, once it is held that the record of rights is "existing law" and it is further held by the Supreme Court that these zamindaris are not "estates" within the meaning of the record of rights, they cannot be "estates" within the meaning of Article 31A(2)(a) inasmuch as the expression "estate" must have the same meaning in that Article as well as in "the existing law relating to land tenures". I am inclined to accept this argument. The definition of the expression "estate" in Article 31A(2)(a) is very clear. It has the same meaning as is given to that expression in the "existing law relating to land tenures". If according to the majority opinion in our previous Judgment the record of rights is "existing law" the decision in the Supreme Court judgment is decisive on the question that these zamindaris are not "estates" within the meaning of Article 31A(2)(a). The learned Advocate-General however contended that the phrase "have the same meaning as that expression has in the existing law relating to land tenures" occurring in Article 31A(2)(a) has not the same significance as the phrase "within the meaning of existing law relating to land tenures" and that the observations in the Supreme Court judgment would not therefore be of any help to the petitioners. According to him once the expression 'estate' or 'zamindar' or 'Intermediary' is found in the record of rights it must. be assumed that these properties are "estates" within the meaning of Article 31A(2)(a) and it is unnecessary to further consider what these expressions mean in the record of rights. I am unable to accept the argument that a mere mention of these expressions in the record of rights is itself sufficient to make these properties "estates" as defined in Article 31A(2)(a). The use of the words "the same meaning" occurring in Article 31A(2)(a) shows that one must first ascertain what is the meaning of the expression "estate" occurring in the record of rights and then apply that meaning In construing that expression occurring in Article 31A(2)(a). Once the Supreme Court held that Hemgir, and Sarapgarh are not "estates" within the meaning of the record of rights, they would necessarily not be "estates" within the meaning of Article 31A(2)(a) if the majority view in our previous judgment that the record of rights is "existing law relating to land tenures" is accepted. I would accordingly accept Dr. Pal's contention that Hemgir and Sarapgarh are not "estates" as defined in the first part of Article 31A(2)(a). 13. This conclusion is now somewhat academic in view of a new argument raised successfully by the Advocate-General to the effect that these zamindaris are "implied grants" from the Ruler of Gangpur and, as such, would come within the latter part of the definition of the expression "estate" as given in Article 31A(2)(a). He relied on Amar Singh v. State of Rajasthan, (S) AIR 1995 SC 504 (Paragraphs 33, 39, 40, 43, 44, 47 and 49 (C) ) where their Lordships of the Supreme Court held that the Bhoomicharas of Jodhpur are 'Jagirs or other similar grants' within the meaning of Article 31A(2)(a) of the Constitution. The history of Bhoomicharas of Jodhpur as given in that judgment is very similar to the history of Hemgir and Sarapgarh. It appears that the Bhoomicharas were originally independent chiefs, but the Ruler of Jodhpur subsequently imposed his sovereignty on them but permitted them to continue in possession of their lands on payment of an annual sum without expressly granting any Sanad or Jagir as ordinarily understood. On these facts their Lordships of the Supreme' Court observed as follows (at p. 523, paragraph 38): "Applying these principles, when Jodhpur as a sovereign State imposed its sovereignty over the territory and permitted the ex-Rulers to continue in possession of their lands on payment of an annual sum, the position is that there was in effect a conquest of the territory and a re-grant of the same to the ex-Rulers whose title to the land should thereafter be held to rest on the recognition of it by the Ruler of Jodhpur. It is as if the Maharaja of Jodhpur annexed all the territories and re-granted them to the former Rulers. They must accordingly be held to derive their title under an implied grant." The petitioner's position is of an identical nature. They were also Rulers of Hemgir and Sarapgarh, but gradually surrendered their sovereignty to the Ruler of Gangpur, and became for all purposes his subjects on payment of a fix-ed annual sum. But they continued in possession of the lands as before. They should also be held to derive their title under an implied grant from the Ruler of Gangpur. Dr. Pal. however, tried to distinguish the aforesaid Supreme Court decision on the following two grounds. Firstly, he contended that the zamindar of Hemgir did not come originally to Hemgir as a Ruler but that his ancestor was the original chieftain who cleared the Jungle, occupied the lands and subsequently acquired sovereignty over the area; whereas the Bhoomicharas of Jodhpur were Rajputs who came there and acquired sovereignty and they were not the original settlors of the soil. This distinction, in my opinion, does not affect the applicability of the aforesaid Supreme Court decision to the present case. The process by which the ancestor of the zamindar of Hemgir or the ancestor of the Bhoomicharas of Jodhpur acquired sovereignty in their territories, is immaterial. The admitted position in both cases is that they exercised sovereign powers in their areas until Gangpur or Jodhpur as the case may be, imposed its own sovereignty over them. Hence, when the sovereignty of Gangpur was established throughout Hemgir the position of the zamindar of Hemgir was that of an ex-Ruler who was permitted to remain in possession of the lands as before. The principle of implied giant would therefore apply. Dr. Pal next contended that the zamindar of Hemgir never completely surrendered his sovereign powers and that some vestige of sovereignty still remained until the date of merger. This very argument was advanced on behalf of the Bhoomidharas of Jodhpur in the aforesaid Supreme Court, case and was rejected in paragraph 40 of their Lordships' judgment. On their behalf some sort of semi-sovereign status was claimed, and their relationship with the Ruler of Jodhpur was said to resemble that of the Rulers of the Native States with the British Crown, but their Lordships rejected the contention observing: "The law does not recognise an intermediate status of a person partly as a sovereign and part-Iv as a subject, and when once it is admitted that the Bhoomicharas had acknowledged the sovereignty of Jodpur, their status can only be that of a subject." I have already shown in paragraph 7 of this judgment that though the original Ruler of Gangpur was only a suzerain and not a sovereign of the Chiefs of Hemgir, in due course of time he became the, sovereign and the chiefs of Hemgir became merely his subjects. Hence, relying on the aforesaid Supreme Court decision in AIR 1955 SC 504 (C) I would hold that these zamindaris are 'implied grants' from the Ruler of Gangpur and as such would come within the latter part of the definition of the expression "estate" as given in Article 31A(2)(a) of the Constitution. They would therefore get the protection of that Article and the Act cannot be challenged on the ground that it contravenes the other fundamental rights described in Part III. 14. Even if it be assumed that these zamindaris are not "estates" within the meaning of either the first part or the second part of the definition of that expression as given in Article 31A(2)(a) the further question for consideration is whether the Act offends Article 14 of the Constitution. 15. In our previous Judgment this question was discussed in two aspects: Firstly, the regressive rate of compensation for higher slabs of Income as provided in Section 28 of the Act was highly discriminatory and secondly, Section 3 of the Act gave unfettered discretion to Government to discriminate between various classes of zamindars for the purpose of acquiring their estates. The second contention is no longer available in view of the judgment of the Supreme Court where Das J. (as he then was) held that Section 3 of the Act did not offend Article 14. Dr. Pal. however, reiterated his argument in respect of the first contention and relied on Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91 (SB) (D), but the Advocate-General relied on a later decision of the Allahabad High Court reported in Suryapal Singh v. U. P. Government, AIR 1951 All 674 (FB) (E). where it was held that though regressive rate of compensation may, at first sight, appear to be discriminatory it is in essence nothing else but inadequate compensation for zammindars with higher incomes and is consequently protected by Article 31(4) of the Constitution. It is unnecessary to repeat those reasons here. Our previous judgment was unanimous on this point, and it appears from the judgment of Das J. in the Supreme Court judgment that this point was not pressed before their Lordships I would therefore content myself merely noticing some of the new arguments advanced by Dr. Pal. 16. Dr. Pal urged that though in respect of taxation "progressive rate" as distinct from "proportionate rate" may not be discriminatory and a higher rate of taxation in respect of higher slabs of income may be justified, the adoption of a similar principle for the purpose of estimating compensation as is done in Section 23 of the Act would not be reasonable. In taxation a person is deprived of property without compensation, but where a person is deprived of properly and the Act purports to pay him compensation, that compensation should be uniformly applicable to all persons who are deprived of property. According to Dr. Pal. there is no justification for saying that if the annual net income from a zamindari is low the owner is entitled to compensation at 15 times of that net income whereas if the annual net income is high the compensation must be estimated at a lesser rate on higher slabs as provided in Section 28. Though there is considerable force in Dr. Pal's contention I think it is not open to him to raise this point now, as it was given UP before the Supreme Court on the previous occasion. It is well known that the subjective value of a rupee is not the same for a person with a high income, as it is for a person with a low Income. If, therefore, the Legislature thought that miner zamindars should get compensation at a higher rate whereas big zamindars should get compensation at a lower rate for higher slabs of income, it is difficult to say that such a principle is not inextricably bound up with the broader question of adequacy of compensation, as pointed out in the Allahabad judgment mentioned above. Article 31(4) expressly prohibits a Court from questioning the adequacy of compensation. It was urged that the amendments of 1954 and 1956 to the Act may not get the protection of Clause (4) of Article 31. But Clause (2) of Article 31 has been amended by the Constitution (fourth Amendment) Act 1956 and that clause now says that a law providing for compulsory acquisition for a public purpose shall not be called in question in any Court on the ground that the compensation provided by that law is not adequate. Hence, even If it be assumed that the Act as it now stands is not a 'law' as referred to in Clause (4) of Article 31 it is undoubtedly a 'law' as described in Clause (2) of that Article and would get the protection of that clause. 17. The provisions of Article 254 regarding which there has been much argument by Dr. Pal and the Advocate-General may now be briefly summarised. Clause (1) of that Article (omitting immaterial portions) says that if any provision of a law made by a State Legislature is repugnant to any provision of an "existing law" with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2) the existing law shall prevail and the State law shall, to the extent of the repugnancy be void. Clause (2) however says that where the State law is with respect to one of the matters enumerated in the Concurrent List and any of its provisions are repugnant to the provisions or an existing law with respect of that matter, then the State law shall prevail within the State if that law has been assented to by the President. 18. The Land Acquisition Act 1894 is still in force throughout the State and will be "existing law" as defined in Article 366(10) of the Constitution. It is now relatable to Entry 42 of List III as amended by the Constitution (Seventh Amendment) Act 1956. Therefore, it is "existing law with respect to one of the matters enumerated in the concurrent list" within the meaning of Article 254(1). Dr. Pal urged that when the Estate Abolition Act was assented to by the President on the 23rd January 1952 it was a law with respect to a matter enumerated in List III namely Entry 36 as it stood then. Hence, by virtue of Clause (1) of Article 234 the Land Acquisition Act would prevail over the Estate Abolition Act. As regards Clause (2) of that Article, Dr. pal's contention is that in 1952 the Act was not "with respect to any of the matters in the Concurrent List" and consequently even the assent by the President at that time would not have the effect described in Clause (2) of Article 254 as there was no occasion for the president to consider the provisions of that clause while giving his assent. In my opinion, the fundamental, assumption on Which Dr. Pal's argument is based, is erroneous. Even in 1952 the provisions of the Act were relatable not only to entry 36 of List II but also to entry 42 of List III as those entries then stood. The whole of Chapter V of the Act dealing with assessment of compensation and Chapter VI dealing with payment of compensation would come within the scope of old entry 42 of List III which referred to "the principles on which compensation is to be determined and the form and manner in which such compensation is to be given." Dr. Pal urged that these Chapters were relatable to entry 36 of List II inasmuch as the expression "acquisition" occurring in that entry would, by necessary implication, include the determination of compensation and payment of compensation. According to him, therefore, recourse need not be taken to entry 42 of List III and that entry 36 of List II would suffice. In support of this contention he relied on the observations of Mahajan J. (paragraphs 41, 42 and 43 of Mahajan J's judgment) and of Patanjali Sastri C. J. (para graphs 13. 14, 15 and 16 of Patanjali Sastri C. J's. judgment) in the Bihar case reported in State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 (P), where, while discussing similar provisions on the Bihar Estate Abolition Act their Lordships of the Supreme Court held that the Bihar Act was relatable to Entry 36 of List II. On a close scrutiny of the context, in which those observations were made it will be clear that their Lordships were not examining the question as to whether the Bihar Estate Abolition Act was also relatable to entry 42 of List in but whether the legislative power to make a law for the acquisition of property, conferred by an Entry in List II or List III, as the case, may be, would, by necessary implication, require the law to provide adequate compensation irrespective of the provisions of Article 31. Hence, these observations cannot be taken as sufficient authority in support of Dr. Pal's extreme contention that none of the provisions of the Act, as it stood in 1952, was relatable to entry 42 In List III. On the other hand, even in the Bihar case there are some observations of Mukherjsa J. and Das J. (paragraphs 96, 107 and 108) to the effect that some of the provisions of the Bihar Act were relatable to Entry 42 of List III. Again in the Parliakhimedi case which went up from Orissa Gajapati Narayan Deo v. State of Orissa, 1954 SCR 1: (AIR 1953 SC 375) (G) where the constitutional validity of the Orissa Act was under challenge, their Lordships in the last paragraph clearly held that Section 37 of the Act is relatable to Entry 42 of List III. But apart from authority, on a mere construction of Entry 42 of List III there can be no doubt that the Act, even in 1952, was relatable both to Entry 36 of List II and Entry 42 of List III. 19. The repugnancy between the provisions, of the Estate Abolition Act and the provisions of the Land Acquisition Act arises mainly as regards; the estimating of the amount of compensation payable and the form and method of payment. Under the Land Acquisition Act compensation is payable according to the market value and It has to be determined in accordance with the principles laid down in Section 23 of that Act. Under Section 31 the total compensation is payable in a lump sum subject to certain special provisions for limited owners, as provided in Section 32, which are not material. Under the Estates Abolition Act, however, compensation is estimated under special rules which have nothing to do with the market value of the property (see Sections 27 and 28) and the estimated compensation is payable in instalments spread over a long period. The provisions of the Act were therefore relatable to Entry 42 of List in even in 1952 when the President gave his assent and hence, by virtue of Article 264(2) they would prevail over the corresponding provisions of the Land Acquisition Act. Hence it is not correct to say that in 1952 there was no occasion for the President, by his assent to the Act, to bring into operation Clause (2) of Article 254. 20. I may at this stage also dispose of another interesting argument raised by Dr. Pal. He urged that at present there are two laws existing side by side, under which estates could be acquired, namely the Land Acquisition Act and the Estates Abolition Act. It is open to the State Government to acquire one estate under the former Act and another under the latter Act. Thus they may discriminate between zamindars who in other respects may be placed in Identical circumstances. The Estates Abolition Act does not clearly say that all estates shall be acquired only under the provisions of that Act and not under the provisions of the Land Acquisition Act. Dr. Pal therefore relied on the recent decisions of the Supreme Court in Suraj Mall Mohta and Co. v. Visvanatha Sastri, 1955-1 SCR 448: (AIR 1954 SC 545) (H); Meenakshi Mills Ltd. v. Viswanatha Sastri, 1955-1 SCR 787: ( (S) AIR 1955 SC 13) (I) and Muthiah Chettiar v. Commr. of Income Tax, 1955-2 SCR 1247: ( (S) AIR 1956 SC 269) (J) and urged that the existence of two laws side by side applicable to persons placed in identical circumstances, in the absence of any provision in those laws guiding the discretion of the Government to apply the one or the other to the persons concerned, would offend Article 14 of the Constitution. This argument though ingenious will not be applicable in the present case. The first assumption of Dr. Pal that the Land Acquisition Act and the Estates Abolition Act deal with' the same subject-matter or with persons similarly situated is erroneous. The Land Acquisition Act provides for the acquisition of all rights in land if that land is required for a public purpose. Section 16 of that Act says that after an award has been, made, the land vests absolutely in Government free from all encumbrances. The Estates Abolition Act however, does not deal with acquisition of all rights in land, but only with the acquisition of the rights of intermediaries. The rights of the ryots and the tillers of the soil are left untouched. If the same estate had been acquired under the Land Acquisition Act the aggregate of the rights in land would have disappeared including the right of the ryots and other tenants Babulan v. The Secy. of State, 4 Cal LJ 256 (K). Therefore, it is not correct to say that the two laws deal with the same subject-matter or with persons identically situated. Hence if Government want to acquire only the rights of intermediaries, there is only one law under which they can proceed, namely the Estates Abolition Act. The principles laid, down in the aforesaid three decisions of the Supreme Court have absolutely no application here. 21. Apart from these considerations it will be merely academic to examine whether any of the estates can be acquired under the provisions of the Land Acquisition Act. An affidavit has been filed on behalf of the State of Orissa (which has not been controverted) to the effect that throughout Orisra all the estates have been acquired, under the provisions of the Estates Abolition Act except the estates of Hemgir and Sarapgarh (which are the subject-matter of the present petitions) and two other estates Where the question of escheat has arisen, As regards the minor intermediaries such as Tenure-holders. inamdars, etc., the affidavit shows that in most of the districts their rights also have been acquired, and even in the districts of Cuttack and Puri where several small revenue-free estates and subordinate tenures have not been acquired the Estates Abolition Act itself has been amend. ed so as to facilitate the acquisition of these rights by issuing a general notification. The affidavit further shows that the State Government have decided to take over the Interests of 'interme-diaries only under the provisions of the Estates Abolition Act and that no estate has been acquired under the provisions of any other Act. The question raised by Dr. Pal therefore becomes largely academic. 22. It is unnecessary to notice some of the other points on the question of discrimination raised by Dr. Pal based on the amendment made to the Act by Orissa Act XV of 1956, in consequence of which even a Sub-Deputy Collector has been authorised to decide claims and the right of appeal to the Board of Revenue has been taken away. I have no doubt that these zamindaris are 'Implied grants' within the meaning of Article 31A(2)(a) and consequently even if there is any such discrimination It would be protected by that Article. 23. Lastly. I take up the provisions of the-Universal Declaration of Human Bights on which some reliance presumably in a half-hearted manner was placed. It is not challenged that India is one of the parties to the Universal Declaration-of Human Rights proclaimed by the General Assembly of the United Nations on the 10th December 1948. Article 17 of that Declaration is as follows: "17(1). Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of: his property." Dr. Pal urged that the word 'arbitrarily' in Clause (2) above implies that adequate compensation should be given when a person is deprived of his property. Article 51 of the Constitution directs the state to respect international law and treaty obligations. Dr. Pal therefore contended that even the provisions of Article 31 of the Constitution must, give way to Article 17 of the Declaration of Human Rights and that any law which deprives a person of property without providing adequate compensation would be void. The obvious answer to this argument is that this Court is bound to uphold the provisions of the Indian Constitution, even though there may be some conflict between those provisions and those embodied in the Declaration of Human Rights. The question as to how far provisions of the Declaration of Human Rights are justiciable in Municipal Courts is not free from difficulty. Lauterpacht in his well known book 'International Law and Human Rights" observes at page 158: "In many countries the Charter of the United Nations has Indisputably become a part of the law of the land. Thus, according to the French Constitution Act of 1948 treaties ratified by the State derogate from any contrary municipal law without any further Act of the legislature, other than that necessary for the ratification of the. treaty. This applies also to the Charter of United Nations. Admittedly its provisions are directly applicable in the realm of municipal law only to the extent to which they constitute legal oblige tions of the State." But the Indian Constitution has not adopted any of the provisions of the Declaration of Human Rights without modification and Article 51 on which some reliance has been placed by Dr. Pal being in the Chapter dealing with Directive Principles is not enforceable' in this Court in view of the express bar of Article 37. Dr. pal, however, relied on In re. Drummond Wren, (1945) 4 Ontatio Rep. Pp. 778. 781 (L), cited at page 188 of Lauterpacht's book, where the provisions of the Atlantic Charter were invoked even though they were not directly concerned with legal obligations in the municipal sphere, but mainly on grounds of public policy. He also relied on Sci Fujii v. State of California, 96 Cong. Rec. April 28, 1950, Sen Proc. 6072) (M) where an American Judge held that the United Nations Charter was the supreme law of the land and the Judges were bound to obey the same not withstanding any provision to the contrary in the Constitution of a State. This case, however, is distinguishable because it appears that the provisions of the U. N. Charter and the Declaration of Human Rights were made part of the Constitution of the United States (see Article 6, Section 21). But in India these have not been made part of our Constitution and a Judge of a High Court is bound, by the oath of his office to uphold the Constitution. Doubtless if there is no express prevision in the Constitution like Article 31 or 31A the provisions of the Charter of the United Nations and the Universal Declaration of Human Rights might possibly be invoked in favour of the petitioners, on the doctrine of wise use of public policy as was done in the Canadian case cited above. But where Article 31 expressly bars the jurisdiction of the Court to question the adequacy of compensation, it is futile to rely on Article 17(2) of the Universal Declaration of Human Rights. Hence, though an argument of this type from such an eminent international jurisi like Dr. Pal is attractive and requires serious consideration, I must hold that the provisions of the Declaration of Human Rights where they conflict with the provisions of the Constitution will be of no avail in municipal Courts. I may also point out that this argument was available when the matter was taken up to the Supreme Court on the previous occasion;' but it was not advanced there, presumably because it was not considered tenable. At pages 154 to 160 of Lauterpacht's book, this question regarding the extent of the legal obligations of the members of the United Nations, to enforce the provisions of the Universal Declaration of Human Rights was discussed and international jurists seem to be agreed that these could not be enforced in municipal Courts unless they are made part of the law of the State. 24. For the aforesaid reasons I would reject these two petitions. Both parties will bear their own costs. Mohapatra, J.
25. I asree with the proposed order that the two petitions should be dismissed.
26. I also substantially agree with the reasons given by my Lord the Chief Justice in support of his conclusion; but with great respect, I differ from his observations in paragraph 12 of his judgment where he discusses whether Hemgir and Sarapgarh are 'States' within the meaning of the 1st clause, of Article 31A of the Constitution.
27. It would be necessary to give a short re-strospect of the previous three cases where this point, along with many others, was fully discussed. Besides the present two petitioners, the owners of Hemgir and Sarapgarh, the owner of Nagra was also a petitioner on the previous occasion. The main points, that were urged on behalf of the petitioners on the previous occasion, were that they were not intermediaries and their properties were not estates within the meaning of the Orissa Estates Abolition Act (hereinafter called the Abolition Act) ; that the properties involved are not estates covered by Article 31A of the Constitution and are not entitled to its protection; that the Abolition Act was therefore discriminatory and offensive against Article 14 of the Constitution arid therefore void.
Jagannadhadas C. J. (as he then was) decided each of these issues against the petitioners; but Narasimham J. (as he then was) agreed with the then learned Chief Justice that the petitioners were intermediaries and their properties were estates within the meaning of the Abolition Act. But they differed on two important points. Jagannadhadas C. J. was of the opinion that the properties were 'estates' within the meaning of Article 31A of the Constitution and were entitled to its protection. The learned Chief Justice further held that the Abolition Act did not contravene Article 14 of the Constitution. But Narasimham J. (as he then was) was of the opinion that the properties were not estates within the meaning of Article 31A and Section 3 which is a key section of the Abolition Act contravened Article 14 of the Constitution. There being differences on these two points, the case was re-argued before me and in my judgment I agreed with the then learned Chief Justice on both the points and the petitions therefore were rejected.
But the Supreme Court, by the majority judgment, however, allowed the appeals of the owners of Hemgir and Sarapgarh on the ground that these appellants were not intermediaries according to the definition of Section 2(h) and their properties were not estates within the meaning of the Abolition Act. In the majority judgment, which was delivered by S. R. Das J. (as his Lord- ship then was), it was observed:
"The point to note is that in order to be an 'intermediary' within the definition, it is not enough, if the person is a Zamindar, Illaquedar, Khoroposhdar or Jagirdar, simpliciter, but he must fall within one or other cf the categories 'within the meaning of the Wajib-ul-arz or any Sanad. deed or other instrument'."
Their Lordships substantially agreed with the reasons stated in the minority judgment delivered by Bose J. in this respect. In these appeals, therefore, they left all other questions open. But in the majority judgment the appeal of the owner of Nagra was dismissed as their Lordships found him to be an intermediary and his property to be an estate within the meaning of the Abolition Act. In the minority judgment delivered by Bose J. their Lordships (Mahajan and Bose .JJ.) took a different view and were of the opinion that the appeal of the owner of Nagra also was to be allowed.
In the majority judgment their Lordships, having found that the proprietor of Nagra was an intermediary, had to deal with other constitutional issues, that is, whether the Abolition Act is void having contravened the provisions of Article 14, and their Lordships gave decisions accepting the majority view of the High Court that the Abolition Act, and particularly Section 3 did not contravene Article 14 of the Constitution: But what is important for our purpose in this connexion is the definite observation of their Lordships in the majority Judgment which runs to the effect:
"In the view we take on the question of the alleged violation of the provisions of Article 14 it is not necessary, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of Article 31A to the impugned Act."
In view of this clear observation of their Lordships of the Supreme Court I feel justified to adhere to my views expressed in my previous judgment which was accepted as the majority view of our High Court. I may not repeat the reasons which were thoroughly discussed in my judgment and much more elaborately clarified in the judgment of Jagannadhadas C. J. (as he then was) I may simply observe, which appears to me to be important, that because their Lordships of the Supreme Court decided that the proper ties were not estates, as we find in Section 2(h), or that their owners were not intermediaries with in the meaning of the Wajib-ul-arz or any Sanad, deed or other instrument1 it cannot follow automatically that our previous decision that the proper ties are estates within the meaning of Article 31A is wrong.
If the matter' is so simple and automatic, their Lordships in the majority judgment would not clearly observe that it was not necessary for their Lordships to enter into a long discussion on the applicability of Article 31A to the impugned Act .
28. I think it absolutely unnecessary to pursue the matter any further as I entirely agree with my Lord the Chief Justice, as my Lord has observed that this part of the discussion has become academic and my Lord is of the definite view that the properties involved are estates within the meaning of Article 31A of the Constitution as they come within the 2nd clause.
29. I entirely agree with my Lord that the resent cases are fully covered by the decision of their Lordships of the Supreme Court : AIR 1955 SC 504 (C).