V.V.S. Rao
Introduction
1. The Commissioner, Survey, Settlement and Land Records, Government of Andhra Pradesh and'' two others are the appellants in this appeal filed against the order dated 10.06.2003 of the learned single Judge setting aside the order of the Commissioner who had confirmed the orders passed by the Revenue Divisional Officer (RDO) and Inams Special Deputy Tahsildar (SDT, for brevity). The core issue in this appeal is whether the respondents'' claim for grant of patta in respect of waste land admeasuring Acs.44.68 (hereafter, petition schedule land) under Andhra Pradesh [Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (the Inams Act, for brevity) was validly rejected by the competent authority on the ground that it is a waste land which stood transferred and vested in the Government u/s 2-A of the Inams Act. For the sake of convenience, we refer to the parties as in the writ petition.
Background
2. Jadagogula Agraharam, Hamlet of Juvvaladinne Village with an extent of Acs.812.33 in survey No. 321/B is inam village. The petitioners claim that their grandfather purchased Acs.111.52 under registered sale deed dated 25.11.1938 from the original inamdars. Again on 18.12.1938, another extent of Acs.302.67 was purchased. In a subsequent family partition, father of the petitioner got Acs. 133.60 towards his share and statedly their mother purchased another extent of Acs.44.66 under sale deed, dated 14.06.1971. The petitioners claim that the total extent of Acs. 178.43% is in their possession where they were raising crops.
3. The Inams Act came into force on 14.12.1956. The authorities completed formalities and took over the inam village by 1977. In the meanwhile, the State of Andhra Pradesh inserted Section 2-A in the Act by A.P. Amendment Act No. 2 of 1975 with effect from 20.06.1975. The SDT then passed orders declaring Acs.727.32, out of an. extent of Acs. 812.32 as coming within the purview of Section 2-A and that it stands vested in the Government. The petitioner then filed appeal. The RDO allowed the appeal on 09.07.1978 and remanded the matter to SDT for fresh enquiry after giving an opportunity to the petitioners. In the meanwhile, the petitioners filed W.P. No. 1820 of 1978 questioning the validity of Section 2-A of the Act which was dismissed on 23.12.1983. The matter was carried in appeal to Supreme Court. The civil appeal was dismissed on 03.01.1997.
4. After remand by the RDO, the SDT conducted enquiry and passed orders on 15.05.1989 declaring that an extent of Acs.533.11 shall vest in the Government u/s 2-A. Insofar as the land admeasuring Acs.88.68 in survey No. 1298 is concerned, the SDT held that half of it admeasuring Acs.44.68 in survey No. 1298 being waste land shall vest in the Government. The petitioners again filed appeal before the RDO claiming ryotwari patta. Even while the appeal was pending, the SDT by order dated 06.11.1990, granted patta only to an extent of Acs.44.00. The patta for the waste land was denied. The RDO also dismissed appeal on the same day. It appears some time thereafter the waste land admeasuring Acs.44.68 was assigned to persons belonging to weaker sections.
5. The petitioners filed revision u/s 14-A of the Inams Act before the Commissioner against the order of the RDO dated 06.11.1990. The revision was dismissed on 14.09.1992. Aggrieved by which, the petitioners filed W.P. No. 15473 of 1992. The learned single Judge allowed the writ petition setting aside the order of the Commissioner, declared that the petitioners are entitled for grant of ryotwari patta in respect of entire extent of land and directed them to approach the concerned authority for grant of patta.
Submissions
6. The Assistant Government Pleader for Revenue (General) submits that the original authority, the appellate authority and the revisional authority consistently came to the conclusion that lands claimed by the petitioners being waste lands vest in the Government, and therefore, a patta cannot be granted to the petitioners. This is a finding of fact based on evidence. The learned Judge, therefore, was in error in interfering with the finding of fact ignoring the evidence on record. Secondly, he would submit that the interpretation of the term ''waste land'' by the learned single Judge is not sound. The land which is a waste land on the date of coming into force of the Inams Act or Section 2-A thereof could well be converted into arable land subsequently but the same cannot have any effect on the interpretation of the term ''waste land'' used in Section 2-A of the Inams Act. He would also urge that unless and until the person is in actual possession and cultivating the land on the date of coming into force of Inams Act, patta cannot be claimed, and the learned Judge erred in coming to the conclusion that the title of the petitioner leads to presumption that they are in possession and occupation of the land.
7. The counsel for the petitioners submits that the object of the Inams Act was never to take the land of Inamdars or purchasers who are also entitled for ryotwari patta u/s 10-B of the Inams Act. The term ''waste land'' should be understood as the lands which are forever desolate and unfit for cultivation. If the lands could be brought to cultivation by incurring expenditure, the same cannot be treated as ''waste land'' u/s 2-A of the Inams Act. He points out that the Government issued orders assigning the balance land of Acs.44.00 to persons belonging to weaker sections, which would show that the land is not waste land. He referred to Sri Rajah Bommadevara Naganna Naidu Bahadur v. Yelamanchili Patchayya (1929) 57 MLJ 654, K. Gopalaswami Ayyangar v. Sri Athmanathaswarni Devasthanam (1957) 1 MLJ 104 (DB) (hereafter, Athmanathaswarni Devasthanam (1)),
Discussion of the point for consideration
8. Whether denial of patta to petition schedule lands on the ground that they are waste lands is justified?.
9. Before considering this core issue, we may, in brief, refer to legislative history of Inams Act.
10. After the British replaced Hindu and Muslim Rulers of the Country, there were two systems of land tenures. Under the Zamindari system, the sovereign granted a permanent settlement to one person, who collected the land revenue from the pattadar and paid a portion to the State. In the ryotwari system, however, the State itself fixed the land revenue and collected it from the pattadar. In addition, there was a system of inams, in which the inamdar gave occupancy rights and collected premium and a portion of the usufruct from the occupant or cultivator. In Zamindari, the inamdar or the ryot/occupant of the land had exclusive right of control over the land and derived income from agriculture.
11. In respect of public lands, the Sovereign was the paramount owner. The poramboke lands set apart for public purpose or for communal use such as village sites, threshing floors, roads, paths, water courses and the like, assessed waste lands available for occupation by private persons not forming part of the land assigned to others were included in the public lands. Till 1869, unauthorized encroachments were generally dealt with as criminal trespass attracting imprisonment. In that year, the High Court of Madras ruled that the procedure adopted under the penal code was illegal. The Government thus authorized the District Collectors to evict the trespassers by charging them assessment under the Madras Revenue Recovery Act, 1864. This charge of penal assessment was sometimes prohibitive. On that ground it was declared illegal by Madras High Court.
12. The composite State then enacted Madras Land Encroachment Act, 1905 (later adopted as A.P. Land Encroachment Act, 1905). u/s 2 thereof, all public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks and all canals and water-courses and all standing and flowing water, and all lands wherever situated are declared to be the property of the Government subject always to all rights of way, public rights, easement and customary rights of other land owners legally subsisting. Even the public roads and streets vested in any local authority are deemed to be the property of the Government. But if such classes of lands are the property of any Zamindar, poligar, jagirdar, shrortriemdar or any other person holding under ryotwari tenure, they stand excluded from being the property of the Government. Thus from times immemorial, in common law, all public lands are treated as the property of the Government and only exception being the public lands forming part of the Zamindari, ryotwari or inam tenures.
13. The Madras Estates Land Act, 1908 essentially regulates the holding of land in permanently or temporarily settled estates which are included in inam villages. This Act streamlined the rights of landholders and cultivating ryots and conferred certain limited rights on the ryots with regard to the heritability and improvements to the land. This enabled the Government to gain control of all communal lands which are not ryoti lands or private lands. Section 3(16) of Estates Act defined ryoti land as to mean cultivable land in an estate other than specified common lands.
14. After attaining independence or thereabout many provincial States realized that historically Zamindari system left adverse effects on the land, the agriculture, the relationship between the ruler and the ruled. So as to abolish the Zaminadari system, Madras State enacted Estates Abolition Act, whereunder the Government acquired all Zamindari rights. The estates were taken over and occupancy rights were conferred by granting ryotwari patta. The conversion into ryotwari was essentially motivated by the idea that the land should belong to the tiller to establish contact between the Government and the actual cultivator dispensing with agency of Zamindar. On abolition of Estates, all communal lands, waste lands, poramboke, forests, mines and minerals stood transferred to the Government and vested in them free from all encumbrances; all rights and interests created in or over estate ceased and extinguished; and the Government after removing obstruction could take possession of the estate, but shall not dispossess any person of any land in the estate in respect of which he is prima facie entitled to ryotwari patta.
15. Although "the estate" was defined in Estates Act to include any inam village by reason of Explanation to Section 3(2) thereof, the inam tenures could not be converted into ryotwari tenures, because the inam villages are not covered by the Estates Abolition Act. So as to confer the benefit of ryotwari tenure, even in respect of inam lands, the Government decided to undertake separate legislation. The Inarns Abolition Act was enacted providing for conversion of all inam lands into ryotwari tenure. Section 2(c) defined ''inam lands'' to mean any land in respect of which the, grant of inam had been made, confirmed or recognized by the Government but does not include ''inam'' constituting an estate under the Estates Act. In the implementation of the Inams Act, the Government faced certain difficulties with regard to the recognition of the rights of the occupants/imam lands in ryotwari and Zamindari villages. The Government, therefore, amended the Inams Act by A.P. Act No. 20 of 1975 inter alia to provide for recognizing the occupancy rights possessed by tenants and for vesting in the Government all types of communal lands in inams. For this purpose, Section 2-A was inserted which came into force with effect from 20.06.1975.
Relevant provisions
16. At this stage, we may quote definitions of relevant words and phrases as well as relevant provisions from Estates Act, Estates Abolition Act and Inams Act.
Estates Land Act, 1908
3 (16) "Ryoti land" means cultivable land in an estate other than private land but does not include-
(a) beds and bunds of tanks and of supply, drainage surplus or irrigation channels;
(b) threshing-floor, cattle-stands, village-sites, and other lands situated in any estate which are set apart for the common use of the villagers;
(c) land granted on service tenure either free of rent or on favourable rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists.
Estates Abolition Act, 1948
2. In this Act, unless there is anything repugnant in the subject or context, -
(1) all expressions defined in the Estates Land Act shall have the same respective meanings as in that Act with the modifications, if any, made by this Act;
3. Consequences of Notification of estate:-
With effect on and from the notified date and save as otherwise expressly provided in this Act-
(a) the Andhra Pradesh (Andhra Area) Permanent Settlement Regulation, 1802, the Estates Land Act, and all other enactments applicable to the estate as such except the Andhra Pradesh (Andhra Area) Estates Land (Reduction of Rent) Act, shall be deemed to have been repealed in their application to the estate;
(b) the entire estate (including minor imams (Post-settlement or pre-settlement) included in the assets of the zamindari estate at the permanent settlement of that estate; all communal lands and porambokes; other non-ryoti lands; waste lands; pasture lands; Lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries; and ferries, shall stand transferred to the Government and vest in them, free of all encumbrances; and the Andhra Pradesh (Andhra Area) Revenue Recovery Act, 1864, the Andhra Pradesh (Andhra Area) Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to the estate;
(c) all rights and interests created in or over the estate before the notified date by the principal or any other land-holder, shall as against the Government cease and determine;
(d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to that estate which the Government may require for the administration thereof:
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-
(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;
(ii) if such person is a landholder pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta;
(e) the principal or any other landholder and any other person whose rights stand transferred under clause (b) or cease and determine under clause (c), shall be entitled only to compensation from the Government as provided in this Act;
(f) the relationship of landholder and ryot shall as between them, be extinguished;
(g) ryots in the estate and persons holding under them shall, as against the Government, be entitled only to such rights and privileges as are recognized or conferred on them by or under this Act, and any other rights and privileges which may have accrued to them in the estate before the notified date against the principal or any other landholder thereof shall cease and determine and shall not be enforceable against the Government or such landholder.
Inams Act, 1956
2. Definitions.- In this Act, unless the context otherwise re quire s-
(c) "Inam land" means any land in respect of which the grant in inam has been made, confirmed or recognized by the Government, land includes any land in the merged territory of Banaganapalle in respect of which the grant in inam has been made, confirmed or recognized by any former Ruler of the territory but does not include an inam constituting an estate under the Madras Estates Land Act, 1908 (Madras Act 1 of 1908);
2-A. Transfer to, and vesting in the Government of all communal lands, porambokes etc., in inam lands:-
Notwithstanding anything contained in this Act all communal lands and porambokes, grazing lands, waste lands, forest lands, mines and quarries, tanks, tank-beds and irrigation works, streams and rivers, fisheries and ferries in the inam lands shall stand transferred to the Government and vest in them free of all encumbrances.
17. The above provisions need to be. interpreted and understood without ignoring the enacting history of Estates Abolition Act and Inams Act referred to supra. It is essential to know the purpose of making a law so as to understand the Sections or provisions in such law. The literal rule of interpretation is a Golden Rule. If the language is plain, interpretation involves just reading the plain language to understand the law and intention behind it. In
"Golden Rule" of interpretation of statutes is that statutes are to be interpreted according to grammatical and ordinary sense of the word in grammatical or liberal meaning unmindful of consequence of such interpretation. It was the predominant method of reading statutes. More often than not, such grammatical and literal interpretation leads to unjust results which the Legislature never intended. The golden rule of giving undue importance to grammatical and literal meaning of late gave place to ''rule of legislative intent''. The world over, the principle of interpretation according to the legislative intent is accepted to be more logical... When the law to be applied in a given case prescribes interpretation of statute, the Court has to ascertain the facts and then interpret the law to apply to such facts. Interpretation cannot be in a vacuum or in relation to hypothetical facts. It is the function of the legislature to say what shall be the law and it is only the Court to say what the law is.
(emphasis supplied)
contextual and purposive interpretation
18. The Court as an interpreter often faces a situation where a provision of law on plain reading might give meaning which was not the intention of the legislature. In such a situation, the Court is not precluded from construing the law keeping in view the purpose of the legislation. The purposive construction warrants reference to the context in which the law is made or a word or phrase occurs in a provision or the object or the purpose for which the statute was enacted. It needs momentary ignorance of the plain words and know the spirit of such law making. This is necessary to avoid absurdity as well as the harm never intended by the legislature.
19. Francis Bennion in his Statutory Interpretation described purposive interpretation as under.
A purposive construction of an enactment is one which gives effect to the legislative purpose by -
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.
20. Justice Frankfurter of U.S. Supreme Court in an article titled as Some Reflections on the Reading of Statutes (47 CLR 527), observed that, "legislation has an aim, it seeks to obviate some mischief to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statutes, as read in the light of other external manifestations of purpose". This principle of purposive and meaningful interpretation has been followed by the Supreme Court in a number of cases.
21. In
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.
22. In
23. In
Construing waste lands in Section 2A of the Inams Act
24. In interpreting "waste land" in Section 2A of the Inams Act, the context in which it is used and the purpose for which Section 2A of the Inams Act was enacted cannot be ignored. Indeed the purpose and context both determine the scope of every category/type of land found mentioned in Section 2A of the Inams Act.
25. The Estates Act and Estates Abolition Act did not cover the inam tenures. A large number of small cultivating occupants were denied ownership patta as was the case of occupants of lands in the estate. So as to convert the imams in inam villages and zamindari villages into ryotwari tenure, and to extinguish the rights of inamdar to a larger extent, the Inams Act was made. Further, as initially enacted the Inams Act appeared as though ryotwari pattas can be granted even in respect of different kinds of communal, poramboke and other types of lands, which in common law always vested in the Sovereign. This led to insertion of Section 2-A of Inams Act.
26. In
As pointed out earlier, the parent Act had to be enacted as it was found that certain imams and other intermediary tenures had escaped the provisions of the Estates Abolition Act. It was decided that these imams also should be abolished and the Act of 1956 was enacted. But at that time, no provision was made with regard to forest lands, grazing lands, etc. It was considered necessary that in order to effectively implement the agrarian reform envisaged by the parent Act by the abolition of the intermediary tenure and converting all the lands into ryotwari tenure all the forest lands, etc., should also be vested in the Government. These lands also formed part of the grant, and, but for the amendment the lands would continue to be under inam tenure without being abolished of converted into ryotwari tenure. We are of the view that the decision in State of U.P. v. Anand Brahma is applicable to this case also. If these provisions had been enacted in the main Act itself there cannot be any doubt that the entire Act including this provision would have been protected by Article 31-A of the Constitution as the Act was for implementing the agrarian reform, that is, to abolish the inam tenure. The mere fact that Section 2-A was introduced by way of amendment later would not, in our view, make any difference. This circumstance that these lands form part of the inam and their vesting in the Government is an essential step in the implementation of the agrarian reform, namely, abolition of inam tenure..........
27. The Division Bench which decided Bujjanna-2 also observed that, "vesting of the forests and other grazing lands must continue to be a part of agrarian reform and as has been repeatedly pointed out by the Supreme Court in various decisions should not be used as a device to augment the revenue of the Government by merely cutting the timber in the forests and selling it or deriving profit by leasing out for grazing, fisheries, etc., irrespective of the fact whether they would help in agrarian reform". Thus, Section 2-A of the Inams Act has to be construed as a provision intended to help an agrarian reform and not as conferring any benefit on the inamdar, the occupant or a transferee of interest in inam. We are also of the firm view that while interpreting Section 2-A, construing various types of lands mentioned therein, the dictionary clause in Estates Abolition Act or Estates Act have least relevance.
28. As per Section 2(1), all expressions defined in Estates Act shall have the same respect of meaning even with reference to Estates Abolition Act. Section 11(a) of Estates Abolition Act confers a right on every ryot in an estate to claim ryotwari patta in respect of ryoti lands, other than those which explicitly stand transferred and vested in the Government as per Section 3(b). These lands are, "... all communal lands and porambokes; other non-ryoti lands; waste lands; pasture lands; Lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries and ferries."
29. The term ''ryoti land'' is not defined and by reason of Section 2(1) of the Estates Abolition Act, one has to look to the definition ''ryoti land'' in Section 3(16) of the Estates Act. The definition of ''ryoti land'' is in two parts. The first part is the definition clause, according to which, ryoti land means cultivable land in, an estate other than private land. The exclusive part excludes three categories of lands from the definition of ryoti land. These are - (a) beds and bunds of tanks and of supply, drainage surplus or the irrigation channels; (b) threshing-floor, cattle-stands, village-sites and other lands situated in any estate which are set apart for the common use of the villagers; and (c) land granted on service tenure either free of rent or favourable rent if granted before the Estates Act. A plain reading of Section 2(1), 11(1) of the Estates Abolition Act along with Section 3(16) of the Estates Act would show that a ryotwari patta can be granted only in respect of the land which is capable of cultivation and which is in the holding and occupation of a ryot as on the notified date.
30. In The effect of Section 2(16) of the Estates Act, read with Section 13(b)(iii) of the Estates Abolition Act, in the matter of grant of patta was considered by a Full Bench by this Court in
31. Section 13(b)(iii) of the Estates Abolition Act enabled the landholder in an inam estate to claim ryotwari patta in respect of lands not being (i) lanka lanks, (ii) lands of the description specified in Section 3(iii), sub-clauses (a), (b) and (c) of the Estates Act and/or (iii) forest lands which have been abandoned or relinquished by a ryot. The case of the claimant/landholder before the Full Bench was that even if the land is tank bed land it was ayacut land under cultivation and, therefore, Section 13(b) (iii) of the Estates Abolition Act does not bar the grant of patta. The plea was rejected by the Full Bench. It was held that tank bed land leased out by the landholder did not cease to be non-ryoti; and mere non-user of communal lands for the purposes for which they were intended or set apart, as on the date of application of the Estates Abolition Act is not material and does not alter the communal character. The relevant observations are as follows.
The following principles emerge from the aforesaid discussion; Lanka Lands, lands of the description specified in Section 3 (16) (a) (b) and (c) of the Estates Land Act, and forest lands re excluded from the purview of Section 13 (b) (iii) of the Abolition Act and no ryotwari pattas could be granted to the land-holder under that provision in respect of those lands. The mere non-user of the communal lands for the purposes for which they were intended and set apart, as on the date of the application of the Abolition Act to the estate is not material and does not alter their communal character, if, by the time the Abolition Act came to be applied to the estate in which they are situate, they were lands coming within the description specified in Section 3 (16) (a) (b) and (c) of the Estate Land Act, Despite the discuss to which they have fallen and despite the other users they have been unauthorisedly and illegally put to they would nonetheless continue to be lands belonging to the category specified in Section 3 16) (a)(b) and (c) of the Estates Land Act in the absence of any order u/s 20-A (1) (b) of the Estate Land Act.
(emphasis supplied)
32. If the land does not fall in any of the three excluded categories u/s 2(16) of the Estates Act and it is cultivable land in an estate, there is no bar for grant of ryotwari patta, subject to Section 3(a) by reason of which certain lands like forest lands, ''communal lands etc., are treated as non-ryoti lands and shall stand transferred and vested in the Government. The situation u/s 2-A of the Inams Act is however different. The SDT has to determine the persons or institutions entitled to ryotwari pattas in accordance with the procedure under Sections 4 and 7 of the Inams Act. The purport of these two provisions is that a person must be holding the land as inamdar on the date of commencement of the enactment to be entitled to ryotwari patta. One has to prove that he was holding the land and was also cultivating the land. No other considerations are relevant in this regard.
33. Section 2-A has a non-abstante clause. The claim for grant of patta under Sections 4 and 7 by inamdar is subject to Section 2-A. If the land is a waste land, a ryotwari patta cannot be granted because such waste lands by law stand transferred and vested in the Government free from encumbrances. Even if a land is capable of cultivation by some effort and expenditure, still if the land is a waste land as classified in the revenue records, a person is not entitled to claim patta only on the ground that such land is cultivable or can be cultivated in future. If this meaning is not given, it would defeat the very purpose of Section 2-A. As observed by the Division Bench in Bujjanna-2, Section 2-A is intended to foster agrarian reforms and ameliorate to some extent the difficulties and troubles of small farmers cultivating the inam lands.
34. Section 2-A is to be interpreted in the context in which it is used. It does not make any distinction between the cultivable waste lands and uncultivable waste lands. Unlike in Section 3(16) of the Estates Act, a cultivable land may be ryoti land but u/s 2-A of the Inams Act, a waste land cannot be treated as cultivable land for the purpose of grant of patta u/s 7(1). If the intention of the legislature was to exclude the land which can be cultivated in future, from the meaning of ''waste land'' such words would have been mentioned as in the case of Section 3(16) of the Estates Act. If Section 2-A is interpreted as suggested by the counsel for respondents as excluding ''cultivable waste lands'', it amounts to supplying casus omissus which ought to be avoided by the Court. It is well settled that while interpreting the provision of a law, the Court cannot supply the casus omissus which might have the effect of changing the colour and texture of the very Section itself
35. We may now refer to precedents relied on by the counsel. In Rajah Bommadevara, the privy council was concerned with the dispute as to whether the appellant was entitled to a piece of land having income yielding Palmyrah and Date palms estimated at capital value of Rs. 34,000/-. In that context, the privy council construed Section 12 of the Madras Estates Land Act, 1908 (Estates Act) holding that the land which is never cultivated should also be treated as estate land if it is held to be cultivable. In 1901, the Zamindar/Raja of North Vellore granted lease of Acs. 1363.00 for a period of ten years to one Ramayya. An extent of Acs. 843 was recorded as land under cultivation and the remaining land was dry pasture waste. The lease. amount was fixed for land under cultivation, besides nominal rent for dry pasture land. Income yielding trees existed on the pasture waste, in respect of which, lessor reserved himself full rights. After coming into force of the Estates Act, the Raja retained a patta in 1912 conferring right for Acs.520 of waste land as well as trees thereon which according to the defendant conferred a right on the occupancy ryot u/s 12 of the Act. The revenue Court held in favour of the Zamindar except in respect of the trees which were planted by the lessee or which might have grown naturally after commencement of the lease. The revenue Court''s decree was confirmed by the District Court, but the High Court of Madras took a different view. It was held that subject to the custom or written contract, the tenant was entitled to the trees on payment of rent to the landholder. The High Court ultimately came to a conclusion that the trees must be included in the holding on condition of the defendants paying ascertained cist in respect thereof. The privy council reversed the High Court Judgment and affirmed the District Court''s decree and accepted the observations of the Revenue Court as under.
The respondents'' second objection to the patta was the exclusion therefrom of the Acs.520.00 and this objection can be dealt with more briefly. Upon the evidence taken before him, the Deputy Collector on the 17th August, 1914, found that of the Acs.520.00 in question, Acs.222.00 was tank-bed, land, and that their exclusion from the patta was justified under the Act. He held that the remaining Acs.297.00 should be included as being ''cultivable" land, although it had never in fact been cultivated.
36. Gopalaswami Ayyangar decided by Madras High Court involved the interpretation of Section 3(10) and 3(16) of the Estates Act. The former described what is ''private land'' and the latter defined ''ryoti land'' to mean cultivable land in an estate other than private land not including the lands classified as beds and bunds of tanks, drainage/irrigation channels, threshing floors, cattle stand, village sites, lands set apart for the common use of villagers etc. The issue was considered in the following background facts. Athmanathaswami Devasthanam filed the suit for recovery of rent money for temple land from Gopalaswamy. The suit lands admeasuring about Acs.730.00 belonging to the temple were not ryoti lands; they were left as waste from the time immemorial; the temple had no resources to bring them under cultivation; the appellant offered to reclaim the land agreeing to pay rent in cash or a portion of the crop; as recommended by revenue authorities, he was granted patta as service tenure on payment of premium as well as annual rent and that appellant reclaimed Acs.200.00 of land and brought under cultivation. The lease was however declared as invalid by Hindu Religious Endowments (HRE) Board as violating Section 76(1) of the HRE Act. The successor of the hereditary trustee issued a notice repudiating the lease and treating the appellant as unauthorized occupant liable to pay to the temple half the crop. The amount was not paid resulting in the suit. Gopalaswamy''s pleas were that the suit land was ryoti land in an estate, that he was granted valid lease and was let into possession, that he spent huge amount on reclamation to the knowledge of the hereditary trustee, that the civil Court had no jurisdiction and as per Estate Lands Act jurisdiction vests only in revenue Court. He also set up occupancy rights. The Subordinate Judge granted decree to the temple for Rs. 10,333/-with subsequent interest. The appeal was allowed holding that the civil Court had no jurisdiction and that of other issues have to be decided and gone into by the revenue Court when the plaint is presented afresh. Dealing with the question whether the suit lands are ryoti lands, the Madras High Court held that, "the lands which remained uncultivated but which could be reclaimed and brought under cultivation when granted on lease entitled the person to occupancy rights". The relevant observations are as follows.
The learned counsel for the respondent urged that, as these lands had not been cultivated for any period before the lease to the appellant and his being admitted into possession, they cannot be termed ''cultivable land''. The contention is wholly unsustainable. "Cultivable" is, of course, quite different from "cultivated". Any land which can be cultivated systematically will be "cultivable land". The appellant has urged that he had brought the entire suit lands under wet cultivation by the time of the suit, spending three lakhs of rupees for reclamation. There is no reliable evidence to show that any part of the suit lands remained uncultivated at the time of the suit, much less that any portion of it was uncultivable. The lower Court has held the all the suit lands were cultivable, though they had remained uncultivated for a number of years, and that it is undoubtedly the correct conclusion from the evidence.
... The Privy Council has held, in Naganna Naidu v. Pitchayya, that pasture land, which had remained uncultivated so far, but which could be reclaimed and brought under cultivation, would, when granted on lease, entitle the lessee to occupancy rights, as such land would be ''"cultivable land" u/s 3(16) of the Estates Land Act, and therefore ryoti land.
37. The Madras decision in Gopalaswami Ayyangar was affirmed by the Supreme Court in Athmanathaswami Devasthanam (2). The apex Court held that, "waste lands covered with shrubs, jungle and the like cannot be held to be uncultivable merely on that account or on account of their being not cultivated for a long time. Land which can be brought under cultivation is cultivable land unless some provision of law provides for holding it otherwise in certain circumstances".
38. In State of Gujarat, the inamdars (taluqdars) of Gogamahal were in occupation of hilly lands, which were incapable of cultivation. But the grass grown was sold to derive income. After Bombay Tenure Abolition Act, 1949, they sought a declaration that the lands were neither vacant lands nor uncultivated lands and that being in possession they became occupants. The Mahalkari (the competent authority) passed an order holding that the lands could not be treated as waste lands or cultivated lands and since the Taluqdars were in possession, they became occupants. The Collector, Bhavnagar, set aside the said order but the Revenue Tribunal reversed the Collector holding that the taluqdars became occupants. The High Court agreed with the said view and held that the expressions ''waste lands'' and ''uncultivated lands'' did not cover grass lands of hilly tracks which by very nature are capable of cultivation, and not useless so as to be not capable of any use. Interpreting Section 6 of the Bombay Act, the Supreme Court observed as under.
It is, therefore, evident that the determination of the question whether a particular category of property belonging to a taluqdar in a taluqdari estate is vested in the Government or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property. The expression "all waste lands" has been joined by conjunctive "and" with the expression "all uncultivated lands". They, therefore, indicate two distinct types of lands. If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been "all waste and uncultivated lands" as against the expression "all waste lands and all uncultivated lands". Here we have, therefore, two distinct categories of properties viz. (1) waste lands, and (2) uncultivated lands. The contention that the grasslands on hilly tracts which were incapable of cultivation were "waste lands" or "uncultivated lands" within the meaning of Section 6 cannot be accepted....
... Now, the expression "waste lands" has a well-defined legal connotation. It means lands which are desolate, abandoned, and not fit ordinarily for use for building purposes. In Shorter Oxford English Dictionary, 3rd Edn., Vol. 2, p. 2510, the meaning of the word "waste" is given as:
1. Waste or desert land, uninhabited or sparsely inhabited and uncultivated country; a wild and desolate region; 2. A piece of land not cultivated or used for any purpose, and producing little or no herbage or wood. In legal use, a piece of such land not in any man''s occupation but lying common. 3. A devastated region.
39. It was also held that, "the expression ''waste lands'' in the context would be clearly, in the original sense of the term ''waste'' as meaning barren or desolate lands which are unfit for any use or which are worthless".
40. Thus, as indicated in State of Gujarat, the context in which the expression ''waste land'' is used, have considerable bearing in understanding the enactment. The decision cited by the counsel for appellant gave the meaning to the term ''waste lands'' as including those lands which can be brought under cultivation having regard to the provision, which fell for interpretation, but reading Section 2-A and applying the principle of purposive interpretation, we are not able to persuade with the submission of the respondents. We are also supported by the precedents which dealt with Inams Act in general and Section 2-A in particular. A brief reference is made to these infra.
41. A question arose as to what are the dates of abolition and conversion into ryotwari under the Inams Act. A Full Bench of this Court in
It has to be noted that the Act contemplates not mere abolition but also conversion of inam lands into ryotwari tenure. There cannot be any hiatus or interregnum between the abolition and conversion of the inam land into ryotwari tenure. The tenure cannot stand abolished and remain in a state of suspense till it is converted into ryotwari by grant of a ryotwari patta. If the inam land stood abolished on the date of commencement of the Act, it ceases to be inam land from that date. At the same time, it cannot be treated as ryotwari land until a ryotwari patta is granted. If so, the inamdar or the tenant as the case may be will not be liable to pay the assessment under the Inams Assessment Act or ryotwari assessment during the intervening period. If the contention of the petitioners is to be accepted, there will be a hiatus between the abolition and the conversion of inam land into ryotwari tenure, and it will lead to anomalies and difficulties in determining the rights and fixing the liabilities of the inamdars and the tenants. The provisions of the Act should, therefore, be construed in such a manner as not lead to any such results. The legislative intention appears to be clear that there should be no time lag between the abolition and conversion of the inam land into ryotwari and that they should take place simultaneously. In other words, the intention is to abolish inam tenure by conversion into ryotwari tenure, and until conversion into ryotwari tenure takes place, the inam tenure continues. The scheme and object of the Act coupled with the various provisions of the Act, indicate that the abolition of the inam tenure of the inam land would take place simultaneously or contemporaneously with the conversion of the inam lands into ryotwari tenure.
(emphasis supplied)
42. After Bujjanna, the matters were again placed before the Division Bench. In Bujjanna (2) v. Tahsildar, Rapur 1982 (1) APLJ 421, a Division Bench upheld the constitutional validity of Section 2-A. While declining to quash the notices issued by the Tahsildar seeking surrender of the lands falling within Section 2-A, this Court gave liberty to inamdars to prefer appeals to the appellate authority who was directed to conduct enquiry after giving opportunity to inamdars to lead evidence.
43. A.V.N. Jagga Rao v. Special Deputy Tahsildar 1997 (2) An.W.R. 112 (DB) is an off-shoot of Bujjanna. One of the inamdars filed an appeal before the concerned Revenue Divisional Officer, which was dismissed. The Commissioner also dismissed the revision filed under Article 14A of the Inams Act. Aggrieved, the writ petition was filed, which was decided by the Division Bench. The question therein was whether the lands admeasuring about Acs.545 (out of mam land of Acs.900) is poramboke and unassessed waste land. The Special Deputy Tahsildar and the Revenue Divisional Officer after making personal inspection, found that the inamdars could not establish that the lands are cultivable or that they did not fall within the categories of lands mentioned in Section 2-A. The petitioners therein relied on registered sale deeds executed prior to 20.06.1975 in support of the contention that the lands did not vest u/s 2-A. Reliance was placed on State of Gujarat and Athmanathaswami (2). The decision in State of Gujarat was observing that, "the lands which are uncultivable but are used for the purpose of grazing are also included u/s 2-A of the Inams Act. It was further held as- follows.
The learned counsel for the petitioners next relied on State of Gujarat for the proposition that income fetching lands cannot be treated as waste lands. The expression ''waste land'' was considered in the said decision and found that grass land on hill tracts is not waste land. All communal lands, Poramboke, grazing lands, waste land, forest land, mines and quarries etc., are brought within the sweep of Section 2(A) and they stand transferred to Government and vest in them free of all encumberances. In view of this provision wherein not only waste land but also grazing lands are included for purpose of vesting, the decision cited by the learned counsel has no application to this case....... The next decision relied on by the learned counsel for the petitioners is Athmanathaswami Devasthanam wherein it is observed that the lands covered with shrubs and jungle need not necessarily be uncultivable. In the present case the finding of both the Tribunals is that the lands are uncultivable and they are used for purpose of grazing. Therefore, this decision also in our view has no application to this case. The leaned counsel next relied on
44. Jagga Rao is a case decided by Division Bench, which distinguished State of Gujarat as well as Athmanathaswami Devasthanam (2) and took a view that even if the lands are cultivable in future, if they are waste lands, they stand transferred and vested in the Government and ryotwari patta cannot be granted. We are bound by this Judgment and we do not see any justifiable reason to deviate the view taken by the Division Bench.
45. A submission is made by the counsel for respondents with reference to the assignment made by revenue authorities, subsequent to the order of the authorities rejecting ryotwari patta for waste lands, even if the waste land was assigned to landless poor persons, the same does not have any effect insofar as the proceedings under the Inams Act and the proceedings u/s 7 for grant of ryotwari patta. Board Standing Order 15 permits the assignment of waste lands for the purpose of cultivation, unless they fall under BSO 15(4). If the principle canvassed by the respondents is accepted, it has very adverse consequences on the implementation of the objects behind the Inams Act. We, therefore, do not see any merit in the contention of the respondents. The learned single Judge recorded a finding that the respondents were in possession of the waste lands for which patta was, denied. For coming to this conclusion, the learned single Judge applied the principle "possession follows title". The SDT, the appellate authority and the revisional authority, recorded a finding that the respondents were not in possession of the waste lands for which patta was denied. It is a question of fact and we are not inclined to go into the same. Indeed, the argument of the respondents is founded on the admitted fact that the lands are waste lands, for which patta was denied. Their contention is that even if they are waste lands, grant of patta is not prohibited under the Inams Act. This is not acceptable to this Court.
Conclusion
46. In the result, for the above reasons, the writ appeal must succeed and is accordingly allowed and the order of the learned single Judge is set aside. In the facts and circumstances of the case, we however leave the parties to bear their own costs.
