Maharaja Aditya Pratap Singh Deo Vs State of Bihar and Another

Ramaswami, C.J.@mdashOn the 16th August, 1947, an instrument of accession was executed between the Dominion of India and the petitioner who was at that time the ruler of Seraikella State. This was followed by another agreement, between the parties known as the stand-still agreement. On the 15th December, 1947, a further agreement was reached between the petitioner and the Dominion of India by which the administration of Seraihella was transferred to the Dominion of India. Subsequently, on the 31st December, 1947, the Government of Orissa, purporting to act under the authority, and as a delegate, of the Government of India, took over the administration of Seraikella State. On the 18th May 1948, the administration of the State was transferred to Bihar, and ever since it has been administered by the Government of Bihar. On the 12th January, 1949, the Constituent Assembly of India amended the Government of India Act, 1935, by introducing in the said Act Sections 290A and 290B. This Act was authenticated by the President of the Constituent Assembly on the 10th January, 1949 and was published in the Gazette of India Extraordinary on the 12th January, 1949. In pursuance of the powers conferred u/s 290A of the Amending Act the Government of India promulgated an order on the 27th July, 1949. This order was called the States'' Merger (Governors Provinces) Order, 1949. On the 26th January, 1950, when the Constitution came into force, the State of Seraikella was treated and held to be a territory of Bihar.

2. The Bihar Land Reforms Act (Bihar Act 30 of 1950) came into force on the 25th September, 1950. u/s 3 of that Act the Government of Bihar issued the following notification on the 10th May, 1955:

"The 10th May, 1955.

No. 5327-LR/ZAN In exercise of the powers conferred by Sub-section (i) of Section 3 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950), the Governor of Bihar is pleased to declare that the tenures named in the Schedule hereto annexed belonging to the tenure-holder names in the Schedule, have with effect from the date of the publication of this notification in the Bihar Gazette, passed to and become vested in the State under the provisions of this Act.

By order of the Governor of Bihar
Sd/- S. SAHAY,
Deputy Secretary to Government."

3. On the 22nd July, 1955, the petitioner made an application in the Patna High Court under Article 226 of the Constitution challenging the validity of the notification of the State Government u/s 3 of the Bihar Land (sic)rms Act. The application was summarily dismissed by the High Court. The petitioner took the matter in appeal to the Supreme Court. It was contended on behalf of the petitioner in the Supreme Court that the notification of the State Government u/s 3 of the Bihar Land Reforms Act was ultra vires because the State of Seratkella had not been validly integrated with the territory of Bihar, and in the eye of law it was not a part of Bihar, and so the legislation, made by the Bihar Legislature, under which the notification was issued, could not apply to the lands situated in the State of Seraikella.

It was also urged on behalf of the petitioner that the lands in respect of which the notification under the Act had been issued were not tenure lands and the petitioner was not a tenureholder within the meaning of the Act. With regard to the first contention the Supreme Court held that there was no substance because a similar contention had been raised by the petitioner in a title sun instituted by him on the 16th January, 1950, in the Federal Court for a declaration that the agreement of the 16th December, 1947, the enactment of Section 290A and the promulgation of the States'' Merger Order were all void and inoperative. When the suit was pending in the Federal Court the Constitution came into force on the 26th January, 1950, and consequently the suit came up for hearing before the Supreme Court in March, 1951. It was held by the Supreme Court in a majority judgment that having regard to the subject matter of the suit, and in view of the provisions contained in Article 363(i) of the Constitution, the Supreme Court had no jurisdiction to entertain the suit. In view of this decision it was decided by the Supreme Court in the present case that the first contention raised on behalf of the petition with regard to the validity of the notification u/s 3 of the Bihar Land Reforms Act must be rejected.

With regard to the second contention of the petitioner it was observed, by the Supreme Court that the properties held by the petitioner cannot be a "tenure" within the craning of Section 2(q) of the Bihar Land Reforms Act, and the case has been remanded now to the High Court for considering whether the properties mentioned in the impugned notification constitute an "estate" within the meaning of the Bihar Land Reforms Act and whether the notification of the State Government u/s 3 of the Bihar Land Reforms Act is legally valid. The Supreme Court also directed that after the case was remanded it would be open to the State of Bihar to file a written statement and thereafter the petition should be tried on merits by the High Court and "the validity of the notification should be dealt with in the light of the contentions raised by the parties."

4. On behalf of the petitioner it was submitted in the first place that the properties comprised in the notification (Annexure A) are outside the jurisdiction of the Bihar Legislature. It was contended that the properties are the private properties of the petitioner "in his capacity as Ruler of Seraikella" and the Bihar Legislature has, therefore, no jurisdiction to legislate with respect to these properties. Reference was made in this connection to the letter of the Government of India, dated the 30th April, 1956, which is annexure C to the petitioner''s affidavit dated the 29th October, 1962.

In my opinion there is no warrant or foundation for this argument. The Bihar Legislature derives its legislative authority from Article 245 and Article 246 of the Constitution. Article 245 confers the authority upon the Bihar Legislature to make laws for the whole or any part of the geographical territory of the State. Article 1(2) of the Constitution provides that India shall be a Union of States and that the States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule; and the relevant entry in that Schedule shows that the territory of Bihar shall comprise the territories which immediately before the commencement of the Constitution were comprised in it and the territories, which, by virtue of an order made u/s 290-A of the Government of India Act, 1935, were immediately before such commencement being administered as if they formed part of that Province. It is not disputed, and it cannot be disputed that the State of Seraikella was being administered immediately before the Constitution as if it formed part of Bihar and that this was a result of an order made u/s 290-A of the Government of India Act. The Constitution, therefore, treats the state of Seraikella as part of Bihar, and the reason for doing so is stated in the Constitution to be that factually it was administered as if it formed part of Bihar. The argument of the petitioner on this point is therefore, untenable and must be rejected.

A similar argument addressed on behalf of the petitioner was rejected by the Supreme Court in the previous case, State of Seraikella Vs. Union of India (UOI) and Another, and again by the Supreme Court in its remand order in the present case, dated the 1st September, 1960.

5. I shall now proceed to consider the argument put forward on behalf of the petitioner that the properties mentioned in the notification (Annexure A) were owned by him as the Ruler of Seraikella State and hence they were outside the legislative jurisdiction of the Bihar Legislature. It was contended that the petitioner occupied an exalted position and enjoyed special privileges and has been granted dispensation from the law, passed by the Bihar Legislature. It was contended on behalf of the petitioner that he had sovereign right so far as the private properties were concerned, though he had ceded to the Dominion Government all jurisdiction and powers relating to the government of seraikella.

I am unable to accept this argument as correct. Article 1 of the agreement, between the petitioner and the Governor-General of India, dated the 15th December, 1947, which is annexure B to the petitioner''s supplementary affidavit, shows that the petitioner had "ceded to the Dominion Government full and exclusive authority, jurisdiction and powers, for and in relation in the governance of the State". It is impossible to accept the contention of the petitioner that there can be two sovereigns in the State. It is true that the petitioner has been granted special privileges, but he is nevertheless a subject, and it is in the character of a subject that he holds the properties mentioned in annexure A, the notification of the Government of Bihar u/s 3 of the Bihar Land Reforms Act. The legal position has been explained by the Supreme Court in a recent case, Amarsarjit Singh Vs. The State of Punjab, . It was pointed out by Venkatarama Aiyar, J. in that case that a person cannot be both a sovereign and a subject at the same time, and if the status of the petitioners was in all other respects that of subjects, the right to receive the revenue collections must also be ascribed to their character as subjects, and that can only be under an implied grant. In a previous case also, Thakur Amar Singhji Vs. State of Rajasthan, , the Supreme Court dealt with an identical condition in the following manner:

"The status of a person must be either that of a sovereign or a subject. There is no teritum quid, the law does not recognise an intermediate status of a person being partly a sovereign and partly a subject and when once, it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur, their status can only be that of a subject. A subject might occupy an exalted position and enjoy special privileges, but he is none the less a subject; and even if the status of Bhomicharas might be considered superior to that of ordinary jagirdars, they were also subjects."

6. It was also argued on behalf of the petitioner that the properties had been recognised as the private properties in the deed of agreement between the petitioner and the Dominion Government, dated the 15th December, 1947. Reference was made to Article 3 of the agreement which states that "the Raja shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this agreement". Learned Counsel also placed reliance upon Article 362 of the Constitution which states as follows:

"362. In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Clause (1) of Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State."

It was submitted that in view of the guarantee contained in this Article the Bihar Legislature had no jurisdiction to make a notification for acquisition of the properties mentioned in annexure A. In my opinion there is no substance in this argument.

Article 362 of the Constitution does not prohibit the acquisition, of properties which are declared private properties by the covenant of merger, nor does the Article guarantee the perpetual existence of these properties. The guarantee contained in that Article is to a limited extent only. It merely guarantees, that the Ruler''s properties declared as private properties will not be claimed as State properties. That guarantee has been fully respected by the Bihar Land. Reforms Act as it treats those properties as private properties and seeks to acquire them on that assumption. In any event, the question is not justiciable in a court of law because of the comprehensive language of Article 363 of the Constitution. This view is supported by a decision of the Supreme Court in The State of Bihar Vs. Sir Kameshwar Singh, . In the course of his judgment Patanjali Sastri, C. J. stated as follows at p 267 of the report :

"In some of the cases the estates sought to be acquired are situated in what was previously the territory of Indian States and belong to their former rulers. On the merger of those States in Madhya Pradesh or Uttar Pradesh, as the case may be, by virtue of the ''covenant of merger'' entered into between the rulers and the government of India the properties in question were recognised to be the ''private property'' of the Rulers. In these cases, it was urged that the estates sought to be acquired formed part of the Rulers'' ''personal rights'' guaranteed to them under the instrument of merger, and that neither the impugned statutes nor the notifications issued thereunder could deprive the Ruler of such properties in travention of Article 362. The Attorney-General had (sic) answers to this argument, including the bar under Article (sic) to interference by courts in disputes arising out of agreements, covenants, etc. by Rulers of Indian States to which the Government of India was a party. But a short and obvious answer is that there was no contravention of any guarantee or assurance given by the Government under the covenant of merger, as the estates in question are sought to be acquired only as the ''private property'' of the Rulers and not otherwise. The compensation provided for, such as it is, is in recognition of their private proprietorship, as in the case of any other owner. There is, therefore, no force in this objection, in appeal No. 285 of 1951 preferred by the Raja of Kapurthala, where a similar objection was raised, it was further alleged that the privy purse of the Ruler was fixed at a low figure in consideration of the Oudh Estate being left to be enjoyed by him as his private property, and that its compulsory taking over would deprive him of the means of discharging his liability to maintain the members of his family. In the absence of any material to establish the facts, the allegation calls for no consideration."

In the same case Das, J. also observed in the course of his judgment:

"A question was raised by Mr. Asthana appearing for the Ruler of Khairagarh who is the petitioner in Petition No. 268 of 1951. Khairagarh is one of the States which formerly fell within the Eastern States Agency. On December 15, 1947, the Ruler entered into a covenant of merger. In that covenant the properties in question were recognised as the personal properties of the Ruler as distinct from the State properties. Reference is made to Article 362 which provides that in the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Clause (1) of Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. It is said that the impugned Act is bad as it contravenes the above provisions.

There occur to me several answers to this contention. The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler ''qua'' a Ruler. It dots not extend to personal property which is different from personal rights. Further, this Article does not import any legal obligation but is an assurance only. All that the covenant does is to recognise the title of the Ruler as owner of certain properties. To say that the Ruler is the owner of certain properties is not to say that those properties shall in no circumstances be acquired by the State. The fact that his personal properties are sought to be acquired on payment of compensation clearly recognises his title just as the titles of other proprietors are recognised. Finally, the jurisdiction of the Court to decide any dispute arising out of the covenant is barred by Article 363."

7. I shall then consider the argument addressed on behalf of the petitioner that the properties comprised in the notification (Annexure A) do not constitute an "estate" within the meaning of the Bihar Land Reforms Act Reference was made to Section 2(1) of the Bihar Land. Reforms Act which defines an "estate" to mean

"any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a district, and includes revenue-free land not entered in any register and a share in or of an estate".

Reference was made also to Section 2(o) which defines a "proprietor" to mean

"a person holding in trust or owning for his own benefit an estate or part of an estate". It was submitted that the petitioner was holding the properties comprised in annexure A as Ruler of Seraikella State and he was, therefore, not a proprietor within the meaning of the Bihar Land Reforms Act and the Notification u/s 3 of that Act is, therefore, ultra vires. I am unable to accept this argument as correct.

It appears from annexure C to the counter-affidavit of the respondents that the villages referred to in the notification (Annexure A) were allotted to the petitioner as his personal and private properties. It is stated in paragraph 11 of the counter-affidavit that these villages contained raiyati holdings, and collection of rent was being made by the petitioner through Headmen according to the custom prevalent in the Seraikella State and separate collection registers used to be maintained annually for each of the 12 notified villages in the name of the particular Headman for each village. A khatian of one such holding is annexure E to the counter-affidavit and is reproduced below:

All the tenants of the village pay one Dashara he-goat, one Jantal he-goat, Rupee one for worship of Goddess Durga and twentyseven pailas of Juice (?). Each tenant pays in proportion to his rent."

From this Khatian it is manifest that the raiyat Karia Majhi holds his land under the petitioner as the landlord and that the raiyat Karia Majhi is liable to pay rent and other perquisites to the petitioner as landlord. This khatian was prepared by the Settlement Officer appointed by the Ruler of Seraihella by a notification dated the 22nd November, 1925. The record-of-rights was published in the year 1928, and later on amended and consolidated by an order of the Ruler of Seraihella by an Amending Act of the Record-of-Rights (Seraikella Act No. 81 of 1935). Annexure F to the counter-affidavit contains an English translation of Seraikella Act 81 of 1935. After the merger of Seraikella State with the State of Bihar, the Bihar Legislature enacted the Seraihella and Kharsawan (Laws) Act, 1951 (Bihar Act XLI of 1951), by which the provisions of the Chota Nagpur Tenancy Act were enforced in the Seraikella Sub Division of the district of Singhbhum with certain modifications. Section 2 of Bihar Act XLI of 1951 states:--

"2. The Chota Nagpur Tenancy Act, 1908, subject to the amendments to which the said Act is subject in the State of Bihar, shall be in force in the territory comprised in the sub-division of Seraikella and Kharsawan of the district of Singhbhurn subject to the modifications and exceptions specified in the Schedule annexed to this Act." Section 3 of the Act provides as follows:--

"3. The Record-of-Rights of Seraihella Act No. 1 of 1935 and the Record-of-Rights Act of Kharsawan are hereby repealed:

Provided that the said repeal shall not affect-

(a) the previous operation of any of the said enactments, or

(b) any penalty, foreiture or punishment incurred in respect of any offence, committed against any such law, or

(c) any investigation, legal proceeding or remedy in respect of any such penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted continued, or enforced and any such penalty, forfeiture or punishment may be imposed as it this Act had not been enacted:

Provided further that the record-of-rights including the record-of-rights in respect - of the rights and duties of village headmen prepared and pattas granted under any of the said enactments, and in force in the sub-division of Seraikella and Kharsawan immediately before the commencement of this Act shall be deemed to be the record-of-rights including the record-of-rights in respect of the rights and duties of village, headmen prepared and published or pattas granted under Chapter XI, XII, XIII XIV of the Chota Nagpur Tenancy Act, 1908, as applied by this Act to Seraikella and Kharsawan, in so far as such record-of-rights and pattas are not inconsistent with the provisions of the said Act:

XX XX XX XX XX X"

In view, of the second proviso to Section. 3 of the Act it is clear that the Record-of-Rights with respect to the notified properties prepared in the year 1928 in Seraihella State and subsequently amended and consolidated by the Amending Act 81 of 1935 (sic) must be deemed to be the record-of-rights prepared and published under the provisions of the Chota Nagpur Tenancy Act. In other words, the effect of Section 3 of Bihar Act XLI of 1951 is that the raiyats possessing occupancy holdings under the petitioner are now deemed to be raiyats governed by the Chota Nagpur Tenancy Act, and the petitioner is deemed to be the landlord of such raiyats and occupies the status of a proprietor within the meaning of the Chota Nagpur Tenancy Act. Reference should also be made to Section 3, Sub-clause (xxx), of the Chota Nagpur Tenancy Act, which defines "Permanent Settlement" to mean "the Permanent Settlement of Bengal, Bihar and Orissa made in the year 1793", Now item 1 of the Schedule to the Bihar Act XLI of 1951 provides that so far as the sub-division of Seraikella and Kharsawan are concerned, Clause (xxx) of Section 3 should read as follows:

" ''Permanent Settlement'' means the Permanent Settlement of Bengal, Bihar and Orissa made in the year 1793, and in relation to the areas comprised within the subdivision of Seraikella and Kharsawan of the district Singhbhum, means the record-of-rights, as prepared and finally published under any law which was in force in the said areas immediately before the commencement of the Seraikella and Kharsawan (Laws) Act, 1951".

The legal effect, therefore, of the passing of Bihar Act XLI of 1951 is that the petitioner is deemed to be a proprietor of the properties mentioned in the notification (Annexure A) within the meaning of the Chota Nagpur Tenancy Act, and those properties are "estates" within the meaning of Section 3(x) of the Chota Nagpur Tenancy Act and also of Section 2(1) of the Bihar Land Reforms Act. It was argued on behalf of the petitioner that there was factually no entry of the properties in any one of the general registers of revenue-paying lands and revenue-free lands maintained by the Collector of the district as required by Section 2(i) of the Bihar Land Reforms Act or Section 3(x) of the Chota Nagpur Tenancy Act. But the result of the statutory tiction created by Bihar Act XLI of 1951 is that the petitioner is a "proprietor" and the properties in question are "estates within the meaning of the Chota Nagpur Tenancy Act and the Bihar Land Reforms Act. The legal principle is that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and hound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be earned to its logical conclusion (vide Lord Justice James in In re Levy; Ex Parte Walton (1881) 17 Ch. D. 746. In East End Dwellings to Ltd. v. Finsbury Borough Council 1952 AC 109 Lord Asquith, while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observers follows:

"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fast existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

Applying therefore, the statutory fiction created by Section 3 of Bihar Act XLI of 1951 and having regard to the statutory provisions of the Chota Nagpur Tenancy Act, I am satisfied that the properties mentioned in the notification (Annexure A) constitute an "estate" within the language of Section 2(i) of the Bihar Land Reforms Act, and the petitioner is a "proprietor" within the meaning of Section 2(o) of that Act. It follows, therefore, that the notification (Annexure A) is legally valid and operative, and the properties comprised in the notification have passed to and become vested in the State of Bihar under the provisions of Section 3 of the Bihar Land Reforms Act.

8. It was, however, submitted on behalf of the petitioner that the notification (Annexure A) wrongly describes, the petitioner as "tenure-holder" and the properties as "tenure" and, therefore, the notification must be quashee as ultra vires. I am unable to accept this argument as correct. I have already said that the properties mentioned in annexure A are "estates" within the meaning of the Bihar Land Reforms Act, and the petitioner is a "proprietor" within the meaning of that Act, I consider that the description of the petitioner as a tenure-holder and of the properties as tenures in the notification (Annexure A) is a misdescription and cannot render the notification invalid. The principle of the maxim "fala demonstratio non nocet" will apply to this case. The significance of the principle is that where the description is made up of more than one part, and one part is true, out the other false, there, if the part which is true describes the subject with sum cient legal certainty, the untrue part will be rejected and will not vitiate the instrument. But in any event there is another notification of the State Government, dated, the 1st January, 1956, u/s 3A, Sub-section (2), of the Bihar Land Reforms Act, purporting to declare all intermediary interests in the district of Singhbhum and some other districts as having passed to and become vested in the State with effect from the date of the notification. This notification is annexure H to the counter-affidavit and reads as follows:

"Patna, the 1st January, 1956).

No. E VII-1022/56-1 LR. Whereas a proclamation announcing the intention of the State Government to take over all the intermediary interest in the district of Patna, Shahabad, Saran, Muzaffarpur, Bhagalgpr, Santhal Parganas, Ranchi, Singhbhum and Manbhum (excluding Manbhum Sadar Subdivision) was published under notification No. 4381-IR dated the 18th August, 1955, as required by Section (i) of Section 3B of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950);

Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 3A of the said Act, the Governor of Bihar is pleased to declare that all such intermediary interests in the said districts (excluding Mahbhum Sadar Subdivision) have passed to and become vested in the State with effect from the date of this notification.

By order of the Governor of Bihar
S. SAHAY

Deputy Secretary to Government".

I shall assume in petitioner''s favour that the notification dated the 10th May, 1955, which is annexure A, is invalid. But I am definitely of the view that the subsequent notification of the State Government dated the 1st January, 1956, u/s 3A, Sub-section (2), of the Bihar Land Reform Act is legally valid and has the effect of passing the title to and vesting it in the State of Bihar with effect from the 1st January, 1956. For the reasons I have expressed I hold that the petitioner has made out no case for grant of a writ against the respondents under Article 226 of the Constitution. The application fails and is accordingly dismissed with costs. Hearing fee Rs. 250/-.

Untwalia, J.

9. I agree.