judgement:
iminal Appeal No. 55 of 1965.
Appeal by special leave from the judgment and order dated June 16, 1964 of the Calcutta High Court in Criminal Misc.
Case No. 28 of 1964.
Debobrata Mukherjee and P. K. Chakravarty, for the appel lants.
D. N. Mukherjee for P. K. Bose, for respondent No. 1.
Niren De, Solicitor General, B. Sen and G. section Chatterjee, for the intervener.
Hidayatullah, C.J.
The five appellants are District Magis trate of Nadia and his four assistants who have been found guilty of contempt of the High Court of Calcutta and the Sessions Court of Nadia and sentenced to fines with imprisonment in default of payment.
They now appeal by special leave granted by this Court.
The facts are long and need a full narration.
306 One Birendra Kumar Sarkar, Sub Agent of Phosphate Co. Ltd. Krishnagar, District Nadia, was prosecuted for contravention of the Fertiliser Control Order, read with section 7(1) of the Essential Commodities Act and on his own plea was convicted and sentenced to Rs. 20 fine or simple imprisonment for 10 days.
We are not concerned with his conviction.
The fertiliser seized during investigation was sold by order of the Court and the sale proceeds held in deposit.
On the conviction of Birendra Kumar the amount in deposit (Rs. 4,215) was directed on March 11, 1963 to be returned to him.
The same day the Phosphate Co. Ltd. applied to take out the amount and the Magistrate reversed the earlier order and directed that the amount be paid to the Company.
Birendra Kumar appealed to the Sessions Judge, Nadia under section 520 of the Code of Criminal Procedure.
This appeal succeeded and on December 23, 1963, the Sessions Judge directed the Magistrate to deliver the amount to Sarkar upon his furnishing security and executing a bond to the satisfaction of the District Magistrate, Nadia.
On January 3, 1964 Sarkar produced a certified copy of this order and asked to be allowed to take out the amount and furnished a bond.
The bond was found in order by N. C. Mookherjee, Magistrate 1st Class, who recommended its acceptance.
It was then accepted by A. Sen, Additional District Magistrate, Nadia.
On January 11, 1964 the accountant attached to the Court of N. C. Mookerjee reported and the latter directed issuance of a pay order.
Sarkar received the pay order the same day and deposited it with his bankers (State Bank of India) on January 13, 1964.
On January 8, 1964 the Company expressed to the Sessions Court, its intention of moving an application for revision in the High Court at Calcutta against the order of December 23, 1963 and asked for stay.
Stay was not immediately granted.but notice F was issued to Sarkar to show cause on January 16, 1964.
Later a stay order was also sent.
On January 13, 1964 the High Court issued a rule and also directed stay of operation of the Sessions Judge 's order of December 23, 1963.
It will be seen from the above facts that the actual payment of money was made under the orders of the Sessions Judge passed on December 23, 1963 as far back as January 11, 1964.
The High Court has considered the question of the contempt of the Sessions Judge 's order from the angle of the kind of bond which was accepted, and the Officers who accepted it.
We shall come to it later.
We shall now trace the progress of the orders which were passed by the Sessions Judge and the High Court in proceedings subsequent to January 1964.
For this purpose it is sufficient to extract the summary of the events made by the High Court itself: 307 " The stay order dated 14th of January, 1964 was communicated by.
the Sessions Judge by his Memo.
No. 170 and it was received by the District Magistrates Office on 16th of January, 1964.
On 20th January, 1964 Memo No. 443 Jm.
containing the direction to carry out the order of the Sessions Judge dated 23rd December, 1963 was drafted by Pulak Kumar De and it was signed by another Magistrate Shri Jyotirmoy Ghose.
On 22nd January, 1964 on which date the Rule issued by this Court in Criminal Revision No. 60 of 1964 was also received in the District Magistrate 's Office.
It was sent to the trial Magistrate 's Court with Memo No. 549 Jm.
only on 29th January 1964 and was received in the trial Magistrate 's Court on 30th January, 1964.
In the meantime Sessions Judge 's Memo No. 170 that had been received in the District Magistrate 's Office on 16th of January 1964 was also dispatched to the trial Magi strate 's Court on 29th of January, 1964 by Memo.
No. 554 Jm.
and the trial Magistrate received it on 30th January, 1964.
Sessions Judge 's Memo.
No. 108 dated 11th January, 1964 which was received in the District Magistrate 's Office on 15th January, 1964 and is said to have be en dispatched to the trial Magistrate 's Court on 22nd January, 1964 with Memo.
No. 443 Jm.
is said to have been received by the Bench Clerks of the trying Magistrate on 25th January, 1964 and put up before the Magistrate only on 1st February, 1964.
" On the above facts the High Court framed the following questions: "(1) Has there been disobedience of the order of the Sessions Judge, Nadia that money should be given to Birendra Kumar Sarkar on a Bond to the satisfaction of the District Magistrate, Nadia ? (2) Was the Bond upon which pay order for the money had been made a document that complies with the order for the Sessions Judge of Nadia dated 23rd December, 1963 ? (3) Was Memo.
No. 443 Jm.
dated 20th January, 1964 directing to carry out Sessions Judge 's order dated 23rd December, 1963 after the order of stay made by the Sessions Judge on 14th January, 1964 was received in the District Magistrate 's office on 16th January 1964 by Memo.
No. 108 dated 11th January 1964 an intentional violation of the stay order? The first two questions were treated as interconnected and dealt with together.
The High Court found fault with the bond 308 and also opined that none else save the District Magistrate could accept the bond.
With all respect, the High Court erred on both the aspects.
The bond is reproduced below ': "BOND A bond is made this day by Sri Birendra Kumar Sarkar son of late Bilash Chandra Sarkar of Chand Sarkar, Krishnagar, Dt.
Nadia is hereby agreed and received Rs. 4,125 (Rupees four thousand one hundred and twenty five only) which has been deposited in the court in connection with G.R. Case No. 338 of 1961 and the said amount has been ordered by the Sessions Judge of Nadia in case (Criminal Appeal No. 75 of 1963), 1 Birendra Kumar Sarkar s/o late Bilash Chandra Sarkar bind myself and my heirs, executors, administrators and representatives to refund the entire money if disputes arises to the Government of West Bengal or its successors.
I bind myself, my heirs, executors, administrators and representatives firmly by this bond signed in my own hand dated this the 3rd day of January, 1964.
Sd/ Birendra Kumar Sarkar, 3 1 64 Signature of the executant Signed in my presence and identified.
Rajendranath Biswas, Muktear.
Krishnagar, 3 1 64" Now it is admitted that there is no prescribed form of bond applicable to the case.
The form had to be devised for the purpose.
The bond which was taken in an ordinary indemnify bond.
There is nothing in the words of section 517, Criminal Procedure Code, which excluded the use of an indemnity bond.
The Sessions Judge did not order that the bond should be taken in the name of any particular court.
A bond in the name of the Government of West Bengal substantially (if not wholly) complied with the order of the Sessions Judge.
It could be enforced against Sarkar without any trouble.
The further point that the District Magistrate alone could accept the bond ignores the powers of the Additional District Magistrate under the Code of Criminal Procedure.
The practice of courts in Bengal is also against the proposition because such bonds are usually considered for acceptance by Additional District Magistrates.
The High Court apparently thinks that the District Magistrate was a persona designate for the purpose.
We are unable to read such an inference in the order of the Sessions Judge which ran: 309 "The learned Magistrate be directed to deliver the sale proceeds which are now deposit (sic) in Court to the accused on the accused 's furnishing, bond of the amount covered by the sale proceeds to the satisfaction of the District Magistrate, Nadia.
" In our judgment the High Court could not base any action on such material.
It may be pointed out that the High Court did not throw into the balance the acceptance of the bond by the Additional District Magistrate holding that there was room for an error there but took serious note of the fact that the bond was not in the proper form.
We do not agree with the High Court.
This brings us to the last question.
The fact here is that the orders took some time before reaching their destination.
While we do not condone such delays, we think that the High Court was taking too strict a view of the matter.
Two things seems to have played a prominent part in the drawing of the inference against the concerned officers.
The first is that there was an intentional disobedience of the orders.
This the High Court visualised in the following terms: "That by itself bespeaks of a well throughout (sic) scheme to achieve an end and that end is the cherished goal to make over the money to Birendra Kumar Sarkar by violating the stay order of the Sessions Judge dated 14th January, 1964.
For carrying out that scheme the file in which the order sheet started on 3rd January, 1964, was started separately and to seclude the features in that file it was withheld from this Court when return was made to the Rule in Criminal Revision case No. 60 of 1964 until it was thought useful for making a defence in this Contempt Rule.
No other view of the matter could be suggested by the three learned Advocates appearing for the, several parties or the learned Advocate for the State, Mr. Fanindra Mohan Sanyal, and no other view is possible.
Now it seems quite impossible to subscribe to this opinion.
For a conspiracy to be hatched there must be some foundation of gain or purpose.
The conspirators (if they knew anything) would at least know that there was nothing to be gained by delaying the orders since the money was already paid out.
Once that had happened some fresh order would be necessary to demand back the amount from Sarkar or the bond would be enforced.
The stay orders were ineffective since there was nothing to stay.
To think that the officers (one and all) were actuated by a motive to frustrate the stay orders is to imagine a state of affairs for which there was no warrant at all.
There was thus no question of undermining the authority of the Court of Sessions Judge ' or 310 of bringing the 'administration of justice in the District of Nadia to ridicule '.
Nor can it be said that there was a deliberate interference with or obstruction to due course of justice.
There was no doubt some delay but that was a different matter and could be dealt with in other ways than punishment for an ;Imaginary contempt of court.
The second point which the High Court unfortunately placed at the very forefront was failure to offer an apology and noted with great show of emotion that none was offered.
Of course, an apology must be offered and that too clearly and at the earliest opportunity.
A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt.
However, a man may have the courage of his convictions and may stake his all on proving that he is not in contempt and may take the risk.
In the present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded.
The High Court was extremely hard upon the appellants in this case.
Details collected from the files of the case having no bearing upon the question of contempt were freely used.
They carry no convincement.
There are observations which in their tone do show that the matter was not approached in that cool manner in which the High Court considers contempt of itself or of courts subordinate to it.
This is a matter of regret to this Court.
A question whether there is contempt of court or not is a serious one.
The court is both the accuser as well as the judge of the accusation.
It behaves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals.
It is only when a clear case of contumacious conduct not explainable otherwise, arises that the condemner must be punished.
It must be realised that our system of courts often results in delay of one kind or another.
The remedy for it is reform and punishment departmentally.
Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one 's duty and in defiance of authority.
To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.
In this case, no doubt there was some avoidable delay but as pointed out above it was the result of our system of transmission of orders of superior courts which must pass through several hands and not the product of design or defiance of the superior courts.
In these circumstances, it cannot be said that there was contempt of the authority of the High Court or of the Sessions Judge and the several appellants could not be convicted or punished.
In 311 this view of the matter we set aside their convictions and order refund of their fines.
We, however, caution all concerned that orders of stay, bail, injunctions received from superior courts must receive close and prompt attention and unnecessary delay in dispatching or dealing with them may well furnish grounds for an inference that it was due to a natural disinclination to deal with the matter born of indifference and sometimes even of contumaciousness.
G.C. Appeal allowed.

summary/full:
S who was Sub Agent of a Phospate company was convicted for a contravention of the Fertiliser Control Order read with section 7(1) of the Essential Commodities Act.
The fertiliser seized during investigation was sold by the order of the Court and the sale proceeds held in deposit.
The trial Magistrate ordered the fertiliser to be returned to the company but S filed an appeal under section 520 of the Code of Criminal Procedure and on December 23, 1963 the Sessions Judge directed the Magistrate to deliver the amount to S upon his furnishing security and executing a bond to the satisfaction of the District Magistrate.
On January 3, 1964 S produced a certified copy of this order and asked to be allowed to take out the amount and furnished a bond.
The Magistrate recommended its acceptance and it was then accepted by the Additional District Magistrate.
On January 11, 1964 the Magistrate directed the issuance of a pay order.
S received it on the same day and deposited it with his bankers on January 13.
The Company meanwhile had filed a revision petition before the High Court and asked the Sessions Judge to stay his order of December 3, 1963.
The Sessions Judge passed an order of stay on January 14.
1964 which was received in the District Magistrate 's office on January 16, 1964.
Even after the receipt of that order in the District Magistrate 's office a communication was sent to the trial magistrate on 20th January,1964 directing him to carry out the Sessions Judge 's order dated December 23, 1963.
The High Court charged the District Magistrate and other appellants for contempt and held that contempt of the Court of the Sessions Judge had been committed because : (a) The Magistrate accepted S 's bond which was not in proper form and thus failed to carry out the Sessions Judge 's order of December 23, 1963; (b) The bond was accepted by the Additional District Magistrate whereas the Sessions Judge had ordered that the bond should be to the satisfaction of the District Magistrate; (c) The District Magistrate directed that the Sessions Judge 's order of December 23, 1963 be carried out although the Sessions Judge 's stay order had been received in his office before that.
The High Court held that there had been gross delay in the communication and execution of the orders of the superior courts by the District Magistrate and the subordinates and that there was a well knit conspiracy to pay the amount in deposit to S in defiance of the orders of the superior courts.
Against their conviction by the High Court the appellants came to this Court.
HELD : (i) There is nothing in section 517 Criminal Procedure Code which excluded the use of an indemnity bond such as was executed in the case.
The Sessions Judge did not order that the bond should be taken in 305 the name of any particular court.
A bond in the name of the Government of West Bengal substantially complied with the order of the Sessions Judge as it could be enforced against S without any trouble [308 F G] (ii) In holding that the District Magistrate alone could accept the bond the High Court ignored the powers of the Additional District Magistrate under the Code of Criminal Procedure.
The practice of courts in Bengal is also against the proposition because such bonds are usually considered for acceptance by the Additional District Magistrate [308 G H] (iii) The High Court went wrong in holding that there was a conspiracy by the officials concerned.
For a conspiracy to be hatched there must be some foundation of gain or purpose.
The conspirators would at least know that there was nothing to be gained by delaying the orders since the money was already paid out.
The stay orders were ineffective since there was nothing to stay.
There was no doubt some delay but it could be dealt with in other ways than punishment for an imaginary contempt of court.
L309 G H,[310 A] In the circumstances of the case the High Court was also wrong in taking into account against the appellants their failure to make an apology.[1310 B] A question whether there is contempt of court or not is a serious one.
The court is both the accuser as well as the judge of the accusation.
It behaves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals.
It is only when a clear case of contumacious conduct not explainable otherwise, arises, that the condemner must be punished [310 F] [The Court, however, cautioned all concerned that orders of stay, bail, injunctions received from superior courts must receive close and prompt attention and unnecessary delay in dispatching or dealing with them may well furnish grounds for an inference that it was due to a natural disinclination to deal with the matter born of indifference and sometimes even of contumaciousness.
[311 A B]


judgement:
APPEAL No. 667 of 1965.
Appeal from the Judgment and Order dated April 28, 1961 of the Madhya Pradesh High Court in First Appeal No. 180 of 1959.
413 S.T. Desai, V.D. Mishra and A.G. Ratnaparkhi, for the appellants.
N. Shroff, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
In this appeal from the decision of the High Court of Madhya Pradesh in First Appeal NO. 180 of 1959 on its file the principal question that arises for decision is as to the market value of the appellants ' orchard acquired under the provisions of Land Acquisition Act 1894 (to be hereinafter referred to as the Act) in connection with the construction of Hirakud Dam in Orissa State.
Several lands in the Raigarh District of Madhya Pradesh were acquired by the Collector of Raigarh in pursuance of the request made by the Government of Orissa.
Among the lands so acquired some of the appellants ' lands were also included.
For those lands the appellants ' claimed compensation in a sum of Rs. 7,95,770/ under various heads but the Special Land Acquisition Officer under two different awards awarded to them a sum of Rs. 59,494/6/ .
The appellants did not agree to the award made by the Special Land Acquisition Officer and at their instance the question of compensation was referred to the District Court of Raigarh under section 18 of the Act.
The Additional District Judge who tried the reference in question enhanced the compensation payable to the appellants to Rs. 3,29,480/ .
In particular he valued the trees in the orchard acquired at Rs. 2,19.220/ .
Aggrieved by the decision of the learned Additional District Judge, the Collector of Raigarh appealed to the High Court of Madhya Pradesh.
In that appeal the appellants filed a memorandum of cross objections praying for the enhancement of the compensation payable to them.
The High Court substantially modified the decree of ,the learned Additional District Judge.
It determined the compensation payable to the appellants at Rs. 1,47,751/7/ with interest as provided in the decree.
Against that decision the appellants have brought this appeal after obtaining a certificate under article 133(1)(a) of the Constitution.
As mentioned earlier the principal question arising for decision is as regards the true compensation payable in respect of the orchard in question.
In that orchard admittedly there were 160 Orange trees, 41 Mosambi trees.
, 250 Gauva trees apart from other trees.
The learned Additional District Judge valued each one of the Orange and Mosambi trees at Rs. 960/ and Gauva tree at Rs. 240/ .
There is no dispute as regards the number of trees in the orchard.
In that orchard apart from the Orange, Mosambi and Gauva trees, there were some other trees but we need not concern ourselves about those trees as no dispute was raised before us either as to .their number or value .
The learned L12 Sup C1/68 12 414 Additional District Judge computed the net income from each Orange tree at Rs. 100/ and of Mosambi at Rs. 70/ to 80/ per year.
He capitalised that income at 12 years ' purchase and thus arrived.
at the compensation payable in respect of those trees.
doing he heavily relied on the oral evidence adduced by the appellants.
We may mention at this stage that there was absolutely no documentary evidence to support the claim of the appellants.
The evidence of the first appellant as well as that of the witnesses did not commend itself to the learned Judges of the High Court.
They opined that the claim of the appellants was a highly exaggerated one and the evidence of the witnesses supporting that claim is unacceptable.
Relying on certain official reports and the pamphlets published by certain individuals as to the yield from Orange, Mosambi and Gauva trees, average span of life of those trees and the market value of Orange, Mosambi and Guava, the High Court re assessed the compensation payable and came to the conclusion that the total value of the trees in the orchard in question could be reasonably fixed at Rs. 58,566/ .
Mr. 8.
T. Desai, learned Counsel for the appellants complained that the High Court was not right in looking into documents which were not a part of the records of the case particularly when his clients had not been given any opportunity to rebut the conclusions ' reached therein.
It appears that these documents were looked into by the learned Judges after the conclusion of the arguments.
If the High Court wanted to take into consideration any fresh evidence, it should have admitted the same in accordance with law.
In that event, the appellants would have got opportunity to rebut that evidence.
That having not been done, we do not think it was open to the High Court to rely on those document.
We accordingly exclude from consideration those documents.
But that is of no assistance to the appellants.
As mentioned earlier, the High Court has refused to rely on the oral testimony adduced in support of the appellants ' claim as regards the value of the orchard.
It is true that the witnesses examined on behalf the appellants have not been effectively cross examined.
It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence.
The Judges are not computers.
In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life.
As Judges of fact, it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities.
We have been taken through the evidence of the witnesses.
We are in agreement with the learned Judges of the High Court 415 that the evidence in question is unacceptable.
It may be that the garden in question was in a very good condition but it must be remembered that the garden was just 2 acres and 49 cents in extent.
It is not possible for us to persuade ourselves to believe that the value of about Rs. 59,000/ allowed by the High Court for that garden is by any measure inadequate.
It is true that the conclusion of the High Court as regards the valuation of the garden rests on inadmissible evidence but the appellants cannot complain about that.
If the evidence adduced by the appellants is rejected as has been done by the High Court then the valuation made by the Special Land Acquisition Officer should have remained but that valuation has been substantially enhanced by the High Court by relying on inadmissible evidence.
The Government had not appealed against that decision.
Therefore the decision of the High Court in that regard stands.
The High Court in our opinion was wrong in disallowing the statutory allowance permitted by section 23(2) over the value of the trees.
The High Court erred in thinking that the value of the trees falls under the secondly clause of section 23 (1).
The first clause of section 23 provides for determining the market value of the land acquired.
Section 3(a) prescribes that "the expression 'land ' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth" ' Therefore the trees that were standing in the land were a component part of the land acquired.
The High Court failed to notice that what was acquired are not the trees but the land as such.
The value of the trees was ascertained only for the purpose of fixing the market value of the land.
On the value of the land as determined, the court was bound to allow the 15% allowance provided by section 23(2) of the Act.
In Sub Collector of Godavari vs Seragam Subbaroyadu and ' Ors.(x) the High Court of Madras held that the trees standing on the land acquired are 'things 'attached to the earth and hence they are included in the definition of land in section 3(a) ' and that definition must apply in construing section 23 of the Act.
It further held that the value of the trees as are on the land when the declaration is made under section 6 must be included in the market value of the land on which the allowance of 15 % should be given under section 23(2) of the Act.
The same view was taken by the Allahabad High Court in Krishna Bai vs The Secretary of State for India in Council(g).
We are satisfied that these decisions lay down the law correctly.
No decision taking a contrary view was brought to our notice.
The only other contention taken on behalf of the appellants is as regards the costs.
Both ,the trial court as well as the High (1)I.L.R. 1907 Mad.p.
(2) (42) I.L.R. 1920 All.
P. 555.
416 Court directed the parties to bear their own costs.
Mr. Desai contended that the compensation awarded by the Land Acquisition Officer having been substantially enhanced by 0those courts, they were bound to award his clients costs to the extent of their success.
Costs are essentially in the discretion of the courts.
Both the trial court as well as the High Court have given good reasons in support of their order as to costs.
The claim made by the appellants was a highly exaggerated one.
The bulk of the evidence adduced by them was found to be unacceptable.
Under those circumstances, the courts thought that the appellants should not be granted any costs, We see no reason to interfere with that order.
In the result this appeal is partly allowed.
In addition to the compensation awarded by the High Court, the appellants will get the statutory allowance of 15% on the value of the trees standing on the acquired land i.e., they will get 15% allowance on a sum of Rs. 58,752/ .
In other respects this appeal fails.
There will be no order as to costs.

dataset_name: IN-Abs

summary/full:
The appellants ' lands consisting of orchards were acquired under the Land Acquisition Act.
1894 and they were awarded compensation.
The appellants, were dissatisfied with the amount, so it was referred to the District Court, which enhanced it.
The respondent appealed to the High Court.
The High Court looked into: documents which were not a part of the records of the case and also did not give any opportunity to the appellants to rebut the conclusions reached on the basis of those documents.
The High Court held that value of the trees fell under the secondly clause of section 23(1) therefore disallowed the 15% allowance permitted by section 23(2) and directed the parties to bear their own costs.
In appeal, this Court, HELD: The High Court was wrong in disallowing the statutory allowance permitted by section 23(2) over the value of the trees in the orchard.
Section 3(a) prescribed that "the expression 'land ' includes benefits.
to arise out of land, and things attached to the earth".
Therefore the trees that were standing in the land were a component part of the land acquired.
The High Court failed to notice that what was acquired was not the trees but the land as such.
The value of trees was ascertained only for the purpose of .fixing the market value of the land.
On the value of the land as determined, the court was bound to allow the 15% allowance provided by section 23(2) of the Act.
[415 D F] Sub Collector of Godavari vs Seragam Subbareyadu & Ors., I.L.R. 1907, Mad.
p. 151, approved.
(ii) The High Court was not right in looking into.
fresh documents.
If the court wanted to take into consideration any fresh evidence, it should have admitted the same in accordance with law.
So these documents ought to have been excluded from consideration, though it was of no assistance to the appellants.
[414 D F] (iii) There was no reason to interfere with the orders as regards costs.
Costs are essentially in the discretion of the courts.
The claim of the appellants was a highly exaggerated one, and the bulk of the evidence adduced by them was found to.
be unacceptable.
Under those circumstances.
the courts thought that the appellants should not be granted any costs.
[416 B]


judgement:
Appeal No. 37 of 1965.
Appeal from the judgment and order dated August 12, 1958 of the Bombay High Court at Rajkot (now Gujarat High Court) in special civil Application No. 55 of 1957.
B. Sen, P.V. Hathi, K.L. Hathi and Atiqur Rehman, for the appellant.
M.V. Goswami, for respondents Nos. 1, 2, 3, 6 and 7.
N.S. Bindra and S.P. Nayar, for respondents Nos. 26 and 27.
The Judgment of the Court was delivered by Bachawat, J.
This appeal raises questions of interpretation of certain provisions of the Saurashtra Land Reforms Act 1951 (Act No. XXV of 1951).
On June 1, 1947 Narendrasinghji the then ruler of the Virpur State granted certain agricultural lands situate within the State to the appellant, his paternal uncle.
On February 11, 1948 Narendrasinghji and the appellant effected an exchange under which the appellant returned the lands at Matiya and Guda to Narendrasinghji and in lieu thereof was granted certain lands in Kharedi.
The lands in Kharedi are the subjectmatter of dispute in this litigation.
On February 17, 1948 the grant was recorded in the "Hak Patrak ' of the Virpur State.
On March 8, 1948 the administration of the Virpur State was assumed by the United State of Saurashtra.
The grant to the appellant was questioned by the Saurashtra Government.
Thereafter at a conference called the Jamnagar Conference, it was arranged between Narendrasinghji and the Government of India that the lands 407 in Kharedi should be regarded as lawfully granted to the appellant subject to the condition that the grantee would not evict the cultivators from the land.
The arrangement was set out in a letter dated November 2, 1949 from the officer on special duty (Integration) Political Dept., to the Secretary, Revenue Department United State of Saurashtra.
The letter stated: "According to the Jamnagar Conference decision as this grant was an exchange, it was acceptable after verification regarding reasonableness of the exchange.
It having been decided on enquiry that the exchange was reasonable, the grant is accepted subject, however, to the liability of the grantee (a) to pay 121/2 % as assessment (b) to see that no cultivator shall be evicted from the land .
The grantee K.S. Digvijaysinghji may kindly be informed of this assessment charge and the other contents of this letter and may be put in possession of the land and allowed to be retained by him subject to the liabilities specified in this letter.
" Though the appellant was not a party to the arrangement, he was: aware of and accepted the arrangement and the condition upon which his grant was confirmed by the Government of India.
Had ' he not accepted those conditions, it was likely that the government would have resumed the grant under the Saurashtra Land Resumption Ordinance No. 84 of 1949 which came into force on January 13, 1950.
The Saurashtra Land Reforms Act came into force on September 1, 1951.
On January 29, 1954 the Government of Saurashtra issued a notification under sec.
15(2) of the Act declaring the appellant to be a Girasdar for purposes of the Act subject to the provisions of sec.
18 thereof.
By a notification dated July 20, 1954 the Saurashtra Government clarified the earlier notification stating that the appellant was a Girasdar subject to the provisions of sec.
18 of the Act, i.e., the condition imposed by the government at 'the time of his recognition that he cannot evict the tenants.
In the meantime the appellant had applied to the Mamlatdar, Kalawad, for an order of allotment of land for personal cultivation under sec.
18 of the Act.
The application was resisted by the tenants who are the respondents in this appeal.
The tenants claimed that they had "char" rights and that in any event the appellant was not entitled to eject them.
The Mamlatdar allowed the application and allotted to the appellant lands out of the holding of four tenants.
An appeal from his order was dismissed by the Deputy Collector, Eastern Division, Halar.
On a revision application filed by the tenants the Bombay Revenue Tribunal set aside these orders and dismissed the application filed under sec.
All the tribunals concurrently found that the tenants did not hold "char" rights.
The Mamlat dar allowed the application under sec.
19 on the ground that the 408 conditions imposed upon the appellant before 'the passing of the Act did not debar him from taking the benefits under the Act.
The Deputy Collector affirmed this order on the ground that by obtaining the order of allotment of lands for personal cultivation the appellant was not seeking to evict tenants 'by exercising his rights as a landlord.
The Tribunal disagreed with the views of the Mamlatdar and the Deputy Collector and observed that as ,the, appellant was aware of and accepted the conditions imposed by the arrangement incorporated in the letter dated November 2.
1949, he was bound by them and his rights in the land were limited by the condition that he could not evict the tenants.
The Tribunal held that the tenants were entitled to ,take advantage the conditions under sec.
18 of the Act and the application under sec.
19 was therefore not maintainable.
The appellant then applied to the High Court of Bombay at Rajkot under article 227 of the Constitution challenging the correctness of the order of the Revenue Tribunal.
The High Court dismissed ,the application.
It held that the conditions incorporated in the letter of November 2, 1949 having been accepted by the :appellant endured for the benefit of the tenants under sec.
18 of the Act.
It also held that the rights of the appellant as Girasdar were restricted by the notification under sec.
2(15) of the Act declaring him to be a "Girasdas" and the appellant was bound by those restrictions.
The present appeal has been preferred by 'the appellant under a certificate granted by the High Court.
It is not disputed that the Government of India had the power to impose upon the appellant the conditions incorporated in the letter dated November 2, 1949 and that the appellant is bound by them.
The government could refuse to recognise the grant made to the appellant by the ruler of ,the Virpur State and to annul the grant.
Had the government annulled the grant, the annulment would have been an Act of State and could not be questioned before the municipal tribunals [see State of Saurashtra vs Jamadar Mohamad Abdulla(1)].
Instead of annulling the grant the government elected to confirm it subject to the conditions incorporated in the letter dated November 2, 1949.
The appellant accepted the grant subject to those conditions and is bound by them.
The question is whether in spite of the conditions incorporated in the letter dated November 2, 1949 the appellant is entitled to allotment of land under sec.
19 of the Saurashtra Land Reforms Act 1951.
The Act was passed for the improvement of land revenue administration and for ultimately putting an end to the Girasdari system.
It makes provisions to regulate the relationship between the Girasdars and their tenants, to enable the latter (1) 409 to become occupants of the land held by them and to provide for the payment of compensation to the Girasdars for the extinguishment of their rights.
Girasdar means any talukdar, bhagdar, bhayat, cadet or mul girasia and includes any person whom the government may by notification in the official gazette declare to be a Girasdar for the purposes of the Act, [section 2( 15)].
It is common case that the appellant is a Girasdar by virtue of the notification of the Saurashtra Government declaring him to be a Girasdar.
The Act overrides other laws.
Save as otherwise provided in the Act, its provisions have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant sand or any decree or order of any court or other authority, (section 3).
Chapter III regulates the relationship of Girasdar with their tenants.
Subject to certain exceptions any person who is lawfully cultivating any land belonging to a Girasdar is for the purposes of the Act deemed to be the tenant, (section 6).
Sections 6 to 17 ' confer on the tenants certain benefits, privileges and immunities in respect of rent, cess, rate, hak, tax, service, termination of tenancy and eviction from dwelling houses.
Particularly section 12 provides that no tenancy can be terminated except in accordance with the provisions of Chapter IV or except on certain specified grounds.
Section 18 provides: "Nothing contained in this Act shall be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever." Section 18 shows that the Act is intended to confer on the tenant fights and privileges which he does not otherwise enjoy or possess under any usage or law in force or any contract, grant, decree or order of a court or arising in any other way.
If the tenant has any fight or privilege apart from the provisions of the Act, he needs no protection under the Act.
He can claim protection under his existing rights and privileges.
His existing rights and.
privileges are not limited or abridged by anything in the Act.
The conditions incorporated in the letter dated November 2, 1949 were intended for the benefit of the tenants.
The tenants can claim the benefit of the condition that the appellant would not evict them.
The condition is annexed to the grant to the appellant.
The right or privilege of the tenant arising out of this condition is a right or privilege arising out of a grant within the meaning of sec.
Tht expression "grant" in sec.
18 is wide enough to take within its sweep a grant by the government to the Girasdar and is not limited to a grant by the Girasdar to the tenant.
410 The next question is whether the rights and privileges of the tenant arising out of the conditions incorporated in the letter dated November 2, 1949 is limited or abridged by an order for allotment of land to the appellant under sec.
19 for personal cultivation.
Chapter IV enables Girasdars to obtain allotment of land for personal cultivation.
Any Girasdar may file an application for such allotment before the Mamlatdar under sec.
19 within certain time.
On making the necessary enquiries the Mamlatdar may pass an order making an allotment of land to ,the Girasdar, [section 20(2)].
After making the order the Mamlatdar has to issue an occupancy certificate to the Girasdar in respect of the deed.
[section 20(3)].
No Girasdar can obtain possession of any land held by a tenant except in accordance with such order, [section 20(4)].
Nothing contained in Chapter IV applies to any land in respect of which a tenant has acquired char or buta hak, (section 27).
Under section 39 the Girasdar may obtain an occupancy certificate in respect of land allotted to him under Chapter IV Section 50(2) provides for execution of orders of the Mamlatdar awarding possession.
Chapter V provides for acquisition of occupant.
y rights by tenants.
Having regard to sec.
30(1) and the proviso to sec.
32(b) the acquisition of occupancy rights by tenants is subject to an order of allotment to the Girasdar under Chapter IV and any occupancy certificate issued to a tenant ceases to be effective as soon as any agricultural land or any portion thereof is allotted to a Girasdar under Chapter IV either before or after the date on which the occupancy certificate issued to the tenant has become effective.
On the strength of the order of allotment of land for personal cultivation under sec.
20(2) the Girasdar is entitled to evict the tenants from ,the land allotted to him.
When the Girasdar applies under sec.
19 for allotment of land for personal cultivation, he seeks to evict the tenants from the land.
Therefore when the appellant filed his application under sec.
19 he sought an order which would enable him to evict the tenants in contravention of the condition of his grant that he would not evict the tenants.
In view of see.
18 nothing in Chapter IV enables him to obtain an order limiting or abridging the rights and privileges of the tenants arising under the condition.
The Mamlatdar could not under sec.
20 ' pass an order which would have the effect of limiting or abridging those fights and privileges.
The appellant had no right to evict the tenants and the Mamlatdar could not pass an order which would enable the appellant to evict them.
The application filed by the appellant under sec.
19 was therefore incompetent.
The appellant as a Girasdar was subject to the provisions of sec.
The declaration in the notification dated January 29, 1954 that he was subject to the provisions of sec.
18 stated what followed from the express provisions of the Act.
Because of sec.
411 18, the appellant was subject to the conditions imposed by the Government at the time of his recognition that he cannot evict the tenants.
The notification dated July 20, 1954 declared the existing disability of the appellant in respect of eviction of tenants.
The application filed by the appellant under sec.
19 was rightly dismissed by the Revenue Tribunal and the High Court rightly refused to interfere with this decision under article 227 of the Constitution.
The appeal is dismissed with costs.
G.C. Appeal dismissed.

summary/full:
In 1947 the Ruler of Virpur State in Saurashtra granted certain agricultural lands to the appellant.
Later these lands were exchanged for others.
In 1948 the administration of Virpur State was assumed by the United State of Saurashtra.
The Saurashtra Government questioned the grant but the Government of India at a conference with the Ruler recognize it as having been lawfully made to the appellant, with the condition that he would not evict the tenants from the lands.
The arrangement was set out in a letter dated November 2, 1949 from the Political Department the Government of India to the Revenue Department, United State of Saurashtra.
Though the appellant was not a party to the arrangement he was aware of and accepted the arrangement and the conditions upon which his grant was confirmed by the Government of India.
The Saurashtra Land Reforms Act came into effect on September 1, 1951.E On January 29, 1954 the Government of Saurashtra issued a notification under section 15(2) of the Act declaring the appellant to be a Girasdar for purposes of the Act subject to the provisions of section 18 thereof, and this was later by another notification, clarified to mean that he was a Girasdar subject to the condition imposed by the Government at the time of his recognition, that he could not evict the tenants.
In the meantime the appellant made an application to.
the Mamlatdar for an allotment of.land for personal cultivation under section 19 of the Act.
This application was allowed by the Mamlatdar but the Revenue Tribunal in revision held that the application under section 19 was not maintainable.
The appellant 's petition before the High Court under section 227 of the Act was dismissed on the grounds that (i) the conditions incorporated in the letter of November 2, 1949 having been accepted by the appellant enured for the benefit of the tenants under section 18 of the Act; (ii) the rights of the Girasdar were restricted by the notification under section 2(15) of the Act declaring him to be a Girasdar and tile appellant was bound by those restrictions.
Against the High Court 's judgment the appellant came to this Court.
HELD: (i) Had the Government of India annulled the grant made to the appellant the annulment would have been an Act of State and could not be questioned before the Municipal Tribunals.
Instead of annulling the grant the government elected to confirm it subject to the conditions incorporated in the letter dated November 2, 1949.
The appellant accepted the grant subject to those conditions and was bound by them.
[408 F] State of Saurashtra vs Jamadar Mohamad Abdulla, , referred to.
406 (ii) The conditions incorporated in the letter dated November 2, 1949 were intended for the benefit of the tenant.
The tenants could claim the benefit of the condition that the appellant could not evict them.
The condition was annexed to the grant to the appellant.
The right or privilege of the tenant arising out of this condition was a right or privilege arising out of a grant within the meaning of section 18.
The expression 'grant ' in section 18 is wide enough to take within its sweep a grant by the Government to the Giraffes and is not limited to a grant by the Girasdar to the tenant.
[409 G H] (iii) On the strength of the order of allotment of land for personal cultivation under section 20(2) the Girasdar is entitled to evict the tenants.
from the land allotted to him.
When the Girasdar applies under section 19 for allotment of land for personal cultivation, he seeks to evict the tenant from the land.
Therefore when the appellant filed his application under section 19 he sought an order which would enable him to evict the tenants in contravention of the condition of his grant that he would not evict the tenants.
In view of section 18 nothing in Chapter IV of the Act enabled him to obtain an order limiting or abridging the rights and privileges of the tenants arising under the condition.
The Mamlatdar could not under section 20 pass an order which would enable the appellant to evict them.
The application filed by the appellant under section 19 was therefore incompetent.
[4 10 F G]