judgement:
Appeal No. 2296 of 1970.
On appeal by Certificate from the Judgment and Decree dated 17th August, 1963 of the High Court of Patna from Original Decree No 248 of 1955 D. Goburdhan for the Appellant J.
P. Goyal and R. A. Gupta for the Respondents The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by certificate under Article 133 (1) (a) of the Constitution arises out of an action in tort for damages 531 for trespass and unauthorised interference by the defendants with the A proprietary interest of the plaintiff.
The defendants were the State of Bihar and J.P. Mukherjee, an officer in the service of the Bihar Government.
The plaintiff, Prithwi Chand Lall Choudhary was the karta of a Hindu joint family which owned extensive properties collectively known as the "Raj Nazarganj".
The said properties were spread over the District of Purnea and some other districts in the State of Bihar as also in the State of West Bengal.
The plaintiff was the recorded proprietor of several tauzis situated in the Districts of Purnea and Monghyr and also the proprietor of several tenures and patnis within the said Districts.
The plaintiff was liable to pay about Rs. 2,50,000 by way of taxes, cesses etc.
annually.
In the year 1949, the Bihar Legislature passed a law known as the Bihar State Management of Estates and Tenures Act, 1949 (Bihar Act XXI of 1949) (hereinafter referred to as 'the Act ') to provide for the management of estates and tenures in the Province of Bihar.
It received the assent of the Governor General on September 29, 1949 and was published in the Bihar Gazette Extraordinary of October 17, 1919.
On the coming into force of the Constitution of January 26, 1950, the Act was certified by the President in exercise of his powers conferred by Article 31 (6) of the Constitution.
The said certificate which was published in Notification No. 43/3/50 Judicial dated March 11, 1950 read as follows: "that the said Act shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of Article 31, or has contravened the provisions of sub section (2) of section 299 of the Government of India Act, 1935.
" Clauses (2) and (6) of Article 31 which are relevant for these cases as they stood at the commencement of the Constitution read as follows: "31. (1) (2) No property, moveable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or 532 acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. . . . . . (6) Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification; and thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of this article or has contravened the provisions of sub section (2) of section 299 of the Government of India Act, 1935.
" A persual of the provisions of the Act shows that it was intended to bring about a reform in the land distribution system of Bihar for the general benefit of the community.
l`he taking over of the management and control over land was found to be necessary as a preliminary step towards the implementation of the Directive Principles of State Policy.
The Act was similar in nature to the Bihar Land Reforms Act (Act XXX of 1950), the constitutional validity of which was considered by this Court in The State of Bihar v Maharajadhiraja Sir Kameshwar Singh of Darbanga Ors (1) The object of the Act was to bring the Government face to face with the cultivators of the soil in order to facilitate the further reform of abolition of zamindari.
It was also intended to make provision for better irrigation facilities and to prevent realisation of excessive rent or revenue from the cultivators.
The Statement of Objects and Reasons of the Act published in the Bihar Gazette said: "For some years past there has been wide spread anti zamindari agitation amongst the cultivators of the province leading to frequent agrarian troubles.
These troubles, as is well known, owe their origin to the feeling of dissatisfaction that the tenants have against the landlords owing to the (1) 533 latter 's failure to provide for the upkeep of irrigational facilities, to the realisation of abwab, to the enhancement of rents and to ejectment from holdings and other similar causes.
The landlord 's apathy towards the upkeep of the irrigational facilities has been considerably accentuated recently on account of the large scale commutation of rents in kind into cash rents.
In the interest of all concerned and particularly in order to further the programme of Grow More Food, it has become necessary to assume the management by Government of estates and tenures.
Hence this Bill.
It is proposed under Government management to make adequate arrangements for saving the cultivators from the harassment to which they are often subjected at present by the amlas of the zamindars, to save them from the ruinous financial drain of litigation for the recovery of arrears of rents and above all to benefit them by providing for irrigation facilities.
After making payment for objects specified in the Bill and reserving a reasonable balance for cost of management, the net surplus will be paid over to the proprietors.
" Section 3 to 5 c f the Act were in Chapter 11 of the Act.
Section 3 provided as follows : "3.
(1) The Provincial Government may, by notification declare that the estates or tenures of a proprietor or tenure holder, specified in the notification, shall be placed under the management of the Provincial Government, and on the publication of the said notification, the estates or tenures of such proprietor or tenure holder shall, so long as the notification remains in force, be deemed to have been placed under the management of the Provincial Government with effect from the date of the commencement of management.
(2) The notification under sub section (1) shall (a) specify such particulars of the estates or tenures as may be prescribed; (b) specify the period for which the estates or tenures shall be placed under the management of the Provincial Government; and 534 (c) vest the management of such estates or tenures in a person who shall be an officer not below the rank of Deputy Collector (hereinafter called the Manager) (3) The notification under sub section (1) shall be published in the Official Gazette and a copy of such notification shall be sent by registered post, with an acknowledgment due, to the proprietor of the estates recorded in the general registers of revenue paying or revenue free lands maintained under the Land Registration Act, 1876, or in case such estates are not recorded in any such registers, and in the case of tenure holders, to the proprietor or tenure holder of the estates or tenures, as the case may be, if the Collector of the district is in possession of a list of Such proprietors or tenure holders together with their addresses (4) The publication and posting of such notification, where such notification is sent by post, in the manner provided in sub section (3), shall be conclusive evidence of the notice of the declaration to the proprietor or tenure holder whose estates or tenures are affected by the notification under sub section (1) and of the service of such notice on the proprietor or tenure holder 7 ' Section 4 of the Act laid down the consequences of the issue of a notification in respect of any estate or tenure.
It provided inter alia that (a) the proprietor or tenure holder shall cease to have any power of management of his estates or tenures and (b) subject to the provisions of sections 7, 8, 9, 10.
11 and 12, the Manager shall take charge of such estates or tenures together with such buildings, papers and other properties appertaining to the estates or tenures, as in the opinion of the Manager are essential for the proper management of the estates or tenures.
Section 5 of the Act read as follows: "5.
The Manager may, by a written order, require the proprietor or tenure holder or his agents and employees on a date to be specified in such order to produce before him such documents, papers or registers relating to the estates or tenures of such proprietor or tenure holder or to furnish him with such information as the Manager may deem necessary for the management of the estates or tenures: 535 Provided that the proprietor or tenure holder shall have A the option to comply with such written order either himself or through authorised agent." Chapter III of the Act contained the special provisions regarding trust estates or tenures, homesteads and lands used for agricultural and horticultural purposes and certain buildings comprised in estates or tenures placed under the management of the Provincial Government.
Chapter IV of the Act authorised the removal of mortgagees and lessees in possession of an estate or tenure.
Chapter V contained provisions regarding the filing of claims by secured creditors and other persons in possession of the estate or tenure, determination of liabilities and preparation of scheme for their liquidation.
Chapter VI of the Act provided for the filing of claims by creditors other than secured creditors.
Chapter VII made provisions for granting protection from sale of certain estates.
Chapter VIII of the Act contained detailed provisions regarding the management of the estates by the Manager.
Section 22 of the Act which was in Chapter VIII provided that 'every Manager shall manage the property committed to him diligently and faithfully and shall, in every respect, act to the best of his judgment '.
Chapter IX of the Act provided for an appeal to the order of prescribed authority against the Manager.
Chapter X made provision for the constitution of Estates and Tenures Management Advisory Committee and their functions.
Sections 30 and 31 of the Act which were in Chapter XI of the Act barred the jurisdiction of courts regarding matters referred to therein.
They read as under: "30.
Notwithstanding anything contained in any law or anything having the force of law, the declaration of the Provincial Government under sub section (1) of section 3 and the order of the Manager under sub section (1) of section 13 or where on appeal has been preferred, the order of the appellate authority under section 27, shall, subject to the provisions of this Act, be final and shall not be questioned in any Court; and so long as the management of the estates and tenures by the Provincial Government continues, it shall not be lawful for any court to pass any order or do anything which may in any way interfere or have the effect of interfering with such management by the Provincial Government.
No suit or other legal proceeding shall lie in any court against the Crown or any servant of the Crown or 536 against any person acting under the orders of a servant of the Crown for, or on account of, or in respect of, anything done or purporting to be done in good faith under this Act or in respect of any alleged neglect or omission to perform any duty devolving on the Provincial Government or any of the officers subordinate to it and acting under this Act or in respect of the exercise of, or the failure to exercise, any power conferred by this Act, on the Provincial Government or any officer subordinate to it and acting under this Act, except for the loss or the misapplication occasioned by the wilful default or gross negligence of any officer of the Provincial Government." Chapter XII of the Act contained some miscellaneous provisions regarding suits and appeals by or against the proprietor or tenure holder during the period of management by the Government.
Section 33 in Chapter XIII of the Act provided for relinquishment of management of an estate taken over by the Government and other consequential matters.
The other parts of the Act contained provisions regarding other miscellaneous matters.
By a notification dated November 19, 1949 issued under section 3 (1) of the Act the estate of the plaintiff i.e. the 'Raj Nazarganj Estate ' was taken under the management of the State Government.
J P Mukherjee, defendant No. 2, who was the Additional Collector of Darbhanga, was appointed as the Manager of the said estate.
In the meanwhile the Maharajadhiraja of Darbhanga, Sir Kameshwar Singh filed a suit in the Civil Court challenging the validity of the Act as his estate also had been similarly notified under section 3 (1) of the Act.
That suit was withdrawn by the Patna High Court being tried in its Extraordinary Original Civil Jurisdiction.
That suit was decided on June 5, 1950.
The judgment of the High Court in that suit is reported as M.D. Sir Kameshwar Singh vs State of Bihar.(1) By that judgment the Patna High Court declared that the Act was ultra vires and wholly void and an injunction was issued restraining the State Government from enforcing the Act.
Against that judgment, the State of Bihar preferred an appeal before this Court.
But the plaintiff in the case before us, however, on the basis of the judgment of the High Court demanded on June 9, 1950 that he should be put back in possession of the estate whose management had been taken over from him.
On July 3, 1950 the then Collector by his letter informed the plaintiff (1) I.L.R. '29 Patna 790.
537 that the Government had decided to relinquish charge of the estates A and tenures of the plaintiff and that the plaintiff should cooperate in taking over charge by July 15, 1950.
On July 6, 1950 the Government had already cancelled the notification s issued under section 3 (1) of the Act.
The charge of collection papers was handed by the middle of July, 1950.
The abstracts and synopsis of accounts were given on August 7, 1950.
About Rs. 1, 46,00" had been collected on behalf of the estate during the Government 's management.
After the estate was thus handed over to him, the plaintiff filed a suit on September 21, 1951 in the court of the Subordinate Judge, Purnea for damages of Rs. 2,00,000 for wrongful and illegal interference with the plaintiff 's estates and tenures and for other consequential reliefs.
The plaint proceeded on the basis that the Act was unconstitutional as declared by the High Court earlier and that taking over of the possession and management of the estate etc.
was illegal.
The plaintiff pleaded that the Act having been declared void, the defendants were liable for not only the amount of loss actually suffered by the plaintiff but were also liable to recoup the amount spent by them during their management of the estate which was wrongful.
It was alleged that the action of the defendants suffered from negligence, bad faith and malice.
The plaint claimed that the defendants were liable jointly and severally as tort feasors for all such losses suffered by him.
In paragraph 27 of the plaint the plaintiff set out broadly the grounds of his claim thus: (a) that due to gross negligence and wilful default the defendants contravened the provisions of section 3 (1) in notifying and taking possession of part only of plaintiff interests in Estates and Tenures and in omitting to notify other parts of his Estates and Tenures on the first occasion when the notification dated November 19, 1949 was issued the Government was unable to realise all the rents and other dues, (b) that due to wrong notification and omission to notify all parts of his Estates and Tenures and also on account of amalgamated rentals maintained by the plaintiff in respect of his estates and tenures, the plaintiff could not fully realise the balance share of unnotified estates and tenures, (c) that certain rents and decrees had been allowed to become barred by time and (d) that on account of non payment of Agricultural Income Tax and consequent imposition of penalty which was no doubt reduced to Rs. 2,000 on appeal the Estate suffered a loss of Rs. 2,000 He also pleaded that on account of the issue of wrong collection certificates by defendant No. 2 and his staff the plaintiff had suffered some loss which was yet to be ascertained.
538 In the written statement the defendants traversed all the material allegations in the plaint.
They pleaded inter alia that the notification was issued in November, 1949 on the basis of the requisition of the Collector, P.K.J. Menon and that defendant No. 2 was appointed as Manager by that notification.
The allegations of negligence, bad faith and malice were denied.
The defendants pleaded that on the basis of information available in the records of the Government the notification was issued in November, 1949 and at the request of the plaintiff after verification second notification was issued on March 16, 1950, and that plaintiff requested for the issue of the second notification in order to escape the processes of law which had been taken out against him by his creditors and to shield his entire properties from the creditors.
In fact the Government appointed the very collecting agents who were working under the plaintiff and after the management was handed back he reappointed them as his collecting agents.
The plaintiff had accepted without protest the final accounts which had been prepared at the end of the period of management.
Tauzis Nos. 7/8, 30 and 38 about which there was some dispute remained all along with the plaintiff and the collection papers pertaining to them were made over to defendant No. 2 only in the latter part of April, 1950 and if no collection could be made prior thereto in the said area till then the defendants could not be blamed.
The defendants pleaded that they had bona fide carried out their duties.
One fact which requires to be noted here is that the plaint did not have any reference to the effect of section 31 of the Act which is set out above, but it proceeded on the basis that the Act was unconstitutional.
At the conclusion of the trial, the trial court held that the cost of management incurred by defendant No 2 over and above 12.1/2% of gross collection was excessive and the dependents should refund such excess amount.
Secondly, it held that the mistake in not notifying all the shares held by the plaintiff in Tauzis Nos. 718 and 3 at the first instance resulted in non collection of the dues and the plaintiff thereby had suffered.
The trial court held that the defendants being trespassers, the plaintiff owed no duty to them to make available to them the separated Jamabandi to facilitate collection of dues in the said Tauzis.
The trial court, therefore, held that the defendants should reimburse the plaintiff the amount he would have been able to collect from those tauzis during the period of their management.
Similarly, the defendants were liable to make good the loss caused on account of arrears or decrees which had been allowed to become barred.
The trial court directed that a commissioner should enquire into the above items.
Accordingly a preliminary decree was passed.
539 Against the said preliminary decree the defendants filed an appeal before the High Court.
When the appeal came up before a Division bench of the High Court, the defendants contended that the decision of the High Court in which the Act had been declared as unconstitutional required to be reconsidered by the High Court in view of some later decisions of this Court.
Accordingly the Division Bench referred the case to a larger Bench on July 14, 1962.
The case was then heard by a Full Bench of five learned Judges of the Patna High Court.
By its judgment dated February 15, 1963 the Full Bench overruled the earlier decision in MD.
Sir Kameshwar Singh vs State of Bihar (supra) and declared that the Act was constitutional.
The appeal was then referred back to the Division Bench for disposal in accordance with the opinion of the Full Bench.
The Division Bench which finally heard the appeal was of the view that though it was open to the State to notify only a fraction of an estate under section 3 (1) of the Act yet the defendants were not absolved from the duty of taking appropriate steps for the preparation of suitable collection papers in respect of the notified shares in Tauzis Nos. 718 and 300.
It held that the defendants were liable to compensate the plaintiff for not preparing the collection papers in time.
The Division Bench further held that even though the plaintiff had been told to file suits for rents in respect of unnotified share of the estate, the defendants were negligent in the matter of issuing certificates for recovery, some Of which were later on struck off.
The Division Bench also held that the material on the record did not indicate that necessary steps were taken by defendant No. 2 with regard to pending suits and execution proceedings and there was every 17 probability that loss had been suffered by the plaintiff on account of the inaction or failure to continue pending proceedings which amounted to wilful default and gross negligence.
The Division Bench agreed with the trial court that the defendants were liable to reimburse the plaintiff to the extent of Rs. 2,000 levied as penalty for non payment of Agricultural Income Tax.
In so far as the cost of management of Rs. 43,507 which was in the order of 30 per cent of the gross collection was concerned while the trial court had allowed 12.112 per cent, the Division Bench allowed 25 per cent of the gross collection.
In other words the Division bench found that about Rs. 8,000 had been incurred as cost of management in excess of what was authorised.
The Division Bench found that the plaintiff was entitled to it.
The Division Bench held that section 31 of the Act did not give protection in respect of loss which was caused by wilful 540 default and gross negligence.
The appeal of the defendants was accordingly dismissed.
The cross objections of the plaintiff regarding certain matters disallowed by the trial court were also dismissed Aggrieved by the decree passed by the High Court, the State of Bihar applied for a certificate under Article 133 (1) (a) of the Constitution in S.C.A. No. 137/63 on the file of the High Court to file an appeal before this Court.
On the HIGH Court granting the certificate accordingly on December 10,1961, the State of Bihar has filed the above appeal.
The plaintiff also applied for a similar certificate in S.C.A No. 1/64 on the file of the High Court to file an appeal against the decree in so far as it had gone against him.
The High Court granted in his case also a similar certificate by She same order on December 10,1964 but the said certificate was later on cancelled by the High Court on July 6, 1965.
Thus the said proceedings came to an end.
We are now concerned with only the appeal field by the State of Bihar.
In this appeal, the constitutionality of the Act is not questioned before us.
On going through the record of the case, we find that the following facts are established.
The notification issued on November 19,1949 under section 3 (1) of the Act referred to the name of the proprietor, the name of the estate, tauzi numbers of the estate and the share of the proprietor in the tauzis.
Defendant No. 2, J.P. Mukherjee who was then the Additional Collector of Purnea was appointed as the Manager of the estate.
On December 14, 1949, the plaintiff was informed by the Collector at Purnea that the management of the estate was to commence from December 30, 1949 and that he should produce before the Manager a list of villages included in the estate and also the Jamabandis, Karchas and Wasil Baukis upto date before December 27,1949 and also to make over a complete and clear list of the papers showing Jamabandis of each village, the arrears collected and the arrears outstanding before the commencement of the management under the Act.
He was requested to cooperate in the matter and was also informed that if he did not do so the responsibility for any loss would be his.
On December 27, 1949 the plaintiff wrote a letter to the Collectorate.
In that he stated that the work of handing over papers properly of a big and complicated estate was not an easy task and it would certainly take a considerable number of days to complete it.
He pointed out that the Government had committed an error in taking over the management of only 2A 11A 2C 2K 541 share out of Tauzi No 7/8 under the notification, because the collection papers had been maintained for 5 12. 1 /2 and odd share in respect said of the said tauzi.
He pleaded that unless the whole of 5 12.1/2 share was notified, the work of separation of the notified share from the notified share could not be completed even within a period of six months.
He, therefore, asked for the modification of the notification.
Then we find that the plaintiff had met the Collector many times when the affairs of the estate were discussed.
On March I 1,195 ', the Collector wrote the following letter to the plaintiff: "District Office, Purnea The 11th March.
1950 My dear Raja Saheb, 1.
With reference to our discussions on the 7th March.
1950, the following action may be taken with regard to the notified and unnotified portions of your estate as agreed to between us.
We will not be taking over the unnotified portion until the notification is made.
As soon as a notification is made we will take over these portions.
Meanwhile in order to see that no limitation occurs with regard to any rent payable to you, you are requested to prepare a copy of arrear list for the unnotified portions.
With regard to Tauzi No. 7, sufficient number of Tahsildars and other staff required may be employed after selection on the 14th of March, 1950, at Kishanganj, by the Additional Collector and by your Circle Officer.
A certain number of these, according to the proportion that is notified will be selected by the Additional Collector and paid by Government.
You are requested to employ a certain number according to the proportion of the unnotified interest.
These staff together may be put on the job of preparing the arrear list.
If notification is made before the Tamadi Day, we will arrange to issue certificates in respect of arrears due.
however, notification for some reason or other is not made, 542 then we will arrange to file joint suits for these arrears before the Tamds Day.
Yours sincerely, sd/ (Illeg ) 13/3 Raja P.C. Lal Choudhuri, C.B.E. Nazarganj Palace, Purnea City. " A supplementary notification was issued on March 16, 1950 as desired by the plaintiff.
Then we find that there is some further discussion and correspondence between the plaintiff and the Manager.
On April 7,1950, the Manager wrote to the plaintiff that he had been able to persuade the Government to advance Rs. 35,000 to meet the expenses of suits to be field for recovery of rents due to the estate.
The plaintiff replied to that letter on the same date appreciating the step taken by the Government in advancing Rs. 35,000 as loan to the estate.
On April 14,1950, the Manager sent a telegram to the plaintiff stating that since he had not cooperated in sending the previous records of cases in time in respect of Tauzi No. 7/8, it was not possible to file joint suits in respect of both the notified share and the unnotified share and that he was responsible for filing Tamadi suits in respect of the unnotified share in Tauzi No. 718.
The defendant No. 2 in his evidence has stated that he could not make any collection in Tauzis Nos. 7/8 and 30 prior to the second notification because the collection papers were with the plaintiff and they were actually received by him on April 24,.1950.
In the lengthy cross examination of defendant No. 2 we do not find any material which would discredit his evidence or which would show that he had either acted in excess of his powers or mala fide.
We also find that a large number of suits had been filed for recovery of the arrears due to the estate and merely because some of the suits were dismissed on merits or on the ground that some of the persons sued were dead or not traceable, it cannot be said that there was lack of bona fides on the part of the Manager.
By the middle of July, 1950, the management of the estate itself was relinquished.
From the foregoing, we find that it could not be said that there was want of good faith on the part of either the Government or defendant No. 2 who was the Manager.
If a certain share in a tauzi had not been notified on the first occasion it again cannot be said as having been done either mala fide or deliberately to harm the plaintiff.
We shall now deal with the specific findings recorded by the Division Bench of the High Court.
543 The first ground on which the Division Bench has held that the A defendants were liable to pay damages is that defendant No. 2 had failed to get the collection papers prepared in respect of Tauzis Nos. 7/8 and 30 in time and thus caused loss to the plaintiff.
it may be stated here that the Division Bench accepted and we think rightly in view of the definition of the expression 'tenure ' in section 5 of the Act that it was open to the Government to notify even a fraction of a tenure under section 3 (1) of the Act It, however, omitted to notice that the plaintiff had failed to discharge his duty imposed on him under section 5 of the Act which provided that the Manager could by a written order require the proprietor or tenure holder or his agents and employees on a date to be specified in such order to produce before him such documents or papers or registers relating to the estate or tenure concerned or to furnish him with such information as he may deem necessary for the management of the estate or tenure.
In the present case defendant No. 2 did call upon the plaintiff to submit the documents from which it was possible to find out the ability of persons in respect of the notified share in Tauzis Nos. 718 and 30.
The plaintiff pleaded that he had not maintained such separate set of ' accounts and that it would take a long time to prepare it.
He, how ever, produced the registers by the end of April, 1950 only, after the remaining shares were also notified.
Hence if the collection papers were not prepared till then by defendant No 2 in time it was not on account of any negligence on the part of defendant No. 2.
On the other hand he recommended that the unnotified share also should be notified as desired by the plaintiff and such notification was also issued.
By the time steps could be taken to prepare the collections papers the Act had been struck down by the High Court.
Then steps were taken to hand over the estate back to the plaintiff.
It is difficult to agree with the High Court that there was any wilful default or gross negligence on the part of defendant No. 2 in this regard.
With regard to the charge that defendant No. 2 had filed a large number of certificate cases, some of which were later on struck off, the observation of the High Court itself supports that there was no negligence on the part of defendant No. 2 but on the other hand the plaintiff was responsible for it.
The High Court has observed thus: "It appears that it was on the basis of some arrears list submitted by the plaintiff of defendant No. 2 and without subjecting it to proper scrutiny, that a large number of certificate cases were hurriedly filed by the defendants at the time of the Tamadi in the middle of April 1950, and, it was.
544 therefore, not strange that quite a large number of them had subsequently to be struck off, with the result that a considerable portion of the arrears of rents and profits of the plaintiff 's estate remained unrealised and became time barred.
It is manifest that the loss caused to the plaintiff 's estate on this account was due to the inaction of defendant No. 2 amounting to wilful default and gross negligence on his part.
The responsibility for such loss must undoubtedly lie with the defendants." (underlining by us) The High Court omitted to notice that the certificate cases had been filed though hurriedly on the basis of the arrears list submitted by the plaintiff, himself.
In the circumstances it is difficult to charge defendant No. 2 with wilful default or gross negligence on a complaint by the plaintiff.
Further the High Court did not refer in the course of its judgment at least to a few such cases which showed that there was gross negligence.
The High Court overlooked that nearly 7,000 certificate cases had to he filed in a short period.
On the material before us we are not satisfied that the above ground has been made out against the defendants.
The third ground that defendant No. 2 had not diligently attended to any pending proceeding is also not made out since no specific case is dealt with by the High Court which prima facie established that charge.
With regard to the penalty of Rs. 2,000 imposed for non payment of the Agricultural Income Tax it is seen that a penalty of Rs. 5,000 was first imposed as the plaintiff was unable to pay the Agricultural Income Tax in time because he could not collect arrears in time.
In fact on the intervention of the Collector it was reduced to Rs. 2,000.
Even then it was too remote to the management of the notified estate by defendant No. 2.
The trial court had held that it was due to the issue of a wrong notification at the first instance.
But when once it is conceded that the first notification was not an unauthorised one the defendants could not be held liable for reimbursing the penalty of Rs 2,000 paid by the plaintiff.
In so far as the cost of management is concerned, the dispute is confined to about Rs. 8000.
It is seen that the estate had to be returned prematurely to the plaintiff Owing to the judgment of the High 545 Court declaring the Act as unconstitutional within a period of about seven months.
But since defendant No. 2 had offered to refund any expenditure incurred in excess of 25% of the gross collections to the plaintiff, defendant No. I has to pay back Rs. 8,000 to the plaintiff.
It is seen that in present case while the trial court proceeded on the basis that the Act was unconstitutional that the defendants were trespassers on the plaintiff 's estate and that the plaintiff owed no duty to them, the Division Bench of the High Court which finally disposed of the appeal failed to give due attention to section 31 of the Act which had been held to be constitutional earlier.
Section 31 of the Act provided that no suit or other legal proceeding would lie in any court against the State Government or against any servant of the State Government or against any person acting under the orders of a servant of the State Government for or on account of or in respect of anything done or purporting to he done in good faith under the Act or in respect of any alleged neglect or omission to perform any duty devolving on the State Government or any of the officers subordinate to it or acting under the Act or in respect of the exercise of or on failure to exercise any power conferred by the Act on the State Government or any officer subordinate to it and acting under the Act, except for the loss or the misapplication occasioned by the wilful default or gross negligence of any officer of the State Government.
Under section 4 (22) of the Bihar and Orissa General Clauses Act, 1917, a thing shall be deemed to be done in 'good faith ' where it is in fact done honestly, whether it is done negligently or not.
There is no ground to hold that either the State Government or any of the officers acting under it in performance of their duties under the Act had not acted honestly either in issuing the notification under section 3 (l) of the Act on November 19,1949 by which only parts of Tauzis No. 7/8 and 30 had been notified or in not preparing separate collection statements before April, 1950.
the mistake appears to have occurred because the plaintiff himself had acquired the said Tauzis in installments.
Further as soon as the error was pointed out steps were taken by defendant No. 2 to get the unnotified share also notified and the Government issued a notification accordingly within about four months.
It is b cause the plaintiff did not hand over even the consolidated collection statements by April, l950, the separate collection statements could not be got prepared by defendant No. 2 by April, 1950 and even according to the plaintiff himself it would have taken six months to prepare separate collection statements on the basis of the consolidated statements.
It is not shown that either the State Government or any of its officers knew before hand that the plaintiff 546 had maintained a consolidated statement of accounts and that deliberately in order to cause loss to the plaintiff the first notification had been issued in respect of a portion of Tauzis Nos. 7/8 and 30.
These facts constituted a good defence under Section 31 of the Act against any claim based on any alleged neglect or omission since there was no proof of any wilful default or gross negligence on the part of the defendants.
There was also no proof of deliberate abuse of statutory power nor of usurpation of a power which the authorities knew that they did not possess.
In the circumstances the claim for damages on all counts should fail except with regard to the claim for Rs. 8,000 which had been incurred as cost of management in excess of what was authorised by law.
For the foregoing reasons, we set aside the judgment and decree by the trial court and the judgment and decree dated August 17, 1963 passed by the Division Bench of the High Court and pass a decree against defendant No. 1, the State of Bihar directing it to pay the plaintiff 's legal representatives a sum of Rs. 8,000/ with interest thereon at 6 per cent per annum from the date of suit i.e. September 21, 1951 till the date of payment.
The rest of the claim in the suit is dismissed.
Parties shall bear their own costs in all the courts.
The appeal is accordingly allowed in part.
S.R. Appeal allowed.

summary/full:
By a Notification dated November 19, 1949 issued under section 3(1) of the Bihar State Management of Estates and Tenures Act, 1949 (Bihar Act XXI of 1949), as duly certified by the President under clause (6) of Article 31 of the Constitution, the estate of the Prithwi Chand Lall Choudhary called "Raj Nazarganj" spread over the District of Purnea and some other districts in the State of Bihar as also in the State of West Bengal, was taken under the management of the Bihar State Government.
One J.P. Mukherjee who was the Additional Collector of Darbhanga was appointed as the Manager of the estate.
In the meanwhile, the Maharajadhiraja of Darbhanga Sir Kameshwar Singh filed a civil suit challenging the validity of the Act as his estate was also similarly notified under the said section.
The Patna High Court withdrew that Suit to its own file for being tried in its Extra ordinary Original Civil Jurisdiction and by its judgment dated June 5, 1950 reported as M D. Sir Kameshwar Singh V. State of Bihar ILR 29 Patna 790, declaring the Act to be ultra vires and wholly void, issued an injunction restraining the State Government from enforcing the Act.
Against that judgment the State of Bihar preferred an appeal to the Supreme Court.
However, on the basis of the judgment of the High Court, Prithwi Chand Lall Choudhary demanded on June 9, 1950 that he should be put back in possession of the estate whose management had been taken over from him.
On July 3, 1950 the then Collector by his letter informed Choudhary that the Government had decided to relinquish charge of the estates and tenures and that Choudhary should co operate in taking over charge by July 15, 1950.
On July 6, 1950 the Government cancelled the Notification issued under section 3(1) of the Act.
The charge of collection papers was handed over by the middle of July, 1950 to Choudhary.
The abstracts and synopsis of accounts were given on August 7, 1950.
About Rs. 1,46,000/had been collected on behalf of the estate during the Government 's management.
After the estate was thus handed over to him, Choudhary filed a suit on September 21, 1951 in the Court of the Subordinate Judge, Purnea, for damages of Rs. 2,00,000 for wrongful and illegal interference with his estates and tenures and for other consequential reliefs, 528 Broadly the grounds of the claim were (a) that due to gross negligence ., and wilful default the appellant herein, contravened the provisions of section 'S 3(1) in notifying and taking possession of part only of Choudhary 's interest in Estates and Tenures and in omitting to notify other parts of his Estates and Tenures on the first occasion when the Notification dated November 19, 1949 was issued the Government was unable to realise all the rents and other dues, (b) that due to wrong Notification and omission to notify all parts of his Estates and Tenures and also on account of amalgamated rentals maintained by the Respondent in respect of his estates and tenures he could not fully realies the balance share of unnotified estates and tenures, (c) that certain rents and decress had been allowed to become barred by time, (d) that on account of non payment of Agricultural Income Tax and consequent imposition of penalty which was no doubt reduced to Rs. 2,000 on appeal the Estate suffered a loss of Rs. 12,000 and, (e) that on account of issue of wrong collection certificates by Collector and his staff the respondent had suffered some loss which was yet to be ascertained.
It was alleged that the action of the appellant suffered from negligence, bad faith and malice and the appellant alongwith its Manager as tortfeasor was jointly and severally for all such losses suffered by him.
The appellant traversed all the material allegations in the plaint and the plea was one of bona fides carrying out of their duties under the Act.
The Trial Court which proceeded on the basis that the Act was unconstitutional, and the appellant was a trespasser on the respondents ' estate held: (1) that the cost of management incurred by the Collector over and above 12 1/2% of the gross collection was excessive, and therefore, the State should refund such excess amount; (2) that the mistake in not notifying all the shares held by Choudhary in Tauzis Nos. 7/8 and 30 at the first instance resulted in non collection of the dues and Choudhary thereby had suffered; (3) that the State being trespassers, Choudhary owed no duty to make available to them the separated Jamabandi to facilitate collection of dues in the said Tauzis, and therefore, the State should reimburse Choudhary the amount he would have been able to collect from those tauzis during the period of their management, and also to make good the loss caused on account of arrears or decreaes which had been allowed to become barred.
The Trial Court, accordingly, passed a preliminary decree and directed that a Commissioner should enquire into the above items.
Against the said preliminary decree the State, filed an appeal before the High Court.
At the instance of the State and on a reference by the Division Bench hearing the appeal, a Full Bench of the Court reconsidered the decision reported in ILR 29 Patna 790, by its judgment dated February 15, 1963 overruled the said decision, and declared that the Act was constitutional.
Thereafter the Division Bench finally heard the appeal and took the view that though it was open to the State to notify only a fraction of an estate under section 3(1) of the Act, yet, it was not absolved from the duty of taking appropriate steps for the preparation of suitable collection papers in respect of the notified shares in Tauzis No. 7/8 and 30.
The Division Bench held that the State was liable to compensate Choudhary for not preparing the collection papers in time; (i) that even though Choudhary had been told to file suits for rents in respect of unnotified share of the estate, the State were negligent in the matter of issuing certificates for recovery, some of which were later on struck off; (ii) that the material on 529 the record did not indicate that necessary steps were taken by the Collector with regard to pending suits and execution proceedings and there was every probability that loss had been suffered by Choudhary on account of the inaction or failure to continue pending proceedings which amounted to wilful default and gross negligence; (iii) that the State was liable to reimburse Choudhary to the extent of Rs. 2,000 levied as penalty for non payment of Agricultural Income Tax; (iv) in so far as the cost of management of Rs. 43,507 which was in the order of 30 per cent of the gross collection was concerned about a sum of Rs. 8,000 (=25% of the gross collection) had been incurred as cost of management in excess of what was authorised and that (Choudhary was entitled to it; and (v) that section 31 of the Act did not give protection in respect of loss which was caused by wilful default and gross negligence.
The appeal of the State and the cross objections of Choudhary regarding certain matters disallowed by the trial Court were, accordingly, dismissed.
Hence the State Appeal by certificate.
Allowing the appeal in part, the Court C ^ HELD 1.1 The Bihar State Management of Estates and Tenures Act, 1949 (Bihar Act XXI of 1949) was intended to bring about a reform in the land distribution system of Bihar for the general benefit of the community.
The taking over of the management and control over land was found to be necessary as a preliminary step towards the implementation of the Directive Principles of State Policy.
Therefore, section 31 of the Act provided that no suit or other legal proceeding would lie in any Court against the State Government or against any servant of the state Government or against any person acting under the orders of a servant of the State Government for or on account of or in respect of anything done or purporting to be done in good faith under the Act or in respect of any alleged neglect or omission to perform any duty devolving on the State Government or any of the officers subordinate to it or acting under the Act, or in respect of the exercise of or on failure to exercise any power conferred by the Act on the State Government or any officer subordinate to it and acting under the Act, except for the loss or the misapplication occasioned by the wilful default or gross negligence of any officer of the State Government.
Under section 4(22) of the Bihar and Orissa General Clauses Act, 1917, a thing shall be deemed to be done in 'good faith ' where it is in fact done honestly, whether it is done negligently or not.
[532E; 545C E] 1.2.
In the instant case, there was no proof of deliberate abuse of statutory power nor of usurpation of a power which the authorities knew that they did not possess.
It cannot be said that either the State Government or any of the officers acting under it in performance of their duties under the Act had not acted honestly either in issuing the Notification under section 3(1) of the Act, on November 19, 1949 by which only parts of Tauzis Nos. 7/8 and 30 had been notified or in not preparing separate collection statements before April 1950.
Further, the following facts, namely, (a) the respondent himself had acquired the said Tauzis in instalments; (b) as soon as the error was pointed out steps were taken by the Manager to get the unnotified share also notified and the Government issued a Notification accordingly within about four months; (c) on account of not handing over by the respondent even the consolidated collection statements by April 1950, the separate collection statements could not be got prepared by the Manager 530 By April 1950; (d) even according to the respondent himself if would have taken six months to prepare separate collection statements on the basis of the consolidated statements; and (e) unawareness of the State Government or any of its officers before hand that the respondent had maintained a consolidated statement of accounts on the date of issue of the first Notification in respect of a portion of Tauzis Nos. 718 and 30, constituted a good defence under section 31 of the Act against any claim based on any alleged neglect or omission since there was no proof of any wilful default or gross negligence on the part of the defendants.
[545F H; 546A B] 1.3.
In the instant case; (i) the claim for damages on all counts should fail except with regard to the claim for Rs. 8,000 which had been incurred as cost of management in excess of what was authorised by law.
With regard to the penalty of Rs. 2,000 imposed for non payment of the Agricultural Income Tax when once it was conceded that the first notification was not unauthorised one, the State could not be held liable for reimbursing the penalty of Rs. 2,000 to the respondent; (ii) It cannot be said that the Manager acted in excess of his powers vested under the Act of 1949 or mala fide.
Lack of bona fides cannot be attributed to him merely because some of the suits out of a large number of suits filed for recovery of the arrears due to the Estate, were dismissed on merits or on the ground that some of the persons sued were dead or not traceable.
In fact nearly, 7,000 certificate cases had to be filed in a short period and hurriedly on the basis of arrears list submitted by the respondent himself and by the middle of July 1950 the management of the state itself was relinquished.
Further if a certain share in a tauzi had not been notified on the first occasion it again cannot be said as having been done either mala fide or deliberately to harm the respondent.
The Manager therefore, could not be charged for wilful default or gross negligence in as much as in view of the definition of the expression 'tenure ' in section 2(k) of the, Act it was open to the government to notify even a fraction of a tenure under section 3(1) of the Act; (iii) Since the respondent himself failed to discharge his duty imposed the State cannot be made liable to any damages on the ground that the Manager had failed to get the collection papers prepared in respect of Tauzis Nos. 718 and 30 in time and thus caused loss to the respondent.
[546C; 544G; 542F G; 543A B]


judgement:
Civil Appeal No. 2033 of 1971.
K.C. Dua and S.K. Bagga for the Appellant.
R.K. Bhatt for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
Labh Singh, respondent No.1 herein, was the owner of certain agricultural lands in three villages situated in the district of Kapurthala, namely, village Karahal Nauabad, village Isherwa and village Brindpur measuring in all 32 8 standard acres.
Of them an extent of 7 4 standard acres of land situated in village Brindpur had been mortgaged with possession by him in favour of one Lachman Singh of village Khera Dona before the Pepsu Tenancy and Agricultural Lands Act, 1955 (Pepsu Act 13 of 1955) (hereinafter referred to as 'the Act ') came into force.
The mortgage was subsisting when Chapter IV A was inserted by the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 (Pepsu Act No. 15 of 1956) into the Act.
Chapter IV A of the Act which provided for the imposition of ceiling on land and acquisition and disposal of surplus area consisted of Sections 32 A to 32 NN.
Section 32 A of the Act read as follows: "32 A. Ceiling on land (1) Notwithstanding anything to the contrary in any law, custom, usage or agreement, no person shall be entitled to own or hold as land owner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limit.
360 (2) For the purposes of computing the permissible limit under sub section(1), the provisions of clauses (d) and (e) of sub section (2) of section 3 shall not apply.
" The permissible limit for the purposes of the Act was fixed at 30 standard acres of land by Section 3 thereof.
Section 32 B of the Act provided that any person who on the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 owned or held as landowner or tenant land under his personal cultivation, which in the aggregate exceeded the permissible limit should within a period of one month from the commencement of the Pepsu Tenancy and Agricultural Lands (Amendment) Ordinance, 1958 furnish to the Collector a return giving the particulars of all his lands in the prescribed form and manner and stating therein his selection of the parcel or parcels of land not exceeding in the aggregate the permissible limit which he desired to retain and the lands in respect of which he claimed exemption from the ceiling under the provisions of Chapter IV A of the Act.
It was further provided that such person should state in the return any transfer or other disposition of land made by him after 21st August, 1956 and where a person had furnished a return before the commencement of the Pepsu Tenancy and Agricultural lands (Amendment) Ordinance, 1958 he should within the aforesaid period intimate to the Collector any such transfer or other disposition of land made by him.
Clause (f) of section 2 of the Act defined the expression 'landowner '.
The explanation added to the said clause provided that in respect of land mortgaged with possession the mortgagee should be deemed to be the landowner.
In view of the above definition the extent of 7 4 standard acres of land which was under mortgage with possession of the commencement of the Act was not to be included in the holding of Labh Singh for purposes of determining the surplus land in his hand but the mortgagee had to be treated as the landowner in respect of that land.
Consequently, the remaining extent of land in the possession of Labh Singh being less than 30 standard acres he was treated as a small landowner not liable to surrender any land as surplus land under the provisions of the Act.
But on April 1, 1959, Labh Singh got back the possession of 7 4 standard acres of land by redeeming the mortgage.
On redemption the total extent of land in his possession became 32 8 standard acres which was in excess of 30 standard acres which had been prescribed by the Act as the permissible limit.
Labh Singh did not file any return informing the authority concerned that his holding had exceeded the permissible limit.
But on coming to 361 know that Labh Singh had in his possession land in excess of the permissible limit, proceedings were started by the Revenue authorities to declare the surplus land in his hands and to take possession of the surplus area.
The Collector by his order dated April 25, 1967 declared that 2 8 standard acres of land in the hands of Labh Singh was surplus area which he had to surrender.
The Collector, however, did not impose any penalty on Labh Singh for not submitting his return in time on the ground that he being an illiterate person was not aware of the stringent provisions of the Act.
Labh Singh was directed to produce a list of Khasra Nos.
to be surrendered as surplus land within a fortnight therefrom.
Aggrieved by the order of the Collector, Labh Singh preferred an appeal before the Commissioner of Jullandur Division.
That appeal was unsuccessful.
A revision petition filed before the Financial Commissioner, Punjab, against that order also falled.
Labh Singh thereafter filed a writ petition before the High Court of Punjab and Haryana questioning the correctness of the order passed by the Financial Commissioner, Punjab, contending that the land which was under mortgage at the commencement of the Act and which was redeemed subsequently could not be taken into consideration for determining surplus area in the hands of the landowner.
The learned Single Judge who heard the writ petition did not agree with the contention urged on behalf of Labh Singh and dismissed it.
In the Letters Patent Appeal filed before the Division Bench of the High Court by Labh Singh against the judgment of the learned Single Judge it was held that the acquisition made by Labh Singh of 7 4 standard acres of land on redemption amounted to a transfer within the meaning of that expression in section 32 L of the Act and that being so by virtue of sub section (2) of that section the transfer by which Labh Singh had acquired interest in that land must be deemed to be null and void and therefore non existent.
It was further held that the transfer being non existent there was no acquisition in the eye of law.
Consequently, the transfer had to be ignored and not to be taken into consideration.
The Division Bench of the High Court which decided the appeal observed that the "so called acquisition is hit by section 32 L of the Pepsu Act and is therefore non existent in the eye of law being null and void, and does not have the effect of making Labh Singh the owner of an area exceeding the permissible limit.
" In that view of the matter the appeal was allowed and the orders passed by the Revenue authorities culminating in the order of Financial Commissioner and the order of the learned Single Judge were set aside.
The High Court declined to consider the effect of section 32 M of the Act on the case.
362 This appeal by special leave is filed by the State of Punjab against the judgment of the Division Bench of the High Court in the Letters Patent Appeal.
In order to appreciate the contentions of the parties it is necessary to refer at this stage to sections 32 L and 32 M of the Act as they stood then.
They read as follows: "32 L. Ceiling on future acquisition of Land. (1) Notwithstanding anything to the contrary in any law, custom, usage, contract or agreement, from and after the commencement of the Papsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, no person whether as landowner or tenant, shall acquire or possess by transfer, exchange, lease, agreement or settlement any land which with or without the land already owned or held by him, shall in the aggregate exceed the permissible limit.
(2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub section (1), shall be null and void.
32 M. Ceiling on future acquisition by inheritance (1) If, after the commencement, of the Pepsu Tenancy Act and Agriculture lands (Second Amendment) Act, 1956, any person, whether as landowner or tenant, acquires by inheritance or by bequest or gift from a person to whom he is an heir any land which with or without the lands already owned or held by him, exceeds in the aggregate the permissible limit, then he shall within the period prescribed furnish to the Collector a return in the manner specified in Section 32 B giving the particulars to all lands and selecting the land he desires to retain and if the land of such person is situated in more than one Patwar circle, he shall also furnish a declaration required by sub section (1) of section 32 BB.
(1 A) If such person failed to furnish the declaration, the provisions of sub sections (2) and (3) of section 32 BB shall apply.
(2) If he fails to furnish the return and select his land within the prescribed period, then the Collector 363 may obtain the information and select the land for him in the manner specified in section 32 C. (3) The Collector shall then submit a statement to the State Government in the manner specified in section 32 D and issue a notification in the Official Gazette as required by that section.
(4) The excess land shall then vest in the State Government in accordance with the provisions of section 32 E and compensation therefore, shall be payable in accordance with the provisions of this Chapter.
" The learned counsel for the State Government relies on section 32 A of the Act which has been already extracted above in support of his contention that on redemption Labh Singh became the holder of agricultural land in excess of the permissible limit and was liable to surrender the surplus land which was over and above the permissible limit.
The learned counsel on behalf of Labh Singh, however, urged that redemption being a transfer of land from the mortgagee to the mortgagor it was hit by section 32 L of the Act and was therefore void under sub section (2) thereof.
It being a void transaction could not be taken into consideration for purposes of determining the question whether Labh Singh was in possession of any land in excess of the permissible limit.
The case put forward on behalf of Labh Singh proceeds on the assumption that section 32 A (1) which provides that notwithstanding anything to the contrary in any law, custom, usage or agreement, no person shall be entitled to own or hold as land owner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limit operated only at the point of time when the said provision came into force and that it would not be applicable to lands acquired subsequently.
The scheme of the Act is that no land owner or tenant can hold land in excess of the permissible limit and every such landowner or tenant holding land in excess of permissible limit is liable to surrender the surplus land whatever may be the time at which such surplus land is acquired and whatever may be the mode of acquisition.
Chapter IV A of the Act is intended to place a ceiling upon the holding of land for personal cultivation by a land owner or a tenant in excess of the permissible limit not 364 merely on the date on which it came into force but even subsequently.
In Vidya Vati vs The State of Punjab & Ors. , in which the Act came up for consideration Shah,J. observed thus at page 650: "Viewed in the light of that scheme, also, it is impossible to construe section 32 A as being operative only at the point of time at which the Amending Act incorporating Ch.
IV A was brought into force, for the words of the section contain no limitation, and the scheme of the Act indicates no such implication.
It is true that under section 32 B every person who owns or holds as land owner or tenant land under his personal cultivation exceeding the permissible limit at the commencement of the Act is required to make a return in respect of his holding.
but this is enacted with a view to provide machinery for effectuating the provisions imposing the ceiling on land held at the date on commencement: it does not even indirectly suggest that section 32 A is limited in its operation to the point of time at which the Act is brought into force and is spent thereafter.
Failure on the part of the Legislature to deal with cases in which at the date on which the Act was brought into force, the owner or holder of land was not cultivating the land because he was not in cultivatory possession thereof but was resorted to his possession during the subsistence of the Act, cannot also be used to limit the operation of section 32 A(1) only to the point of time at which the Act was brought into force.
In our judgment the ban imposed by section 32 A operates whenever he is found to own or hold land in personal cultivation exceeding the permissible limit." Moreover even though the mortgagee is liable to re transfer the land in favour of the mortgagor on redemption of the mortgage such re transfer cannot be treated as equivalent to transfer contemplated under section 32 L of the Act.
When a mortgagor mortgages the land with possession he does not cease to be its owner.
The equity of redemption still vests in him and on redemption he gets back possession of the mortgaged land.
In the context in which the word 'transfer ' is used in section 32 L of the Act it cannot be construed as including within its scope the re transfer of land which takes place on redemption.
The Division Bench did not appreciate that its decision had the effect of 365 defeating the purpose and object of the ceiling law.
The present case came within the mischief of section 32 A of the Act which was all pervasive.
The Division Bench of the High Court did not consider the effect of section 32 A of the Act and also the decision of this Court in Vidya Vati 's case (supra) referred to above.
In that case the Court while referring to section 32 L and section 32 M observed thus at page 649: "The entire argument is raised on an assumption that s.32 A (1) operates only at the date on which the Act was brought into operation; that argument, in our Judgment is contrary to the plain terms of sec.
32 A (1).
It is true that sections 32 L and 32 M expressly deal with certain classes of acquisitions after the date of the commencement of the Act, but on that account no restriction may be imposed upon the connotation of the expression "no person shall be entitled to own or hold" occurring in section 32 A of commencement and has no operation in the future.
It may be noticed that section 32 L renders all subsequent acquisitions as a result of which the holding of a person of land under his personal cultivation exceeds thirty acres "null and void" and section 32 M which deals substantially with involuntary acquisitions (such as acquisitions by inheritance or bequest) sets out the machinery for making declarations and the manner in which the land in personal cultivation in excess of the ceiling will be dealt with.
By an appropriate drafting device, it may have been possible to detail of these provisions into the other sections, but if in the interest of clarity certain specific cases are separately dealt with, an intention to restrict the operation of the general provision contained in section 32 A (1) cannot be implied.
" It may be added here that section 32 M of the Act has since been amended making it applicable to other kinds of acquisitions also.
Admittedly Labh Singh was in possession of land in excess of the permissible limit after he redeemed the mortgage and he therefore became liable to surrender the surplus land, that is, 2 8 standard acres to the Government by virtue of section 32 A itself.
Even though there was no express machinery provided in the Act at the relevant time to deal with cases of this type, the 366 Court is not competent to refuse to give effect to the plain words of section 32 A as observed in Vidya Vati 's case (supra).
The judgment of the Division Bench of the High Court is liable to be set aside and it is accordingly set aside.
The decisions of the learned Single Judge, Financial Commissioner and other Revenue authorities are restored.
The authorities under the Act shall now proceed to take possession of the extent of 2 8 standard acres of land from Labh Singh but before doing so they are directed to give an opportunity to Labh Singh by issuing notice to him to exercise his option as regards the parcel or parcels of land equivalent of 2 8 standard acres which he proposes to surrender.
If he exercise his option in that regard within one month from the date of such notice the Revenue authorities shall take only those lands offered by him.
If he falls to do so the authorities concerned themselves may proceed to take possession of the surplus land in accordance with law.
This appeal is accordingly allowed.
There shall, however, he no order as to costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Labh Singh, respondent No.1 was the owner of certain agricultural lands in three villages situated in the district of Kapurthala, namely, village Karahal Nauabad, village Isherwa and village Brindpur measuring in all 32 8 standard acres.
Of them an extent of 7 4 standard acres of land situated in village Brindpur had been mortgaged with possession by him in favour of One Lachman Singh of village Khera Dona before the Pepsu Tenancy and Agricultural Lands Act, 1955 (Pepsu Act 13 of 1955) came into force.
The mortgage was subsisting when Chapter IV A was inserted by the (Second Amendment) Act, 1956 (Pepsu Act No.15 of 1956) by which sections 32 A to 32 N were introduced.
Clause (f) of section 2 of the Act defines the expression "land owner".
The explanation added to the said clause provided that in respect of land mortgaged with possession the mortgagee should be deemed to be the land owner.
The permissible limit for the purpose of the Act was fixed at 30 standard acres of land by section 3 thereof.
In view of the above, Labh Singh, being in possession of less than 30 standard acres, 7 4 standard acres being in possession of the mortgagee was treated as a small owner not liable to surrender any land as surplus land under the provisions of the Act.
But on April 1, 1959, Labh Singh got back the possession of 7 4 standard acres of land by redeeming the mortgage.
On redemption the total extent of land in his possession became 32 8 standard acres which was in excess of 30 standard acres which had been prescribed by the Act as the permissible limit.
On coming to know that Labh Singh had in his possession land in excess of the permissible limit, proceedings were started by the Revenue authorities to declare the surplus land in his hands 358 and to take possession of the surplus area.
The Collector directed Labh Singh to produce a list of Khasara Numbers to be surrendered as surplus land within a fortnight therefrom.
Aggrieved by the order of the Collector, Labh Singh preferred an appeal before the Commissioner of Jullandur Division.
That appeal was unsuccessful.
A revision petition filed before the Financial Commissioner, Punjab against that order also failed.
Labh Singh, thereafter, filed a writ petition before the High Court of Punjab and Haryana which was also dismissed.
In the Letters Patent Appeal filed before the Division Bench of the High Court by Labh Singh it was held (i) that the acquisition made by Labh Singh of 7 4 standard acres of land on redemption amounted to a transfer within the meaning of that expression in section 32 L of the Act and that being so by virtue of sub section 2 of that section the transfer by which Labh Singh had acquired interest in that land must be deemed to be null and void and therefore non existent; and (ii) the transfer being non existent there was no acquisition in the eye of law and consequently, the transfer had to be ignored and not to be taken into consideration.
Hence the State appeal by special leave.
Allowing the appeal, the Court ^ HELD: 1.1 Respondent No.1 Labh Singh was in possession of land in excess of the permissible limit after he redeemed the mortgage and he therefore became liable to surrender the surplus land, that is, 2 8 standard acres to the Government by virtue of section 32 A itself.
Even though there was no express machinery provided in the Act at the relevant time to deal with the cases of this type, the Court is not competent to refuse to give effect to the plain words of section 32 A. [365 G H, 366 A] 1.2.
The scheme of the Act is that no land owner or tenant can hold land in excess of the permissible limit and every such land owner or tenant holding land in excess of permissible limit is liable to surrender the surplus land whatever may be the time at which such surplus land is acquired and whatever may be the mode of acquisition.
Chapter IV A of the Act is intended to place a ceiling upon the holding of land for personal cultivation by a landowner or a tenant in excess of the permissible limit not merely on the date on which it came into force but even subsequently.
[363 G H, 364 A] Vidya Vati vs The State of Punjab & Ors. followed.
359 2.1 In the context in which the word "transfer" is used in section 32 L of the Act it cannot be construed of including within its scope the re transfer of land which takes place on redemption.
[364 H] 2.2 Even though the mortgagee is liable to re transfer the land in favour of the mortgagor on redemption of the mortgage such re transfer cannot be treated as equivalent to transfer contemplated under section 32 L of the Act.
When a mortgagor mortgages the land with possession he does not cease to be its owner.
The equity of redemption still vests in him and on redemption he gets back possession of the mortgaged land.
The present case came within the mischief of section 32 A of the Act, which was all pervasive.
[364 F G, 365 A]


judgement:
: Criminal Appeal No.106 of 1980.
From the Judgment and Order dated 8.1.1980 of the Delhi High Court in Crl.
A. No. 137 of 1978.
Ms. Neeraja Mehra and I.K. Wadera for the Appellants.
Anil Dev Singh, R.N. Poddar and G.D. Gupta for the Respondent .
The Judgment of the Court was delivered by FAZAL ALI, J.
The appellant in this case was convicted under section 302 IPC and sentenced to imprisonment for life by the High Court.
m e case depends purely on circumstantial evidence and the trial court after considering the evidence was of the opinion that the prosecution case was not proved beyond reasonable doubt and accordingly acquitted the appellant of the charges framed against him.
The State filed an appeal before the High Court which reversed the decision of the trial court and came to the conclusion that the appellant had killed his wife by strangulation.
Hence, this appeal before this Court under section 379 of the Code of Criminal Procedure.
At the very outset we might mention that circumstantial evidence must be complete and conclusive before an accused can be convicted thereon.
This, however, does not mean that there is any particular or special method of proof of circumstantial evidence.
We must, however, guard against the danger of not considering circumstantial evidence in its proper perspective, e.g., where there is a chain of circumstances linked up with one another, lt 511 is not possible for the court to truncate and break the chain of circumstances.
In other words where a series of circumstances are dependent on one another they should be read as one integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated.
The learned Sessions Judge seems to have fallen into this very error.
In the instant case, instead of taking all the circumstances together, which are undoubtedly circumstantial and closely linked up with one another, the learned Sessions Judge has completely misdirected himself by separately dealing with each circumstance thereby making a wrong approach while appreciating the circumstantial evidence produced in the case.
Let us now recount the circumstances relied upon by the appellant by giving first a brief summary of the same.
The marriage of the accused and the deceased took place on December 6, 1975, i.e., hardly a year before the date of the occurrence.
After about six months of the marriage, the relations between the two spouses started becoming strained.
The evidence clearly shows that the accused neglected the deceased, abused her, teased her, waxed her and even beat her.
All these things were reported to the relatives of both sides as a result of which a panchayat had to be called to bring the two parties together which also was of no avail.
There is further evidence to show that on the night of the occurrence, i.e., between the night of 16th and 17th November 1976, the accused was last seen by some of the witnesses whose evidence we shall refer hereafter.
Secondly, it is also proved that the accused left his house in the morning of 17th November 1976 and went to Muzaffar Nagar and stayed at his sister 's house there and came back to Delhi in the evening of 17th November 1976 but instead of staying in his own house he stayed in Venus Hotel in Paharganj in Delhi under a false and assumed name of Vinod Kumar which, according to the evidence, was written by him while making the entries in the Hotel register.
Furthermore, it appears that there are some letters written by the deceased which show the callous and cruel nature of the accused and his treatment towards her.
He appears to have been completely indifferent towards her and the deceased prayed to her parents for taking her with them immediately.
It is true that despite the conduct of the appellant, the parents in law of the deceased were very kind to her and tried their best to save the situation but the appellant was made of such a stern stuff and stubborn nature that he would not listen to anyone.
512 Moreover, the evidence further shows that certain broken bangles and one pair of cufflinks were recovered from the room where the deceased was strangulated.
The medical evidence also supports that the deceased had died of manual strangulation.
There are some other circumstances which show the role played by the accused and if we take the circumstances together the irresistible inference is that the prosecution has completely proved its case.
We might observe there that the circumstances which have been narrated above are so interlinked in the chain of circumstantial evidence that lt is difficult to truncate them and the learned Sessions Judge ought not to have rejected the circumstances one by one and then acquit the accused.
It is here that the learned Sessions Judge has committed a serious error of law.
If we read the evidence as an integral whole, the inescapable conclusion is that excepting the appellant nobody else could have committed the murder.
With this preface, we now proceed to deal with the chain of circumstances relied upon by the High Court in reversing the judgment of the trial court and convicting the accused.
To begin with, as we have said, within one year of her marriage the deceased died during the night of 16th and 17th November 1976.
A number of prosecution witnesses (PWs 5,6,7,8 and 9) whose evidence has been fully considered by the High Court deposed that the appellant had been ill treating the deceased and their relations were extremely strained.
This is buttressed by the further circumstance that a panchayat had been called to resolve the differences between the two spouses.
In this connection, the prosecution witnesses have spoken thus: The accused had always been maltreating Madhu and used to say that he will not like to keep Madhu with him.
After about 6 months of the marriage a Panchayat was held in Bakhtamal Dharamshala, Delhi for bringing about conciliation.
Before the panchayat the father of the accused had assured that he will ask the accused to behave better.
But there was no change in the attitude of the accused towards the deceased and the accused was bent upon leaving the girl." (PW 5, Ramesh Chand) About 5 or six months prior to the murder of Madhu, her father had complained to me that the accused used 513 to beat her and wanted to leave her.
After 2 or 3 days A of that, a panchayat was held in Bagtamal Dharamshala, Kucha Pati Ram. .
Before the Panchayat, father of the accused had assured that he will make him under stand and see that the accused behaved properly in future with Madhu.
(PW 6, Ram Kishan Dalaya) Accused used to beat Madhu and we were receiving many complaints in this respect.
Myself, Ramesh Chand, Ganga Prasad and Madan Lal had been coming to Delhi and requesting the accused not to do so.
However, the behaviour of the accused towards Madhu did not change.
(PW 7, Chhanu Lal) She was married to Ram Avtar(accused) present in the court.
Madan Lal had started saying after about 20 or 25 days after the marriage that the deceased was being beaten and ill treated by the accused. .
A panchayat was organised.
Radhey Lal was also called and he attended the panchayat.
( PW 8, Ram Pal Singh) There were strained relations between them for a long time.
(PW 9, Gulab Chand) Right from the beginning, accused had been ill treating my daughter.
She had been writing letters to me from which I had come to know that she was not happy and so I came to Delhi.
I beseeched the accused and with folded hands requested him to behave better with my daughter in the presence of his father.
Both of them had assured that nothing will happen in future.
(PW 12, Madan Lal) I had gone to attend its conference at Lucknow from G 5th to 7th Oct. 1976.
There, Chhanu Lal, elder brother of Madan Lal had complained to me that Ram Avtar accused was ill treating Madhu and that I should look into this matter.
Then I told him that in that case Chhanu Lal would not have complained to me.
Then he assured me that he will ask the accused to behave properly and there will be no complaint in future.
(PW 13, Sohan Lal Verma) 514 The above extracts from the evidence of various prosecution witnesses show that the relatives of the two sides tried their best to bring harmony in the relations of the accused and the deceased and the father of the accused had been promised that his son will behave in future in a proper manner.
One outstanding feature of this case is that while the deceased was fully satisfied with the treatment received by her from her parents in law, yet so adamant was the accused that he would hardly listen or pay any heed to the advice of his parents.
Another circumstance which almost conclusively proves the case of the prosecution is the evidence of PW 1, Shri Krishan Avtar, according to which, the accused was seen by him on the fateful night between 9 or 9.30 p.m. in his house and in this connection he says thus: When I returned at about 9 or 9.30 p.m.
I saw the accused in his house.
He was alone in the house at that time.
The room of the accused is situated on the ground floor while mine is situated on the first floor.
When I saw him he was coming down stairs from the first floor and entered his room on the ground floor. . . .
Then I entered the room of the accused where he and his wife used to sleep together and saw the dead body of Madhu.
" PW 1 further testifies to the articles found from the scene of occurrence "exhibit
P8 is the pair of cufflink.
exhibit
P 14 are the broken pieces of bangles collected from the floor of the room.
F PW 2, Nathi Lal, another independent witness, says that at about 12.30 in the night while he was coming from Lal Darwaza to his house, he saw the accused passing that side and the accused told him that he had told the chowkidar that he (appellant) was going away and the door of his house was open.
Another witness (PW 3) though declared hostile, yet so far as the relations between the spouses are concerned, categorically states that the relations between the spouses were extremely strained.
Another circumstance which is of great importance and which seems to have been ignored by the learned Sessions Judge is that after returning from Muzaffar Nagar in the evening of 17th November 1976, the accused instead of staying in his house, stayed in 515 Venus Hotel in Paharganj, New Delhi under a false and assumed name of Vinod Kumar and made the entries in the Hotel register in his own hand.
m is shows the guilty conscience of the accused.
This is proved by exhibit
PW 14/A where it has been stated thus: The aforesaid register contains one entry against serial No.518 dated 18.11.76 recorded at 1.00 a.m. relating to Vinod Kumar, Indian 23/3, Sarafa Bazar, Muzaffar Nagar, for business Muzaffar Nagar, stated to have been made and initialled by accused Ram Avtar S/o Radhey Lal, r/o 2721, Chhatta Girdhar Lal, Gali Arya Samaj, Bazar Sita Ram, Delhi.
Another intrinsic evidence which proves the case against the accused consists of two letters (Ext.
PW 12A and 12B) written by the deceased to her parents wherein she had requested her father to take her away as her husband was ill treating her.
In these letters she had written thus: You (father) take me away from here. . (He) is not on speaking terms with me.
PW 12A) There is always a quarrel in the house about me.
Papa and Mummy have been trying to make him understand.
(He) does not eat and drink anything from my hand and even does not speak to me.
Whenever, I come across him, he scolds me.
Today, he gave me beating and was about to turn me out of the house but Mummy and Pappa pacified him. .
He further said 'I do not want to see the face of this mean girl.
Furthermore that whatever Khurjawallas have done in my interest is good (Taunt).
He says that when I become a widow then at least they (parents) will come to take me away. .
He says that even if God comes, he will not agree and will not keep me with him at any cost. .
You treat this letter as a telegram and please reach here immediately.
I keep weeping here day and night and Mummy also continuous weeping.
He would not keep me with him at any cost and I also do not want to live here any more. .
I am weeping while writing this letter.
Dear Pappa, please come as early as possible.
(exhibit PW 12 B) In addition to Ext.
PW 12 A and 12 B, one more letter was found from the house where the murder took place but which she could not post.
516 In his statement PW 18, Kanshi Ram, S.I., stated that from the personal search of the accused, Rs. 5.50 one ticket from Meerut to Delhi were recovered and the accused was also made to put off his shirt and banian, and that he (PW 18) took into police custody the banian of the accused which had blood stains on the front side.
The last piece of evidence which is also important and which has been completely glossed over by the trial court is the recovery of broken bangles and a pair of cufflinks which show that during the course of strangulation the deceased must have put in stiff resistance.
In view of the circumstances discussed above, it cannot be said that the case against the accused has not been proved.
It is not possible for us to consider the various chains of circumstances, mentioned above, in isolation by divorcing them from the other circumstances which are closely interlinked with them.
This is where the trial court has gone wrong and has made a fundamentally wrong approach.
Having regard to the circumstances mentioned above, we are clearly of the opinion that the judgment of the trial court is not only legally erroneous but also absolutely perverse.
In view of the circumstances and the admissions of the witnesses extracted, the case against the accused is proved beyond reasonable doubt and this is not a case where two views are reasonably Possible.
Before concluding we might observe that where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the court has to take the cumulative effect of the entire evidence led by the prosecution before acquitting or convicting an accused.
For the reasons given above, we find ourselves in complete agreement with the view taken by the High Court and we see no reason to interfere with the same.
The appeal is accordingly dismissed.
In case the appellant is on bail, he shall now surrender and be taken into custody and sent to prison to serve out the remaining part of the sentence.
N.V.K. Appeal dismissed.

summary/full:
The prosecution alleged that the appellant had killed his wife by strangulation.
The marriage of the appellant and the deceased took place about a year before the date of occurrence.
After about six months of the marriage the relations between the two spouses started becoming strained.
The accused neglected the deceased, abused her, teased her, waxed her, and even beat her.
All these were reported to the relatives of both sides as result of which a panchayat had to be called to bring the two parties together which also was of no avail.
The Sessions Court after considering the evidence WAS of the opinion that the prosecution case was not proved beyond reasonable doubt and accordingly acquitted the appellant of the charges framed against him under Section 302 IPC.
The State filed an appeal before the High Court which reversed the aforesaid decision and came to the conclusion that the appellant had killed his wife by strangulation.
Dismissing this appellant 's Appeal to this Court ^ HELD: 1.
The view taken by the High Court is correct and there is no reason to interfere with the same.
The trial court has gone wrong, and has made a fundamentally wrong approach.
The 509 judgment of the trial court is not only legally erroneous but A absolutely perverse.
In view of the circumstances of the case and the admissions of the witnesses, the case against the accused has been proved beyond reasonable doubt.
This is not a case where two views are possible.
[516 G,D E] 2.
Circumstantial evidence must be complete and conclusive before an accused can be convicted thereon.
This, however, does not mean that there is any particular or special method of proof of circumstantial evidence.
One must, however, guard against the danger of not considering circumstantial evidence in its proper perspective, e.g. where there 18 a chain of circumstances linked up with one another, it is not possible for the court to truncate and break the chain of circumstances.
In other words, where a series of circumstances are dependent on one another they should be read as one integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated.
[510 G 511 A] 3.
Where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the court has to take the cumulative effect of the entire evidence before acquitting or convicting an accused.
1516 F] In the instant case, the Sessions Judge had committed an error.
Instead of taking all the circumstance .
together which are undoubtedly circumstantial and closely linked up with one another, he has completely misdirected himself by separately dealing with each circumstance thereby making a wrong approach while appreciating the circumstantial evidence produced in the case.
Some letters written by the deceased show the callous and cruel nature of the accused and his treatment.
He appears to have been completely indifferent.
The deceased prayed to her parents for taking her with them immediately.
Despite the conduct of the appellant, the parents in law of the deceased were very kind to her, but the appellant was made of such a stern nature that he would not listen to anybody.
The recovery of certain broken bangles and one pair of cufflinks show that during the course of strangulation, the deceased put up stiff resistance.
The medical evidence also supports that the deceased had died of manual strangulation.
A number of prosecution witnesses PWs 5,6,7,8 & 9 deposed that the appellant had been ill treating the deceased and their relations were extremely strained, and that the relatives of the two sides tried their best to bring harmony in the relations of the accused and the deceased.
Another circumstance 510 of great importance is that after the incident, the accused went to Muzaffar Nagar stayed in his sister 's house came back the same evening, stayed in a Hotel under a false and assumed name written in the hotel register in his own hand.
This shows the guilty conscience of the accused.
another intrinsic evidence which proves the case against the accused consists of two letters(Ext.
PW 12 A and B) written be the deceased to her parents wherein the had requested her father to take her away as her husband was ill treating her.
The statement of the S.I., PW 18 reveals that from the personal search of the accused, Rs.5.50 one ticket from Meerut to Delhi were recovered and that the banian of the accused had blood stains.
A,C D, 516 A B]