Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
RAJA ANAND BRAHMA SHAH
DATE OF JUDGMENT:
16/09/1966
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
RAO, K. SUBBA (CJ)
HIDAYATULLAH, M.
RAMASWAMI, V.
SHELAT, J.M.
CITATION:
1967 AIR 661 1967 SCR (1) 362
CITATOR INFO :
F 1967 SC1081 (24)
R 1972 SC2027 (17)
D 1972 SC2240 (19)
RF 1972 SC2301 (66)
R 1973 SC2734 (16,33)
F 1974 SC1522 (3)
R 1975 SC2299 (607)
ACT:
U.P. Zamindari Abolition and Land Reforms Act (1 of 1951),
as amended by U.P. Act (14 of 1958) and U.P. Act (1 of 1964)
s. 3(8) "Estate" -If covered by Art. 3 1A (2) (a) (i) and
(iii) of the ConstitutionConstitution of India, 1950, Art.
31A-If saves Act.
HEADNOTE:
The State of Uttar Pradesh issued two notifications in 1953,
by one of which the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950, was extended to certain areas, in
which, Pargana Agori which was owned by the respondent was
situate, and by the other, it was directed that all "
estates" in the area including the Pargana should vest in
the State. The respondent challenged the notifications by a
writ petition on the ground that the Pargana was not an
estate within s. 3 (8) of the Act. While the matter was
pending in the High Court, the definition in s. 3 (8) was
amended by U.P. Act 14 of 1958, and while appeals were
pending in this Court, by U.P. Act 1 of 1964, by which, the
Pargana was deemed to be an "estate". The amendments had
retrospective effect from 1st July 1952.
The appellant-State contended that Act 1 of 1964 could not
be impugned because, the Pargana was an "estate’ either
within Art. 3 1A(2) (a) or (iii).
HELD : The forest land or waste land in the Pargana could
not be deemed to be an estate within Art. 3 1A(2) (a) (iii)
unless it was held or let for purposes ancillary to
agriculture. But the entire Pargana is la grant in-the
nature of a jagir or inam, having been held by the
respondent’s ancestor under sanads granting the land and the
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land revenue to him for services rendered to the British,
and consequently, is an "estate, within Art. 31A(2) (a) (i)
of the Constitution. [368 D, 370 G-H; 371 F-H]
Thakur Amar Singhji v. State of Rajasthan [1955] 2 S.C.R.
303, followed.
The acquisition of the Pargana was a necessary step in the
implementation of agrarian reforms contemplated by Art. 31A.
Therefore, U.P. Act 1 of 1964 can claim the protection of
Art. 31A, and the two notifications must be upheld. [372 A-
C}
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 653 to 655
of 1964.
Appeals from the judgment and decree dated November 1, 1962
of the Allahabad High Court in Special Appeals Nos. 267 and
292 of 1957.
C. K. Daphtary, Attorney-General, Shanti Bhushan,
AdvocateGeneral, U.P. and 0. P. Rana, for the appellants (in
C.As. Nos. 653 and 654 of 1964) and the respondents (in C.A.
No. 655 of 1964).
A. K. Sen, B. R. L. Iyengar, V. P. Misra, S. K. Mehta and
K.L. Mehta, for the respondent (in C.As. Nos. 653 and 654 of
1964) and the appellant (in C. A. No. 655 of 1964).
363
The Judgment of the Court was delivered by
Sikri, J. These appeals by certificates granted by the High
Court of Judicature at Allahabad raise one principal
question: Whether the amendment of the definition of the
word "estate" in clause (8) of S. 3 of the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1950 (hereinafter
referred to as the Reforms Act) made by s. 2 of the Uttar
Pradesh Zamindari Abolition and Land Reforms (Amendment)
Act, 1963, hereinafter called the impugned Act, is within
the definition of the word "estate" in Art. 31A(2) of the
Constitution?
These appeals arise out of a petition filed by Raja Anand
Brahma Shah of Agori Barhar-Raj under Art. 226 of the
Constitution. The State of Uttar Pradesh had issued a
notification No. 3549/1/A-499 dated June 30 1953, extending
the provisions of Reforms Act, 1950, to apply to the areas
to the South of Kaimur Range. It then issued another
notification No. 3949/(1)-A-4991949 dated July 1953,
directing the vesting of all "estates" situated to the south
of Kaimur including the Pargana Agori, owned by the
petitioner. The Pargana Agori is comprised of 123 villages.
At the time the petition was filed and the judgment of the
Single Judge, dated November 8, 1957, was delivered, s. 3(8)
of the Reforms Act stood as follows-.-
" ’Estate’ means the area included under an entry in any of
the registers prepared and maintained under clause (a), (b),
(c) or (d) of s. 32 of the United Provinces Land Revenue
Act, 1901, or in the registers maintained under clause (e)
of the said section in so far as it relates to a permanent
tenure-holder and includes share in or of an estate."
The case of the petitioner in short was that Pargana Agor
was not an estate within S. 3(8) of the Reforms Act because
nor ecords were prepared and maintained under the provisions
of s. 32 of the Land Revenue Act, 1901, in respect of
Pargana Agori, and the records alleged to have been prepared
between 1840 to 1843 under the Bengal Regulations were
unauthorised and the Government itself did not approve these
records at any time. The learned Single Judge, keeping in
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view the definition in s. 3(8) of the Reforms Act, came to
the conclusion that the whole of 81 villages, including the
cultivated. area, the forest, the hill and everything else
would vest in the State of Uttar Pradesh. He held that the
Raja’s name alone was entered in the khewats of 64 villages,
and in the khewats of 17 villages although the names of
under-proprietors were written, the Raja was the proprietor
of the entire villages because the Raja’s name was mentioned
as "Malik Ala". With respect to the remaining 42 villages
he held that only the areas mentioned in the khewats of the
different villages and not the forests and hills attached to
them Sup.C.I/66-10
364
fell within s. 3(8). In the result he allowed the petition
in part and issued a writ of mandamus directing the
respondents not to take possession nor to interfere with the
possession of the petitioner over the hills and jungle
appertaining to the said 42 villages as distinguished from
the areas mentioned in the khewats of these villages at the
time the vesting order was issued. He dismissed the rest of
the claim. The petitioner and the State of Uttar Pradesh
both filed appeals, the petitioner claiming that the
petition should be allowed in entirety, the State claiming
that the petition should be dismissed.
During the pendency of the appeals (U. P. Act XIV of 1958)
substituted the following new s. 3(8) in the Reforms Act,
with retrospective effect from July, 1952:
"3(8) "Estate" means and shall be deemed to
have always meant the area under one entry in
any of the registers described in clause (a),
(b), (c) or (d) and, in so far as, it relates
to a permanent tenure-holder in any register
described in clause (e) of section 32 of the
U. P. Land Revenue Act, 1901, as it stood
immediately prior to the coming into force of
this Act, or, subject to the restriction
mentioned with respect to the register
described in clause(e) in any of the registers
maintained under section 33 of the said Act or
in a similar register described in or prepared
or maintained under any other Act, Rule,
Regulation or Order relating to the
preparation or maintenance of record of rights
in force at any time and includes share in or
of an "estate’.
Explanation : The Act, Rule, Regulation or
order referred to in this clause shall include
Act, Rule, Regulation or order made or
promulgated by the erstwhile Indian State
whose territories were merged or absorbed in
the State of Uttar Pradesh prior to the date
of vesting notified under section 4 of this
Act."
In the light of this definition the Division Bench came to
the conclusion that only the areas expressly mentioned in
the Khewats vested in the State. It accordingly dismissed
the appeals filed by the State and partly allowed the appeal
of the petitioner.
The State filed two petitions for leave to appeal, one
against the judgment in Special Appeal No. 267/1957 and the
other against the judgment in Special Appeal No. 292/1957.
The Raja filed a petition for leave to appeal against the
judgment in Special Appeal No. 267/1957. The High Court
granted three certificates on August 16, 1963, and three
appeals are now before us, all arising out of the one
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petition under Art. 226 filed by the petitioner Raja.
On January 1, 1964, the English translation of the impugned
Act (U. P. Act No. 1 of 1964) was published, it having
received assent
365
of the President on December 31, 1963. The relevant portion
of the impugned Act reads as follows:-
"Section 2. In the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950
(hereinafter called the principal Act), in
clause (8) of Section 3, the following proviso
shall, with effect from the first day of July,
1952, be added before the explanation, and the
notifications issued under the principal Act
(including sections 2 and 4 thereof) or the U.
P. Land Reforms (Amendment) Act, 1954
(including section I thereof) or the U. P.
Land Reforms (Amendment) Act, 1956 (including
section I thereof) or the U. P. Land Reforms
(Amendment) Act, 1958 (including section I
thereof) shall, notwithstanding any judgment,
decree, determination or order of any Court be
so construed as if the said proviso had, since
the said date, formed part of the principal
Act, as also of the definition of the word
’estate’ as given in the Uttar Pradesh
Zamindari abolition and Land Reforms
(Amendment) Act, 1958:
Provided that in Mirzapur District each of the
areas bounded as given in Schedule VII shall,
notwithstanding anything contained in the
foregoing definition, be deemed to be an
estate.
3. After Schedule VI of the principal Act,
the following new Schedule shall be added and
be deemed to have been so added with effect
from the first day of July, 1952.
Schedule VII
[See proviso to clause (8) of section 3]
1. The area known as Pargana Agori in
district Mirzapur bounded in the North by the
Kaimur Range confining with the villages
Padaunian (also known as Parhwanian),
Chingauri, Guraul (also known as Gurwal)
Karaundia, Barauli, Dumkari Khirhata, Gadman,
Khajraul (also known as Khajuraul) Dugauli,
Baragaon, Jurauli, Jurauli Kulani, Rajpur,
Raipura, Senduri, Raghunathpur, Bahawar,
Basauli, Baghuwari, Lodhi, Raunp, Musahi,
Churk and Urauli (also known as Arauli) of
Pargana Barhar and villages Biranchuwa, Makri
Bari, Pokhraundh, Lauwa, Cherui, Baghma,
Markundi of Pargana Bijaigarh of district
Mirzapur as far as the Western boundary of
village Sasnai of Pargana Bijaigarh which then
forms the boundary between Parganas Agori and
Bijaigarh upto the point opposite the junction
of the rivers Kanhar and Son and thence onward
the River Son, forms its northern boundary.
366
in the east and south-east by the territory of
the State of Bihar;
in the South by Tehsil Dudhi of District
Mirzapur;
in the South-West and West by the territory of
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Madhya Pradesh (erstwhile Rewa State);
but excluding village Kishun Chak, which is a
separate estate within Pargana Agori and is
bounded on the North, East and South by
village Kon Khas and in the West by village
Mohiuddinpur of District Mirzapur."
The learned counsel for the State has raised
three points before us in the two appeals
filed by the State:
(1) In view of the impugned Act, Pargana
Agori is an "estate within the Reforms Act;
(2) The High Court was in error in holding
that on account of the mention of a wrong area
in the khewat the entry cannot be said to be
in respect of the entire area;
(3) Naksha Pattidaris prepared by Rai Manak
Chand in 1843 in connection with settlement
operations constituted record of rights.
On the first point M On the first point Mr. A. K. Sen, the
learned counsel for the Raja, contends that the impugned Act
cannot be saved under Art. 31A because it has not been
passed for agrarian reforms and, secondly, that the impugned
Act includes an area within the definition of "estate" in
the Reforms Act which is not an "estate" within Art. 31A(2).
He says that the validity of the acquisition under the
Reforms Act must be judged in the light of Art. 31 and Art.
19.
Art. 31A(2) as enacted by Constitution (Seventeenth Amend-
ment) Act, 1964, reads as follows:-
"31A(2) In this article-
(a) the expression ’estate’ shall in
relation to any local area, have the same
meaning as that expression or its local
equivalent has in the existing law relating to
land tenures in force in that area and shall
also include-
(i) any jagir, inam or muafi or other
similar grant and in the States of Madras and
Kerala any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of
agriculture or for purposes ancillary thereto,
including waste land, forest land for pasture
or sites of buildings and other
367
structures occupied by cultivators of land,
agricultural labourers and village artisans;
(b) the expression ’right’ in relation to an
estate, shall include any rights vesting in a
proprietor, sub-proprietor, under-proprietor,
tenure-holder, raivat, under raivat or other
intermediary and any rights or privileges in
respect of land revenue."
It is apparent from the definition that as far as the first
part of clause (a) is concerned, we have to look to the
meaning given to the expression "estate" or its local
equivalent in an existing law relating to tenures. We
cannot have recourse to the meaning given in a law which is
not existing law. Existing law is defined in art. 366(10)
thus:
"’Existing law’ means any law, ordinance,
order, bye-law, rule or regulation passed or
made before the commencement of this
Constitution by any Legislature, authority or
person having power to make such a law,
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Ordinance, order, bye-law, rule or
regulation;"
Therefore, if the State desires to invoke Art. 31A and rely
on the definition contained in the first part of clause (a)
it must show that the area sought to be acquired is an
"estate" within the definition contained in a law relating
to land tenures passed before the commencement of the
Constitution. The relevant definition for our purposes is
contained in s. 4(4) of the U.P. Land Revenuie Act 1901. It
is not necessary to decide whether Pargana Agor ails within
the definition of "Mahal" as we have come to the conclusion
that Pargana Agori is a Jagir or Inam or a grant of a
similar nature within clause (a) (i) of Art. 31A(2). But
before giving our reasons for this conclusion we will
dispose of the contention of the learned counsel that
Pargana Agori is an estate within cl. (a) (iii) of that
Article.
According to the learned counsel for the State any waste
land or forest land would fall within clause (a)(iii) He
says that it is not necessary that it should be held or let
for purposes of agriculture or for purposes ancillary
thereto. In other words, he would rewrite clause (a)(iii)
as follows:-
Clause (a) (iii)
(A) any land held or let for purposes of
agriculture or for purposes ancillary thereto,
(B) any waste land, forest land for pasture,
(C) sites of building and other structures
occupied by cultivators of land, agricultural
labourers and village artisan.
368
We are unable to read clause (a)(iii) in this way. It seems
to us that if this was the intention, cl. (a)(iii) would
have been split up and waste-land, forest land and land for
pasture would have figured separately in a separate clause.
There are vast areas of forest land and waste land in India
and it is not to be expected that these would be included in
the definition indirectly by expanding the word "land". If
this was the intention at least the word "including" would
have been omitted and substituted by "any". Further the
whole object of Art. 31A is to carry out agrarian reforms
and it ’is difficult to see how agrarian reforms can be
furthered by the acquisition of every parcel of forest land
or waste land.
In our opinion the word "including" is intended to clarify
or explain the concept of land held or let for purposes
ancillary to agriculture. The idea seems to be to remove
any doubts on the point whether waste land or forest land
could be held to be capable of being held or let for
purposes ancillary to agriculture.
We must, therefore, hold that forest land or waste land in
the area in dispute cannot be deemed to be an estate within
cl.(a)(iii) unless it was held or let for purposes ancillary
to agriculture. There is no dispute that the cultivated
portion of Pargana Agori would fall within clause (a)(iii).
The next point is whether Pargana Agori is a Jagir, Inam or
other similar grant within Art. 31A(2)(a)(i). The learned
counsel for the State relies on the following facts.
About the year 1744 A. D. Shambu Shah the then Raja of Agori
was dispossessed of his domains by Raja Balwant Singh and he
brought the estate to his own use. It appears from Robert’s
report that Raja Balwant Singh and his successor Chet Singh
remained in possession for about 40 years. During the
insurrection of Chet Singh, Adil Shah, grandson of Shambu
Shah, attended on Warren Hastings and made himself so useful
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that the Governor General gave him a sanad restoring him the
Zamindari of Agori Barhar (vide Sherring Hindu Tribes Caste
Vol. 1, pages 182-183)reproducedin Baijnath Prasad Singh
v.Taj Bali Singh(1) He helped the British in the military
operations against Chet Singh thus:
"Meanwhile the information of Chet Singh’s
flight reached the Governor-General at Chunar
and a strong force was sent under Major Popham
to take possession of Latifpur and then to
reduce Bijaigarh. The GovernorGeneral, after
visiting Patita, returned to Ramnagar on
September 28th, and after restoring confidence
by the issue of proclamations of amnesty,
formally installed Mahip Narayan Singh, the
daughter’s son of Balwant Singh, as
(1) A.I.R. 1917 All. 191.
369
successor to Chet Singh. Major Popham and his
forces reached Latifpur without opposition and
having garrisoned the place with two companies
of sepoys under Captain Palmer, proceeded
towards Bijaigarh, which he reached after a
difficult and trying march. A survey of the
height of the fort immediately dispelled all
idea of capturing it by escalade. But the
Raja of Agori, who had been expelled by
Balwant Singh and was now seeking restoration
to his ancestral domains, pointed out that the
adjoining hill of Lowa Koh commanded the fort
and was undefended. Accordingly a battery was
at. once thrown up on Lowa Koh, as also on
another hill to the north of the fort. On the
following day fire was opened from these
batteries and resulted in the speedy silencing
of the guns of the enemy, which were very
ineffectively served." (vide District
Gazetteer of Mirzapur-page 237)
The sanad is dated October 9, 1781, and the
translation reads as follows:-
"Be it known to Azzat Asar (respected) Adal
Singh, Zamindar Pargana Agori.
That on the basis of his application it has
been learnt that the Zamindari of the
aforesaid Pargana is his ancient hereditary
property and that some years ago Raja Balwant
Singh forcibly dispossessed him therefrom and
himself took possession thereof Therefore, in
view of Bargadam Haqeeq, he should be restored
to his own rights so that he may carry on the
settling and management of the aforesaid
Pargana under the authority of the Amil and
Rafat Wa Awali Martabat Raja Mahip Narain
Bahadur (?). It be considered as very urgent
and be complied with accordingly. Dated the
20th of Shawalul Mukarram, 1195 Hijri Qudsi,
corresponding to the 9th of October, 1781, A.
D. Qalmi."
Another translation appears in Baijnath Prasad
Singh v. Tej Bali Singh:(1)
"Be it known to Adil Shah, respectable
zamindar of Pergana Agori, that on a petition
having been made, it is known that the
zamindari in the pargana aforesaid is his old
ancestral property. Several years ago Raja
Balwant Singh forcibly dispossessed him and
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brought it to his use. Therefore, in lieu of
former rights he should remain in proprietary
possession of his share as heretofore. He
should make arrangements as regards the
cultivation of the land and population of the
pargana aforesaid in accordance with the
directions of the Revenue Officer
(1) A.I.R. 1917 All. 191.
370
and Raja Mohit Narain Bahadur of high rank.
He is insisted on doing as directed above."
On October 15, 1781, a sanad was granted to the petitioner’s
ancestor Adil Shah granting him an Ultmagah Jagir of Rs.
8,001/from Fasli year 1189. Adil Shah obtained possession
of the Pargana with the assistance of the British troops.
On November 4, 1803, a sanad was granted to the petitioner’s
ancestors granting a Jagir of Rs. 8,001/- per annum.
Mr. A. K. Sen contends that the sanad was set aside by
resolution of the Governor-General in Council dated April
1788 (see paragraph 16 of the G.O. No. 3824 of August 30,
1845 printed on page 97 of the Thomason Despatches). He
relies on this statement contained in the judgment of the
High Court in Writ Petition No. 454/1955 dated November 2,
1962. But this statement refers to the sanad dated October
15, 1781, and not to the sanad dated October 9, 1781, or the
later sanad dated November 4, 1803. It appears from the
District Gazetteer (page 255) that as soon as Adil Shah
obtained possession of the zamindari, Adil Shah really
forfeited his claim to the assigned villages, the revenue of
which was Rs. 8001/- and as possession had been obtained at
the time of the general settlement in 1788 the Governor-
General in Council ordered the assignment to be resumed.
Adil Shah died in 1794 and the New Raja became involved in
monetary difficulties. Mr. Barton, the then Collector, made
certain proposals and they were accepted at Calcutta and
orders were issued to him to revise the assessment of Agori-
Barhar in such a way as to give the Raja a net profit of Rs.
8,001/- per annum or to allot him, in lieu thereof, a
certain number of villages assessed to that amount.
Accordingly the revision of certain revenue paying villages
took place, and in addition to the villages assigned by Mr.
Duncan, certain others assessed to a sum of Rs. 4,000/- were
made over to the Raja. This arrangement brought taluqas
Agori and Singrauli into the Raja’s possesssion, with the
result that he became in 1804 both zamindar and jagirdar, or
assignee of the Government demand, in taluqas Kon and Agori,
Singrauli and 28 villages in Barhar. Paras 11 to 15 of
Robert’s report dated January 1, 1847, are to the same
effect.
It seems to us clear from the above facts that Pargana Agori
is still held under the sanad dated October 9, 1781, and the
sanad dated November 4, 1803. The second sanad is a grant
of land revenue. That is definitely a Jagir.
The learned counsel for the State contends that the fact
that Adil Shah asserted a prior title may have been one of
the reasons for the restoration of the zamindari, but it was
in essence a new grant made on political considerations. He
further points out
371
that conditions are also laid down in the Sanad. Adil Shah
was enjoined to make arrangements regarding cultivation and
population of the pargana and had to obey the directions of
the revenue officer and Raja Mohit Narain ]Bahadur in this
behalf.
As stated by this Court in Thakur Amar Singhji v. State of
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Rajasthan(1) "we do not find any sufficient ground for
putting a restricted meaning on the word ’Jagir’ in Art.
31A. At the time of the enactment of that Article the word
had nearly acquired both in popular usage and legislative
practice a wide connotation, and it will be in accord with
sound canons of interpretation to ascribe that connotation
to that word rather than an archaic meaning to be gathered
from a study of ancient tenures."
An inam is explained in Wilsons’ Glossary thus
"A gift, a benefication in general, a gift by
a superior to an inferior. In India, and
especially in the south, and amongst the
Marathas, the term was especially applied to
grants of land held rent-free, and in
hereditary and perpetual occupation; the
tenure came in time to be qualified by the,
reservation of a portion of the assessable
revenue, or by the exaction of all proceeds
exceeding the intended value of the original
assignment; the term was also vaguely applied
to grants of rent free land, without reference
to perpetuity or any specified conditions.
The grants are also distinguishable by their
origin from the ruling authorities, or from
the village communities and are again
distinguishable by peculiar reservations, or
by their being applicable to different
objects."
In our opinion a grant by the British of lands for services.
rendered to them would be a grant falling within cl. a(i).
It seems to us that on the facts of the case the grant was
in thenature of a grant similar to a Jagir or inam. The
fact that Balwant Singh and Chet Singh held possession of
this Pargana for 40 years, cannot be ignored. This shows
that to all intents and purposes Adil Shah had lost the
pargana and it was in effect a fresh grant in the nature of
Jagir or inam for services rendered to the British. Adil
Shah’s assertion to title had not been verified. Although
it may be one of the reasons for the grant, it is clear that
if it had not been for the grant and its enforcement by the
British troop&, Adit Shah would not have been able to
recover the possession of the Pargana. His title to the
pargana would rest on the grant and not. the alleged
previous title.
If it is held, as we do hold, that the area in dispute is a
grant in the nature of Jagir or inam and consequently an
estate within
(1) [1955] 2 S.C R. 303.
372
Art. 3 1A(2), the impugned Act can claim the protection of
Art. 3 1A. The notifications dated June 30, 1953, and July
1953, must therefore be upheld.
Mr. A. K. Sen further urges that the acquisition of the
estate was not for the purposes of agrarian reforms because
hundreds of square miles of forest are sought to be
acquired. But as we have held that the area in dispute is a
grant in the nature of Jagir or inam, its acquisition like
the acquisition of all Jagirs, inams, or similar grants, was
a necessary step in the implementation of the agrarian
reforms and was clearly contemplated in art. 3 1 A.
In this view it is not necessary to decide whether the area
in dispute is a Mahal or covered by s. 3(8) of the Reforms
Act as it existed in 1958 or earlier or any other question
which was raised before us.
In the result the appeals filed by the State are accepted,
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the appeal filed by the petitioner Raja is dismissed and the
petition under Art. 226 filed by the Raja is dismissed. In
the circumstances of the case there will be no order as to
costs.
V.P.S.
Appeals Nos. 653 and 654 allowed
Appeal No. 655...... dismissed
373