Full Judgment Text
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PETITIONER:
RAJA BAHADUR KAMAKSHYA NARAINSINGH AND OTHERS
Vs.
RESPONDENT:
THE COLLECTOR AND DEPUTY COMMISSIONER OF HAZARIBAGH AND
DATE OF JUDGMENT:
28/10/1955
BENCH:
IMAM, SYED JAFFER
BENCH:
IMAM, SYED JAFFER
AIYAR, N. CHANDRASEKHARA
DAS, SUDHI RANJAN
BOSE, VIVIAN
JAGANNADHADAS, B.
CITATION:
1956 AIR 63 1955 SCR (2) 988
ACT:
Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950), ss.
3(1)4(a), 4(h), 5, 7-Buildings standing on the land
comprises in the estate-Transfer after the first day of
January, 1946-Estate notified as having become vested in the
State-Notice to the transferee under s. 4(h)-Notification
purporting to vest in the State the transferred properties-
Validity-S. 4(h), whether ultra vires.
HEADNOTE:
On the 29th of December, 1947, petitioner No. 1 executed a
lease to C (a company) of certain properties consisting of
lands and buildings comprised in the estate belonging to
him. Subsequently, in 1949 he executed a deed of settlement
whereby he transferred the properties to three trustees,
namely, himself and petitioners 2 and 3. Bihar Land Reforms
Act, 1950 (Bihar Act XXX of 1950) came into force on the
25th of September, 1950, and on the 3rd of November, 1951,
the State of Bihar issued a notification under s. 3(1) of
the Act declaring that the estate of petitioner No. 1 had
passed to and become vested in the State. A notice under s.
4(h) of the Act was issued by the Collector to C and on the
4th of March, 1954, the State Government issued a
notification under s.3(1) purporting to vest in the State
the properties in question. It was contended for the
petitioners that the buildings standing on the land
comprised in the notified estate did not vest in the State,
on the ground (1) that the estate of the petitioner No. 1
did not vest in the State under s. 3 of the Act but by
virtue of the provisions of s. 4, (2) that the definition of
"estate" -in the Act speaks of land only and not of any
building on it, (3) that on the date of vesting, the
buildings were not used as office or cutchery for the
collection of rent of the notified estate within the meaning
of s. 4(a), and (4) that s. 4(h) is ultra vires the
Constitution as it imposes an unreasonable restriction on
the fundamental right of the petitioners to realise rent
from the company.
Held, that (1) whether the estate of petitioner No. I vested
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in the State by reason of the publication of the
notification under s. 3 or by virtue of the provisions of s.
4 was of little consequence as in either case a vesting took
place;
(2) although in the definition of "estate" the word land is
used and there is no mention of the word building, the
provisions of ss. 4, 5 and 7 show the intention of the
legislature to include some-
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thing more than merely the land of a notified estate as
vesting in the State. Under s. 4(a), buildings of a certain
description and other things vest in the State absolutely on
the publication of a notification under s. 3. Under ss. 5
and 7, the buildings mentioned therein are deemed to be
settled by the State with the intermediary and this could
only be an the supposition that the buildings vested in the
State, the intermediary being a settlee under the State;
(3) ss. 4(a) and 4(h) must be read together. Under s.
4(h), the use to which the building was put previous to its
transfer after the first day of January, 1946, and not
thereafter was what the Collector was concerned with and not
to what use it had been put after its transfer after the
first day of January, 1946. If a transfer was made after
the first day of January, 1946 of a building comprised in
the notified estate which was used immediately previous to
the date of transfer primarily as office or cutchery for the
collection of rent of such estate the transfer would be
liable to be annulled under s. 4(h) and the building would
vest absolutely in the State on the publication of the
notification and the provisions of s. 4(a) must be read
accordingly; and
(4) the Collector’s powers under s. 4(h), wide as they are,
are not quite so absolute or arbitrary as suggested. S.
4(h) is a part of a validly enacted law of acquisition of
estates and is an integral part of the machinery by which
acquisition of an estate takes place. The Act or s. 4(h) of
it imposing any unreasonable restriction on the fundamental
right of the petitioners, therefore, does not &rise. The
Act including s. 4(h) of it, is protected by Art. 31-A of
the Constitution.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 217 of
1955.
Under article 32 of the Constitution of India for the
enforcement of Fundamental Rights.
N. C. Chatterjee, (Vir Sen Sawhney and Ganpat Rai, with
him), for the petitioners.
Lal Narain Sinha, (Bajrang Sahai and S. P. Verma, with him),
for respondent No. 2.
1955. October 28. The Judgment of the Court was delivered
by
IMAM J.-The petitioners have filed this application under
article 32 of the Constitution claiming that the buildings
and lands as set out in the Schedule annexed to the petition
and marked "A" (hereinafter referred to as the disputed
properties) did not vest in the State of Bihar under the
provisions of the
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Bihar Land Reforms Act 1950 (hereinafter referred to as the
Act). Petitioner No. I in his individual capacity was at
one time the owner, of the disputed properties which lie
within Touzi No. 28 of the Collectorate of Hazaribagh. On
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the 29th of December, 1947 petitioner No. I as owner leased
out the disputed properties to a Company known as Mineral
Development Ltd. (hereinafter referred to as the Company).
The Company took possession of the disputed properties and
has been paying rent. On the 7th of April, 1949 petitioner
No. I in his individual capacity executed a deed of
settlement whereby he transferred the disputed properties to
three trustees, namely, himself and petitioners 2 and 3. The
Company has been paying rent to the trustees since then.
The Act came into force on the 25th of September, 1950. On
the 3rd of November, 1951 the State Government issued a
notification under section 3(1) of the Act declaring that
the estate of petitioner No. I in his individual capacity
specified therein had passed to and become vested in the
State. On the 26th of October, 1953 a notice under section
4(h) of the Act was issued by the Collector to the Company,
and on the 4th of March, 1954 the State Government issued a
notification under section 3(1) of the Act purporting to
vest in the State the properties covered by the above-
mentioned deed of settlement and another deed of settlement
with which we are’ not concerned. The Company instituted a
title suit No. 33 of 1951 against the State of Bihar in the
Court of the Subordinate Judge, Hazaribagh basing its claim
on a mining lease executed by petitioner No. I in his
individual capacity the genuineness of which was challenged
by the State. Petitioner No. I in his individual capacity
was made a party to this suit. The Company also instituted
a title suit No. 9 of 1954 against the State of Bihar to
which petitioner No. I in his individual capacity was made a
party challenging the legality of the issue of notice dated
26-10-1953 under section 4(h) of the Act. On the 11th of
November, 1954 the State of Bihar filed title suit No, 53 of
1954 to which the Company,
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petitioner No. I in his individual capacity, the three
trustees and others were made parties. By this suit the
State of Bihar challenged the genuineness of the lease in
favour of the Company and the deed of settlement in favour
of the trustees.
The real question for determination is, what vested in the
State on the publication of the notification under section 3
and by virtue of the provisions of section 4(a) of the Act?
According to Mr. Chatterjee the disputed properties did not
vest in the State, whatever else may have. Having regard to
the definition of "estate" in the Act, if anything vested in
the State on the publication of a notification it was the
land comprised in the notified estate. Although the
disputed properties stood on the land in the notified
estate, they did not vest in the State, because the
definition of "estate" speaks of land only and not of any
building on it. The notification under section 3 was a mere
declaration and actual vesting took place under section
4(a). On the date of vesting the disputed properties were
not used as office or cutchery for the collection of rent of
the notified estate of petitioner No. 1, who had parted with
his right, title, and interest therein long before the Act
was enacted and the publication of the notification under
section: 3. Mr. Sinha on behalf of the State of Bihar, on
the other hand, contended that on a perusal of the provi-
sions of sections 4, 5 and 7 of the Act, it would appear
that the Act contemplated something more than the’ land in
an estate vesting in the State and the disputed’ properties
could and did vest in the State on the publication of the
notification under section 3.
In our opinion, it is of little consequence in the present
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case whether the notified estate vested in the State by
reason of the publication of the notification under section
3 or by virtue of the provisions of section 4 of the Act,
because in either case a vesting did take place. Although
the word land is used in the definition of "estate", the
provisions of sections 4, 5 and 7 show the necessary
intention to include something more than the land when an
estate vests in the State. Under section 4(a) it is not
only the
992
estate but also buildings of a certain description and other
things which vest in the State absolutely on the publication
of a notification under section 3. Under sections 5 and 7
the buildings mentioned therein also vest in the State,
because the buildings in question are deemed to be settled
by the State with the intermediary in possession. This
could only be on the supposition that these buildings vested
in the State and the person in possession held the same as
settlee under the State.
In the present case on the date of the publication of the
notification under section 3 the disputed properties were
said to be in the possession of the Company as lessee and
the petitioner No. I had no right, title or interest therein
as he had transferred his lessor’s reversion to trustees by
a deed of settlement. We may assume, therefore, that on the
date of publication of the notification the disputed
properties were not used primarily as office or cutchery for
the collection of rent of the notified estate of petitioner
No. 1 It. becomes, therefore, necessary to interpret the
word "used" occurring in section 4(a). It is to be noticed
that this clause of section 4 does not expressly state that
a building used primarily as office or cutchery for the
collection of rent must be so used at the date of the
publication of the notification. In this clause the words
"used primarily as office or cutchery for the collection of
rent of such estate" must be read in the light. of the
provisions of section 4(h) where similar words are employed.
Under section 4(h) the Collector has the power to make
inquiries in respect of any transfer of any kind of interest
in any building used primarily as office or cutchery for the
collection of rent of such estate, if the transfer had been
made at any time after the first day of January, 1946. If
on due inquiry the Collector is satisfied that such transfer
was made with the object of defeating he provisions of the
Act or causing loss to the State or obtaining higher
compensation, then the Collector may, after giving notice to
the parties concerned and hearing them and with the previous
sanction of she State Government, annul the transfer and
dis-
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possess the person claiming under it. These provisions
clearly indicate that if any building was used primarily as
office or cutchery for the collection of rent and such
building had been transferred after the first day of
January, 1946, the transfer could be annulled if the
circumstances mentioned in section 4(h) had been
established. That is to say, under.’ these provisions the
use to which the building was put previous to its transfer
after the first day of January, 1946 and not thereafter was
what the Collector was concerned with and not to what use it
had been put after its transfer after the first day of
January, 1946. To hold otherwise would be to make the
provisions of section 4(h) meaningless. When a proprietor
transfers any such building’ it necessarily follows that the
building thereafter was not used by him as office or
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cutchery for the collection of rent of his estate. If the
transfer was made before the first day of January, 1946 the
provisions of section 4(h) would not apply and such a
transfer would not be liable to be annulled and the building
so transferred would not vest in the State on the date of
the publication of the notification covering the estate on
which such building stands. If, on the other hand, this
transfer was made after the first day of January, 1946, a
building comprised in a notified estate, which was used
immediately previous to the date of the transfer primarily
as office or cutchery for the collection of rent of such
estate the transfer would be liable to be annulled under
section 4(h) and it would vest absolutely in the State on
the publication of the notification and the provisions of
section 4(a) must be read accordingly. It would be
unreasonable to construe the provisions of section 4(a) in
the way suggested by Mr. Chatterjee. The scheme of the Act
has to be borne in mind and the provisions of sections 4(a)
and 4(h) have to be read together. The petitioners had not
asserted in their petition that the disputed properties were
not used as office or cutchery for the collection of rent of
the notified estate of petitioner No. I before the first of
January, 1946 or before the lease in favour of the Company.
On behalf
994
of the State, on affidavit, it has been stated that the
disputed properties were all along used as cutchery before
the creation of the lease and that they were not being used
in connection with any mining operation. In our opinion, if
as a result of the inquiry under section 4(h) the transfer
of the disputed properties by the petitioner No. I is
annulled the disputed properties must be regarded as having
vested in the State, because they were used as office or
cutchery for the collection of rent previous to the
transfers made by the petitioner No. 1.
It was next contended that section 4(h) is ultra vires the
Constitution, because it imposed an unreasonable restriction
on the fundamental right of the petitioners to realize rent
from the Company, as the transfer in its favour was
imperilled by the notice issued to it under section 4(h).
No appeal or review was provided in the Act against the
order of the Collector issuing notice or an order of
annulment made by him. The Collector was left with absolute
power to annul a transfer and to dispossess a person in
possession thereunder. Section 4(b), however, does direct
the Collector to give reasonable notice to the parties
concerned and to bear them. Such annulment or dispossession
which he may order, must be with the previous sanction of
the State Government and he is compelled to do so on terms
which may appear to him fair and equitable. The power is,
therefore, not quite so absolute or arbitrary as suggested.
Assuming, however, that the Collector has very wide powers,
it is to be remembered that section 4(h) is a part of the
law of acquisition of estates as enacted by the Act and is
an integral part of the machinery by which acquisition of an
estate takes place. The Act is a valid law of acquisition
and its whole purpose may be defeated unless there was some
such provision as contained in section 4(b). The Act being
a law for acquisition of estates the question of it or
section 4(h) of it imposing any unreasonable restriction on
the fundamental rights of the petitioners does not arise.
In any event the Act including sect-ton 4(h) is protected by
article 31-A of the Constitution.
The petition is accordingly dismissed with costs.
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