THAKUR MANMOHAN DEO AND ANOTHER versus THE STATE OF BIHAR AND OTHERS. (AND CONNECTED APPEAL)

S. K. J.-These two appeals on a certificate granted by the High Court of Patna. a.re from the judgment and decree of the said High Court dated December 10, 1954. By the said judgment and decree the High Court dismissed two appeals which a.rose out of two suits, Title Suit no. 42 of 1950 and Title Suit No. 23 of 1952, which were tried together and dismissed with costs by the learned Subordinate Judge of Deoghar.

p. 696

The plaintiffs of those two suits are the appellants before us. One of the appellants Thakur Manmohan Deo was the holder of a ghatwali tenure commonly known as the Rohini gha.twali, situate within the subdivision of Deoghar in the district of the Santal Parga.nas. The other appellant Tikaitni Faldani Kuma.ri was the holder of the Pathrole gha.twa.li also situa.tfin the same sub-division. Doth these gha.twa.li tenures were formerly known a.s Birbh um ghatwa.lis and wern governed by Benge.I Regulation XXIX of 1814. In the year 1950 was enacted the Bihar Laud Reforms Act 1950 (Bihar Act 30 of 1950), hereinafter called the Act. The Act came into force on September 25, 1950. Tho validity of the Act was challenged in the ·Patna--High Court on grounds of a violation of certain fundamental rights and the High Court held it to be unconstitutional on those grounds. The Constitution (First Amendment) Act, 1951, was enacted on June 18, 1951, and in appeals from the decision of the 'Patna High Court, this Court held in The State of Bihar v. Maharajadhiraja Sir Kame11hwar Singh of Darbhanga (1) that the Act was not unconstitutional or void on the grounds alleged, except with regard to the provisions in s. 4(b) and s. 23(f) thereof. The validity of the Act is, therefore, no longer open to question on those grounds, though in one of the suits out of which these two appeals have arisen, it was contended that the Act was ultra .vires the Constitution.

pp. 696–697

The principal hsue in the two suits which now survives is issue no. 3 which said: "Do the provisions of the Bihar Land Reforms Act., 1950, purport to acquire the plaintiffs' ghatwalis? If so, are they ultra vires in their application to such ghatwalis? This issue was decided against the appellants by the learned Subordinate Judge and the decision of the learned Snbordinate Judge was upheld on appeal by the High Court of Patna in its judgment and decree dated December 10, 1954, from which decision these two appea.ls have come to us.

p. 697

Three main points have been urged on behalf of the appellants. The first point is one of construction and the appellants contend that on a proper construction of the relevant provisions of the Act, it does not apply to ghatwali tenures like the Rohini and Pathrole ghatwalis. Secondly, it is contended that if the provisions of the Act apply to the appellants' ghatwali tenures, then the State legislature was not competent lo enact it, because ghatwali tenures like the Rohini n.nd Pathrole ghatwalis, were of a quasi-military nature and if the Act, applies to them, it must be held to relate to items 1 and'2 of the Union List (List l) and, therefore, outside the competence of the State legislature. The third contention is that tho Act does not purport to repeal Bengal Regulation XXIX of 1814 and in as much as the said Regulation <lea.ls with special tenures, the special law enacted with regard to such tenures would not be affected by the general law .with regard to land reforms as embodied in the Act. Wo shall deal with these three contentions in the order in which we havo stated them. But before we do so, it is necessary to explain, briefly, the nature of these ghatwali tenures.

pp. 697–698

We may quote here some of the provisions of Bengal Regulation XXIX of 1814. The Regulation says in s. I that lands held by the class of persons denominated ghatwals in the district of Birbhum form a peculiar tenure to which the pi:ovisions of the existing Regulations a.re not expressly applicable; it then states that according to the former usages a.nd constitution of the country, this class of persons are entitled to hold their lands, generation after generation, in perpetuity, subject nevortheless to the payment of a fixed and established rnnt to the zamindar of Birbhum and to the performance of certain dutios for the maintenance of the public peace and support of the police. The Regulation then lays down certain rules to give stability to the arrangement established among the ghatwals and these rules are contained in ss. 2, 3, 4 and 5. It would be enough if we quote ss. 2, 3 and a. pa.rt of s. 5.

p. 698

"S. 2. A settlement having lately been made on the part of the Government with the ghatwals in the district of Birbhum, it is hereby declared that they and their descendants in perpetuity shall be maintained in possession of the lands so long as they shall respe~t; ~ 0Iy pay the revenue at present assessed upon them, and that they shall not be liable to any enhancement of rent so long as thoy shall punctually discharge the same and fulfil the other obligations of their tenure.

p. 698

S. 3. The ghatwali lands shall be oonsidered, as at present, to. form a pa.rt of the za.mindari of Birbhum; but the rent of ghatwa.ls shall be paid direot to the Assistant Colleotor stationed at Suri, ,or to such other public officer as the Board of Revenue may direct to receive the rents.

pp. 698–699

S. 5. Should any of the ghatwals at any time fail to discharge their stipulated rents, it shall be competent for the State Government;

p. 699

to cause the ghatwali tenure of such defaulter to be sold by public .sale in satisfaction of the arrears due from him,. in like "manner, and under the same rules, as lands held immediately of Government, or to make over the tenure of such defaulter to any person whom the State Government may approve on the condition of making good the arrear due ; or

p. 699

to transfer it by grants assessed with the same revenue, or with an increased or reduced assessment, a.s to the Government may appear meet ; or

p. 699

to dispose of it in such other form and manner as shall be judged by the State Government proper." In a number of decisions of the Privy Council the nature of these tenures has been explained and in Satya Narayan Singh v. Satya Niranjan Chakravarti ( Lord Sumner thus summarised the position at pages 198, 199 of the ·report :

p. 699

" In the Santai Parganas there are for practical purposes three classes of ghatwali tenures, (a) Government ghatwalis, created by the ruling power; (b) Government ghatwalis, which since their .creation and generally at the time of the Permanent Settlement have been included in -a zamindari estate and formed into. a unit in its assessment; and, (c) zamindari ghatwalis, created by the zamindar or his predecessor and alienable with his consent. The second of these classes is really a branch of the first. · The matter may, however, be looked at broadly. In itself' ghatwa.l' is a term meaning an office held by a pa.rticula~ person from time to time, who is bound to the performance of its duties, with a C\:!nsideration to to be·enjoyed in return by the incumbent of the office. Within .th.is meaning the utmost variety of conditions may exist. There may be a mere personal contract of employment for wages, which takes the forQl of the use of land or an actual estate in land, heritable a.nd perpetual, bnt conditional upun services certain or •.irvice8 lo be demanded. The office may be public or private, important or the reverse. Tho ghatwa.l, the guard of the pass, may be the bulwark of a whole country-side against invaders; he ma.y be merely a. sentry against petty marauders; he ma.y be no more than a. kind of gamekeeper, protecting the crops from the ravages of wild animals. Ghat.we.Ii duties ma.y be divided into police duties a.nd quasi-military duties, though both clas~es have lost much of their importance, and the latter in any strict form but rarely rendered. Again the duties of the otlice may be such as 1lema.nded personal competence for that dischargo; they may, on tho other hand, be such as can be discharged Yicariously, by the creation of shikmi tenures and by the appointment and maintenance of a suborrlinat~ force, or they ma.y be such a.s in their nature only require to be provided for in bulk. It is plain that where a grant is forthcoming to a man and his heirs ghatwal, or i~ to bo presumed to ha,ve been rna.Je though it may have been since been lost, personal performance of the ghatwa.li services is not essential so long a.s the gra.utee is responsible for them a.nrl procures them to he rendered (Shib Lall Singh v. Mooracl Khan(')). 80 much for the ghalwal. The superior, who appoints him, may al•o in the varying eireumstanccs of tho organisation of Hindostan be th<' rnliug power over the country at large, the landholder rMponsihle by custom for the maintenance of security and order within his estales, or simply the private person, to whom tho maintenance of watchmen is in the case of an extensive property, important enough to require the creation of a regular office." It i" not disputed before that tho Hohini and Pa"tlirole ghatwalis arc Government ghatwalis and admittedly they arc governed by Regulation, XXIX of 1814.

pp. 699–700

The question noll' is, does the Act apply t-0 these gha.t walis Y It is necessary now to read some of tho provisions of the Act. 8ection 2 is the definition section, cl. (o) whereof defines a "proprietor", cl. (q) defines a "tenure" and cl. (r) defines a "tenureholder ". The definition of the tw_o expressions "tenure" and "tenure-holder" was amended by Bihar Act 20 of 1954. The amendments were made with retrospective effect and the amending Act said that the amendments shall be deemed always to have been. substituted. Now, the three clauses (o), (q) and {r) of s. 2 are in these terms :

pp. 700–701

"S. 2(o)-" Proprietor" means a person holding in trust or owning for his own benefit an estate or part of an estate, and includes the hefrs and successors-ininterest of a proprietor and, where a proprietor is a minor or of unsound mind or an idiot, his guardian, committee or other legal curator ;

p. 701

( q) " tenure " means the interest of a tenureholder or an under-tenure-holder and includes- (i) a ghatwali tenure,

p. 701

(ii) a tenure created for the maintenance of any person and commonly known as kharposh, b!J,buana, etc., and

p. 701

(iii) a share in or of a tenure, but does not include a Mundari Khunt Kattidari tenancy within the meaning of the Chota Nagpur Tenancy Act, 1908, or a bhuinhairi tenure prepared and confirmed under the Chota Nagpur Tenures Act, 1869;

p. 701

(r) "tenure-holder" means a pEirson who has acquired from a proprietor or from any other tenureholder a right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it and includes- .

p. 701

(i) the successors-in-interest of persons who have acquired such right, .

p. 701

(ii) a person who holds such right in trust,

p. 701

(iii) a holder of a tenure created for the maintenance of any person,

p. 701

(iv) a ghatwal and the successors-in-interest of a ghatwal, and

p. 701

(v) where a tenure-holder is a minor or of unsound mind or an idiot, his guardian, committee or other legal curator." The definition clauses ( q) and (r) state in express terms tha.t ' tenure' includes a. gha.twa.li tenure a.nd, ' tenureholder ' includes a. gha.twa.l a.nd the successors-inrnterest o a. g atwa.1. The a.rgument on behalf of the a.ppella.nts is that tho definition clauses should be so construed a8 to include zaminda.ri gha.twa.lis only a.nd not Govornment ghatwalis. :Firstly, it is pointed out that cl. (r) in its substa.ntive pa.rt sa.ys that a 'tenuroholder' means a person who has acquired from a proprietor or from any other tenure-holder a. right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it; this pa.rt, it is submitted, cannot apply to a. Government gha.twa.l, because a Government gha.twal does not acquire from a. proprietor or from any other tenure. holder a right to hold la.nd for any of the two purposes mentioned therein. In this connection our attention ha.s been drawn to cl. (o) which defines a. ' proprietor' and it is further pointed out that, a.s stated by Lord Sumner, Government gha.twa.ls were either created by the ruling power or were since their creation and genera.Hy a.t the time of the Perma.nent Settlement included in a. za.minda.ri esta.te a.nd formed int-0 a. unit in its a.ssessment; therefore, it is a.rgued that Government gha.twa.lis did not acquire a.ny right from a. proprietor or any other tenure. holder. Secondly, it is submitted that sub-cl. (i) of cl. ( q) and sub. cl. (iv) of cl. (r) must be read in the light of the substantive pa.rt of the two clauses, even though the subclauses state in express terms that a. ' tenure ' includes a. gha.twa.li tenure and a 'tenure-holder' inclues a. gha.twa.l. It is pointed out that a za.minda.ri gha.twa.l acquires his interest from a. proprietor and the substantive pa.rt of els.uses (q) and (r) may a.pply to a. za.minda.ri gha.twa.l and his tenure but the substantive pa.rt of the two clauses cannot apply to a. Government ghe.twe.l and his tenure. We a.re unable to accept this line of argument a.s correct.

pp. 701–702

Where e. sta.tute sa.ys in express terms that the expression 'tenurn ' includes a. gha.twe.li tenure a.nd the expression 'tenure-holder' includes e. ghe.twe.l and the successors-in-interest of e. ghe.twa.l, there must be compelling rea.sons to out down the amplitude of the two express10ns. The Bihar legislature must have been aware of the distinction between Government ghatwalis and zamindari ghatwalis and if the intention was to exclude Government ghatwalis, nothing could have been easier than to say in the two definition clauses that they did not include Government ghatwalis. On the contrary, the legislature made no distinction between Government ghatwalis and zamindari ghatwalis but included all ghatwali tenures within the definition clauses. There are no restrictive words in the definition clauses and we see no reasons why any restriction should be read into them. It is worthy of note that the two definition clauses first state in the substantive part what the general meaning of the two expressions is, and then say that the expressions shall inter alia include a ghatwali tenure and a ghatwal and the successors-in-interest of a ghatwal. Thus, the two definition clauses are artificially extended so as to include all ghatwali tenure.a and all ghatwals and their successors-in-interest, irrespective of any consideration as to whether they come within the general meaning stated in the substantive part of the two clauses. Such artificial extension of the two clefinition clauses is also apparent from sub-cl. (v) of cl. (r) and sub.cl. (iii) of cl. (q). Sub-.clause (iii) of cl. ( q) excludes certain tenures from ~he definition clause which would otherwise come within the general meaning of the expression 'tenure' and sub-cl. (v) of · cl. (r) extends the expression ' tenure-holder' to guardians committees and curators. When we are dealing with ari artificial definition of. this kind which states

pp. 702–703, margin F

means and shall include etc.", there is no room for an argument that even though the definition expressly states that something is included within a particular expression, it must be excluded by reason of its not coming within the general meaning of that expression.

p. 703

The learned Counsel for the appellants has also called to his aid certain. other provisions of the Act in support of the argument that the Act does not apply to Government ghatwa!is. He has referred to s. 23(1)

p. 703

(f) and s. 32(4) of the Act. Section 23 deals with the computation of net income for tho purpose of prepa.ring a Compensation Assessment-roll, by deducting from the gross asset of ea.ch proprietor or tenureholder, certain sums mentioned in cla.uReR (a.) to (f). It must be stated that what was cl. (g) of s. 23(1) b~fore has now become cl. (f), because the original cl. (f) of s. 23(1) was held to be unconstitutional by this Court in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga('). Section 23(1) so far as it is relevaut for our purpose states :

p. 704

"S. 23(1) For the purpose of preparing a Compensation Assessment.roll, the net income of a. proprietor or a tenure-holder shall be computed by deducting from the gross asset of such proprietor or tenure-holder, a.s the ca.so may be, the following, na.mely:- (a.) ............................................................ . (b) ........................................................... .. (c) ............................................................ . (d) ........................................................... .. (e) ............................................................ ..

p. 704

(f) any oth~r tax or legal imposition payable in respect of such estate or tenure not expressly mentioned in clauses (a.) to (e) or the value, to be commuted in the prescribed manner, of any services or obligations of any other form to be rendered or discharged as a. condition precedent to his Pnjoyment of such estate or tenure". Now, the argument before us is that cl. (f) of s. 23(1) cannot apply to a Government gha.twa.I, because he can still be asked to perform the services and obligations which he had undertaken by reason of the office which he held. It is submitted that the Act does not purport to abolish the ghatwali office and as the office and the tenure a.re inseparably connected, the calculation referred to in cl. (f) cannot be ma.de in the case of a Government ghatwali. Our attention has also been drawn to a later decision of the Patna High Court (Election Appeals nos. 7 and 8 of 1958) of March 20, 1959, wherein a distinction was drawn between acquisition and resumption of a ghatwali tenure and the argument that on the acquisition of the gbatwali tenure the office lapsed was not accepted. We have been informed at the Bar that. that decision i~ under appeal to this Court .. 'fherefore, we do not propose to say anything about the correctness or otherwise of the view expressed therein. It is enough to point out that assuming that the argument of the appellants is correct and cl. (f) of s. 23(1) does not apply, it does not necessartly follow that the a ppel- Iants' ghatwali tenures cannot be acquired by the Stn.te Government under s. 3 of the Act. Section 23(l)(f) provides only for the deduction of a particular item from the gross·asset 6f the tenure-holder for the purpose of computing the net income. Even if cl. (f) does not apply, the statute provides for other deductions mentioned 'in clauses (a.) to (e). Those clauses indisputedly apply to a. gbatwali tenure and a Compensation Assessment-roll can be prepared on their basis. It would not be correct to say that because a particular item of deduction does not apply in the case of a Government ghatwali, such ghatwali tenure must be excluded from the ambit of the Act; such a view will be inconsistent with the scheme of s. 23. The scheme of s. 23 is that certain deductions have to be made to compute the net income ; some of the items may apply in one case and some may not· apply. The section does not contemplate that a.II the itemR must apply in the case of each and. every proprietor or tenure-holder. \Ve - now come to s. 32 of the. Act. Section 32(4) states : · "S. 32(4) if the estate or tenure in respect of which the compensation is payable is held by a limite? owner or the holder of life-interest, the Compensation Officer she.II keep the amount of compensation in deposit with the Collector of the distrfot and the Collector shall direct the payment of the interest accruing on the amount of compensation to the limited owner or the holder of the life interest during his lifetime. Such a.mount shall remain deposited with the Collector until the a.mount of compensation or portion thereof after making payments, if any, under the proviso to this sub-section is ma.de over to any person or persons becoming absolutely entitled thereto :

pp. 704–706

Provided that nothing in this sub-section shall be deemed to affect the right of any limited owner or the holder of a life interest to apply to the District Judge for the payment of a pa.rt of the a.mount of compensation to defray any ex_penses which may be necessary to meet any legal necessity." It is argued that sub-s. (4) of s. 32 is also ·not applicable to Government ghatwali, because the expression ' limited owner ' occurring therein has been used in the sense in which it is understood in Hindu Law and the holder of a Government gha.twali is not a limited owner in that sense. Learned Counsel for the appellants has drawn our attention to the expression 'legal necessity' occurring in the proviso to sub-s. (4) in support of his argument that the expression 'limited owner ' has the technical sense ascribed to it in Hindu Law. On behalf of the respondent State it has been argued that the expressions' limited owner' and 'legal necessity' are not used in any technical sense and may apply to persons who under the conditions on which they hold the tenure cannot alienate or divide it. Here again we consider it unnecessary to pronounce on the true scope and effect of sub-s. (4) of s. 32. The short question before us is-a.re Government ghatwalis excluded from the am bit of the Act by reason of sub-s. (4) of s. 32? Let us assume without deciding, that sub-s. (4) does not apply to ghatwali tenure. What is the result? Section 32 merely provides for the manner of payment of compensation. If sub-s. (4) does not apply, the payment of compen- ·Bation will have to be made in accordance with subs. (1) of s. 32 which says:

p. 706

"S. 32(1). When the time within which appeals under section 27 may l)e made in respect of any entry in or omission from a Compensation Assessment-roll has expired or where any such appeal has been made under that section and the same has been disposed of, the Compensation Officer shall proceed to make pay· ment, in the manner provided in this section, to the proprietors, tenure-holders and other persons who are shown in such Compensation Assessment-roll as finally published under section.28 to be entitled to compensation, of the compensation payable to them in terms of the said roll after deducting from the amount of any compensation so payable any amount which has been ordered by the Collector under clause (c) of section 4 or under any other section to be so deducted." Therefore, the result is not that Government ghatwalis will go out of the Act, because sub-s. (4) does not apply. The result only is that the holders of such tenures will be paid· compensation in a different manner. What rights others having a proprietary interest in a ghatwali tenure have age.inst the compensation money does not fall for decision here.

pp. 706–707

Therefore, we are of the view that neither s. 23(1)(f) nor s. 32(4) have the necessary and inevitable result contended for by the appellants, viz., that the appellants' ghe.twali tenures must be excluded from the operation of the Act even though the definition clauses expressly include them. .

p. 707

This brings us to the second point urged before us. That point can be disposed of very shortly. It is contended that if the provisions of the Act apply to Government ghatwalis, then the Act falls outside the legislative competence of the State Legislature in as much as the Act then becomes legislation with regard to items 1 and· 2 of the Union List. These two items are-

p. 707

" 1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation.

p. 707

2. Naval, military and air forces; any other armed forces of the Union." It is, we think, quite obvious that the Act has no connexion whatsoever with the defence of India or the armed forces of the Union. As Lord Sumner had pointed out as far be.ck as 1923, though ghatwali duties might be divided into police duties and quasimilita.ry duties, both classes had lost their importance and the latter were rarely if ever demanded. This Court had observed in The State of Bihar v. M aharaja. dhthiraja( )Sir Kameshwar Singh of Darbhanga and 0 ers :

pp. 707–708

"The pith and substance of the legislation, how. ever, in my opinion, is the transference of ownership of este.tes to the State Government and falls within the ambit of legislative head entry 36 of List II. There is no scheme of land reform within the frame work of the statute except that a pious hope is expressed the.t the commission may produce one. The Bihar Legislature was certainly competent to make the law on the subject of transference of estates and the Act as regards such transfers is constitutional." (per Mahe.jan, J., e.t p. 926 of the report). We think the.t in pith arid substance the legislation was covered by item 36 of List II (e.s it then stood) e.nd it he.s no relation to items I and 2 of List I.

p. 708

Now, e.s to the last argument founded on Regulation XXIX of 1814. In our view the Act in pith e.nd substance related to acquisition of property e.nd consequently no question of the repeal of Regulation XXIX of 1814 a.rose ; nor is it necessary to consider the principle that a special le.w relating to special tenures is not e.!fected by a subsequent general law .of land reforms. Such a principle has no application in the present ce.se. The Act expressly includes all ghatwali tenures within its ambit e.nd provides for the ve8ting of all rights therein absolutely in the S· ate of Bihe.r on the issue of notification under s. 3 and under s. 4 certain consequences ensue on the issue of such a notification notwithstanding anything contained is any other law for the time being in force. It is worthy of note that the Benge.I Permanent Settle. mcnt Regulation, 1793 (Bengal. Regulation I of 1793), did not stand in the way of acquisition of other permanently settled estates, and it is difficult to see how Regulation XXIX of 1814 can stand in the way of acqnisition of ghatwa.li tenures. The point is really covered by the ducision of this Court in Raja Suri ya Pal Singh v. The State of U. P. (') where it was observed:

p. 708

" The Crown cannot deprive a legislature of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within tho territory over which such legislative authority exists and no court can annul the enactment of a legislative 'Body acting within the legitimate scope of its sovereign competence. If, therefore, it be found that the subject of a Crown grant is within the competence of a provincial legislature, nothing can prevent that legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally." For the reasons given above, we hold that none of the three points urged on behalf of the appellants has any substance. The appeals fail and are dismissed with costs ; there will be only one hearing fee.

p. 709

Appeals dismissed. M/s. ANW ARKHAN MAHBOOB CO.

p. 709

v.

p. 709

THE STATE OF BOMBAY

p. 709

(NOW MAHARASHTRA) AND OTHERS (S. K. M: K. c. J. c ..

p. 709

and N. JJ.)

p. 709

Purchase Tax-If leviable not specifically mentioned taxable but under general description "all other than those specified "-Conversion of commodity into another mercially different article-If amounts consumption-Place of purchase for the purpose of taxation-Constitution of India, Art. z9 ({) & 286-Bombay Sales Tax Act, z953 (Bom. Act III of z953), Schedule B, Entry 80.

p. 709

The petitioner Company carrying on the business of manufacturing bidis and having its head office at Jabalpur in the State of Madhya Pradesh made certain purchases of tobacco in the State of Bombay. The Sales Tax Officer assessed the petitioner to a purchase tax under the provisions of the Bombay Sales Tax Act, 1953. The petitioner contested the assessment of

p. 709