THE ADDITIONAL SETTLEMENT COMMISSIONER versus YESHWANT MADHAO MAHAJAN

J.-Out of a tot.a.I area of 2,375 acres 3 gunthas of Dhanora-an Izara village in Ta.Iuka Pusad in the State of Madhya Pradesh-2,283 acres 1md 28 gunthas is assessed land nnd the remaining 91 acres and 15 gunthas is unassesged. One Surat Singh who was the proprietor of the village, by sale deed dated May 24, 1947, conveyed an undivided half share in the village to Yeshwant Madhao Mahajnn--hereinafter called Mahajan--for Ha. 25,000/- and on the same day executed a kabulayat (lease deed) for five years in respect of the same land for cultivation at an annual rental of Rs. 3,000/-. The Legislature of the Madhya Pradesh St11te enacted the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahala, Alienated Lands) Act. l of 1951-hereinafter called the Actto provide for acquisition of the rights of proprietors in eRtates, mahn!P, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connect<-d therewith. The Act was brouvht into operation on March 14, 1951. The Compensation Officer, Yeotmal sta1ted an enquiry about assessment of compt>nsation in respect of the village Dhnnora which had vested by tho operation of s. 3 of the Act in the State Government. Before the Compensation Officer, Mahajan claimed to retain posaession of a half share in all the fallow lands in the village which had been leased by him under the deed (kabulayat) dated May, 24, 1947, to Surat Singh on the plea that those lands were "home farm". This claim was rejected by the Compensation Officer and the order of the Compensation Officer was confirmed in appeal by the Additional Settlement Commissioner. Mal:ajan then applied to the High Court of Judicature at Nagpur under Art. 226 of the Constitution for a direction quashing the order of the Additional Settlement Commissioner and the Compensation Officer and for a declaration that the lands mentiune•l in Scheclu le A attached to the petition be declared home-farm and for a writ of mandamus aga.inst the State of Madhya Pradesh to deliver possession of all the lands mention<>d in that Schedule. The High Court quashed the order of the Additional Settlement Commissioner in so fa.r as it related to the undivided half share in Survey Nos. 1 to 91 except those in possession of the specified tenants and also those already recognised as home-farm and directed the Compensat.ion Officer to decide the claim made by Mahajan in the light of the law laid down in the judgment. Against the order passed by the High Court, the Additional Settlement Commissioner and the State of Bombay, whic-h had by virtue of the States Reorganization Act, 1956, been substituted for the State of Madhya Pradesh, have appealed to this Cuurt with special leave.

pp. 711–713

The dispute in this appeal relates to a half share in those lands in the village which had remained fallow on the date of the notification under s. 3 of the Aot. By virtue of the sale deed dated May 24, 1947, Mahajan was the proprietor of the undivided half share in the entire village and under the kabulayat he had granted to Surat Singh a lease for cultivation of the undivided half share purchased by him. Undoubtedly the lands specified in Schedule A to the petition were on the crucial date lying fallow. The question which falls to be determined is whether those lands oan be regarded as "home-farm" : if they be so regarded, by virtue of s. 4(2) of the Act Mahajan will be entitled to retain possession of those lands.

p. 713

Section 3 of the Act provides, in so far as it is material, that "on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall from suoh proprietor or such other person to and veftt in the State for the purposes of the State free of all encumbrances." Section 4( l) sets out the consequence of the vesting. By cl. ( e.) of e. 4( I ), all righte, title and interPBt veeting in the proprietor or any person having interest in such proprietary right through the proprietor in euch area including land (cultivable or barren), ceaee e.nd are vested in the State for the purposes of the State free from all encumbrances. But sub-a. 2 provides that "Notwithstimding anything contained in subsection (I), the proprietor shall continw~ to retain the posseBSion of hie home·stead, home-farm le.nd .................. ", 'Home.farm land' ie defined, in so far as it is material, in s. as :

pp. 713–714

"(l) x x x x x x (:!) x x x x x x

p. 714

(3) in relation to Berar, all lan<l included in holdings which is-

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(i) under the personal cultivation of the euperior holder including land allowed to lie fallow in e.ocordanoe with tho usue.l agricul· ture.l practice;

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(ii) held by a leBBee from the ~uperior holder; and

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(iii) held by a tenant from the superior

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holder other than e. specified tenant.'' 'Land' ie nefined as "including land covered with water." Section 7 authorises the Deputy Commissioner to take charge of all lande, other than occupied lands and home·St<'ad lande, and of a.II intercets vesting in the State under s. 3 on the date of the vesting, e.nd, by e. 8, duty is imposC'd on the State Government to pay t<very proprietor, who is diveeted of proprietary rights, compenee.tion in accordance with the niles contained in SchC'dule I.

p. 714

Me.haje.n was undoubtedly e.t the date of vesting the superior holder of th11 half share in th11 fallow le.nds which were held by Sure.t Singh as Jessee from him. Prima facie the cle.im of Mahajan was covered by cl. (g) (3) 1ii) of e. 2 of the Act, and Mahajan was entitled to the benefit of the exception in e. 4 ( 2). But counsel for the State contends that in respect of an undivided interest in land, the superior holder is not entitled to the benefit of s. 4(2), because it is not a "holding." Alternatively, he contends that the land which is, at the .date of vesting, lying fallpw otherwise than in accordance with the usifal agricultural practice can never be regarded as r•home·fann." In our view, there is no substance in either of these contentions. Schedule A to the petition sets out the description of the various lands which Mahajan cla.imed should be treated as "homefann" land. Each of these lands is assessed. The expreSBion 'holding' is not defined in the Act, but by cl. (d) of s. 2 expressions not defined in the Act in relation to Berar but used or explained in the Berar Land Revenue Code, 1928, have the meaning assigned to those expressions in the latter Act. The Berar Land Revenue Code defines 'holding' as "(a) a parcel of land separately assessed to land revenue; and(b)inreference to land held by a tenant-a parcel of land held from a landlord under one lease or set of conditions." Evidently, the survey numbel'tl included in Schedule A to the petition were "holdings" within the meanings of the Berar Land Revenue Code and therefore within the meaning of that expression as used in the Act. It is true that Maha.jan was not entitled to the entire area of each of these holdings but by the definition in the Act all lands included in holdings in Berar, provided they fulfil the conditions in cl. (i), (ii) or (iii) of subcl. (3), are "home-farm" lands. In other words a part of the holding or an undivided interest in the holding may also be "home-farm" land if it otherwise fulfils the requirements of cl.(i) (ii) or (iii) of eub-ol.(3 ).

pp. 714–715

That a half· share in the Tillage-which is included in the Schedule to the petition-was granted to Surat Singh on lease for cultivation cannot be gain said in view of the exprcsa covenants of the kabtdayat. Certain lands in the village, it is true, were lying fallow wholly or partially at the date of the vesting, but the lands having been granted in lease for cultivation, in our judgment, they are by virtue of s.4(2) to be retained in the poll!lCssion of the proprietor, provision of cl.(!) of s. 4 notwithstanding. By sub-s. (2) of s.4 all "home-form" lands are to remain in possession of the proprietor : there is no express exclusion of lands lying fallow from the benefit of s.4 (2) and none such can be implied either from the scheme of the Act or the cc•ntext in which s.4 (2) occurs. If Mahajan had remained in occupation as proprietor and h~d allowed the lands to remain fallow they may have vPsted in the State and Mahajan may not have boen entitled to claim the benefit of s.4 (2) unless his ell.Be fell under els. (i) and (iii) of s. 2 (g)(3), but the grant of a lease for cultivation evidences an intention on tho part of Mahaj1m that the land be converted to agricultural purposes and default on the part of the lessee to culth·ato those lands will not. deprive the lessor-proprietor of the ben<>fit granted to him by the statute.

pp. 715–716

In our view, the High Court was right in hold· ing that the words of cl. (ii) of s. 2 (g) (3) were explicit and a survey numb,:r which was lying fallow but wa.~ hJld by a lessee from the superior holder fell within the definition of "home-farm."

p. 716

The appeal, therefore, fails and is di8mi~scd with costs.

p. 716

App«al di,mii6sed.

p. 716