K. R. NADGIR v. STATE OF MYSORE — 1971 DIGILAW 42 (KAR)

JAGANNATHA SHETTY, J. ( 1 ) THESE are four writ petitions challenging the Government Order No. RD 28 LJA 62, Bangalore dated 30th March 1966 by which the State government has held that Bombay Act 39 of 1954 applies to the villages of Hanchinal and Benakanahalli, Kundagol Taluk, Dharwar District. ( 2 ) THE facts lording to these petitions are: Hanchinal and Benakanahalli were inam villages in the old Kundagol Taluk of the erstwhile princely State of Jamakhandi. They were shown as paragana watan villages In the records maintained during the Jamakhandi State regime. That State was merged with and became a part of the former Province of Bombay. In the year 1954, the State of Bombay with a view to abolish jagirs of various kinds in the merged territories and merged areas, passed an Act called the Bombay Merged Territories and Areas (Jagirs abolition) Act, 1953, (Bombay Act XXXIX of 1954) (hereinafter referred to as the 1954 Act ). The said Act did not cover all kinds of alienations. In order to abolish the remaining alienations of miscellaneous character prevailing in the merged territories, the State of Bombay enacted another legislation Known as the Bombay Merged Territories Miscellaneous alienations Abolition Act, 1955 (Bom. Act XXII of 1955) (hereinafter referred to as the 1955 Act ). The 1st Act came into force on 1-8-54 and the 2nd came into force on 1-8-1955. It was thought that 1954 Act did not apply to paragana watans and so it was not applied to the two villages in question. The authorities applied the 1955 Act and steps were taken to resume and regrant the lands to the holders m accordance with those provisions. Accordingly, the watandars got some lands regranted in their names after paying the occupancy price. Consequent on the reorganisation of States, this area became a part of the new State of Mysore. ( 3 ) IN the year 1958, the Divisional Commissioner, Belgaum, wrote to the State Government that the abovesaid two villages were not paragana watan villages but were jagirs as defined in 1954 Act and sought orders of Government to apply that Act to those villages. The State government, after considering the matter passed an order in their letter no. RB13 WTN 58 dated 13-11-1958 that tha villages might be dealt with under 1964 Act. The State government, after considering the matter passed an order in their letter no. RB13 WTN 58 dated 13-11-1958 that tha villages might be dealt with under 1964 Act. Aggrieved by that order, the watandars approached the government to reconsider the decision contending that 19l54 Act was not applicable to their villages ana the action taken to implement the 1955 act was proper and should be maintained. That request was rejected by the Government on the ground that may had no powers or review. Thereafter, the watandars preferred WP. Nos. 282/1960, 77/1961 and 143/1962 in this Court challenging the Government Order dated 13-11-1958. The said petitions were allowed setting aside the Government Order with a direction to determine the question de novo after giving notice to the interested parties and affording them an opportunity to putforth their case. ( 4 ) PURSUANT to the directions of this Court, the Government asked the Additional Deputy Commissioner of tne District, to issue notices to the interested parties to show cause as to why the provisions of the 1954 act should not be applied to the Villages. The Additional Deputy Commissioner heard the parties and submitted a report dt. 31-7-1963 stating that the two villages were paragana watan villages and not jagir villages. The Divisional Commissioner, Selgaum, also concurred with the opinion of the Additional Deputy Commissioner. The Government, however, disagreed with thai report. The paries were again heard by the Government and the order dated 30th March 1966 was passed holding that the villages in question were not paragana watan but jagir villages. Aggrieved by the sa:d order, the patitioners have again approached this Court for relief under Arts. 226 and 227 of the Constn. ( 5 ) WPS. 1416 of 1966 and 658 of 1967 were preferred by the watandar of village Benakanahalli and an alienee of a portion ol chat village respectively. WPs. 2119 and 1560 of 1966 relate to the village of Hanchinal preferred by its watandars. ( 6 ) THE main contention of Mr. V. Krishnamurthy, learned Counsel for the petitioners, was that the two villages in question do not fall within the meaning of 'jagir' as defined by S. 2 (1) (vi) of 1954 Act, and the order of the Government holding that they are jagirs and not watans was based on irrelevant considerations. ( 6 ) THE main contention of Mr. V. Krishnamurthy, learned Counsel for the petitioners, was that the two villages in question do not fall within the meaning of 'jagir' as defined by S. 2 (1) (vi) of 1954 Act, and the order of the Government holding that they are jagirs and not watans was based on irrelevant considerations. ( 7 ) AT this stage, we may refer to the scheme of the two Acts. The whole object of 1954 Act was to abolish jagirs of various kinds in the merged territories, and merged areas in the State of Bombay. 'jagir' is defined by S. 2 (1) (vi) of the Act. But there is no provision in that Act to decide whether a disputed inam is a jagir or not. To abolish the remaining alienations of miscellaneous character prevailing in the merged territories, and, to provide for matters consequential and incidental thereto, the 1955 Act was enacted by the same legislature. 'watan' is defined under S. 2 (1) (xvi) of the said Act. It means 'an alienation held as watan appertaining to the office of a village accountant commonly known as Kulkarni or known by any other similar name or as watan appertaining to the office of a District (Paragana) Officer commonly known as Sardeshmukh, Deshmukh, Deshpande or Desai or known by any other similar name, whether any commutation settlement in respect of such watan has or has not been effected. S. 2 (4) of the said Act specifically confers power on the State Government or any officer specially authorised for the purpose, to decide among other questions, whether any land is an alienation and whether any alienation is a community service inam or watan. (Vide S. 2 (4) (i) and (iii) ). Certain kinds of alienations enumerated under S. 3 are excluded from the operation of the said Act. The material portion of the section so far as it is relevant for our purpose reads as follows:"3. (Vide S. 2 (4) (i) and (iii) ). Certain kinds of alienations enumerated under S. 3 are excluded from the operation of the said Act. The material portion of the section so far as it is relevant for our purpose reads as follows:"3. (1) Nothing in this Act shall apply to:- (a) * * * (b) Alienations other than watan, held for service which was useful to the ruling authority for the time being before merger and has continued to be useful to the State Government after merger; x x x x (f) the land tenure to which the provisions of any of the enactments specified in the Schedule apply; x x x x x"the 1954 Act is one of the enactments included in the Schedule attached to 1955 Act. From these provisions, it becomes clear that if the 1954 Act is applicable to a land tenure, the 1955 Act does not apply. So also vice versa. The determination of that question rests with the State Government or by an authorised officer subject to an appeal to the State government". In the exercise of that power, the order in question was passed, the material portion of which is extracted hereunder: "order No. RD 28 LJA 62. Bangalore, dt. the 30th March, 1966. It is admitted by the holders that they are the grantees of villages. Theuir main claim is that the original grants were made to their ancestors either for valuable services rendered by them to the grantor or to be rendered by them to the grantor in consideration of the grant. They contended that as the grants were for service, they were not 'jagirs' within the definition of the term given in S. 2 (vi) of the Act No. 39 of 1954 and were therefore governed by Act No. 22 of 1955. This contention has no substance. According to S. 3 (b) of Act no. 22 of 1955 nothing in that Act shall apply to alienations other than watan held for service which was useful to the ruling authority for the time being before merger and has continued to be useful to the state Government after merger. It is of primary importance to notice that the watandars had not been rendering any services to the rulers prior to the merger or to the State of Bombay after merger. It is of primary importance to notice that the watandars had not been rendering any services to the rulers prior to the merger or to the State of Bombay after merger. It is clear from the records in the case that their services had been commuted and they were required to pay to the Government a fixed portion of the revenue in lieu of service as Naukari-amsa. Hence, act No. 22 of 1955 does not apply to these villages. The only other contention is whether the term 'jagir' as defined in the Act No. 39 of 1954 applied to these villages. S. 2 (vi) defines 'jagir' as meaning 'the grant by or recognition as a grant by the ruling authority for the time being of a village, group of villages or a portion of a village, whether such grant is of the soil or of an assignment of land revenue. . . . . . held in the merged territories or merged areas on tenure commonly known as. . . . . . Saranjam or political inam or on tenure known by any similar names. The definition of 'jagir' is so wide as to include watans or inams known as 'paragana watans'. In view of the above circumstances, Government hold that the bombay Act 39 of 1954 (Bombay Merged Territories and Areas Jagir abolition Act, 1953) applies to the villages of Hanchinal and Benakanahalli, kundgol Taluk, Dharwar District. The action taken by the local officers in applying the Bombay merged Territories (Miscellaneous Alienation) Abolition Act, 1955, (Bombay Act NO. 22 of 1955) to the villages of Hanchinal and Benakanahalli is set aside and they are directed to take action according to the Bombay Act 39 of 1954. " ( 8 ) THE Government came to the conclusion from the records that the services of the alienees of the villages had been commuted and they were required to pay to the Government a fixed portion of the revenus in lieu of services as 'nowkari Amsha' and that by virtue of S. 3 (1) (b) of the 1955 Act, the said Act does not apply to the alienations in question. This view of the Government, in our opinion, is patently erroneous. This view of the Government, in our opinion, is patently erroneous. If the alienation is held to be a watan, then, notwithstanding the fact that the watandars had not been rendering any service to the rulers prior to the merger or to the State- of Bombay after merger, S. 3 (1) (b) of the 1955 Act does not exclude the operation of the said Act to such watans. The said clause is not applicable to watans. The clause 'held for service which was useful to the ruling authority for the time being before merger and has continued to be useful to the State Government after merger' occurring in Sec. 3 (1) (b) qualifies the expression 'alienations other than watan'. It follows that the Act applies to watans even if they did not. qualify the condition that they were held for service which was useful to the ruling authority for the time being before merger and has continued to be useful to the State Govt. after merger. The decision of the government, therefore, based on S. 3 (1) (b) of the 1955 Act is contrary to the plain wordings of the section. ( 9 ) THERE is also some inconsistency between the two parts of the decision of the Government. In the first part, the Government holds that it is clear from the records that the services of the alienees had been commuted. The said conclusion can be construed to mean that the government has impliedly held that the alienations are watans. In the second part of the decision, the Government holds, without assigning any reason, that the alienations are jagirs. If the alienations are watans, they cannot be held to be jagirs which are governed by the 1954 Act. ( 10 ) THE learned Advocate General, however, sought to support the impugned order, by inviting our attention to the definition of the term 'jagir' in the 1954 Act. He contended that the definition of the term is wide enough to include watans or inams known as 'paragana Watans'. We are unable to accept that contention for more than one reason. Prima facie, 'watan' is not included within the meaning of a 'jagir'. Apart from that, the scheme of the two Acts shows that they are mutually exclusive. In the 1954 Act, there are no definitions of 'watan' and 'commutation settlement'. We are unable to accept that contention for more than one reason. Prima facie, 'watan' is not included within the meaning of a 'jagir'. Apart from that, the scheme of the two Acts shows that they are mutually exclusive. In the 1954 Act, there are no definitions of 'watan' and 'commutation settlement'. These are terms with definite meanings and are defined in the 1955 Act. If any question arises whether an alienation is a watan or whether a commutation settlement in respect of any watan has or has not been effected, it is required to be decided by the Government under the 1955 Act. S. 7 of the Act specifically deals with watans. It states that all land held under a watan is resumed and shall be regranted to the holder. We have, therefore, no hesitation to hold that if the disputed villages are watan, then, they must fall under the 1955 Act and not under the 1954 act. ( 11 ) MR. Krishnamurthy next contended that the authorities under the 1955 Act applied its provisions to the villages in question, and. the petitioners were also granted occupancy rights in respect of some lands in those villages and, therefore, it is not open to the Government to reverse that process. We are not inclined to accept that contention. ( 12 ) UNDER the 1955 Act, the State Government or any officer specially authorised, subject to an appeal to the State Government, must decide any question whether any alienation is a watan or not under s. 2 (4) (iii) of the said Act. That is a quasi-judicial function. Any adjudication made by the Government in exercise of such a power ought to discuss the evidence on the basis of which the decision is given. It must be a speaking order. Mere subjective satisfaction of the Government 's not sufficient. The impugned order does not satisfy the requirements of a quasi-judicial order as there is no discussion of the evidence regarding the history and the nature of the grant. ( 13 ) BEFORE we part with the case, we may observe that the question involved in these petitions, is a mixed question of law and fact. The decision on those questions in one way or the other would seriously affect the property rights of the parties. ( 13 ) BEFORE we part with the case, we may observe that the question involved in these petitions, is a mixed question of law and fact. The decision on those questions in one way or the other would seriously affect the property rights of the parties. In matters like this, it would have been better if the decision on the disputed questions had been entrusted to a judicial tribunal with a right of appeal to a Court. Even now, it is not too late to amend the Act providing a suitable machinery for the adjudication of questions arising under the Act. ( 14 ) IN the result, we allow these petitions and quash the impugned order of the Government. We further direct that the question whether the disputed villages are watans or not must be decided in accordance with law. The petitioners are entitled to their costs. Advocate's fee rs. 100. 00 (one set ). --- *** --- .