STATE OF BOMBAY versus SAR,DAR VENKAT RAO KRISHNA RAO GUJAR

April 5.

428 SUPREME OOURT REPORTS [1963]

STATE OF BOMBAY

SAR,DAR VENKAT RAO KRISHNA RAO GUJAR

(A. K. SARKAR, K. SuBBA RAo and J. R. MUDHOLKAR, JJ.)

Abolition of Proprietary RigkUi-Settlement of aitea of holrlings in abarli-Uncovererl ottas anrl chabutra•, whether builrlinga-Builrlings, connotation of-M. P. Abolition of Proprietary RighUi (Estates, Mahala, Alienaterl Lanrls) Act, 1950 (M. P. I of 1951), s. fi(a).

The proprietary interest of the respondent in his village was abolished by the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and all rights, title and interest were vested in the State bys. 4. Section 5(a) of the Act provide that where any "buildings" belonging lo the proprietor exist on any portion of the abadi land, that land together with the land appurtenant to those buildings shall be settled with the ex-proprietor. Land covered by ottaa and chabutras on which sheds had been constructed was settled with the respondent but not the land on which open uncovered ottas and chabutras existed.

Held, that the respondent was entitled under section 5(a) of the Act to have the land on which uncovered ottaa and chabutras existed, as also the land appurtenant thereto, settled with him. Uncovered ottas and chabutras fell within the term "buildings" as used in s. 5(a). The provisions showed that where the proprietor had spent money on constructing something on an abadi site within the limits of the village sites, that site had to be settled with him. Accordingly the word "buildings" has to be given its literal meaning as S>mething which is built.

Moir v. Williams, (1892) I Q. B. 217, Morri•on v. Oommissioners of Inlanrl R•venue, (1915; I K. B. 716 and Samuel Small v. Parkway Auto Supplies, 49 A. L. R. 1361, distinguished. CIVIL APPELLATK JURISDICTION: Civil Appeal No. 455/59.

Appeal by special leave from the judgment

and order dated January 16, 1956, of the former

Nagpur High Court, in Misc. Petition No. 448 of 1954.

N. S. Bindra and D. Gupta, for the appellants.

Purshottam Trikamdas, G. J. Ghate and Naunit Lal, for the respondents.

1962. April 6. The Judgment of the Court, was delivered by

MuDHOLKA.R, J.-The respondC>nt was pro-

prietor of mauza Bhivapur, Tehsil Umerer, District Nagpur. His proprietary interest in the village was abolished by the Madhya Pradesh Abolition of Pro-prietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. l of 1951 ). By virtue of s. 4 of the Act, all rights, titks and interests, among others, in all pathways, village sites, hats, bazars and melas in Bhivapur vested in the State of Madhya Pradesh for the purposes of the State free from all encum-brances under s. 4(l)(a) of the Act. Under the pro-visions of th~ States Re-organisation Act, 1956 those rights vested in the State of Bombay and now by virtue of Bombay He· Organisation Act, 1960 ( 11 of 1960) in the State of Maharashtra. The provi-sions of s. 4(l)(a) are as follows:-

"All right~, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprie.,. tor in such area including Jand (cultivable or barren) grasEJ-land, scrub jungle, forest, trees, fisheries, wells, tanks, pondA, waterchannels, ferries, pathways, viJlage sites, hats, bazars and me]as; ......... shall cease and be vested in the State for purposes of the State free of all encumbrances;· and the mo1~g{l.ge debt or charge or any proprietary :r1gh.t shaJI be charge on the amount of coznp"n1ation paya-ble for such propriet:i.ry right to.·tbe proprietor qnder the provisions of thfS''Act:''

J96B Slat1 of Bombay v. S ardor .V enkat 1l ao Krishna Rao Gf9ar

JI udholfcar J.

1962 Stele of B""ba)I •• S1rdar V•llk•I R o Kf"ishn.s Rae Gujar Mudholkar J.

After the Act came into operation proceedings

for compensation in respect of the village Bhivapur were started in the court of the Compensation Offi-cer, Umrer, in Revenue case No. 583/l·A-4/1950-51 decided on January 19, 1952. The Compensation Officer held that 0.14 acres of land out of Khasra No. 61/l which is rec'orded in the village papers as aOOdi wherein bazar is held, should be settled with the respondent under s. 5(a).

On portion of the land which was used for

bazar, otf,as and chabutras, with or without sheds, and separated by passages, exist. It is common ground that they belong to the respondent. It is also common ground that the land covered by ottas and chabutras on which sheds have been constructed were ord~red to be settled on the respondent in the revenue case referred to above. The respondent's contention, however, was that not only the sheds and the land on which those sheds were erected but also the open uncovered ottas and chabutras should also have been settled w th him by virtue of tho provisions of s. 5(a) of the Act along with the land appurtenant to those structures. The total area or this land, according to him, is 2.85 acres. The res-pondent, therefore, preferred an appeal against the order of the Compensation Officer which directed settling only 0.14 acres of land on him. That app-eal was, however, dismissed by tho Additional Com-missioner of Land Reforms and Additional Commis-sioner of Settlement, Madhya Pradesh, on March 28, 1952. The respondent thereafter was asked to remove his ottas and ehabutras.

Even so, the matter of settling land covered

by ottas and chabutras on the ex-proprietors was being considered by Government. On May 16, 1952, press note was iBBued by the Directoratl;l of Infor-ma.tion and Publicity, Government of Madhya Pra-desh, the material portion of which runs thus:

''Thci Government consider th~t the option

1 s.c.R.

given to ex-proprietors to remove the material etc., might cause hardship to them in such cases. Government have, therefore, d~cided on the following lines of actioi1 in such mat-ters:

(i) where the ottas and chabutraswere,cons-

tructed in brick and stone, they should be allowed to remain with the ex-proprietors and the land thereunder should be settJed with them under section 5( a) of the Madhya Pra-desh Abolition of Proprietary Rights Act, 1950 (1 of 1951) on terms and conditions determined by the Government; and

(ii) where the ottas and chabutras are in mud, the land under thPm should be deemed to have vested in the State Government.

But after this press note was issued the Gov-ernment, apparently on the advice of its law officers, issued instructions to the Deputy Commissioners on June 22, 1954, to give one month's notice all ex-pro-prietors to remove the materials, clear the site of ottas and chabutras other than those on which there were sheds. In pursuance of this, notice was issued to the respondent on July 13, 1954.

Feeling aggrieved by this, the respondent preferred petition under Art. 226 of the Const!tu-tion before the High Court of Nagpur for issue of Wl'it of mandamus or certiorari or other appropriate writ to quash the orders passed by the Compensa-tion Officer and the appellate authority as '\rell as the order of the State Government of Madhya Pra-desh dated June 22, 1954, and the notice issued in pursuance thereto on July 13, 1954. The High Court allowed the petition and set aside the impug-ned orders and directed the State Government to settJe ihe entire area. of Khasra No. 61/l of Bhivapur

19tJt Stall of Bombay v. S1J1d r Ve• Aat Rao Krishna Rao GuJar Mudholkar J.

1962 Slate of homb•.1 v. S•'-•r V1nkot Rao KrUhu Hao Gujar Muihtlkar J.

with the respondent on such terms and condi-tions as may be determined by it. It may be men-tioned that the entire area of Khasra No. 61/1 is 12.85 acres or so. The State of Madhya Pradesh sought certificate from the High Court under Art. 133( 1 )( c) of the Constitution. But the certificate was not granted. Thereupon special leave petition was made before this Court under Art. 136 of the Constitution. Leave was granted by this Court by its order dated March 18, 1957. That is how the appeal has come up before us.

It may be mentioned that the High Court

granted the petition of the respondent on the view that. oil.as and chabutras etc., are buildings within the meaning of s. 5(a} of the Act and that consequently the State Government was bound to settle the land covered by them with ex-proprietors along with land appurtenant to those structures. In the appli-cation made before the High Court for grant of cer-tificate, the following three grounds were raised:

1'5. For that the total market area as

claimed by the non-applicant being only 2.85 the entire abadi area. of 12.85 acres in Khasra No. 61/1 could not be granted and settled with the ex-proprietor.

For that the ottris and chabutras in the

bazar area could not be held to be buildings contemplated under section 5(1 }(a} read with section 4(1)(a) of the Aot 1 of 1941 and could not be settled with the ex-proprietor under the law.

7. For that the buildings envisaged in

the provisions 5(l)(a)are those buildings which are situated in the abadi.,and not those stand-ing in bazars even though the bazar may also be located in the abadi and that ottas and clUJ-butras et.c., in the bazar being an integral part thereof are oleitrly different from tho11e other

I S.C.R. SUPREME COURT REPORTS

buildings used for agricultural or domestic purposes."

It would, however, appear from para. 2 of the order of the High Court refusing certificate that the learned Advocate-General for the State did not challenge the correctness of the meaning given by the High Court to the word "buildings'' in s. 5(a) of the Act. But the contention he pressed was that the words "ottas and cha.butras" must be restricted to structures standing on the abadi of the village excluding that on which bazar was held, which under s. 4( l)(a) vests in the State. Before us how-ever, 1\Ir. Bindra reiterated the contention which was originally pressed in the High Court that ottas and chnbutras cannot be regarded as buildings within the meaning of tha.t word in s. 5(a) of the Act. According to him the concession made by the lear-ned Advocate.General was on question of law and the State is entitled to withdraw that concession.

In our opinion the question w he th er ottas and

ch.abutras fall within the term "buildings" is not purely one of law and the State is not entitled to withdraw that concession. It would also appear from grounds 5 and 6 in the special leave petition that what was really sought to be urged before this Court was the contention actually pressed by the learned Advocate-General in support ·of the appli-cation for • grant of certifi.t:ate. All the ea.me we allowed Mr. Bindra to urge the oontention that ottq.s and chabutras are not included in the term ''buil-dings'' in s. 5(a) of the Act.

The relevant portion of s. 5(a) of the Act reads thus:

"Subject to the provisions in sectionCJ 4 7 and 63 - all open enclosures used for agricul-tural of domestic purposes and in continuous possession for twelve years immediatt>ly before 1948-49; all open houi;e-sites purohased for

1961 Sl•l1 of Bomb~y v. S1111Jar V enkat Rao KriahM R110 Oujar --MudlwlluJrJ.

1961 State of Bombay •• Sardar V dial Bra Krishna Rao Gujar Mudholk .. J.

4~4 SUPREME COURT REPORTS [1963]

consideration; all buildings; ............••• within the limits of village site belonging to or held by the outgoing proprietor or any other person, shall continue to belong to or be held by such proprietor or other person as the case may be; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine;"

"Village site" means the abadi in an estate or mahal.

Section 5(a) is an exception to s. 4(l)(a) of

the Act. No. doubt, s. 4( l )(a) provides for the ves-ting in the State of the land on which bazar is held. But reading that section along with s. 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the <ibadi land that Janel, together with the land appurtenant to those buildings, had to be settlecl with the ex-prop-rietor. Land on which the bazar is held is part of the village abadi land and, therefore, all buildings standing on such land would fall within s. 5(a) of of the Act and would have to be settled with the ex-proprietor.

The only question, therefore, is whether oUas

and chabutras can be rogarded as buildings. perusal of that provision would show that where the ex-proprietor has spent money on constructing somothing within the limits of the villag<' sites, that thing had to be ~ettlcd with him. The word "builclings" should, there· fore, be given its literal meaning as something which is built. Mr. Bindra's contt"ntion, however, is that for structure to be regarded as building, it should have walls and roof and in support of this contention ho relied upon the decision in Moir v. William8 (1) In that case Lord Esher ha1 obser-ved that the term building generally means all (I) 11892) I Q.D. ~17.

enclosures of brick and stone covered by roof. But

he has also made it clear that the meaning to be given to that word must depend upon the enact-ment in which the word is used and the context in which it is used. There, what was being considered was the provisions of the Metropolitan Buildings Act, 1855 (lo & 19 Viet. c. 122) which dealt with JieSidentfal houses. He also relied upon the decision in Morrison v. Commissioners of Inland Revenne ( [1]). That was case under the Finance (1909-10) Act, 1910 (10 Miw. 7 c. 8). The observations on which he relied are as follows:

" It is quite clear that the expression

'buildings' does not mean everything that can by any means be described as built: it means buildings in more narrow sense than struct.;, ures, because there a.re other structures oi limited class which under the terms of the sub-section may also be taken into considera-tion:"

Far from these observations helping him they clearly show that the natural or ordinary meaning to be given to the word "Buildings" is something which has been built. That meaning would be modi-fied if. the provisions of law justify giving some other meaning. Finally he relied upon the decision in Samuel, SmaU v. Parkway Auto Supplie8 (2). The observations relied on by him a.re as follows:

"'l'he word •building' in its ordinary sen >e denotes 'a structure or edifice including spa.'.le within its wa.lls and usually covered · · with roof, such as house, church, shop, barn or shed.'

The word 'building' cannot be held to

include every species of erection on land, such as fences, gates or other like structures. Taken (l) (1915) I K.B. 176 at 722. (2) 4~ A.t.R. 1361 at 1363 •.

1962 -of Boml•y v.

Stat• of Boml•y v. S1Jrda• V~nkat Rao Krishna Rao Gujar Mudho/hrJ.

1962 Slalt oJ Bombay v. Sardor Y1nkat R•o Krishna Rao <Jujar MudAalkor J.

in its broadest sense, it can mean only an erec-tion intended for use and occupation as habitation or for some purpose of trade, manufocturo, ornament or use, constituting fabric or edifice, such as house, store, church, shed ........... .

These observations must '..ie considered in the con-text of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of under ground gasoline tanks and pits with concrete sides sunken in the ground are within restrictive covenant that no building of any kind shall be erected or maintained within certain distance or street. In the parti· cular context buildings had, according to the Court, to be given its popular meaning. That case, there-fore, does not assist the appellants.

In our opinion the High Court was quite right

in holding that even uncovered oUas and chabutras fall within the term "building" as used in s. 5(a.) of the Act and, therefore, along with the land appur-tenant to them they must be settled with the res-pondent.

Mr. Bindra pointed out that the High Court

was in error in asking the Government to settle the whole of Khasra No. 61/l on tho respondent because whereas its area is 12.85 acres, the land covered by the structures, including the appurtenant land, does not measure more than 2.85 acres. Mr. Purushottam Trikamdas, learned counsel for the respondent readily conceded this fact and said that the High Gourt has committed an error through an oversight and that all that the respondent wants is 2.85 acres of land and nothing more. Mr. Bindra then said that it would not be proper to give direction to the Governmrnt to settle any particular area of the land and it should be left to the revenue authorities

t s.c.R.

to determine the precise area covered by the struc-tures a.ad the pasuges separating these various structures. We agree with him. It would be suffi· dent to direct the Government to settle with the respondent the whole of the land covered by the structures as well as land appurtenant to those structures from out of Khasra. No. 61/l. What the area of th:it land would be is matter to be deter-mined during the st1ttlement proceedings. With this modifi0ation we dismiss the appeal with costs.

Appeal dismis8ed.

THE HIGH COUR~L·, CALCUTTA

AMAL KUMAH, B.OY

(B. P. SINHA, C. J., K. SuBBA RAo, N. RAJAGOPALA

AYYANGAH., J. R. MuDHOLKAH, and T. L. VENl{ATARAMA AIYAR, JJ.)

StateJu<licial Service-Power of High Oourt-Super8ession of seniority of Munsif in promotion-If punishment or penalty-Suit, if lies-Constitution of ln<lia, Arts .. 'J35, 311(2), 320(3)(c}, 14,16( 1)-0ivil Services (Classification, Control ana Appeal) Rules rr. 49, 55A.

This was an appeat by special leave by the Judges of the Calcutta High Court against the decision of the City Civil Court at C.ilcutta decreeing the respondent l's suit. That respondent was Munsif in the West Bangal Civil Service (Judicial) and had issued an injunction in his own favour in case where he was the'plaintiff. That order of injunction was set aside in appeal by the appellate Court. When the cases of several Munsif came up for consideration before the High Court for inclusion of names in the panel officers to officiate as Subordinate Judges, the respondent l's name was excluded. He was told by the Registrar of the Court on representation made by him that the Court had decided to consider his case after year. As . the result of such exclusion respondent I , who was then the seniormost in the list of Munsifs, lost eight places in the cadre of Subordinate Judges before he was

196! Stale of Bombay Sardir Venleat "· Rao K' rishna Ra• Guj11r .lludholkar J.

1962 April 9.