"''"uarJ 20.

324 SOPREME COURT REPoRTS [1962) SUPP.

GONDu.'.IJOGULA TATAYYA v.

J>ENUMATCHA A2\'ANDA VJJAYA VENKATAHAMA THfMA , JAGAPATHH~AJL'

(AND COX~ECTJ<:D APPEALS) (S. K. DAS, M. HlllAYATULLAI! and J.C. SHAH, JJ.)

fnan1. lands-Lcrts1-s-Right aj occupancy-Jfinor ina11u~ -- lr!ie1h1r Fslates --Tc.t--Jfadra" Est<11':• Land Act, 1908 (Jlad. 1 of JYll8), ""amended, s. 3(2)(d) and Explanation (1).

'fhc respondents v-erc holders of inams in a village called Gotcru, one of the Mokhasa yjlJ; Jgrs which ,, ere included iu

the assets of the Zamindari at the time of the permanent sctt!rment in 1802. The inan1s theinselves \\ere pre-settlement inams and were not included in the assets of the ZamincJari. rhc respondents had leased out scrr1c of the lands cou1prised in their inams to the appellant for a fixed period, and in the suits instituted against the latter .:iftcr the expiry of the period of the leases for ejecting rhem f1om the holdings in their possessions, they pleaded, inter alia, that they had got occupancy rights in the suit lands inasmuch as the inams \Vere part of an estate and that, therefore, they \Vere not liable to he ej('cted.

They contended that by reason of the amendments made ins. 3(2)(d) of the Madras Estates Land Act, 1908, in I 93G and I 9-t5, these minor inams being within the village of Gotcru v-erc estates und("r s. 3(2)(d), read with Explanation ( 1) of the Act.

It was not dispiHed that Goteru village was included in the Jlukha"'' sanad of 1802 and that the Mokhasa grant v0.-as an estate.

Jfeld, that the minor inams in the present case were not ); rants of v-'1o!e villages and y., ere not, therefore, estates within the meaninsofs. 3(2)(dJ ol the Madras Estates Land, 1908.

1'he crucial test to find out \vhether a grant amounted to an estate as defined under" 3(2)(d) of the Act was whether at the time of the grant tl.c subject matter was a whole village or o"nly a part of it.

If it \Vas only a part of a village, then the: amending Act made no difference and such a part \Vould not be an estate v-ithin the rneaning of the term ; but if the grant was of the whole village and a named one, then it \\'ottld he an estate

District Board, 1'anjuri; '" J/. K. "l!-loor Jfohamed llo1rtlicr, A-1 !{. 1953 S.C. 446 and Jfontramdi Hhat'Gnaravana v. Meri:gn Venkala<lu, 1-L.R. [1951] Mad. 116, relied on and applied.

3 s.C.R.

SUPREJME COURT REPORTS 325

CIVIL APPELLATE JumsDICTION: C. As. Nos. 631 to 645 of 1960.

Appeals by special leave from the judgment and decree dated April 20, 1954, of the Madras High Conrt in Second Appeals Nos. 1228 to 124:! of

1~9. . ..

R. Mahalingier and Ganpat Rai, for the appellants.

A. V. Viswanatha Sastri and T. V. R. Tatachari, for the respondents.

1962. February 20. The Judgment of the Court was delivered by 's. K. DAS, J.-These are fifteen appeals by Apecial leave. They have been heard together as they arise common question of law and fact and thiB judgment will govern them all.

These appeals arise out of fifteen suits filed by certain inamdars (respondents herein) of a village called Goteru for ejecting the tenants, who are the appellants before us, from various holdings in their possession after the expiry of the period of their leases and for other reliefs, such as, arrears of rent and damages.

Tho lands lie in village Goteru, one of the villages in tho N nzvid zamindari.

Got<'ru, Komaravaram and S11rampudi are three

:11 olchasa villages in the rnirl zamindari. It was arlmitted that the M olchasas were included in the

assets of the z11minrlari at the time of the permanent settlement in 1802. Tho case of the inamdars respond1mts was that in ei!lht of the suits the land was a Krtrn<un service inam and in seven suits the hnd w11s a Sarvadumbala in am. These inams lands were settlement inams and enfranchised by the Government on the basis that they were excluder! from the assets of the Mmindari at the time of the perma . neut settlement and separate title deeds were subsJquntly issue•I to the inamdars. According to t4e inadars tqese ina~ l!qdd >y"er'il qot "et!\t\l~"

Go1idumogula T4tayy•

•• Penumatclia Ananda

Vi1a a Venkala•

rama Timma.

J a1:apathiraJu

Das J,

Gonlumoyulo

Tal•.Y.Ja

Pt1UJ111at, M An.,, Ja

Vij; i; s Vtnk.Jlaroma Timma J •1npathaju

/)as J.

326 SUPREME OOURT REPORTS [1962] SUPP.

within the meaning of s. 3 (2) of the }fadras Estates

Lands Act, 190~ (Madras Act I of 1908 ), and the inamdars were entitled to both Jfdvaram and Kudivaram therein ; the respondl'nts leai; ed out these lands to the appellants for a fixed period under an express contract with the appellants, who were the lPssees concorned, thn, t they would quit and deliver possession at tho end of their lease periods; the appellants, however, did not vacate the lands, but continued to be in possession. Twelve

acres and 52 cents of the suit lands wero lfornam service inam and the rest Sarvadnmbala inam.

The appellants contPnded inlff alia that. the suit lands formed part of the llfolcha.sa of village Goteru and were included in the asPets of the 7..amindari at thC' time of pC'rmanent settlcmt>nt. that thP inams were part of an estate and the appellant had acquired rights of occupancy in the lands in suit under the provisions of the :lfadras Estates Land Act. They also raised certain other picas with which we are not now concerned. The main defence of the appellant.~ w:is that they had got pC>rmanent occupancy rights in the suit lands and therefore, they were not liable to be ejected and the Civil Court had no jurisdiction to try the suit.~.

The learned District :lfunsif of Tanuku who tried tho suits in the firRt inst:ince dealt with them in three batches. He held in three separate judgments that the suit lands wero pre-sdtlement minor inams, that they wcro not included in the assets of' the zamindari at the time of tho permanent settlement and that thev were not "estates" within tho meaning of the proi"ions of th~. Madras Estates

Land Act.

The learned :IIunsif also held that as there was a clear undertaking to vacate the lands at the expiry of the period of the leases, no notico to quit was necessary. In the result ho decreed the suits.

The tenants, appellants herein, then preforred j'lfteen appC>als against the judgments nq

...

3 S.C.R.

SUPREME COCJR L' REPORTS 321

decrees of the learned Munsif. These appeals were heard together by the learned Subordinat~ Judge of Eluru. By a common judgment delivered on March 29, 1948, the learned Subordinate Judge agreed with the learned Munsif in respect of all the findings and dismissed the appeals. Then; there were second appeals to the High Court of Judicature at Madras. In these second appeals only two points were urged on behalf of the appellants. The first point was that the finding of the courts below that the suit lands were excluded from the assets of the zamindari was vitiated by reason of the burden of proof being wrongly placed on the appellants. The second point was that the inamdars having concerned in the plaints that the tenants were holding over after the expiry of their leases, the inamdars were not entitled to recover possession without issuing notices to quit as required by law. With regard to the first point of the High Court pointed out that though it was settled law that the burden wa5 upon the landlord to ake out his right to evict a tenant from the holding, Sarvadumbala inams or inams granted for public services of a pre-settlement period were ordinarily excluded from the assets the of zamindari at the time of the permanent settlement except in some specific cases, where such lands were as an exception included in the assets of the zamindari, the exceptions being found in the four western Palayams of the zamindaries of Venkatagiri, Karvetnagar, Kalahasti, and Sydapur and the !J!okhasa in Masuli pa tam district. Therefore, with regard to pm-settlement Sarvadambala irrnms or public service inams the peroon who alleged that they were included in assets of the zamindari had to prove that they were so included.

The High Court then observed that the courts below did not base their judgments on onus of proof, but came to. their conclusions on a consideration of the evidence :given in the suits ;

~4erefore where tqe entire eyiqence was one into,

Goniumogula

Tatayya

•• Penum1tcha Ananda

Vijaya Venkai4

rama ri.mma Jagapathiraju

Das J.

G"ndumogula

Totayya

Vo l'r.u1T11Jfc1ra A11QJ1t/t1

Vi1._,. Vtn-"l12

,.,,,. 7 inrma J agopalhiraJU

nos J,

328 SUPREME COURT REPORTS (1962] SUPP.

the question of burden of proof was immaterial. The High Court pointed out that the question whether tho predecessors of tbe respondents herein were grnnted both tho '1'nram-s or Jfelmram only was not rnised before it and the contentions of the parties in the High Court centred round tho only question whether the suit la.nd:i . were pre-settlement inams excluded from the assets of the zamindari or whether they were included in those assets.

The High Court pointed out that this waq reall.v a question of fact a.nd in second appeal the High Coun could not intcrfe.re with a finding of fact un-less there were permissible grounds for such interference. The High

Court held that there were no such permissible grounds. However, the High Court refernd again to the documentary evidence given in the casP, namely, Ex. A-1, extract from the register of village service inams in the unonfranchisct.l :11okhasa village of Gotern, Ex. A-2, the till" deed granted t.o the predecessors-in-interest of the inamt.lars wherein it was specifically recitet.l that the inams were held for service, Ex. A-5, a settlement datet.l December 13, 1942, Ex. A-7, a rel-(ister of service inanrn of Goteru dated Dc()embnr i":l, 194!1, Ex. A-f), public copy of the village account of Goteru, Ex. B-1, register of ina.rns of village Goteru preparet.l in 1859, Ex.

A-2i, Rhubond accounts reln, ting to Goteru, Komarnvarnm and

Summpudi Mokhasas, and Ex. A-28 Zam•1bandi Pys- . ala Chitta, etc., and came to the conclusion that the inarns in question, both Karw1m service inams and the Sarvadumbala inam~. were p<lr-scttlcmcnt. inams and the documents show et.I that t.hey were not. taken into consideration in determining the assets of the

zminda.ri. Un the second quc'stion of not.ice, thA

High Court came to the conclusion that the appellants herein were not tenants. holding over but. were

perso1rn who continued. to be in possession without

qe coqsent of tlie inaQlt.lars u.ftcr tbe tcnµiqu.t\on

3 S.C.R.

SUPREME COURT REPORTS 329

of the tenancy; that being the position, no notice was necessary and the suits for eviction were maintainable.

In the appeals before us learned Advocate for the appellants bas not canvassed the question of notice. He has canvassed two points only: firstly. he hao argued somewhat faintly that the finding of the courts below that the service inams were presettlement inams and were excluded from the assets of the zamindari was riot a correct finding secondly, he has argued that by reason of the amendments made ins. 3 (2) (d) of the Madras Estates Land Act in 1936 and 1945, these minor inams constituted an estate within the meaning of the aforesaid provisions and under s. 6 uf the said Act, the appellants had acquired a permanent right of occupancy in their holdings; therefore, they were not liable to be ejected and the Civil Court had no jurisdiction to deal with the suits.

As to the first point urged before us, it is sufficient to state that it relates to a question of fact on which there is a concurrent finding by the conrts below and the appellants have not been able to satisfy us that there are any special reasons, such as, a manifest error of law in arriving at the finding, or a disregard of the judicial process or of principles of fair heal'ing etc., which would justify us in going behind such a concurrent finding. We must, there- • fore, proceed on the footing that the inams in question were presettlement inams, eight of them .K arnam service inams and seven others Sarvadumbal, a inams.

This brings us to the second point urged before us. T1iat point does not appear to have been agitated in the High Court. But as it relates to tho interpretation of s. 3(2)(d), and Explanation(!) appended thereto, of the Madras Estates Land Act, we have allowed .learned Advocate for the apellants

~'? ar9ue the oiut before us. Section 3(2)(d) aud

J962

Gondumogula

Taioyya

Penumatcha Ancvula

Vi; aja Venkota:..

rama Timma J agapalhira; u

DasJ.

Gondumogula

Ta1apa

v, P111W11atcha An.anda

Viia.10 V dalarama Timrnri

JOl}apalhiraju

J)aJ .1,

33() SGPREME COURT REPORTS (19G2J SUPP.

Explanation (I) appended thereto, is in these terms:

"il. In this Act, unless there is something repugnant in the 8ubject or contoxt- ............ " ......................................... .

12) "Estate" means- .. -···· .......................................... .

(d) any inam village of which the grant has been made, confirmed or recognized

h~· the Grwernment, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or tho

succcsors in title oft.he grantee or grantees.

Explanation (I )-Where a. grant as an inam is expreAiled to bo of a named villag", the area which forms tho subject-mattor of the grant shall ho <foemcd to ho an estate not l>ithstanding that it did not includo certain lands in the village of th11t nam<l which have already been granted on service or other teuure or been reserved for communal purposes.

" . . .............................................. .

It is worthy of note hero that \\'hen the ;\fadras

F>tatc~ Lam! Act was enacted for the first time iu

1 !JOS s. :!( 2)( cl) was as followH:

"Any village <if which the Janel revenue alone has been granted in inam to a person not owning the kurlivararn thereof, provided that the grnnt. has been made, confirmed or rccogniz<'d by the British Government or any

separt<"<l part of such village." .

Owing to a varidy of rl'aAons which it is not n"cessarv tn Htate her<' there was an armndmPnt . , uy which cl. (d) as it originally stood was rornoved

3 S.C.R.

SUPREME COURT REPORTS 331

and a fresh clause substituted by s. 2 (I) of the Madras Estates Land (Third Amendment) Act, 1936 (Madras Act XVIII of 1936). The old Explanations

(1) and (2) were renumbered as Explanations (2) and (3) respectively iind a new Explanation was inserted as Explanation (I) bys. 2(1) of the Madras Estates Land (Amendment) Act, 1945 (Madras Act II of 1945).

The reasons why the amendments became necessary have been explained in the Full Bench deci; iion of the Madras High Court in Mantravadi Bhav1inareyana v. Merugu Venkatadu(').

In Narayanaswami Nayudu v. Subramanyam(') it was observed by the Madras High Court that the existence of service inam was very common in villages itnd that where there was a subsequent grant of the village, to hold that such grant was not an estate as defined in s. 3(2)(d) by reason of the existence of minor inams would result in the exclusion of agraharams, shrotriyams and mokhasa villages from the operation of the Act and that could not have beep the intention of the Legislature. In that decision Srinivasa Ayyangar,

J., observed:

"The definition in sub-section 3, clause ( d) was obviously intended to exclude from the definition of 'Estate' what are known as minor inam '• namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries.

The latter a.re known as 'whole inam villages'.

The existence of 'minor inams' in whole inam villages is very common and if these inam villagc•il do not come within the definition of

'Estate' almost all the agrabaram, shrotriyam and mokhasa villages will be excluded. This certainly cannot have been the intention of the Legislature." (I) I. L. R. [1954] Madras 11~.

(2) (1915) I. L. R. 39 Madras 683,

Gondumogula

Tatayva

Ptnumatcha Anc.nda

Vijo,)'a Venkaa rama Timma Jagopothira.1u

DasJ.

196Z

0"""""°9ula

T•ta.va

P1numakha Jfno11d4

YijaJla V1niatYraao rirnm11 Jo1apa14iraju

Da1 J.

332 SUPRE3IE COURT REPORTS [1962] SUPP.

This interpretation of s. 3( 2)( d) was accepted without question until the decision in Ademma v.

Satyadhyana Thirtha Swamiraru (1) where for the first time a different note was struck. It was held therein that where portions of tho estate had previously been grantotJ as minor inams, a subsequent grant of the rest of the village was not of an estate as it was not uf the whole village. Tho Legislature thereupon in torvened and enacted Ex:planation ( l) with the object of restoring the view of the law which hiul been held before tho decision in Ademma v.

Satyadhyana 'l'hirtlta Swmnfr<ll"ll( 1). The crucial test to find out whether the subject mattor of a grant falls within the definition of an estate under s. 3(2) (ti) of tho Aot is whether at the time of the grant the subjectmatter w:is a wholo village or only a part of a village. If !Lt the time of the grant it was only o. part of a villa"e, then the amending Act makes no differencn to this and sueh a part would not be an estate within the meaning of the term. But if tho grant was of the whole village n.ncl a named one. then it would he an estate.

Leo.med Advocate for the appellants has referred us to thn Jlokhasn sanad of December 8, 1802. That sand gives a. list ofvillagos which Goteru is one. The argument of learned Advocate for tho appellants is tho.t the inam lands

being within vi ll:L"e Goteru, thev n.lso a.re "c:itates" within the mcanlng of s. 3(2J{d) read with Explanation (I). It appears tu us that thi" argument is cleo.rly erroneous. Them is no doubt that tho

fokhasa grant is a.n estate within the rne:min)! of the s. 3 (2) of the :IIadra.s Estates Land Ad, and that is no:. disputed beforn us.

Th:Lt does not however, moan that the minor inams would :Ll,; u constitut.o an t•stale within the meaning of ~. :1 (~) (d). As was pointed out in 1'f antravadi !3lumMwmyrina v. 11! tr nyu. Venbil<1dn('),

(I) [1913," M. L.J. 239.

(l) I. L. R. _1951] M•dras 110.

:i s.c.R. sUPRErit:E cottR± REPoRfs 3:1:{

the crucial test is whether at the time of the grant the subject-matter was a whole village or only part of a village. In District Board, Tanjore v: M. J(. Noor Mohamed Rowther (1) this Court observed that "Any ioam village" in s. 3(2}(d) meant a whole village granted in inam and not anything less tan a village however big a part it might be of that village. In other words the grant must either comprise the whole area of a village or must be so expressed as is tantamount to the grant of a named village as a whole, even though it does not comprise the whole of the village area, and the latter case, in order to come within the scope of the definiion it must fulfil the conditions; (a) the words of the grant should exprPssly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure; or (c) that it had been reserved for communal purposes. The minor inams under consideration in these suits were pre-settlement inams and the finding which cannot now be cballenged is that they were excluded from the assets of the zamindari at the time of the permanent settlement in 1802, though the Mokhasas were not so excluded. That being the position, the minor inams were not grants of whole villages and were not estates within the meaning of s. 3(2)(d) of the Madras Estates Land Act. Therefore, the appellants cannot claim the benefit of s. 6 of the said Act •.

Learned Advocate for the appellants also addressed us at some length on the beneficent nature of the provisions of the Madras Estates Land Act an([ submitted that the appellants herein should not be deprived of the benefits of that Act.

But the appellants must satisfy us first that they. come within the protection or benefits of the Act.

If the lands which they held were not an "estate"

\!) A. I. R. [1953] S.C. 446.

l1ondum11gula

Tatq, Ja

•• Penumatcha Ananda V ijaya Vmkata~

rama Timma J agapathiraju

DasJ.

Gond1.mog11la

101a.J)'O

v. /'enumatcha A nondd

Vijaya Vtnkatc

roma Iimma Jagepat!.fraju

!~:!4 SUPREME COCR'f REPOitTS [l!lli2) SUPP.

within the meaningof the Act, then there can be no qncsti.or_i of giving them the benefit of the Act.

In.our op1mon, there is no substane in the second pomt urged on belrnlf of the 1tppcllants.

In the r"sult the appeals fail and are clismi, cd mth cost; one hearing foe.

DosJ.

• /!Jfi2

Appwl'J dismissal.

t)HA.l\IBHOO

STA 1l'J<; OF lJ'f'I'AR PRADl•~SH ( , J. L. K.Al'IJR, !(. C. DAS GUP'!'A and RAGIIUBAR

DAYAL, J, J.)

(}1i11iinal Trial--Jfurd.er-- F'istol and cartridges recovered frvni ucr-usr:d--·f'ailur"- to send' to balli.tic F.xperl-lf entails rPjr.ction of e.ye uJif-nes, w.~- -1lpprt; ciation of ei.:idencc.

'I'he appellant ~\'idt su1nc others robbed Duila and t\VO others and d11r1rig the robber)' the appellant !hot at and killed

Dull.a. \vi1h a pist , l, Afier a chase the appellant was appre hrnticd and the pistol a11d .some cartridges were recovered from bun. 1'he pistol and cartridges , .. ere not sent for examination to the ballistic. expert. :\ number of eye "it

nc.ses y.cre produced at the trial. 1"hc Sessions Judge ac quitted the appellant but 011 appeal the lligh Cou1 t convicted him un<lcr ss. 302 and 1Y4 Indian Penal Code and sentenced hin1 to death. The appellant contended that the circum stances of the case showed that the eye \Vitnesses could not be relied upon and that the failure to get the pistol and cartridges examined by a ballistic expert was a good ground for rejecting the e .. idenr.c of the eye \•; itnesses.

Jleld, that though the prosecution would have done well to send the pistol and cartridges to the ballistic expert for his opinion, the omission to do so clid not furnish any reason to doubt or reject the e\idence of the eye witnesses. '!"here .... ·:1.s no reason to think that the injuries of \Vhich Oulla died could not have been c:au;.ed by the pistol, on the cvntrarv the nature of the injuries \\'a5 \\holly consistent \vlth the prosecution story that a pistol \\'as used.

PENUMATCHA ANANDA VJJAYA VENKATAHAMA TIMMA ,JAGAPATHIRAJU

COX~ECTJ<:D APPEALS) (S. K. DAS

C. SHAH, JJ.

Land Act, 1908

s. 3(2)(d)

Madras Estates Land Act, 1908

s. 3(2)(d)

s. 3

Lands Act

Madras Act I of 1908

Estates Land Act

Land Act

s. 6

s. 3(2)(d)

Section 3(2)(d)

s. 2

Madras Act XVIII of 1936

Madras Act II of 1945

s. 3(2)(d)

section 3

s. 3( 2)( d)

s. 3(2)

s. 3(2J{d)

s. 3

s. 3(2}(d)

s. 3(2)(d)

s. 6

ss. 302 and 1Y

Indian Penal Code


Gond1.mog11la

101a.J)'O

v. /'enumatcha A nondd

Vijaya Vtnkatc

roma Iimma Jagepat!.fraju

!~:!4 SUPREME COCR'f REPOitTS [l!lli2) SUPP.

within the meaningof the Act, then there can be no qncsti.or_i of giving them the benefit of the Act.

In.our op1mon, there is no substane in the second pomt urged on belrnlf of the 1tppcllants.

In the r"sult the appeals fail and are clismi, cd mth cost; one hearing foe.

DosJ.

• /!Jfi2

Appwl'J dismissal.

t)HA.l\IBHOO

STA 1l'J<; OF lJ'f'I'AR PRADl•~SH ( , J. L. K.Al'IJR, !(. C. DAS GUP'!'A and RAGIIUBAR

DAYAL, J, J.)

(}1i11iinal Trial--Jfurd.er-- F'istol and cartridges recovered frvni ucr-usr:d--·f'ailur"- to send' to balli.tic F.xperl-lf entails rPjr.ction of e.ye uJif-nes, w.~- -1lpprt; ciation of ei.:idencc.

'I'he appellant ~\'idt su1nc others robbed Duila and t\VO others and d11r1rig the robber)' the appellant !hot at and killed

Dull.a. \vi1h a pist , l, Afier a chase the appellant was appre hrnticd and the pistol a11d .some cartridges were recovered from bun. 1'he pistol and cartridges , .. ere not sent for examination to the ballistic. expert. :\ number of eye "it

nc.ses y.cre produced at the trial. 1"hc Sessions Judge ac quitted the appellant but 011 appeal the lligh Cou1 t convicted him un<lcr ss. 302 and 1Y4 Indian Penal Code and sentenced hin1 to death. The appellant contended that the circum stances of the case showed that the eye \Vitnesses could not be relied upon and that the failure to get the pistol and cartridges examined by a ballistic expert was a good ground for rejecting the e .. idenr.c of the eye \•; itnesses.

Jleld, that though the prosecution would have done well to send the pistol and cartridges to the ballistic expert for his opinion, the omission to do so clid not furnish any reason to doubt or reject the e\idence of the eye witnesses. '!"here .... ·:1.s no reason to think that the injuries of \Vhich Oulla died could not have been c:au;.ed by the pistol, on the cvntrarv the nature of the injuries \\'a5 \\holly consistent \vlth the prosecution story that a pistol \\'as used.

Mohinder Singh v. The Stat•, [1950] S.C.R. 821, distingished.

Held further that even if there was no apparent reason in case to explain why witnesses were telling a lie against an accused pcrson, circumstances brought out by the evidence may show that in fact their evidence could not be safely relied upon. But in the present case there was no circumstance that justified any doubt about the truth of the prosecution case against the appellant.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 108of1961.

Appeal from the judgment and order dated May, 11 1961 of the Allahabad High Court in Government Appeal No. 1492 of 1960.

A. S. R. Chari and Udai Pratap Singh, for the appellant.

G. C. Mathur and G.P. Lal, for the respondent.

1962. February 20. The Judgment of the Court was delivered by

DAs GUPTA, J.-The appellant, Shambhoo, was tried by the Additional Sessions Judge, Moradabad for offences under sections 302 and 394 of the Indian Penal Code ands. 19(f} of the Indian Arms Act.

Two other persons Altaf and Shaukat were also tried along with Shambhoo on charges under s.394 of the Indian Penal Code read with s.34 of the Indian Penal Code.

The prosecution case is that on November 3, 1959 Dulla and Ghasita, father and son and one Bhassu were on their way to Tahirpur Bazar for the purchase of bullocks. They had been to Cbandarpur Bazar for this purpose but had not made any purchases,-all the three were carrying money. Dulla had Rs.300/-, Ghasita had Rs.100/- and Bhassu had Rs.1051. Shortly before noon they reached Mauza Bhainsora. When they were near a tank about two or three furlongs from

ShamblUJo

•• Stott. r>f Uttar

Pradesh

Das J.

Shambhoo

•• State of Utt4r

Pradesh

Das J,

:~36 SUPREME COURT REPORTS [1962] SbPP,

Rhainsora theRc four persons, Shambhoo, Altaf, Sibt.e and Shaukat, of whom Shamhhoo ancl :-; ibte were armed with pistol and Shaukat and Altaf were armed wit.h lat.bis, c:\me out. of a wheat fi., Jd nearby. 'Vben they demanded money frnrn Dulin, 13hassu and Gb1\Rita, Ghasita dcli\crccl the money readily, but his father Dulla reRiste<l.

At this Sham bhoo fired his pistol and shot Du Ila <it-ad.

Shambhou then took out Its. :!00/- from Dulla's

poekd, while Shauk>tt took away the money from

.Bhit~RH aft,., r giving him a lathi blow.

The alarm whi"h Dulla, BhMsu arnl Ghasit.1 raised when the robberH att:uked t.hem, hrJ1rnv1>r, brought to the

plar<.' a number of person• who wore working in th<' fit.>ld.< and tbeR<• snece<'ded in felling Sbambhoo and Albf "'ith th<•ir lathiH so that they could not rrot awa.v.

Thf.• other two, Shaui<at and Sibte, however, mauaged lo escape, even though they w<>re pursued by the&" villager,;. fn the course of the pursuit Sibte fired his pistol causing bulkt injU1ies to Lal Singh. :IIahcndra and Udaibir, \\•ho \Vt:re tmc11g the puri:; uers.

Leaving thc two pPt sons who had been 1trres\.<'d and the pi"tol and twolve live cartridgeH which were sl'izcd from Shambhoo at the place of nc<:urrc11ce Ghasita accompanied by Kain Chowkidar wc

011t to the Thana which was about 4 mil<'S off.

Th" information uf the occurren•'e as given b, v him was recorded and the Officer-in Ch1trgo, proeee<lc<I to the pl1we of the occurrence and after taking Altaf an<l Shambhoo into custody and also the livt' cartridg,.s, the pistol and onn used cartridge case, investigated \.}10 C.'\se.

Dulla'H dead body wns sent for post mortem examination, Shambhoo's injuries as also the injuries of Lal Singh, :11".hendra and Uda.ibir were also medically examined.

All the accnscd pleaded not guilty. The defence of the present ap['l<Jllant was that he had

enmity with Talebar Singh and that he was arrested by Telebar and others on the d:i.te of the oecurreuce when he stopped at a well for bathin~ on his way back home from Moradabad.

He examined a defence witness in support of his story that he was taking his bath near a well when he was arrested.

To prove its case the prosecution rdied mainly on the testimony of Ghasita and Bhassu and of six persons who came on hearing the alarm, namely, Kain Singh, Kain Chowkidar, Mahendra

Singh, Talebar Singh, Lal Singh and Udaihir Singh.

These 8 persons have given practically the same account of the occurrence and there is no doubt that if they are believed the case would stand proved against ail the accused persons.

The learned Additional Sessions Judge was however of the opinion that even though apparently there appeared to be no reason for discarding the testimony of the eye-witnesses, there were several circumstances in the case, especially, the medical evidence as regards the injuries on Shambhoo and on Mahendra, Lal Singh and Udaibir Singh which left considerable room for reasonable doubt about the veracity of the prosecution story and that the accused were entitled to the benefit of doubt. Accordingly, he acquitted all the three accused.

On ppeal by Government the Allahabad High Court set aside this order of acquitial as regards Sambhoo and Altaf and has convicted Shambhoo under ss.302 and 394 of the Indian Penal Code and under s.19(f)' of the Arms Act and sentenced him to death under s.302, Indian Penal Code, to four years' rigorous imprisonment under s.394 and to one year's rigorous imprisonment under s. l 9(f) of the Arms Act. Altaf was convicted an:l sentenced to four years' rigorous imprisonment under s. 39-l of the Indian Penal

Shambhoo

State of Uttst

PraaaA

DasJ.

Shambhco

y, Stale of Utt"'

Pradesh

DasJ.

338 SUPREME COURT REPORTS [1962) SUPP.

Code. The Government appeal against the acquittal of Shaukat was dismissed.

Shambhoo has appealed to this Court under Art.134( I )(a) of the Constitution.

The accused was not represented by Counsel and himself said what he wanted to say before us.

Mr. Chari, a Senior Counsel of this Court however appeared as an amicus curiae and &ubmitted arguments in support of the appeal. As already stated, the direct evidence given by the eight witnesses mentioned earlier, is that this appellant shot Du Ila dead when the latter offered resitance in making over the money which he had with him on demand by the appellant and hib companion8 and that than the appellant removed H.s.300/· from .

Dulla's pocket.

The question for our consideration is whether the High Court was right in believing this evidence.

The suggostion made by the accused that he has been falsely implicated by the witnesses at tho instance of Talebar does not bear a moment's scrutiny. There is, apart from his own statement nothing to show that Talebar had any enmity with him. Even if Talebar had any enmity there is vothing, to indicate that any of the other witneB11ee

are at all under Talebar's influence. The suggestion that the appellant has been wrongly involved in the case at the instance of Talebar was therefore rightly rejected by the learned Sessions Judge

a.11 also by the High Court and bas 1 indeed not been pressed before us by Mr. Chari. It is true however as pointed out by the learned Sessions Judge that oven if there be no apparent reason in a

case to explain why witnoHses arc telling a lie against an accused person circumstances brought out by the evidence may show that in fact their evidence cannot be safely relied upon.

.. ,.

The two main circumstances to which Mr.

Chari drew our attention and to which the learned Sessions Judge also appears to have atta<lhed

great weight are : (1) that while according to. the

1 witnesses the appellant was felled by them with lathies the medical evidence discloses only one injury on Shambhoo which could have been caused by a. lathi and (2) the injuries received by Lal Singh, Mahendra and Udaibir Singh are not such as would

be caused by Sibt13's firing of which the witnesses have spoken.

It is true that the eye.witnesses have spoken generally of those who arrived on hearing the alarm as having used their lathies and reading their evidence one would have expected a number of lathies injuries on Shambhoo's person. It is equally . true that though the medical evidence shows as many as 15 injuries on Shambhoo, 14 of these are only abrasions, while one (Injury No. 7) is a swell ing on the outer aspect of the right ankle. . It is clear that Injury No. 7 .could have been cause(! by a lathi blow, while the other 14 injuries could not have been so caused. We do not think however that this gives any reason to disbelieve 'the evidence of the witnesses as to what they saw.

What appears to 'have happened is that one single lathi. blow was sufficient to bring Shambhoo down a.nd after that no lathi blow was given to him but he was dragged and thus received the numerous abrasions on his body. It is not unnatural in circumstances like these that all those who canie on hearing the alarm would try to take. the credit of felling the robber. That, we think, is responsible for the general statement that all of them used their lathies. This exaggeration of what they did does not justify any doubt of their veracity.

The learned Sessions Judge seems, to hve also thought that if these witnesses saw what they claim to have seen, the attack on Shambh.oo w()uld

. .1962

, $lulrn6hoo . v

S~Ot~ o.i Uttar . , , Prad<sh

DosJ.

~'liambliro

DtzsJ.

r. i ' ,, 340

SUPRE:\TE COURT REPORTS [1962] SUPP.

have been more ferocious.

With this we are unablo to agree.

It has to be rcmernhPred that these villagers who arrived on hoaring the alarm were not related to Dulla.

Indt'ed, it would appear that Dull a and his companions wore unknown to them. There is nothing unlikely or unnatural in the fact that they were ontent with securing Shambhoo and did not injure him further.

According to theeo witnesses Sibte fired his pistol at his pursuers, amongst whom were Lal Singh, Cde.ibir Singh, Mahendra and others. The

medical examination showd that on November 4, 1 !J5!J-tha.t is, tho date after the occurrence-when tho Doctor examined the persons of Ma.hendra, Udaibir anrl Lal Singh he found one scabbed abrasion l /8" x I /8'' on the front of upper part of left leg 12-1/2" above the left knee on l\Iahen<lra;

(2) One scabbed abrasion 1/6" x 1/8" on the front to tho right side of the ahdoment at 5 O' clock position from the right nipple 5" away on the person of Lal Singh and (3) - abrasions on the person of Udaibir Singh-one abrasion l/10" x 1/2" on the inner side of the left leg, 11" above the left knee and the other abrasion 1/2" x 1/6" to the front of right leg, 8" below the right knee in the middle.

We can soe no reason to doubt the testimony of the witnesses and do not think it at all unlikely that injuries of this nature were ea.used by pellets ejected by a firearm.

The medical examination therefore far from being inconsistent with the account given by the witnesses, as urged by Mr.

Chari lends support, in our opinion, to their account.

The next circumstance which in the opinion of the Sessions Judge throws doubt the truth of the prosecution story is that tho robber should attack at a place so close to where many people were working. We a.re uuable however to see any. thing unlikely in robbery being attempted at such a place. At least two of the miscreants,

according to the witnesses, were armed with fire arms and that itself was sufficient to make them bold and to hope that the people working in the field nearby would not dare come to the assistance of Dulla and his companione. The learned Judge seems to have thought that there was no place where the miscreants could have concealed themselves. In thinking thus he appears to have overlooked the evidence that sugarcane high enough to afford good place for concealment was growing in several fields nearby.

The learned Sessions Judge also thought it strange that there was no injury on the person of Ghasita and Bhassu and said : "It does not stand to reason that the robbers would leave these two persons without leaving any injury on them." We find it difficult to understand why the learned Judge thought so.

Robber armed with pistol do not always use them unnecessarily. A pistol was used on Dulla as he did not readily hand over the money with him.. Ghasita and Bhassu did not offer such resistance, That itself. would explain why they were not fired upon. It ma.y be mentioned here that according to the eviden3e, one of the miscreants did use his lathi on Bhassu.

After a careful consideration of evidence we are unable to discover any circumstance tha't justifies any doubt about the truth :tbout the prosecution story as against the appellant. Mr. Chari however urged that in any caso the fact that though the pistol which the appellant fired was according 1to the evidence, seized from him it was not sent to the ballistb expert for examination is a good reason for rejecting the evidenPe of the eye-witnesses. The . witnesses already mentioned have said that when Shambhoo was secured thp pistol from which he had fired the fatal shot was seized from him and that one empty cartridge case was recovered from

inside that pistol and 12 !Dore cartrid?es wer~

Shambhuo

y Stnte of l1Uo.r

Pradesh

DasJ.

1962 s,,.,,, u ...

•• St.11 •J U1tar

Pr a duh

342 SUPREME OOURT REPORTS [1962] SUPP.

recovered from the appellant's person and that theso were made over to tho Sub-Inspector when he arrived.

The Suh-I11spector's evidence is that he received from Kalu Singh tho pistol which was marked Ex. I in the case and 12 live cartridges.

He took these, as well as tho empty cartridges case into his custody. It is equally clear that neither the pistol nor these cartridll'es wero s<'nt to any ballistic expert. While we think tho SubInsp<'ctor would have done well to send the pistol and the ammunition, especially the empty cartridges case, to a bal!itic expert for his opinion, we are unable to accopt '.\Ir. Chari's contention that this omission furnishes any reason to doubt or rcjrct the evidence of the eye-witnesses.

Mr. Chari has phwed st.ronll' reliancn on this Court's dedsion in Mohinder Singh,

v. The State(1) and has drawn our attention to the following observations ma.de therein by Faz! Ali

J. :-

"In a cas<l where death is due to injuries or wounds l'aused by a lethal weapon, it has always beer considered to b" the duty of tho prosecution to prove by export evidence that it was likely or nt lea.t possible for the injuries to have Leen caused with the weapon with which and in the manner in which they are alleged to ha\'e been l~'lused." This was a case in which the pro8ecution charged ono i\iohinder Singh wit!{ haviug caused fatal in juries on one Dalip Singh with a g11n. The unP-16 was identified aA the gun with which i\fohinder Singh fired at Dalip Siugh. The Hi11h Court was not satisfier! about the identification a.nd ppears to

hav'e also been doubtful whether the injuries could have been causod by a gun. This Court after agreeing with the High Court that it wa.., doubtful whether the injuries which were attributed to the appellant were caused by a gun or by a rifle tho ught ta~ it was more likely that they wer(i caused

(I)

1950] S.C.JL 821. -

by a rifle than by a gun and the Court proceeded to observe :-. "It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evide. nee alone could settle the control'ersy as to whether they could possibly have been caused by a firearm being used at such a close range as is suggested in the evidence."

It has to be noticed that in that case one Dr.

Goy le, Director of the C.I.D. Laboratory has stated in his evidence that the gun cartridges which were seized could have been fired through the gun P-16 though he could not s ty whether they were actually fired from that particular gun a similar gun or guns." The High Court rejected the evidence of Dr. Goyle and considered the nature of the wound could have created a serious difficulty in the case.

It was in these circumstances of that case that this Court ruade the observations on which reliance has been placed and held that the evidence of the witnesses could nut be relied upon.

It has to be noticed that in the present case there is not only no reason to think that the injuries of which DuJ.la died could not have been caused by the pistol but on the contrary the nature of the injuries as shown by Dr. Nigam who held the post mortem examination is wholly consistent with the prosecution theory that a pistol was used.

The external injuries as found on the body were described by the Doctor were as follows :-

"Five gun-shot wounds (entrance) each 1/4" x 1/8". Scorching was present on the margins of these wounds. Four of these wounds were going to the chest cavity and the fifth one on the outer side was bone deep. The five wounds were in an area 4-1/2" x 4-1/2". These . injuries were on right side of chest about 1-1/4"

Shami boo

•• Stal1 of Uttar

Pradesh

Das J.

SliomiAoo

State of Ull•r

Pr.J~"h

Z44 SUPREME COURT REPORTS [1962) SUPP.

to the upper and inner side of right chest.

The outermost injury was about l-1/2" below right side. One bullet al out :!/4" wa.s extracted from the fle8h from the inner side of this wound."

He proceed to give the int€rnal examination of the bocly in this manncr:-

"The second, third and fourth right ribs were broken in several pieces in the front and back side. Clotted blood was present beneath the external injuries and there were four holes in the chest underneath those injuries/each hole being 1/4" x 1/8" and all going inside the chest. Undnrneath the external injuries were four holes I /4" x I /8" through and through in the right pleura. There were 4 holes l/4"xl/8"

in the right chest, 3 being through and through and ono being I" deep.

All of them were in the upper part of right lung. About 3 pounds of blood wrui prC'sent in the chest cavity. One shot was extracted from tho right lung. Three shots were extracted from the right side upper part of back underneath the skin. Abdominal cavity was empty and normal. The bladder contained about 2 Oz. of . " urine.

In cross-examination he stated : "I cannot tell whether the injuries received by the five bullets were caused by I shot or many."

The very fact that tho Doctor used the word "bullets" in this stat€mcnt in cross-examination shows that he understood tho word to include

pellet. Once that becomes .clear it <•ppears to us that the Doctor's evidence does not at all go against the prosecution case that the injuries wore caused by ono shot from a pistol. The absence of the ballistic expert's evidence is therefore no reason to

doubt the testimony of the eye-witnesses. Kasimulla, one witness who was examined by the appellant on his behalf said that it was when the appellant was washing his haud and face at the Haudia near a well at Jayantipur that Talebar came with 7 or 8 persons and arrested him. In cross-examination he stated that on several occa sions he bad purchased "Singharas" from Shambhoo at Sedhari Bazar and was so known to him.

On an examination of the entire evidence on the record we have come to the conclusion that the account given by the witnesses mentioned earlier as regards what the appellant did and how he was arrestPd is true and this witness Kasimullah has given false evidence to help Shambhoo.

As this appeal is under Art. 134(1) (a) of the Constitution we have re-appraised the evidence for ourselves and on such reappraisal have come to the conclusion that the view taken by the High

Court that persons claiming to be eye-witnesses of the occurrence have told the truth and their evidence proves beyond reasonable doubt that the appellant committed the offence of murder puni shable under s. 302 of the Indian. Penal Code by causing the death of Dulla and that he also committed an offence under s. 304, Indian Penal Code ands. l9(f), Arms Act, is correct. We are also of opinion that the High Court was right in passing the sentence of death under s. 302 of the Indian Penal Code.

The appeal is accordingly dismissed.

Appeal dismissed.

J96Z

Sh'ambhoo

State of Uttar

Prade1h

DasJ,

DAYAL, J

ss. 302 and 1Y

Indian Penal Code

sections 302 and 394

Indian Penal Code

Arms Act

Indian Penal Code

Indian Penal Code

ss.302 and 394

Indian Penal Code

Arms Act

Indian Penal Code

Arms Act

s. 39

Art.134( I )(a)

Art. 134(1)

s. 302

Penal Code

s. 304

Indian Penal Code

Arms Act

s. 302

Indian Penal Code


Ifft

Ft6rum 20.

346 SUPREME COURT REPORTS [1962] SUPP.

AMARSARJIT SINGH

THE STATE OF PUN.JAR

(AND CONNECTED PETITION'S AND APPEALS)

(B. P. SINHA, C. J., IC SunnA RAO, N. RAJAOOPA!.A

AYYANOAR, J. R. MuonoJ, KAR and T. L.

VEXKATARAMA AIYAR, JJ,)

Resumption of jaqirs-Gis-Sutkj .fa7irs___:. lagirdars, if wvereigns-Assignment of reten1te by Rritislt Corrrnme11t-l1nplied grant-Legislatii•e conipetence of tn1:u:tn1ent-'l1ltr. l'unjub Ruumption of Jagirs Act, 1957 (Pttnjah 39 .nf J.'Jii7), '"· 2( 1), 2(5)-Gon.•litution of India, Sei:enth Scherlule, Ust II, entrie" 18, 4:i.

The Punjab Resumption of Jagirs Act, 1957, came into force on November 14, 1957, and the State of Punjab proceeded to take action thereunder for resuming the jagirs.

The petitioners who were holders of certain jagirs in that State known as the Cis-Sutlej jagirs claimed that they could not be resumed under the pro\'i•ions of the Art because they did not fall within the definition of Jagir contained ins. 2(1) of the Act on the grounds that there was at no time any grant of the Cis-Sutlej jagirs to their holders. much less any assignment of land revenue to them, and that even if there was such 11 grant, it was not one made by or on behalf of the State Government as required bys. 2(1) (a) of the Act. The history or the,. jagirs showed that the jagirdars were originally

rulers of the territories when they took possession of them by conquest in I i63, hut in course of time after the British came on the scene, they were wadually stripped of all their powers as sovereigns, and in 1852 the British took over the collection of revenue of the jagir lands and out of the collections the jagirdan were paid their share. Subseq tJen t to 1852 there was a course of legislation relating to the jagirs. The ques• tion was v.•hether the assignment of land revenue to the Cis- Sutlej jagirdars was made on the basis of aR implied grant.

The petitioners case was that as the Cis-Sutlej Chiefs were never conquered, the payment of lancl revenue to them must be related to their status as overeigns and that the collection of the land revenue was made only under an implied arrangement with them.

Held, that the status of the Ci1-Sutlej jagirclars was only !hat of subjects and that the payment of revenue to them by

the British Government was only on the basis of an implied grant to them.

Though the Cis-Sutlej Chief were not. onquered .by the British, since the latter were in fact exerc1s1ng sovereign powers over the area it must be held that sovereignty had

passed to them otherwise than by conquest.

Mfs. Dalmia Dadri Cement 'ao. Ltd. v. The Oommissione; of Income-tax, [1959] S. C. R. 729, Thakur Amar Singji v.

State of Rajasthan, [1955] 2 S. C.R. 303 and Vajesingji Jorawar

Singji v. Secretary of State, [1924] L.R. 51 I.A. 35 7, relied on.

Held, further that the British Government which had made the grant was the "State Government" within the meaning of s. 2(5) of the Punjab Resumption of Jagirs Act 1957, and that the Jagirs in question' were within the definition of "Jagir" in s.2(1) of the Act.

Held, also, that the Act was within the legislative competence of the State of Punjab under entries 18 and 45 of List II of the Seventh Schedule to the Constitution of India.

0RrGINAL JcrarSDICTION: Petitions Nos. 82 of 1960 and 148, 168 to 174 and 357 to 361of1961.

Petition under Art. 32 of the Constitution of India for the. enforcement of Fundamental

Itights.

WITH

Civil Appeals Nos. 453 to 474 of 1961.

Appeals from the judgment and order dated May 25, 1959, of the Punjab High Court in Civil Writ Nos. 428, 303, 398, 402, 459 to 462, 421, 472, 473, 475, 490, 503, 509, 519, 520, 555, 590, 710 and . 712 of 1958.

AND Civil Appeal No. 50 of 1962.

Appeal by special leave from the judgment and order dated May 25, 1959, of the Punjab High

Court in Civil Writ No. 347 of 1958.

Achhru Ram and Naunit Lal, for the petit!oner (in Petn. No. 82 of 60) and the appella, qt

(m C. A. No. 50 of 62). ' • ', ' r

Amat'8af'jit Singh

v. .

The State of Punjab

AmarsMjil Sin1A

T/i, St.,, of Punjal>

348 SUPREME OOURT REPORTS [1962) SUPP.

l. N. Shroff, for tho pctition0rs (in Petn. No. 148 of 61) and the appellants (in C. As. Nos. 457 to

474. of !ii).

Har(lei: SiW]h and Y. Knmar for the petitioners (in Petm. Nos. 168 to 174 ad 357 to 361 of6l).

C. K. Daphtary, Solicitor-General of India, K. L.

Go.sain, B. R. L. Iyengar, Lak.sltm.1'. Cliand and J. N.

Shroff, for the appellants (in C.As. Nos 453 and 4f>6 of 1961 ).

K. L. Gosain, B. R. L. Iyengar, Lakshmi Chand - and 1. N. Shroff, for the appellants (in C. A. No. 454 of 19fil ).

B. R. L. lyeW]ar, Lakshmi, Chand and 1.N.Shroff, for the appellant; (in C. A. N'o. 455 of 1961 ).

S. ill. Si kn'., Advocate.General, for the Stale of Punjab, N. S. Bindm and P. D. J!enon, for the respondents (in all petitions a.ml Civil App ea.ls).

M. C. Sctalva.d, Attonwy-Gcneral of India., J. B. n111fachanji, 0. C. Matlmr and Ravinder Narain, for fncervoner Xo. l (Sa.tinder Singh).

K. L. ;}fchta, for Intervener No. 2 (l{aghvindcr folingh and others).

1962. February 20. The .Judgment of the Court-was delivPred by

VENKATARA~IA AIYAR, J.-The qurstion that a.rises for our decision in the a.hove writ petitions and appeals is whether certain ja.girs in tho State of Punjab known as the "Cis-Sutlej" jagir a.re liable to he resumed under . the provisions of the Punjab Resumption of Ja.girs Act, Hl.57 (Punjtib Act N'o. ; l!) of 1957), hereinafter referred to a.s "the Act".

This Act came into force on Novcmer 14, 1957, imd the respondent State then procpeded to tke action thereunder for resuming the ja.girs.

pmber of rititions were hereupon filed in tho

Amarsarjil Singh . v.

High Court of Punjab under Art. 226 of the Constitution challenging the validity of the Act, and of the proceedings taken by the respondent State thereunder on the ground, firstly, that the Act was altra vires the powers of the State Legislature and that its provisions were unconstitutional and void ; and, secondly, that even if the Act was intra vfres the jagirs held by the petitioners were not "jagirs"

Tiu Sl•I• of Punjab

as defined in the Act, and were therefore not liable to be resumed under its provisions.

By their judgment dated May 25, 1959, the learned Judges held that the legislation was within the competence of the State, and that it did not contravence any of the constitutional provisions.

They further held ,,. that the jagirs held by the petitioners fell within the definition of "jagir" under the Act, and were liable to be resumed thereunder, and that accordingly no writ could be issued against the State for proceeding under the provisions of the Act.

By thflir Order dated January 27, 1960, the learned Judges granted leave to appeal to this Court under Art. 133 (1) (a), and pursuant to the same, Civil Appeals Nos. 453 to 474 of 1961 have been preferred to this Court.

Appeal No. 50 of 1962 by special leave is also directed against the Judgment of the Punjab High Court in a Writ Petition under Art.

226. Some of the jagirdars have also filed petitions in this Court under Art. 32 of the Constitution, impugning the Act and the action of the State thereunder on the same grounds as those raised in the appeals. We have accordingly heard arguments of learned Counsel both in the writ petitions and in the appeals, and this Judgment will govern all of them.

Though a number of grounds have been taken in the pleadings, impugning the Act as ultra vires and its provisions as unconstitutional, in the argument before us, the only contention that was pressed was that the Cis-Sutlej jagirs do not fall

Ai)ar J

Anr1trsarjit Singh

•• T,., State of Pwijab

A0ior J.

350 sbPRkME CODRT REPORTS (i962J sbi?i>.

within the definition of jagirs contained in the Act and that accordingly tho State had no authority to resume them under the provisions of the Act .

And this contention is sought to be sustained on two ground: ( i) that there was at no time any grant of tho Cis-Sutlej jagirs to their holders, much less any assignment of land revenue to thein; and

(ii) . that even if there was such a grant, it was not one made by or on behalf of tho State Government as required bys. 2 (1). It is argued that if either of these contentions succeeds, the jagirs in question would fall outside the purview of the Act, and the State would have no right undl'r its provisions to resume them.

It will be convenient at this stage to set out the relevant provisions of the Act. Section 2 (I) defines "jagir" as follows:-

,, ''Juir'' mcans-

(a) any assignment of land revenue made by or on behalf of the State Government; or

(b) any estate in la.nd creat-ed or afiir'- med by or on behalf of the State Government cnrrying with it the right of collecting land revenue or receiving any portion of tho land revenue; or

(c)· any grant of money made or continued by or on behalf of the State Government which purports to be or is ex pressed to be payable out of the land revenue; or

(d) any grant of money including anything payable on the part of the State Government in respect of any right, privilego, perquisite or office; and includes any such grant or assignmrnt existing in favour of Cis-Sutlej jagirdars."

I 3 s.c.R.· SUPREME COURT REPoRTS 35i

"Jagirdar" is definer:] in 's. 2 (2) as meaning the holder of a jagir. Section 2 (5) defines State Government as follows:-

"State Government" -

(a) as respects any period before the 1st November 1956, shall mean:-

(i) . the Government of the Patiala and East Punjab State Union or any of the Indian States whioh formed into the Patiala and East Punjab States Union on the 20th August, 1948 and

(ii) the Government of the State of Punjab and all predecessor Governments thereof by whatever name called, the Governor-General or the Governor-General in.Council, as the case may be, and t.he Sikh Rulers, but shall not include the Central Government as defined in the General Clauses Act, 1897, after the period commencing on the 15th August, 1947. (b) as respects any period after the lat November, 1956 shall mean the Government of the State of Punjab." Section 3 enacts that-

"N otwithstanding anything to the. contrary contained in any law or usage any grant settlement, sanad or other instrument, or any decree or order of any Court or authority, all jagirs shall, ou and from. the commencement of this Act, be extinguished and stand resumed in the name of the State Government.

It ie common ground that the jagirs which are concerned in the present writ petitions and appeals . consist of a right to the revenue payable on lands, and not of any estate such as wi)l fall under s. 2 (1)

(b) of the Act and that they must fall, if at all within s. 2 (1) (a). Therefore the discussion narrows

Amarsarjit Singh

I Y. - Tiu Stde of Pu•j•b

A!1ar J.

i962

Amarsnrjir Singh

' n~ State of Punjab

.1i)!lf' .i.

~52 SUPR~ME COURT REPORTS (1962j SUPP,

itself to the question whether there was, as required by s. :! (I) (a) of the Act, any assignm!'nt. of the revenue of these jagirs and whether such assignment was by tho State Government .

On the first question, as to whether there was assignment of land revenue, the contention of the petitioners and of tho appellants-and they will hereafter be reforred to compendiously as jagirdars-is that the so called jagirs are not jagirs as ordinarily understood, that they were not the subject matters of any grant by any State that they were in fact originally independent States h!!l<l by rulers with sovereign rights, that in course of time the British Governm1nt impos!·<l their Sv\'!> reignty over them; and finally took over the admi nistration of the State and paid the revenue collect cd therefrom to the rulers, not as person to whom the land-revenue had been a8signed, because th<'re was no such assignment but as sovereigns of the States. Therefore, it is contended, the co-callc<l jagirs are not within the difinition of s. 2 ( 1).

That brings us on to the question of the true status of the Cis-Sutlej jagirdars. The origin of these jagirs goos baek to 1763, The collapse of the Moghul Empire had created a void in the political stage of this country, and many were the powers which Htepped in with the ambition of establishing their sovereignty. The British had established their rule and }1ad extended their dominion up to the Jumna. The Sikhs had also developed during this period from being a purely religious sect into a military organisation, and established several States beyond the 8utlej. The tract of territory between the J umna and thE> 8utlej was at this time under tho administration of a weak Afghan Governor called Zain Khan. The policy of the British during this period was to hold the J umna as the frontier, and so they were indifferent to tho fate of this Cis-Sutlej area., But the Sikh Chiefs

beyond the Sutlej could not resist the temptation of overthrowing the Afghan Governor, seizing his territory and establishing themselves as its rulers.

In 1763 the storm burst when a number of them crossed the Sutlej, overwhelmed the Afghan Governor and occupied the whole country upto Jumna. "Tradition slill describes", says Cunningham in his History of the Sikhs, P. llO, "how the Sikhs dispersed as soon as the battle was won and how riding day and night ea.ch horseman would throw his belt and scabbard, his articles of dress and accoutrement, until he was almost naked into successive villages to mark them as.his." When the conqu est was over each Chief declared himself the ruler of the territory which he was able to occupy, and constituted himself its sovereign.

This state of affairs continued until 1806.

By this time, Ranjit Singh the "Lion of the Punjab", had built up a powerful State across the Sutlej.

He had already subdued the petty rulers within that area and was turning his attention to the territories south of the Sutlej and had occupied some of them. The Cis-Sutlej rulers became alarmed about their future and appealed for protection to the British, who had, by this time, changed their policy of non-intervention. The appeal was welcome, and met wjt, h prompt resporise.

The result was that in 1809 the British entered into a treaty with Ranjit Singh whereby he surrendered his acquisitions south of Sutlej and agreed not to interfere with the Cis-Sutlej States. And this was followed by a proclamation by Colonel Ochterlony in May 1809 whereby the Cis-Sutlej Chiefs were assured of their rights as sole owners of their possessions and exempted from payment of tribute, but were required to furnish supplies to the Britijsh Government and assist them against their enemies.

The British Government also promulgated a rule that whenever any of the rulers died without issues, his State

would lapse to the British Government.

Amarsarjit Singh

The Stale of Punjab

AarJ.

.Amo1Ja1jil SinKh

Tiu State of P11njob

A(Tar J.

!!54

. • ' 1 ; • i ) . ' 1 " I • SUPREME COURT REPORTs [1962] StJPP.

This was the position until 1846 when a drastic change in the situaticn totk place. Jn 1845, thnc was war bet ween the British and the Sikhs, and in that war the CisSutlej rulers far from help

ing the Rritish ag iinst the Trans Sutlej Sikhs, were either unsympathetically neutral or actively hostile to them, and that brought about a change in the policy of the British Government towards them.

The position is thus stated by Kensington in tho Ambala Gazetteer at p. 26:-

"Having thus ilrcacly lost the confidence of the Government the Sikh Chiefs in the Sutlej cam pa ig11 forfieted all claim to cons id cration. It was seen that the time had arrived for the introduction of sweeping measures of reform anj the Government unhesitatingly resolv

ed upon a reduction of their privileges. Several important measures were at once adopted.

The police jurisdiction of most of the chiefs

was abolished, the existing system being most unfavourable to the detection and punishment of crime.

All transit and customs d1Jt ics were also abolished; and thirdly, a commutation was accepted for the personal service of the chief and his contingent. The despat ch of the Governor General embodying this resolution was dated November 7th, 1846." While the sweeping changes aforesaid were being introduced, the second Sikh War broke out and that ended in the annexation of tho Punjab. And with that the ne<'d for maintaining appearances and for recognising the Cis-Sutlej Chiefs as rulera came to an end. The British Government then proceeded to act swiftly and firmly, and in June, 1849, they made n declaration that the Chiefs should "cease to hold sovereign powers, should lose all criminal, civil and fiscal jurisdiction, and should be considered as no more than ordinary subjects of the British Government in the posseSBion of certain exceptional

privileges" (').

Pursuant to this declaration, the Chiefs were stripped of all their governmental functions, and the final denouement took place in l1S52 when the British took over the collection of revenue for the jgir lands. The rules for settlement of revenue were made by them, and the actual settlement and collection of revenue were made under their authority, and out of the collections the jagirdars were paid their share.

On these facts, the question is whether it can be said that their was an assignment of the land revenue to the jagirdars. Express grants to th em, there were none.

The point in debate before us is whether grants of the land revenue could be implied from the facts stated above.

A somewhat similar question came up for decision before this Court in Thakar Amar Singhji

v. State of Rajasthan (') with reference to a class of jagirdars in the State of Rajasthan known as Bhomicharas. They were once the rulers ofthe territories which were claimed to be jagirs, and later on the State of J odhpur imposed its suzerainty over them and exacted an annual payment called "Foujbal". The Bhomicharas contended that they had come into possession of the territories as rulers and held them as rulers and not as jagirdars under grants made by any ruler. In repelling this contention, this Court held that a grant may be implied as . well as express, and that on the facts which were proved, the Bhomi1, haras, though they held originally as rulers, must be held to have been reduced to the status of subjects, and that their position was that of jagirdars under an implied grant. The position of the CisSutlej jagirdars bears a close analogy to that of the Bhomicharas in Thakur Amar Singhji's case (').

They became rulers of the territories when thty took possession of them by conquest in 1763.

The first inroads iµto their

(1) Griffin's ·•Rajas of the Punjab", P. 19~. \2)

[1955] 2 S.C.R. 303,

Amarsarjit Sinth

The State of Pt1r1iab

Aiyar J.

AmtrrJa1ji1 Sin, i:, h

Th, Str.t~ of Punjab

Aiyar I.

• • •· 1 •I l•

SVPRE:ME COURT REPORTS [1962] SUPP.

sovereignly wPre made in 1809 when the British established their suzerainty over them and further dcclarecl th, tl the territories of the rulers who died without hl'irs would ceheat to them. Then in 184G the British Government deprived them of police j11risdiction, and the power to levy customs, and in 1849, of all their sovereign functions.

It is not disputed that as a result of all these acts tlwy were reduced to tho position of ordinary subject.~. that indeed being the' objective of the British Govern! ment as avowed in their •kclaratioTl of J11ne, 18!9.

It is with referPnce to this background that we must examine the true charnctcr of thn rev1mw 'etth~ rucnt made in 18:"i2. lf the jagirdars had sunk to the position of suhjc8ts on that date tho payment of revenues to them by the British Government can only be on the basis of an implied grant to them.

Ll'arned Counsel for the jagirdars however demur to this conclusion. They contend that the position of the Cis-Sutlej jagirclars differs fundarnenta.lly from that of the Bhomicharas in Tooba Amar

Singhji'8 r; ise ('), that the latter were conquered by the rulers of J odhpur and com polled to pay to them a tribute er.lied "Foujhal", but that the Cis-Sutlej Chiefs were never conquered by the British, and

never paid any tribute to them, that they were receiving revenue from tho lands as rulers before the British came on tho scene, and that they continued to receive the s<irnc without a break even aftor tho British had established themRelves, and that there was nothing which the British Uoverument did from which a resumption and a re-grant could be inferred.

Under tho circumstances, it is said, tho payment of land revenue to them must be related to their status as sovereigns, and if the British Governrn('nt took upon themselves the work of settlement and collection of land revenue, it was

\I) [ l!l55] 2. S. C.R. 303.

on their behalf and under their authority and under an implied a, rrangement with them.

The assumption underlying this argument jg that as th 9 Cis-u tlej Cfliefs Wdre not conquered by the British, thir satui mus\ neoJisarily be th'1t of sovereigns, and that in consequ9nce the payment of

hnd revenue to them could not be as jagirdars holding under an implied grant from the Government. ThJ.t, however, is not correct. It is settled law that conquest is not the only mode by which one State can acquire sovereignty over the territories belonging to another State, and that the same result can be achieved in any other mode which has the effect of establishing its sovereignty.

Thus, discussing what is an "act of State", the Judicial Committee observed in Cook v. Sir James Gordon

Sprigg (1) :-

"The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State." To the same effect are the following observations of Lord Dc1nedin in Vajesingji Joravarsingji v.

Secretary of State for India in Council (2) :-

•'When a territory is acquired by a sovereign State for the first time, that is an act of State. It matters not how the ac, q Liisition has been brought about.

It may be by conquest, it mly be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler." Laying down the law iu similar terms, this Court observed in M/s. Dalmia Dadri Cement Co. Ltd.

v. The Commissioner of Income-tax(') :-

"The expression 'act of State' is, it i~ scarcely necessary to:say, not limited to hostile (1)

(1899) A.C. 572.

(2) (1923-24) L. R. 51I.A.357.

(3) (1959) $.C.R. 729, 739.

Amarsarjit Singh

The Slate of Punjab

Aiya' J.

19~2

AmsnjU Sing~

Tft Wu1 •f Punjob

... !1 .. J.

358 SUPREME COURT REPORTS (1962] SUPP.

action between rulers resulting in the occupation of territories. It includes all acquisitions of territory by a sovereign St.1tn for the first time, whether it ho by ponquest or cession.

Vide Vajesint; ji Joravar Singji v. Su.reiary of State and Thakur Amqr S1'.nyji V State of Rajastha n . " And, more recently, this question has been considered bv this Court in Prorn.od Chandra Deh

v. The State oj Ori.sa (•), and the result was thus stated:-

" 'Act of State' is the taking over of sovereign powers by a Mate in respect of territory which was not till thon a part of its territory, either by conquest; treaty or 0ession,

or otherwise." The fact, therefore, that tho Cis-Sutlcj jagirdars

were not conqucr<d by the British doPs not conclude the question as to whether they aro to be regarded as sovereigns or not. That must depend on who

were in fact exorcising sovereign powers over the territories in the States-the ChicfR or the British.

If the latter, then it must be held that the sovereignty over the area had pa.qscd to them, otherwise than by conquest, and that the true status of the Chiefs was that of subjects.

Viewed in this light, the case does not present much of a problem. It has beon already seen that from 1809 onwards, the Chiefs had been gradually stripped of their powers as so\'<'reigns :rnd that the process uf diHintegr1>tion was completed in 1849.

It is indeed conceded on behalf of the jaginlars that after that datu it was the British Government which was exercising sovereign pow<'rs.over th•. territories and that the Chiefs had been redt1ced to the status of its subjects.

But tho contention that is urgC'd is that nvon when every thing else had hccn

{IJ \.Vri1 Petitions Nos. 79 of l957, 16i and lGa of 19~8 and 4 of 1959 dtcided on November, 16, 1961.

lost, there was still one relic of sovereignty left with them and that was the right to receive the land revenue. If this were the true position, the status of the jagirdars would. be that of subjects of the British in respect of all matters except as to the right to receive revenue, in respect of which alone they would have to be regarded as sovereigns.

This is clearly untenable, because a person cannot be both a sovereign and a subject at the same time.

Dealing with this identical contention, this Court obderved in Thakur Amar Singhji's case (1):

"The status of'a person must be eit!ier that of a sovereign or a subject. There is no tertium quid. The law does not recognise an intermediate Htatus of a. person being partly a sovereign and partly a subject, and when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur their status can only be that of a subject. A subject might occupy an exalted position and enjoy special privileges, but he is none the less a subject ; and even if the status of Bhomicharas might be considered superior to that of ordinary jagirdars, they were also subjects." (pp. 336-337) If the statlld of the Cis-Sutlej jagirdars is in alJ other respects that of subjects, the right to receive the revenue collections must also be ascribed to their character as subjects, and that can only be under an implied grant.

But it is contended that the implication of a grant in favour of the jagirdars could not be made hne as in the case of Bhomichans in Thakur Amar Singhji's case (1), because a propoHl for resumption and re-grant of the territories of the Cis-Sutlej Chiefs was actually put forward in 1846 but was negatived. Reference wa.s made to the following .

(I) [!955] 2 S. C. R. 303,

19•1

Amarsarjit Singh

' The Stale of Punjab

Aiya,. J.

360 SUPREME COURT REPORTS [1962] SUPP.

1'6t account thert>of given in J. llf. Douie's "Punjab Am•wujitSinih Land Administration Manual", 1931, p. 45 para •. 102:- 11" Sl•I• oj l'unja!J

A(il.,. J. "lt was indeed pruposl'd in 1846 after the firot Sikh War to declare all the estates forfeit on account of the !aches of their huldcro, and to re-grant them under sanads from the Briti8h Government. But Lord Har<linge deemed it impolitic to proclaim to all Infoi the miscondllct of thi Ci>-Slltloj Chief~ and n11){atived propo3al.

In a sense thn tlHi Cis-Sutlej ja.girdars, great and sm ill, are mdiatized

rulers, and little though they have ag a bo<ly desoncd at our hands, this fact should not be lost sight of in our dealings with them." The argum'n~ is that though a grant 1, oul<l bo implied in certain circumstances where nu express grant was forthcoming, that could not be done when

a proposal for grant is shown to hawi btlen actively _considered and rejected.

This contention svun<ls plausible but brraks dO\\'n when the reason for the rejection of the proptisal is examined.

That wa8, as stated in the despatch of Vml Har<linge <lated 1\ovomber 17, 1846, that "a general measure of resumption would create alarm and must be preceded by a public declaration of the disloyalty of_ the largest portion of the Sikh protected States explaining the grounds of forfeiture," and this was considered inexpedient.

Consistently with thi.> reason it is impossible to hold that the British Government, in declining to make a re; mmption and re-grant, intended to continue the recognition

of the Chiefs as sovereigns.

On the ut her hand, the true inforence to he drawn i:; that the British wanted to give the chieftains only the status of jagirdars but for reasons of policy they sought to do it in such manner as tu avoid publicity, an<l that is why the proposal for making resumption and re grant was not adopted. In the very despatch of

Lord Hardinge dated November 17, 1846, wherein the proposal for resumption and re-grant was dropped, it was stated that th3re was ho need for it as the same ends could be obtained by adopting certain measures such as the taking over of the police admini3tration and customs a 1d the like.

The reason, therefore, for ·, ot making a resumption and an express grant is one which would support an inference of implied grant.

An argument is also sought to be built on the dascription given of the Cis-Sutlej jagirdars as "mediatized rulers" in ti.e extract from J.M. Douie's "Punjab Land Administration Manual" already given, that their status is that of sovereigns.

This expression was originally used with reference to German Princes in Holy Roman Empire who, having been at one time vassals of the Emperor, wtre rnbsequently subjugated by other Princes who were also vassals of the Emperor.

The meaning of the word "mediatise" in modern usage is given in the Oxford English Dictionary, Vol. VI, p. 292, as "8.nnex (principality) to another State, leaving former sovereign his title and (usually) more or less of his rights of Government".

It might be correct to speak of the Chiefs as mediatized rulers in 1846, when, though depriv<'d of their powers in matters of police and customs, they continued to exercise civil and fiscal powers. But when they were divested in 1849 of <tll their Governmental powers they cei; sed to be rulers, "mediatized" or otherwise, and when the revenue settlements were made in 1852, they had no vestige of sovereignty left in them, and had become ordinary subjects of the British with some privileges.

The true character of the revenue settlements made with the Cis-Sntlej jagirdars is brought out correctly, in our opini0n, in the following observations in Tiaden Powell's "Land Systems of British lndia", Vol. II at p. 701;-

Amarsarjit Singh v.

The St>Jtt oj Pu if ab

AQtar J,

Amarsarjil Singh

Tiu Slate of Punjab

Aiyar J.

~2 SUPREME OOURT REPORTS [1962] SUPP.

"Undn our Settlement arrangcmcnt<i, the jagirdar now receives the rcvenu'l, the original land holding communities or individuals being settled with and retaining full proprietary rights.

He in faet is a mere asignco of the rovenue, taking part of what otherwiso would go to the State." Even more explicit is thfl statement of th" position by Kensington in the Ambala Gazetterr, pp.27-28:-

"Tbe final step necessitated by the march of events was taken in 1852 when the revenue settlement begun for British villages in lt!47

was extended to thn villages of the chiefs.

Thereafter the chiefs havo coased to retain any relics of their former power except that they are still permitted to collect their revenues din•ct from their villages, the cash assignment of revenue.

They have sunk to the position of jagirdarn but as such retain a right to the revenue assigned to them in perpetuity." It was argued by the learned Advocate-General who appeared for the respondent th at subsequent to 1852 there has been a courS(• of legislation rolatin!l' to tho jagirs which proceeds on tne basis that their holders were subjects. Th!' preamble to the Punjab Land Revenue Act, 1871 (Act 33 of 1871 ), under which land revenue was settlecl is as follows:-

"Whereas the Government of India is by law entitled to a proportion of tbc procl nee of the land of thii Punjab to he from time to time fixed by itself and whereas it is expedient

to ponsoliclato and define the law relating to the settlement and collection thereof, and to the duties of the Revenue Offic('rn "in the Punjab." It is under this Act that the rev<'ntlO Rettlnmm1t.11 for the jagir lands aro also made. 'fhis Rhows that in

c:ll:eroisin~ fisoal iurisdiction, the British Government

3 S.C.R.

SUPREME COUJ:tT REPORTS 363.

considered itself as acting in its sovereign capacity.

Then there is Punjab Descent of Jagirs Act, 1900 (Punjab Act IV of 1900), which introduced in the Punjab Laws Act, 1S72, ss. S to SC enacting rules of descent "in respect of succession to any assignment of land revenue" and providing for the recognition _ of successors to the deceased jagirdars by the Provincial Government on certain conditions specified therein. We have then the Punjab Jagirs Act V of 1941 dealing with the same topic.

The preamble to the Act states that "it is expedient to consolidate the law governing the assignments of land revenue and other grants hitherto known as jagirs, and to make more precise provisions regarding the manner in which such assignments are to be made or continued in the future." J agir is defined in s. 2 in terms substantially the same as under the present Act.

This Act repeals ss. S to SC of the Punjab 1.aws Act, 1S72, which were inserted by the Punjab Descent of Jagirs Act IV of 1900, and reproduces them in ss. 7 to 10.

Section 7( l)(b) provides for the acceptance by the jagirdars of the I ules of descent framed by the Government by executing a written instrument, and it has been stated before us that the jagirdars have accepted the rules in the manner provided in the section. By way of sample, the copy of the acceptance executed by the petitioner in Writ Petition No. S2 of 1960 has been marked as part of the record. On these materials, the conclusion would appear to be irresistible that the right of the j t5irdtr& to receive .land revenue rests on implied grants by the British Government.

It must be mentioned that in Abdul Ghafoor Khan v. Amar arjit Singh, Regular Second Appeal No. 561 of 1946 in the Punjab High Court there are observations of the learned Judges, '.Vlahajan and Teja Singh, JJ., that thPre was no gift of the jagir lands or assignment of the land revenue by the British Government to the Cis-Sutlej jagirdars, and they a, re relied o~ as a-qthority for t4e cotention t!i11t

Amar1arjit S, ingh

•• The State of Punjab

A!Yar J,

A-narsarjit Sing/a

•• ("M Sta It of Punj tb

Afpar J,

36! SUPREME COURT REPORTS [1962] SUPP.

there was no grant to them exprcs; or implied.

But tho p.:iint for decisio; l m that case was wh Jther these jagirdars could alienate their iriterosts beyond their life-time. It wa.s hld that they could not a.nd the reason therefor was thus Htated: ---

"After the annexation of the Punja.b they (Oia-Sutlcj ja.girdars) were depr!vcd of all vestiges of sovereignty that still remained in them and they wore transformed and given the status of jagirdars, but their possessions, holding and dominions whether in land or other properties liko forts and buildings wcro not in any way disturbed or taken 1•way. They held them in tho same status and poiLion as before."

The dispute in that appeal related to properties of the kind mentioned above and not to land revenue,. and we are unable to regard the obdervations relied on for the jagirdars as authority for the position that no gmnt in respect of the assignments of tho land revenue could be implied in their 'favour.

In the result we must hold that the jagirs which arc subject-matwr of these proceedings fall within s. 2(l)(a) of the Act.

It is next contended that even if an assign ment of land revenue could be implied in favour of the jagirdars, that could only be held to have been made by the British Government and not by the State Go'l'ernment as required by s. 2(l}(a), and thnt, in consequence, the respondent had no right to resume the jagirs in question under the provisions of the Act. , \Vhatover force there might havo been in thi~ contontion, if the question had to be decided only on the terms of H. 2(l){a), we have ins. 2(5) a dofinitiozi ot' State Government which

3 S.C.R.

SUPREME COURT REPORitS 365

is decisive of the question. According to that definition, "State Government" includes "the Government of the State of Punjrib, and all predecessor Gevernments thereof, by whatever name called, the Governor-General or the Governor-Generalin-Council as the case may be." It is not disputed that these words are wide enough to include. the British Government which made the grant, but it is contended that this definition was not in the Act as originally enacted and was inserted by the Punjab Resumption of Jagirs (Amendment) Act,

1959, and that the rights of the parties should be determined in accordance with the law as it stood prior to the amendment. There is no force in this contention, because under s. 1(2) of the Amendment Act, retrospective operation is given to it as from November 14, 1957.

But then it is urged th<tt the amendment was not within the legislative competenc.e of the Legislature of the State of Punjab and is null and void.

The grounds therefor are thus stated in Petition

No. 82 of 1960 :-

"This is nothing but a colourable legislation. The State legislature has no authority to convert Central . Government into State

Government and legislate on Central subject.

The so-called jagir being not a grant by the State Government, the impugned Act has no application and the amended definition of State Government is a fraud on the Constitution." (para 17).

There is no substance in the contention that the Amendment Act is colourable and incompetent. The subject-matter of the legislation is resumption of jagirs. Though the contention was raised in the petitions that this was not a topic within the competence of the State Legislature, as there was no such entry in List II to the Seventh Schedule, no

A.maral'tjil Sin1h

Th• 81,11 of Punj<

Ap.ar J.

Am4rsarj1t Si11gh

•• Tht Stat. of Punjab

Ai1C1TJ.

366 SUPREME COURT REPORTS [1962] SUPP.

argument was advanced in support of it. And clearly it could not b<', as legislation on resumption of jagirs in onn relating to lands, and land revenue and would clearly fall under entries 18 and 45 of List II, which are as follows : Entry 18 :-"Land, that is to say, rights in or over land, land tenure including tho relation of landlord and tenant, aRd the collection of rents transfer and alienation of agricultural lands; land improvement and agricultural loans; colonization."

Entry 45 :- "Land revenue, including the asS('RSm<mt and collection of revenue, the maintenance of lands records, survey for revenue purposPS and records of rights, and alienation of revenue." If the principal legi@lation is intra iire8, it is difficult to see how an amendment thereof with respect to mattera propel'ly pertaining to the subject-matter covered by it could be ultrn vire8. It is immaterial fo,. tho purpose of resumption, whether t.he

lauds sought to be resumed were granted by the State of Punjab as it is now cunstitute<l or by any Government which preceded it. So long as the lnnds nre within the State of Punjab, the legislature h'aR fnll competence to enact a law providing for thcir resumption under entries l 8 and

45. Indeed if the words "made by or on behalf of the State Government" in s. 2 (l )(a) had been omitted in tho principal Act and jagir defined simply as "11.ny assignmnt of land revemvi" the legislation would have boen intra 'cirr,~. and in that case the State could have resumed the jagirs by whomsoover th<'y might have been granted. But it chose to add the words "made by or on behalf of the State Government", and that gave occasion for the contention that, the legislation did not in fact reach jagirs granted by the British Government. Then, with a view to clarify tho position,

3 s.ci.it.

SUPREME COURT REPORTS 367

and set the controversy at rest, the legislature

I96S intervened and enacted the Amendment Act Amarsarjit Singh of 1959, inserting the impugned definition of "State v.

Government". We are unable to see what the lack TheStati•f Punjob of vires is under which this amendment suffers. We AV>arJ. must reject this contention aleo.

This diposes of all the points raised' on the merits in the Writ Petitions and Civil Appeals. In Civil Appeal No. 453 of 1961 preferred by one of the jagirdars, Umrao Singh, his son Satinder Singh intervened, and he asks that suitable directions might be given for protecting his interests in the compensation amount which is payable to the appellant nnder the Act.

He states that under the law the Cis-Sutlej jagirdar is not an absolute owner of the jagir, that he has only a right to enjoy it with- out any power of alienation and that after his life time the next lineal descendant would take it free from all encumbrances created by the previous owner, that the rights of the jagirdar over the compensation amount due on resumption under the Act could only be the same as over the jagir, and that if that is paid to him, his reve<sionary rights would be jeopardised and that therefore adequate provision should be made for protecting them. Our attention has been invited to the decision of this Court in Satiniler Singh v. U mrao Singh (1), where compensation awarded on the acquisition of jagir lands was apportioned equally between the jagirdar and his son.

But there the lands had been acquired under the Land Acquisition Act, 1894, which contains provisions for deciding who is entitled to the compensation amount. But here we are hearing an appeal against an order dismissing a Writ Petition under Art. 226, challenging the vires and applicability of the Punjab Resumption of Jagirs Act, 1957, and adjudication of rival claims to the compensation amount will be wholly foreign to its scope.

(I) A. I. R. (1961) S. C. 9118.

19G2

A.111orsa11il Smgh

•• T /, e Stat' rJ Punjab

Aiy1t1 J.

- - .L /

SUPREME COURT REPOR1~ (1962] SUPP.

But it is pointed out for the intervener that on his application this Court has ordered stay of paymcut of a part of thH compensation amount to

tho appellant pending the disposal of the, appeal, and that a similar direction might now be made in the Judgment, staying pe.yment of a part of the amount for a specified period, so as to enable him to take' steps to protect his rights.

But that was a.n interim order made pending the appeal, and no such order could be passed in the appeal unless it follows on a decision of the rights of the parties, w!tiC"h is, an already stated, outside the soope of the

pre, ent proceedings, vide the .stat£ of Ori.ssa v. 11! adc; n Gop11l Rung/a (!).

We do not therefore propose to say anything on the rights of the intervener or give any directions with reference to the payment of the compensation amount. It is open to thn intervener to take othtr and appropriate proceedings to vindicate his rights.

BPfure concludinl!, it has to be noted that in Writ Petit.ion Nu. 148 of HJ61 thcrc are as many as 72 Petitioners, some of whom are stated not to belong to the category of Cis-Sutlcj jagirdars. Their join<lcr is clearly improper. It is also said that three of tht>m, Petitioners Xo:;. 66, 68 and 69, had filed Writ. Petitions under Art. 226 of the Constituation in t.he Punjab High Court., raising the same' contentions as in the present, that the said petitions had heen dismissed on the merits, and no appeal

h:id been preferred against the Orrlers of dismissnl, and in consequence, the concerned petitioners cannot, on tho decisions of this Court, maintain this

petition.

But. as we aro dismissing these petitions on the merits, no furthn notice need be taken of these points. In the result, the petitions are dismissed with costs, one hearing fet', and the appeals aro dismissed with costs one set.

Petitions and appeal.s dis1ilissed.

(I) [1952] S.C.R. 28.

...

AMARSARJIT SINGH

THE STATE OF PUNJAB (AND CONNECTED PETITIONS AND APPEALS)

B. P. SINHA

IC SunnA RAO

Ruumption of Jagirs Act, 1957

Punjab Resumption of Jagirs Act, 1957

[1955] 2 S. C.R. 303

L.R. 51 I.A. 35

s. 2(5)

Punjab Resumption of Jagirs Act 1957

Seventh Schedule

Constitution of India

Art. 32

Constitution of India

Art. 226

Art. 133

Art.

226

Art. 32

Section 2

s. 2

Section 2

Section 3

s. 2

s. 2

s. 2

[1955] 2 S.C.R. 303

Punjab Land Revenue Act, 1871

Punjab Act IV of 1900

have then the Punjab Jagirs Act

s. 2

Jagirs Act IV of 1900

ss. 7 to 10

Section 7( l)(b)

s. 2(l)(a)

s. 2(l}(a)

s. 1(2)

Seventh Schedule

s. 2

Art. 226

Punjab Resumption of Jagirs Act, 1957

Art. 226