(1.) THE respondent No. 5 held Khasra Nos. 948, 950 and 951 (area 31. 16 acres)situate at Pul Bogda, Bhopal, as a Muafidar in the erstwhile State of Bhopal. The petitioner was a sub-tenant (a Shikmi) of the respondent No. 5 in respect of the above said land. The petitioner's case is that under the Bhopal State Land Revenue act, 1932, the respondent No. 5 was the 'occupant' of the said land, of which the petitioner was a Shikmi, and hence under Section 185 of the Madhya Pradesh Land revenue Code, 1959, he became an 'occupancy tenant' of the land and under section 190 of the said Code he acquired Bhumiswami rights. The petitioner, therefore, applied before the Tahsil-dar, Huzur, by an application under Section 109 read with S- 190 of the Madhya Pradesh Land Revenue Code for mutation of his name as a Bhumiswami by an order dated 24th June 1963 the Tahsildar held that the Bhumiswami rights accrued to the petitioner and directed him to deposit compensation equivalent to 15-times of the Land Revenue, on the payment of which he was to he recorded as a Bhumiswami of the holding. The order of the Tahsildar was affirmed, in appeal, by the Sub-Divisional Officer, Huzur, Bhopal, as well as by the Additional commissioner, Bhopal Division But the Board of Revenue held that the respondent no. 5, being a Muafidar, could not be regarded as an 'occupant' within the meaning of Section 2 (15) of the Bhopal State Land Revenue Act, 1932, and consequently the petitioner did not become an 'occupancy tenant' on coming into force of the Madhya Pradesh Land Revenue Code. In this view of the matter the board held that the petitioner could not acquire the status of a Bhumiswami under section 190 of the Code. The order of the Board of Revenue dated 6th July 1965 has been challenged by the petitioner before us under Article 226 of the constitution.
(2.) IN the present case, it is an admitted position that the petitioner held the land from the respondent No. 5, who was a Muafidar. If a 'muafidar' is included in the definition of an 'occupant', it is conceded by the respondent No. 5 that the petitioner would become an occupancy tenant under Section 185 of the Madhya pradesh Land Revenue Code, 1959. The contention, however, is that Muafidars and occupants belong to two different categories and their status is different and that they are treated differently under the Bhopal State Land Revenue Act, 1932, and that a Muafidar cannot be included in the definition of an 'occupant', even if the definition of 'occupant' as given in that Act is widely interpreted. The Board of revenue has expressed this view in the following words: "the Additional Commissioner has held the applicant (respondent No. 5), although admittedly a muafidar, to be an occupant as he was holding land direct from Government or would do so but for the right of collecting land revenue having been relinquished in his favour I am afraid I cannot agree with the Additional Commissioner in this view of the matter. In the first place if it were intended that there should he no difference or distinction in status between the occupant and a muafidar, there would have been no need for giving a separate definition for the term 'muafidar' in the same Act. In Section 2 (5) of the Act a muafidar has been separately defined as the holder of alienated land in whose favour the land revenue is relinquished by the Government. Besides, the rights and liabilities of the two classes of land holders at provided for in the Act, are also materially different and point unmistakably to fee fact that they were not intended to be synonymous. An occupant is a tenant of the Government, while a Muafidar is the holder of alienated land. " the Board also supported the above said conclusion by referring to the definition of an 'occupant' as given in the Bhopal State Sub-Tenants (Of Occupants)Protection Act, 1954. In that Act, in the definition of an 'occupant' a Muafidar has also been included. The reasoning is that if a Muafidar was included in the definition of an 'occupant' in the Bhopal State Land Revenue Act, 1932, there was no necessity of specially including a Muafidar in the definition of an 'occupant' in the Bhopal State Sub-Tenants (Of Occupants) Protection Act, 1954. The Board also relied on Clause (c) of Section 158 of the Madhya Pradesh Land Revenue Code, 1959, which provides for conferral of Bhumiswami rights on an 'occupant' as defined in the Bhopal State Land Revenue Act, 1932 and thus excludes a Muafidar for conferral of such rights.
(3.) IN our opinion, the decision of the Board of Revenue is based on a misapprehension of the provisions of the Bhopal State Land Revenue Act, 1932, and those of the M. P. Land Revenue Code, 1959.;