- (1.)Out of a total area of 2,375 acres 3 gunthas of Dhanora-an Izara village in Taluka Pusad in the State of Madhya Pradesh-2,283 acres and 28 gunthas is assessed land and the remaining 91 acres and 15 gunthas is unassessed. One Surat Singh who was the proprietor of the village, by sale-deed, dated May 24, 1947, conveyed an undivided half share in the village to Yeshwant Madhao Mahajan-hereinafter called Mahajan-for Rupees 25,000 and on the same day executed a kabulayat (lease deed) for five years in respect of the same land for cultivation at an annual rental of Rs. 3,000. The Legislature of the Madhya Pradesh State enacted the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1 of 1951-hereinafter called the Act-to provide for acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith. The Act was brought into operation on March 14, 1951. The Compensation Officer, Yeotmal started an enquiry about assessment of compensation in respect of the village Dhanora which had vested by the operation of S. 3 of the Act in the State Government. Before the Compensation Officer, Mahajan claimed to retain possession of a half share in all the fallow lands in the village which had been leased by him under the deed (kabulayat), dated May 24, 1947, to Surat Singh, on the plea that these lands were "home-farm". This claim was rejected by the Compensation Officer and the order of the Compensation Officer was confirmed in appeal by the Additional Settlement Commissioner. Mahajan then applied to the High Court of Judicature at Nagpur under Art. 226 of the Constitution for a direction quashing the order of the Additional Settlement Commissioner and the Compensation Officer and for a declaration that the lands mentioned in Schedule A attached to the petition be declared home-farm and for a writ of mandamus against the State of Madhya Pradesh to deliver possession of all the lands mentioned in that Schedule. The High Court quashed the order of the Additional Settlement Commissioner in so far as it related to the undivided half share in Survey Nos. 1 to 91 except those in possession of the specified tenants and also those already recognised as home-farm and directed the Compensation Officer to decide the claim made by Mahajan in the light of the law laid down in the judgment. Against the order passed by the High Court, the Additional Settlement Commissioner and the State of Bombay, which had by virtue of the State Reorganization Act, 1956, been substituted for the State of Madhya Pradesh, have appealed to this Court with special leave.
(2.)The dispute in this appeal relates to a half-share in those lands in the village which had remained fallow on the date of the notification under S. 3 of the Act. By virtue of the sale-deed, dated May 24, 1947, Mahajan was the proprietor of the undivided half share in the entire village and under the kabulayat he had granted to Surat Singh a lease for cultivation of the undivided half share purchased by him. Undoubtedly the lands specified in Schedule A to the petition were on the crucial date lying fallow. The question which falls to be determined is whether those lands can be regarded as "home-farm": if they be so regarded, by virtue of S. 4 (2) of the Act Mahajan will be entitled to retain possession of those lands.
(3.)Section 3 of the Act provides, in so far as it is material, that "on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances." Section 4 (1) sets out the consequence of the vesting. By Cl. (a) of S. 4 (1), all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), cease and are vested in the State for the purposes of the State free from all encumbrances. But sub-s. 2 provides that "Notwithstanding anything contained in sub-s. (1), the proprietor shall continue to retain the possession of his home-stead, home-farm land......". 'Home-farm land' is defined, in so far as it is material, in S. 2 (g) as:
"(1) * * * *

(2) * * * *

(3) in relation to Berar, all land included in holdings which is-

(i) under the personal cultivation of the superior holder including land allowed to lie fallow in accordance with the usual agricultural practice;

(ii) held by a lessee from the superior holder; and

(iii) held by a tenant from the superior holder other than a specified tenant."

'Land' is defined as "including land covered with water." Section 7 authorises the Deputy Commissioner to take charge of all lands, other than occupied lands and home-stead lands, and of all interests vesting in the State under S. 3 on the date of the vesting, and, by S. 8, duty is imposed on the State Government to pay every proprietor, who is divested of proprietary rights, compensation in accordance with the rules contained in Schedule I.