- (1.) These two appeals on certificates of fitness granted by the High Court of Orissa raise the question of the constitutionality of the Orissa estates Abolition (Amendment) Act (Orissa XVII of 1954) amending the main Act, the Orissa Estates abolition. Act (Orissa I of 1952) , which hereinafter will be REFERRED TO as the Act. As the questions raised in the High Court and in this Court are the same in both the appeals, they have been heard together and this judgment will govern them both.
(2.) It appears that the two Zamindars of Hemgir and Sarpgarh moved the High Court of Orissa under art. 226 of the Constitution for a writ of mandamus against the State of Orissa and the Collector of sundargarh, which is a district formed after Merger. Previously it was part of the feudatory State of gangpur. The two petitioners' Zamindaries covered about 540 sq. miles between them. The petitioners in the High Court in their petitions, claimed a sovereign status and REFERRED TO a mass of historical literature, including references to the Imperial Gazetteer by W. W. Hunter, Sir Richard Temple's -Treaties, zamindaries, Chief tainships in Central Provinces, and other official records. The High Court has found that the remote ancestors of the petitioners were bhuiyan Chiefs, who were the original settlers and who had in course of time become the chieftains of the place, exercising sovereign powers. Subsequently, when the Rajput Rulers of Gangpur settled in that area, these Bhuiyan Chiefs accepted the suzerainty of those Rulers and gradually surrendered their sovereign rights. They used to pay annual "takolis, which they originally paid as tributes to the suzerain, but which later became indistinguishable from land revenue. Their status vis-a-vis the Ruler of Gangpur remained undefined, though in successive revenue settlements made by the Ruler of Gangpur, with the concurrence of the then political Department, of the government- of India, they were described as zemindars, and 'khewats' were issued to them. The high Court, on an examination of the relevant evidence, came to the conclusion that these Zamindars ultimately lost all vestiges of their sovereignty, and as a result of historical process became subject to the laws promulgated by the Ruler of Gangpur, and that when the Ruler merged his State with the State of orissa, with effect from January 1, 1948, these petitioners were no better than mere subjects and had absolutely no claims to sovereign power. The High court also found that considerable forest areas formed part of the land which belonged to them, and that these forest areas had no separate and distinct existence in the eye of law. The High Court repelled the petitioners' contention that their lands were not 'estates' as denned in Art. 31a (2) (a) of the Constitution. The High Court also rejected the contention that the Act, in so far as it applies to the petitioners, was discriminatory. The High Court thus held that art. 14 of the Constitution had not been contravened. It also held that the Act was not void under art. 254 (1) of the Constitution. It further held that the so called violation of Art. 17 (2) of the "universal declaration of Human Rights" promulgated by the general Assembly of the United Nations on December 10, 1948, to which India was a party, was not justifiable. In that view of the matter, these petitions were dismissed and both parties were directed to bear their own costs. The petitioner, in each case, moved the High Court and obtained the necessary certificate for coming up in appeal to this Court. That is how these appeals are before us.
(3.) This is not the first time that these petitioners, now appellants in this Court, have figured as litigants in the High Court and in this Court in respect of their respective lands. When the Orissa Act I of 1952, the main Act, was enacted and came into force in February 1952, the Government of Orissa notified the petitioners' property also as coming within the purview of the Act. The appellants along with another person claiming the same rights, belonging to Nagra, moved the High Court under Art. 226 of the Constitution challenging the constitutionality of the Act. Those applications were heard by the High court, and by majority it was held that the Act was valid and that the lands belonging to the petitioners could be taken over by the State, as a result of the operation of the Act. The petitioners in the High court preferred an appeal to this Court. The judgment of this Court is reported as Biswambhar Singli v. Stnte of Orissa (1). This Court allowed the appeal of the proprietors of Hemgir and Sarpgarh on the ground that they were not 'intermediaries' as defined in s. 2 (h) of the Act. As regards the proprietor of nagra Zamindari, by a majority judgment, it was decided that he came within the definition of an intermediary', and that, therefore, his land would come within the definition of an 'estate', as defined in s. 2 (g) of the Act. This Court distinguished the case of Nagra from that of the other two on the ground that the Zamindar of Nagra had acknowledged the overlordship of the Raja of Gangpur. As a result of the decision of this Court, allowing the appeals of the zamindars of Hemgir and Sarpgarh and prohibiting the State of Orissa from taking over possession of those two zamindaries under the Act, the Orissa legislature passed the Amending Act (XVII) of 1854 recasting the definition of the two terms 'estate' and 'intermediary'. The amended definition of these two terms is as follows : "(G) 'estate' includes a part of an estate and means any land held by or vested in an Intermediary and included under one entry in any revenue rolls or any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law relating to land revenue for the time being in force or under any rule, order, custom or usage having the force of law, and includes revenue-free lands not entered in any register or revenue-roll and all classes of tenures of under-tenures and any jagir, inam or muafi or other similar grant ; explanation ILand Revenue means all sums and payments in money or in kind, by whatever name designated or locally known, received or claimable by or on behalf of the state from an Intermediary on account of or in relation to any land held by or vested in such intermediary ; explanation II Revenue-free land includes land which is, or but for any special covenant, agreement, engagement or contract would have been liable to settlement and assessment of land revenue or with respect to which the State has power to make laws for settlement and assessment of land revenue; explanation III In relation to merged territories, "estate' as defined in this clause shall also include any mahal or village or collection of more than one such mahal or village held by or vested in an Intermediary which has been or is liable to be assessed as one unit to land revenue whether such and revenue be payable or has been released or compounded for or redeemed in whole or in part. " " (H) 'intermediary' with reference to any estate means a proprietor, sub-proprietor, landlord, land-holder, malguzar, thekadar, gaontia, tenure-holder, under-tenure-holder and includes an inamdar, a jagirdar, zamindar, Ilaquedar, khorposhdar, parganadar, Sarbarakar and muafidar including the Ruler of an Indian - State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the state; explanation I Any two or more intermediaries holding a joint interest in an estate which is borne either on the revenue-roll or on the rent roll of another Intermediary shall be deemed to be one Intermediary for the purposes of his act; explanation II The heirs and successors-in interest of an Intermediary and where an intermediary is a minor or of unsound mind or an idiot, his guardian. Committee or other legal curator shall be deemed to be an Intermediary for the purposes of this Act. All acts done by an Intermediary under this Act shall be deemed to have been done by his heirs and successors-in-interest and shall be binding on them. ";