- (1.) This is an appeal from the judgment and decree passed on 28-9-1953, by a Bench of the Orissa High Court in an Original suit which was filed on 24-11-1952, in the Court of the Subordinate Judge of Cuttack and was on 17-1-1953, transferred to the High Court and marked as Original Suit No. 1 of 1953. The suit was filed by the plaintiff-appellant claiming as the Raja and owner of the Rajgee, known as the Kanika Raja against the State of Orissa, praying for a declaration that the Orissa Estates Abolition Act, 1951 (hereinafter referred to as "the Abolition Act") was, in its application to the Rajgee of Kanika, invalid, unconstitutional and 'ultra vires' the State Legislature and for an injunction restraining the State of Orissa from taking any action under the said Act. The suit was instituted evidently under an apprehension that the State of Orissa might issue a notification under S. 3 (1) of the Abolition Act declaring that the Rajgee of Kanika had passed to and become vested in the State free from all encumbrances. The High Court dismissed the suit but gave a certificate of fitness for appeal to this court. Hence the present appeal by the plaintiff.
(2.) The plaintiff's contention before us is that no notification under S. 3 (1) of the Abolition Act can issue because (1) his land is not an "estate" as defined in S. 2 (g) of the Act and (2) the plaintiff is not an 'intermediary within the meaning of S. 2 (h) thereof. In answer to this, the Attorney-General, appearing on behalf of the State, makes five submissions, viz., (a) that on the admitted facts the plaintiffs land is an "estate" within the meaning of the Abolition Act; (b) that the plaintiff is estopped by the compromise decree passed by the Patna High Court on 2-5-1945 in F. A. No. 15 of 1941 from contending that his land is not an "estate" within the meaning of the Abolition Act; (c) that the plaintiff's land has been held as an 'estate' ever since 1803; (d) that whatever may have been the position before 1805, the plaintiff's land became an "estate" by Regulation XII of 1805; and (e) that in any event, the plaintiff's land became an "estate" after 1805 by subsequent acts and conduct of the plaintiff and his predecessors in title.
(3.) Re. (a) :- Under S. 3 (1) of the Abolition Act, the State Government can declare that a specified "estate" has passed to and has become vested in the State. It is, therefore, clear that the State Government cannot make any notification with respect to land which is not an "estate". "Estate" is defined in S. 2(g) of the Abolition Act. The material portion of that definition, as it stood at the date of the institution of the suit, was as follows :- " "estate" means any land held by an intermediary and included under one entry in any of the general registers of revenue- paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district,........" In order to be an "estate", the land must be held by an "intermediary" and must be included under one entry in any of the general registers of revenue-paying lands and revenue-free lands and such general registers must be prepared and maintained under the law for the time being in force. Section 2(h), at it stood then, by its earlier part, defined an "intermediary", with reference to any "estate", to mean, amongst other things, a proprietor. The plaintiff certainly claims to be the proprietor of his land. Therefore, if his land is as "estate", he is clearly an "intermediary". The case of - 'Biswambhar Singh v. The State of Orissa', 1954 SC 139 (AIR V 41) (A), which has been relied on by learned counsel for the plaintiff has no application to the present case, for that case was concerned not with the earlier but with the latter part of the definition of "intermediary". That the plaintiff's land is included under one entry in the general register of revenue paying lands is not disputed. What is contended for is that in order to make such land an "estate" the register must be prepared and maintained under the law for the time being in force. There is no dispute that "the law for the time being in force" means the Bengal Land Registration Act (Bengal Act 7 of 1876). The plaintiff contends that the register in which his land is included under one entry was not prepared or maintained under the Bengal Land Registration Act. The argument is that it is not only necessary to show that the land is included under one entry in a register but that it is also necessary to show that the register where the entry appears was prepared and maintained under the law. Under the Bengal Land Registration Act, 1876, land can be included in the register prepared and maintained under that Act only if such land is an "estate" as defined in that Act. The relevant part of that definition is : "3 (2) "estate" includes : (a)any land subject to the payment of land-revenue, either immediately or prospectively, for the discharge of which a separate engagement has been entered into with Government; (b) ................ (c) .................. It is urged, therefore, that the preparation of a register under that Act means the making of entries in that register of lands which are subject to the payment of land revenue for the discharge of which a separate engagement has been entered into. Land which is not subject to payment of land revenue and for the discharge of which a separate engagement has not been entered into is not an "estate" and cannot be entered in the register prepared and maintained under the Bengal Land Registration Act. That Act confers powers on the Collector to prepare the register in the manner specified there in and such statutory power, in order to have effect, must be exercised in strict compliance with the provisions of that Act. The plaintiff maintains that the Rajgee of Kanika was never subject to payment of land revenue for the discharge of which a separate engagement had been entered into by him or his predecessors-in-title.;