LexSTATE OF MADHYA PRADEH & ORS. versus SARDAR D. K. JADHAV
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864 STATE OF MADHYA Pit\f>ESH & ORS. v. SARDAR D. K. JADHA V December 14, 1971 [C. A. VAIDIALINGAM AND K. K. MATHEW, JJ.] Madhya Rharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951), ss. 2(1) (ix) and 5(c)-'Occupied land' wht4 is'-Protection of s. 5(c) whether available where area of tanks is partly occupied by Jagirdar and partly by tenants. Under s. 5(c) of the Madhya Bharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951) all tanks, trees etc. in or on 'occupied lands' belonging to or held by the Jagirdar or any other person were excluded from vesting in the State by virtue of s. 4. The respondent filed a writ petition in the High Court claiming that certain tanks built by himself and his predecessor-in-title were on 'occupied land' and therefore came within the protection of s. 5(c). The original order passed by the High Court in the writ petition was set aside by this Court and the High Court was directed to decide afresh the claim made by the writ petitioners under s. 5(c) of the A~t After considering the evidence before it on this question the High Court held that the tanks in question were saved under s. 5(c) and they had not vested in the State under, the Abolition Act. In appeal by the State to this Court, HELD: 'Occupied land' as defined in s. 2(1)(ix) of the Act com- prises broadly two types of lands : ( 1) four categories of land held under the tenures enumerated in sub-clauses (a) to (d); and (2) comprised in Khud-Kasbt and 'homestead'. To attract cl. (c) of s. 5 the tank must be shown in the first instance to be on occupied land that is on land comprised under the tenures enumerated in sub-clauses (a) to (d) or in the Ian.ct held as khud-kasht and homestead. It is not ne~"ssary_ that the entire tank should be exclusively situated in the land held as khud-kasht and land comprised in homestead. The requirement of the tanks in ques- tion ceing an occupied 12.nd will be satisfied even if part of the tank is situated in one or the other of t~~ tenuri:-s me'l.t;oned in suh-cl~uses (a) to (d) of cl. (ix) of s. 2(1) and the rest of it is included in the land held as khud-kasht and the land comprised in a homestead. That is, the entire area of the tank must be comprised in either the tenures or the khud-kasht or hormstead or in both. Therefore it was not possible to accept the contention advanced on behalf of the appellant State that only those tanks which are on khud-kasht land of the Jagirdar are saved to him. Acc'eptance of such a contention will be ignoring the clear working -0f cl. (ix) of s. 2(1) which takes in also lands held on the various tenures referred to therein. L871 o,GJ Therefore in the preient,·case the mere fact that a part of the tanks was in the occupation of the tenants as tenure-holders did not detract from the operation of the saving cl. (c) of s. 5. The expression 'any other person' is comprehensive enough to take in the persons who were holding the land on one or the other of the tenures enumerated in sub- clauses (a) to (d) of s. 2(1) (ix) of the Abolition Act. Whatever may be the extent o! the tanks in the possession of the respondent, as his khud-kasht or homestead and in the possession of the tenure-holders the position ultimately ~<; that the entire extent of the tanks Was in :occupied land' belonging to or held by the Jagird~r or any other person. ,[872 H· 873 B) , A B c D E F G H A B c D E F \ G H M.P. STATE v. D. K. JADHAV (Vaidialingam, J.) 865 The judgment of the High Court must accordingly be upheld. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 32 of 1971. Appeal from the judgment and order dated March 12, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 184 oi 1965. I. N. Shroff, for the appellants. V. S. Desai, S. X. Mehta, K. L. Mehta. V. K. Sapre and K. R. Nagaraja, for the respondent. The Judgment of the Court was delivered by Vaidialingam, J. The short question that arises for con- sideration in this appeal, on certificate, is whether the High Court has complied with the directions given by this Court in its judg- ment dated January 25, 1968 in Civil Appeals Nos. 1244 and 1245 of 1967 and adjudicated upon the question whether the claim made by the respondent that the 1anks and wells in question were constructed on "occupied land" belonging to the Jagirdar withi;n the meaning of s. 5 ( c) of the Madhya Bharat Aboli- tion of Jagirs Acts, Samvat 2
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