Judgment

Misra, J.-The first question raised for our consideration is, whether erstwhile land holders holding the land in joint Khata under the then Ruler of Bhopal would be entitled to the benefit of the Notification No. 71 dated 25th February, 1941 under which the land owners who were dispossessed from their land could claim preferential right of re­allotment of their land, and whether the said Notification is only on executive order issued by the Government of Bhopal, as it is signed by the Assistant Revenue Secretary, Government of Bhopal, having no force of law or was it issued by the Ruler himself which would undisputably have the force of law and in that case, whether the appellant is entitled to be conferred the benefit under it?

2. The second question raised is, if the appellant lost right in his holding on account of non-payment of the tractorization charges which was due under the Bhopal State Reclamation and Development of Lands (Eradication of Kans) Ordinance, 1949/ (No. XXXVIII of 1949) and the Bhopal Reclamation and Development of Lands (Eradication of Kans) Act, 1954 (Act No. XIII of 1954) (hereinafter referred to as ‘the Ordi­nance’ and ‘the 1954 Act’ respectively), and since the provisions for charging the tractorization charges both under the Ordinance and the 1954 Act having been held to be ultra vires, consequently, notices under it also declared illegal in the case of State of Bhopal & Ors. v. Champalal & Ors.1, then, whether the appellant would not be enti­tled to get back his lost disputed land?

3. In order to appreciate the controversy and to adjudicate the point in issue, it is necessary to give some of the essential facts of this case.

4. The appellant, Azizuddin, owned 128.41 acres of land under his individual Khata, in his own name, situated in village Khari even prior to 1363F. He also possessed a joint Khata in the same village and village Resulia Bazyaft measuring 376.501 acres and 201.83 acres, respectively, in his own name and in the name of four others, namely, Ahmad Khan, Mohamadi Begum, Ahmadi Begum, Alia Bee. The said persons were legal heirs of one Amir Khan. The appellant had purchased the share of the fifth son of Amir Khan, viz., Abdul Mateen. The dispute relates only in respect of land of this joint holding and not in respect of his 128.41 acres of land which he holds in his individual Khata. After the death of Amir Khan in 1948, the appellant purchased the said 1/5th share belonging to Abdul Mateen which comes to approx. 167.68 acres in the said joint holding and thus became a co-owner with the aforesaid persons in the said joint Khata. The appellant name was duly mutated in the revenue records. On 1st June, 1949, Union of India took over the administration of Bhopal-Princely State for five years and a Chief Commissioner was appointed. Then an Ordinance No. XXXVIII of 1949, as aforesaid, was promulgated by the then Chief Commissioner. On 18th January, 1951, a notification was issued under it declaring all the villages in the same Tehsil as Kans infested. In this the land of the appellant was also included. The autho­rity then issued notice to Abdul Mateen and others through the Reclamation Officer, Land Reclamation Board, Bhopal, in respect of the land in question to ascertain the capacity of each land holder to cultivate their lands by desiring them to produce number of pairs of bullocks required for ploughing the area on a fixed date. The ratio fixed was on pair of bullock for every 15 acres of land. To this notice Abdul Mateen in­formed that he had already transferred his share in the land to Azi­zuddin-appellant, hence notice be sent to him. On 22nd October, 1952, a loan of Rs. 1500/- was sanctioned as taccavi for purchase of seeds under the G.M.F. Scheme to Abdul Mateen which was duly paid to the appellant recognising him to be the occupant of the land. Thereafter notices were issued on 4th/14th June, 1953, to the appellant and other joint owners with respect to the said joint Kh