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HIGH COURT OF ORISSA
NARASIMHAM,P.V.B.RAO, JJ.
Ramachandra Deb
Versus
State of Orissa
O.J.Cs Nos. 26, 31, 39, 62, 111 and 244 of 1954
Decided On : 02-08-1956
WRIT - Art. 226 - Possession of Maliahs - Whether applicants have proprietary interest or merely service tenure - Resumption of service tenure - Whether applicants can be dispossessed without their consent otherwise than in due course of law - Whether Art. 226 can be invoked - Held, that applicants have been in possession of Maliahs for nearly 80 years - Title of Government to resume tenure not clear - Applicants cannot be dispossessed without their consent otherwise than in due course of law - Art. 226 can be invoked.
Fact of the Case:
The applicants, ex-Zamindars of Ganjam district, filed applications under Art. 226 of the Constitution praying for relief against the State of Orissa, from apprehended danger to their property situated in portions of Ganjam Agency tracts known as Maliahs by threat of executive action. The Zamindars claimed proprietary interests in the Maliahs, while the State contended that they had no proprietary interest at all and that the tenures were resumable by mere issue of notice terminating the services of the Zamindars in the Maliahs.
Finding of the Court:
The court found that the applicants had been in possession of the Maliahs for nearly 80 years and that the title of the Government to resume the tenure was not clear. The court also found that the applicants could not be dispossessed without their consent otherwise than in due course of law.
Issues: 1. Whether the applicants have proprietary interest in the Maliahs or merely service tenure? 2. Whether the service tenure is resumable? 3. Whether the applicants can be dispossessed without their consent otherwise than in due course of law? 4. Whether Art. 226 can be invoked in the present case?
Ratio Decidendi: 1. The court held that the question of whether the applicants had proprietary interest in the Maliahs or merely service tenure could not be decided summarily in the writ applications and that it could be decided only in a properly constituted title suit. 2. The court held that the service tenure was resumable, but that the Government could not resume the tenure without giving the applicants an opportunity to be heard. 3. The court held that the applicants could not be dispossessed without their consent otherwise than in due course of law. 4. The court held that Art. 226 could be invoked in the present case as the applicants had no other effective remedy.
Final Decision: The court issued a writ under Art. 226, requiring the Government of Orissa not to dispossess the applicants - without their consent - of the Maliahs, otherwise than in due course of law.
Judgement
NARASIMHAM, C. J. :- These are applications by six of the ex-Zamindars of Ganjam district under Art. 226 of the Constitution praying for relief against the State of Orissa, from apprehended danger to their property situated in portions of Ganjam Agency tracts known as Maliahs by threat of executive action. The questions of law involved in all these applications are identical, and hence they were heard together and will be dealt with in one judgment.
2. The zamindaris of these applicants were all situated in Ganjam plains (now partly in Orissa and partly in Andhra State) and had been permanently settled with them by the well-known Madras Regulation No. XXV of 1802. These zamindaris have been acquired by the respective Governments under the provisions of the Estate Abolition Act. Adjacent west of Ganjam plains lie hilly tracts (inhabited mainly by aboriginals) known as Agency tracts, portions of which were granted to these zamindars by various Sanads of the Governor-in-Council of Fort St. George Madras, sometime in 1874 and 1875. These tracts were known as Maliahs and the applicants were styled Muthadars of these Maliahs. These tracts were always considered as separate from the permanently-settled areas of the Zamindars and held on some sort of service tenure Government seem to have been in some doubt as to whether these zamindars had any proprietary interests in these Maliahs. The Collector of Ganjam appears to have thought sometime in February 1954 that the Zamindar of Bodokhimedi (applicant in O. J. C. 26 of 1954) had proprietary interest which could be acquired only on payment of compensation, and he called upon the zamindar to meet him by his letter No. 346/1954 dated 18-2-1954, and asked him to suggest a consolidated amount as compensation.
Subsequently, however, Government presumably acting on legal advice thought that these Zamindars had no proprietary interest at all and that the tenures were resumable by mere issue of notice terminating the services of these Zamindars in the Maliahs. Accordingly by various notices dated 30-3-1954 these Muthadars were informed that their services were no longer required, and that the Muthas would be resumed with effect from that date. The notice issued to the Muthadar of Bodokhimedi may be taken as typical and is quoted below in full.
"Government of Orissa Revenue Department.
No. 1146/R. II-1/1954. Cuttack, the 30-3-1954.
To,
The Muthadars of Bodokhimedi Maliahs.
The Governor of Orissa hereby declares that the services required to be performed by you in pursuance of the Sanad dated 17-7-1874 by the Agent to the Governor in the district of Ganjam are no longer required.
(2) The Governor accordingly resumes your interest as Muthadar of the Muthas of Bodokhimedi Maliahs.
(3) This resumption will take effect from the date of this order. With effect from this date the duties and obligations imposed on you need not be performed. Boundaries of the Mutha of Bodokhemidi Maliahs
East....Sannokhimedi ex-estate, Bodokhimedi ex-estate and Surangi ex-estate.
West.....Koraput district.
North....Sannokhimedi Maliahs.
South....Parlakhimedi Maliahs.
By Order of the Governor V. Ramanathan. Addl. Secretary, Revenue Department."
After due service of this notice the local Anchal Adhikary called upon the Muthadars to deliver possession of the Muthas and also threatened to forcibly dispossess them if they refused to give up possession peacefully. The applicants main grievance is that they have proprietary interests in these Maliahs and if Government wanted to extinguish those interests they ought to have acquired them by paying adequate compensation and that it was high handed on the part of Government and its officials to threaten to forcibly dispossess them by merely giving notice terminating their service tenures.
3. The State of Orissa, on the other hand, contended that these applicants had no proprietary interests at all in the Maliahs, that they held them merely as office holders who were remunerated for the
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