Input:
ivil Appeal Nos.
490 and 2228 (N) of 1970.
Appeals by certificate from the Judgment and order dated 9 10 1969 & 14 1 1970 of the Punjab and Haryana High Court in Letters Patent Appeal Nos.
553 of 1968 & 570 of 1969 respectively.
332 Hardev Singh and R.S. Sodhi for the Appellants (In both the Appeals.) K C. Bhagat and R.N. Podar for the Respondent (in both the Appeals) The Judgment of the Court was delivered by FAZAL ALI, J.
These two appeals by certificate are directed against judgments dated 9.10.69 and 14.1.1970 of the Punjab and Haryana High Court in Letters Patent Appeals Nos.
553 of 1968 and 570 of 1969 by which the contentions raised by the appellants in the two appeals were rejected.
After the matter came up in this Court the two appeals were consolidated as they arose out of almost the same subject matter and involved identical points.
The facts which have given rise to these appeals lie within a very narrow compass and may be briefly summarised thus.
The appellants were refugees from Pakistan and Sant Singh Nalwa was allotted 63 standard acres and 8/1/4 units in village Marghain and another area of 19 standard acres and 5 units in Garden Colony in Jundla which were entered as sailab land in the revenue records.
The other appellant, Kartar Kaur, was allotted 96 acres, 3 bighas and 13 biswas in the same district.
These lands were given to the appellants as they were displaced persons.
After the appellants had become owners of the lands, the State of Punjab passed the Punjab Security of Land Tenures Act, 1953, (hereinafter referred to as the 'Act ') which later applied to Haryana also, under which every land owner whether a displaced person allottee or otherwise could not retain any area of land which fell beyond the extend prescribed by sub section (3) of section 2 of the Act.
After the coming into force of the Act the revenue authorities proceeded to determine the permissible area of the land of both the appellants so that the area which was found to be in excess may be taken over by the State after paying the compensation as provided in the Act and the Rules made thereunder, viz., The Punjab Security of Land Tenures Rules, 1953 (hereinafter called the 'Rules ').
In order to determine the permissible area the Act contains certain provisions by which the entire area held by a land owner has to be converted into standard acres on the basis of a formula contained in sub section (5) of section 2 of the Act which defines 'standard acre ' thus: " 'Standard acre ' means a measure of area convertible into ordinary acres of any class of land according to the 333 prescribed scale with reference to the quantity of yield and quality of soil.
" Similarly, the relevant portion of sub section 5 a which defines 'Surplus Area ' may be extracted thus: " 'Surplus Area ' means the area other than the reserved area, and, where no area has been reserved, the area in excess of the permissible area selected (under section 5 B or the area which is deemed to be surplus area under sub section (1) of section 5C) (and includes the area in excess of the permissible area selected under section 19 B) but it will not include a tenant 's permissible area;. " So far as the appellant, Sant Singh Nalwa, was concerned, the revenue authorities held that he was entitled to retain 50 (fifty) standard acres being the permissible area and the balance of 13 standard acres and odd units was declared as surplus.
Similarly, in the case of the other appellants, Kartar Kaur, she was allowed to retain 50 standard acres and about 15 standard acres of land was taken over being surplus.
In the instant appeals, there is no dispute that the formula by which the extent of the land in possession of the appellants had been converted into standard acres was not in accordance with the provisions of the Act.
The only point that was canvassed before the revenue authorities as also in the High Court centered round the question of the nature of the land and the valuation thereof for the purpose of assessing compensation.
The appellants case was that as the lands which had been declared surplus or for that matter the entire lands/allotted to them as displaced persons fell in a portion of District Karnal which was sailab and Adna sailab and therefore according to the classification made under the Rules they did not carry any valuation.
Sant Singh Nalwa challenged before the Collector the validity of declaration of the surplus area and contested the valuation put by the Collector.
The Collector dismissed the application by his order dated 13.3.1963 and held that 13 standard acres and 6 units of the land had to be declared surplus.
Against this order, Sant Singh filed an appeal before the Additional Commissioner, Ambala Division where the only point raised by him was that the area was not correctly evaluated.
His main grievance was that the area in question was equated with Barani land and valuated at the rate of unirrigated area as given in the valuation statement of the Karnal District under Annexure 'A ' of the Rules.
The main contention of 334 the appellants before the Commissioner as also before us was that as the surplus area does not fall under any of the categories mentioned in Annexure 'A ' it carried no valuation at all.
The Commissioner, however, dismissed the appeal holding that the collector was right in treating the surplus area as an unirrigated area and valuing the same at 9 annas per standard acre.
Thereafter, the appellant filed a writ petition before the High Court which was allowed by the Single Judge by his order dated July 23, 1963.
The Single Judge set aside the orders of revenue courts and accepted the contention of the appellant.
Against this order, the Financial Commissioner filed an appeal under Letters Patent before a Division Bench of the High Court which by its judgment dated 9.10.69 allowed the appeal and dismissed the writ petition filed by the appellant before the High Court.
Similarly, Kartar Kaur, the other appellant also filed an appeal before the Additional Commissioner, Ambala Division regarding the surplus land and having failed there, filed a writ petition in the High Court on 10.2.1965 which was ultimately dismissed on 10.10.69 and the appeal under Letters Patent against the said order of the Single Judge was also dismissed on 14.1.70.
Thus, the position is that both the appellants failed to get any redress from the High Court which ultimately confirmed the orders of the Revenue courts.
The learned counsel for the appellants raised two contentions before us.
In the first place, it was argued that the Revenue courts as also the High Court were in error in holding that the surplus area was rightly evaluated in as much as the classification made under the Rules was ultra vires as being in direct disobedience to the mandate contained in sub section (5) of section 2 of the Act.
In other words, it was argued that whereas sub section (5) directed the Government to frame Rules after considering the quantity of the yield and quality of soil, in the Rules framed by the Government under its rule making power given to it by the Statute the main guidelines laid down by sub section (5) were not followed and the classification made by the Rules under Annexure 'A ' was arbitrary without determining the quantity of the yield and the quality of the soil.
We might mention here that this contention appears to have found favour with the Single Judge in the writ petition filed by the appellant, Sant Singh Nalwa but the judgment of the Single Judge ' 335 as already indicated, was reversed by the Division Bench in the Letters Patent appeal.
Secondly, it was contended that even if the classification made in Annexure 'A ' was valid, the Revenue courts as also the High Court committed an error of Law in misconstruing the classification and in arbitrarily placing the surplus area in the category of unirrigated land.
Coming now to the first point raised by the appellants regarding the constitutionality of the Rules framed under the Act, after hearing the counsel for the parties we find no merit in this contention.
Sub section (5) of section 2 of the Act merely requires that the Rule should classify the land according to the quantity of the yield and quality of the soil.
The Rules have classified the land by preparing a schedule consisting of various Annexures which divide the lands according to the quantity of yield and quality of the soil into various categories.
A perusal of the Annexures to the Rules clearly shows that the valuation statement and the class of land has been described not only as being applicable to one place or the other but in view of the entire topography of every district or tehsil, it is manifest that in a peculiar State like Punjab and Haryana diverse factors, namely, the situation or position of the land, its nearness to the river, the irrigation facilities, the ravages of flood, the fertility of the land and its produce and various other similar circumstances have to be taken into consideration in determining the nature and character of the land.
As far back as 1952, a Land Resettlement Manual was prepared by Tarlok Singh, which was relied upon by the judgment of the Single Judge and at p. 287 the land has been classified in following categories: "Chahi and Abi Chahi Nehri Unirrigated Nehri Non Perennial or other Nehri or Nehri Inundation" This classification varies from District to District and Tarlok Singh has also given the approximate value of the land.
After going through the Land Resettlement Manual we find that the classification has been made in a very scientific manner after taking into consideration the relevant factors.
Even Sir James M. Douie in his Punjab Settlement Manual (4th Edition), which is undoubtedly a work of 336 unimpeachable authenticity, as pointed out by the Single Judge, had made a classification which is almost similar to the one made by Tarlok Singh.
It is, however, obvious that the Punjab Settlement Manual by Sir Douie was made long ago and since then there have been great changes resulting from various steps taken by the Government for improving the nature and character of the land and the irrigation facilities.
It is, therefore, not possible for us to rely on the Manual prepared by Sir Douie as the Single Judge had done because that would not be an objective assessment.
Even so, the classification made by Sir James Douie has been adhered to broadly and basically by Tarlok Singh in his Manual which forms the pivotal foundation for the schedule containing Annexure 'A ' framed under the Rules.
The classification of land like barani, sailab, abi, nehri, chahi, etc., are clearly mentioned in para 259 of Sir James 's Punjab Settlement Manual which Sarkaria, J., as he than was, rightly classed as the Bible of Land Revenue Settlement.
The point, however, that has to be considered in this case is whether the rule making authority has in any way departed from the mandate given or the guidelines contained in the Act.
There does not appear to be any material to show that the Rule Making Authority has in any way either departed from the principles mentioned in sub section (5) of section 2 of the Act or violated the guidelines contained therein.
The appellants were not able to show that the classification made under the Rules has not been made according to the quantity of the yield or the quality of the soil.
Neither any affidavit nor any document has been produced before the courts below to prove this fact.
In this state of the evidence the Single Judge was not justified in striking down the Rules as being ultra vires.
Moreover, it is obvious that the Rules were made under section 27 of the Act which authorises the Government to make rules for carrying out the purposes of the Act.
If the dominant object of the Act was to take over the surplus area according to the formula contained in various provisions of the Act particularly sub sections (3) and (5) of s.2, there is no material on the record to show that the Rules do not fulfil or carry out the object contained in the Act.
Moreover, in Jagir Singh and Ors.
vs The State of Punjab and Ors.
a Division Bench of the Punjab High Court while considering a similar contention rejected the argument that the Annexure framed under the Rules was bad as it did not consider the nature 337 and quality of the Soil.
In this connection, the Division Bench observed thus: "It is thus clear that the formation of an assessment circle necessarily takes into consideration the various factors mentioned by the learned author and those include the nature of soil and its quality apart from various other factors affecting the yield.
The circumstance therefore, that in the Annexure the State of Punjab has been split up into assessment circles, as determined at the time of the Settlement, is highly significant, and leaves no doubt that Settlement, is highly significant and leaves no doubt that the nature and the quality of the soil inherent in the formation of an assessment circle have been taken into consideration for valuing the land for purposes of its conversion into standard acres.
At the same time, the existing sources of irrigation have all been taken into consideration.
It is, in the circumstances, impossible to agree that the Annexure in any manner violates the direction contained in the Punjab Security of Land Tenures Act.
We are, in the circumstances, unable to agree that the disputed rule and Annexure 'A ' attached to the Rules are ultra vires the Punjab Security of Land Tenures Act.
" We find ourselves in complete agreement with the observations made by the High Court and endorse the same.
With due respect, the view taken by Sarkaria J., as he then was (the single Judge in the instant case) is not at all in consonance with the scheme and spirit of the Rules framed under the Act and is based on a wrong interpretation of the nature extent and ambit of the classification made in annexure 'A '.
We therefore fully agree with the Division Bench judgment of the High Court that the classification is in accordance with the provisions of sub section (5) of section 2 of the Act and is therefore, constitutionally valid.
The first contention put forward by the counsel for the appellants is therefore overruled.
Coming now to the second contention that even if the classification is correct, the revenue authorities were wrong in treating the surplus land in dispute as unirrigated area.
We find no substance in this argument.
The relevant Annexure which gives the surplus land in District Karnal is to be found at page 308 of the compilation of Punjab & Haryana Local Acts (vol VII) where while lands 338 classified as Chahi, Abi, Nehri, Unirrigated and Nehri/Non perennial are mentioned, there is no mention of sailab or adna sailab lands.
Whereas at page 306 in the same volume there is no sailab land except in tehsil Sonepat.
Thus, it appears that so far as Karnal District is concerned there was no sailab land at the time when the Rules were framed and the classification was made.
Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas as shown at p. 306 of the aforesaid compilation, in which case this would be more detrimental to the interests of the appellants.
The Collector and the Commissioner have therefore rightly treated the land as unirrigated which is almost the lowest category and whose valuation is given as 9 annas per acre.
We, therefore, find no error in the classification made by the revenue authorities.
We are unable to agree with the counsel for the appellants that as the land in question did not fall in any of the heads of classification made in District Karnal they will carry no value at all because this is directly opposed to the various schemes of the classification made under the Rules.
A subsidiary contention in this very argument was that the land should have been valued in accordance with Rule 2, provisos (a) to (c), which may be extracted thus: "2.
Conversion of ordinary acres into standard acres.
The Equivalent, in standard acres, of one ordinary acre of any class of land in any assessment circle, shall be determined by dividing by 16, the valuation shown in Annexure 'A ' to these rules for such class of land in the said assessment circle; Provided that the valuation shall be (a) in the case of Banjar Qadim land, one half of the value of the class previously described in the records and in the absence of any specific class being stated, one half of the value of the lowest barani land.
(b) in the case of Banjar Jadid land, seven eighth of the value of the relevant class of land as previously entered in the records, or in the absence of specified class in the records of the lowest barani land; and (c) in the case of cultivated thur land subject to waterlogging, one eighth of the value of the class of land shown in the records or in the absence of any class, of the lowest barani land.
" 339 The three categories given in clauses (a), (b) and (c) as extracted above do not at all cover the land of the appellants which is sailab or adna sailab and therefore they cannot be given the benefit of any of these three sub clauses of the proviso.
For these reasons, the second contention is overruled.
The result is that we find no merit in the appeals which are accordingly dismissed but in the circumstances without any order as to costs.
N.V.K. Appeals dismissed.

Output:
The appellants who were displaced persons were allotted land which was entered as sailab land in the revenue records and they became the owners of these lands.
After the coming into force of the Punjab Security of Land Tenures Act, 1953, the Revenue Authorities proceeded to determine the permissible area of the land of the appellants under section 2(3).
They allowed 50 standard acres of land to each of the appellants and declared the balance as surplus land.
The appellants claimed that the lands allotted to them as displaced persons fell in a portion of District Karnal which was sailab and adna sailab and according to the classification made under the Punjab Security of Land Tenures Rules, 1953 they did not carry any valuation.
The Collector dismissed their application.
The Commissioner dismissed their appeals holding that the Collector was right in treating the surplus area as an unirrigated areas and valuing the same at nine annas per standard acre.
A single Judge accepting the contention of the appellant in his writ petition set aside the orders of the Revenue Court.
The Financial Commissioner filed an appeal which was allowed by the Division Bench and the writ petition was dismissed.
In the appeals to this Court it was contended on behalf of the appellants that (1) whereas sub section (5) of section 2 of the Act directed the Government to frame Rules after considering the quantity of the yield and quality of soil, in the Rules framed by the Government the main guide lines laid down by sub section(5) were not followed, and the classification made by the Rules under Annexure 'A ' was arbitrary without determining the quantity of the yield and quality of the soil, and (2) that even if the classification made in Annexure 'A ' was valid, the Revenue Courts as also the High Courts committed an error of law in misconstruing the classification and in arbitrarily placing the surplus area in the category of unirrigated land.
331 Dismissing the appeals, ^ HELD: 1(i) The view of the single Judge is not in consonance with the scheme and spirit of the Rules framed under the Act and is based on a wrong interpretation of the nature, extent and ambit of the classification made in Annexure 'A '.
The classification is in accordance with provisions of sub section (5) of section 2 of the Act and is, therefore, constitutionally valid.
[337 E F, G] (ii) The Land Resettlement Manual prepared in 1952 by Tarlok Singh shows that the classification has been made in a very scientific manner after taking into consideration all the relevant factors.
The Punjab Settlement Manual (4th Edition) prepared by Sir James M. Douie though possessing unimpeachable authenticity was made long ago and since then there have been great changes resulting from various steps taken by the Government for improving the nature and character of the land and the irrigation facilities.
Even so, the classification made by Sir James Douie has been adhered to broadly and basically by Tarlok Singh in his Manual which forms the pivotal foundation for the schedule containing Annexure 'A ' framed under the Rules.
[335H 336 C] (iii) The classifications of land like barani, sailab, abi, nehri, chahi etc.
are clearly mentioned in the Punjab Settlement Manual.
The Rule Making Authority has not in any way either departed from the principles mentioned in sub section(5) of section 2 of the Act or violated the guidelines contained therein, nor could it be said that the classification made under the Rules has not been made according to the quantity of yield or the quality of the soil.
[336 C, D E] (iv) If the dominant object of the act was to take over the surplus area according to the formula contained in various provisions of the Act particularly sub sections (3) and (5) of section 2, there is no material on the record to show that the Rules do not fulfil or carry out the object contained in the Act.
[336 G] Jagir Singh and Ors.
vs The State of Punjab and Ors., 44 (1965) Lahore Law Times 143, approved.
2.(i) There was no error in the classification made by the revenue authorities.
So far as Karnal District was concerned, there was no sailab land at the time when the Rules were framed and the classification was made.
Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas which could be more deterimental to the interest of the appellants.
The Collector and the Commissioner have rightly treated the land as unirrigated which is the lowest category and whose valuation is given as nine annas per acre.
[338C, B] (ii) The three categories given in clauses (a), (b) and (c) of Rule 2 do not cover the land of the appellants which is sailab or adna sailab and therefore, they cannot be given the benefit of any of these three sub clauses of the proviso.
[339 A]


Input:
: Civil Appeal No. 151 of 1960.
Appeal by special leave from the judgment and order dated November 23, 1959, of the Madhya Pradesh High Court, Jabalpur, in First Appeal No. 78 of 1959, arising out of the judgment and order dated May 12, 1959, of the Election Tribunal, Raigarh, in Election Petition No. 76/1957.
G. section Pathak and G. C. Mathur, for the appellants.
N.C. Chatterjee, S .
K. Kapur, Y. section Dharamadhikaree and A. G. Ratnaparkhi, for respondent No. 1. 1960.
April 22.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
Does the failure of a candi date to specify his age as required by the prescribed form of the nomination paper amount to a defect of a 652 substantial character under section 36(4) of the Representation of the People Act, 43 of 1951 (hereinafter called the Act)? That is the point of law which arises for our decision in the present appeal.
The said point arises in this way.
On February 25, 1957, polling took place at the General Election to the Madhya Pradesh Legislative Assembly from the Mamendragarh Double Member Constituency.
Thirteen candidates had offered themselves for election either for the general or the reserved seat at the said election.
Mr. Brijendralal Gupta, appellant I and Thakur Raghubir Singh, appellant 2, were the Congress candidates while respondents 1 and 7 had been adopted by the Praja Socialist Party, respondent 4 and one Sadhuram by the Jan Sangh and the remaining candidates had filed their nominations as independent candidates.
Udebhan Tiwari, respondent 5, bad omitted to make the declaration regarding his age in his nomination paper.
This defect was discovered at the time of the scrutiny of the nomination papers on February 1, 1957, and as a result his nomination paper was rejected by the returning officer.
Subsequently respondent 6 withdrew his candidature with the result that eleven candidates took part in the contest.
After the polling took place and the votes secured by the contesting candidates were counted appellants 1 and 2 were declared duly elected to the General and the Reserved seat respectively.
Thereupon Jwalaprasad, respondent 1, filed an election petition under section 81 of the Act challenging the election of the appellants on several grounds, one of which was that the nomination of respondent 5 had been improperly rejected.
He, therefore, played that the election of the appellants should be declared void and he himself should be declared as having been duly elected.
This election petition was made over for trial to the Election Tribunal, Raigarh.
On the contentions raised by the parties before it the Election Tribunal framed as many as 49 issues; but in the present appeal we are concerned with only three of them which related to the rejection of the nomination of respondent 5.
These three issues were (1) whether the nomination paper of respondent 5 was improperly rejected because of the omission to 653 fill in the age in the prescribed column, (2) whether at the time of the scrutiny respondent 5 was personally present and brought to the notice of the returning officer that his age was above 25 and the omission is simply accidental, and (3) if so, whether the rejection of the said nomination paper has rendered the whole election void ab initio under section 100(1)(c) of the Act.
The Tribunal held that respondent 5 did not make any attempt to rectify the defect in the nomination paper, that the returning officer could not in law have allowed respondent 5 to remedy the said defect at the stage of the scrutiny of the nomination, and that the error in the nomination was a defect of a substantial character with the result that the rejection of the nomination paper was according to the Tribunal proper.
In accordance with these findings the Tribunal dismissed the election petition.
Respondent 1 then preferred an appeal against the decision of the Tribunal before the High Court of Madhya Pradesh at Jabalpur under section 116A of the Act.
The High Court has allowed the appeal; it has held that respondent 5 had at the time of the scrutiny offered to supply the omission but the returning officer refused to allow him to do so, that the returning officer was bound to make a summary enquiry before rejecting respondent 5 's nomination paper, and that the non mention of the age in the nomination paper was not a defect of a substantial character.
In consequence, according to the High Court, the rejection of respondent 5 's nomination paper was improper; that is why the High Court set aside the election of the appellants under section 100(1)(c) of the Act.
It is against this decision of the High Court that the appellants have come to this Court by special leave.
The learned counsel for the appellants wanted to challenge the correctness of the finding recorded by the High Court that respondent 5 offered to correct the defect in his nomination paper by supplying evidence about his age and that the returning officer had refused to give him an opportunity to do so.
It is true that on this question the Tribunal had found in favour of the appellants; but, in our opinion, it was open to the High Court to consider the correctness or the 85 654 propriety of the said finding because the jurisdiction a of the High Court under section 116A of the Act is wide enough and is not confined to questions of law.
It has been urged before us that the decision on this Darrow question of fact depends upon the appreciation of oral evidence led by the parties, and it was suggested that the High Court was not justified in interfering with the conclusion of the Tribunal on that point.
We are not impressed by this argument.
We would, therefore, deal with the present appeal on the basis that respondent 5 attempted to rectify the omission but was not allowed to do so by the returning officer.
Therefore, if the defect in the nomination paper of respondent 5 was not of a substantial character the High Court 's decision would be right on the other hand, if the said defect is of a substantial character then the rejection of respondent 5 's nomination paper would be proper and the fact that respondent 5 was not allowed an opportunity to rectify the said omission would make no difference in law.
That is how the only point which calls for our decision is whether the omission, in question is a substantial defect under 36(4) of the Act.
Before dealing with this question it is relevant to refer to sections 33, 34 and read section 36.
Section 33 provides for the presentation of the nomination paper and prescribes the requirements for a valid nomination.
Section 33(1) is important for our purpose.
It provides that on or before the date appointed under el.
(a) of IS. 30 each candidate shall, either in person or by his proposer, between the hours of eleven o 'clock in the forenoon and three o 'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Section 33(2) lays down that a candidate shall not be deemed to be qualified to be chosen to fill a reserved seat unless his nomination paper contains a declaration prescribed by it.
Sub section (3) deals with the case of a candidate who, having held any office referred to in el.
(f) of section 71, hag been dismissed and a period of five years has not elapsed since the 655 dismissal, and lays down that the nomination paper of such a person shall be accompanied by a certificate as specified.
Sub section (4) requires that on the presentation of a nomination paper the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls.
The proviso to this subsection requires the returning officer to permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected, and where necessary, it authorises him to direct that any clerical or printing error in the said entry shall be overlooked.
We are not concerned with the remaining two sub sections of section 33.
Section 34 deals with deposits and provides that a candidate shall not deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited the amounts as prescribed in cls.
(a), (b) and (c).
Section 36 deals with the scrutiny of nomination&, authorises the returning officer to hold an enquiry,, ,prescribes the procedure to be followed by him in holding such an enquiry, required him to endorse his decisions on the points raised in the scrutiny, and to prepare a list of validly nominated candidates that is to say, whose nominations have been found valid, and to affix it to his notice board.
Section 36(1) provides that on the date fixed for the scrutiny of nominations under section 30, the candidates and the other persons specified in it may attend at such time and place as the returning officer may appoint, and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
Sub section (2) deals with the examination of nomination papers by the returning officer, and it provides that the said officer shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, (a) that the candidate either is not qualified or is disqualified for being chosen to till 656 the seat under any of the following provisions that may be applicable, viz., articles 84, 102, 173 and 19 1, and Part 11 of this Act, (b) that there has been a failure to comply with any of the provisions of section 33 or section 34, or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
Sub section (4) lays down that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
Sub section (5) prescribes the procedure for the scrutiny, and subs.
(6) requires that the returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and in case of rejection he shall record in writing a brief statement of his reasons for such rejection.
Sub section (7) provides that for the purpose of this section a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
Sub 'section (8) requires the returning officer to prepare a list of validly nominated candidates and affix it to his notice board.
It is clear that section 33 requires that a nomination paper must be completed in the prescribed form and signed by the candidate and by the elector of the constituency as proposer.
The form prescribed in that behalf is Form No. 2B.
The relevant portion of the prescribed form reads thus: Form 2B. Nomination Paper (See rule 4) Election to the Legislative Assembly of. . (State) (To be filled in by the proposer) I hereby nominate. . . as a candidate for election from the. . . Assembly Constituency.
Full name of proposer. . . 2.
Electoral roll number of proposer. . 3.
Name of candidate 's ++father/husband. . . 4.
Full postal address of candidate. . . 5.
Electoral roll number of candidate. . . Date .
Signature of proposer.
657 (To be filled by the candidate) 1, the above mentioned candidate, assent to this nomination and hereby declare (a) that I have completed. . . years of age; (b) that the symbols I have chosen are in order of preference (i) . . . . . . (ii) . . . . . . and (iii) . . . . . .
Date Signature of candidate.
Strike out one of the alternatives as necessary.
It is common ground that the first part of the nomination paper which has to be filled in by the proposer was in order and the second part was duly 'signed by the candidate but failed to declare his age as prescribed by (a) above.
When the returning officer noticed this omission he made an order rejecting respondent 5 'S nomination.
The brief statement of reasons which the returning officer has recorded shows that he held that the failure of respondent 5 to declare his age cannot be treated as clerical or technical error, but is of a substantial nature since declaration as to age was necessary in order to entitle a candidate to be qualified under article 173 of the Constitution.
The returning officer has also noted that he took the objection suo moto and rejected the nomination paper of respondent 5.
Thus there is no doubt that respondent 5 's omitted to specify his age before he signed his nomination paper and in that sense his nomination paper has not been completed in the prescribed form.
The question which arises for our decision is whether respondent 5 's omission to specify his age in his nomination paper amounts to a defect, and if yes,whether it is a defect of a substantial character under section 36(4) of the Act.
On behalf of the appellants it has been conceded before us that the omission in question undoubtedly constitutes failure to comply with the provisions of A. 33, and so it attracts the provisions of section 36(2)(b) of the Act, but it is urged that the said omission does not amount to a defect under section 36(4) much less a defect which is of a substantial character.
The argument is 658 that section 36(4) can apply only to such cases of non compliance with section 33 which can be said to amount to defects and not others, and since the omission in question is not a defect there is no scope for invoking the provisions of that, sub section.
In support of this argument reliance has been placed on two English decisions.
In The Queen vs Tugwell (1) Cockburn, C. J., held that the 9 votes whose validity was impeached had to be struck off because they had not complied with section 32 of the Municipal Corporation Act (5 & 6 Wm. 4, c. 76) and so section 142 could not cure their defect.
The voting papers in question contained the Christian name and the surname of the candidate and his place of abode and nothing more, whereas section 32 required that they should also contain the description of the candidate.
In other words, there was a total omission to supply the description required by section 32.
It was, however, urged that the said omission should be treated as inaccurate description, and so the validity of the impugned votes should be sustained under section 142 which provides, inter alia, that no inaccurate description of any person shall hinder the full operation of the Act in respect of such person provided that the description of such person is such as to be commonly understood.
Cockburn, C. J., held that in the cases of the 9 votes in question they were not dealing with the inaccurate description but a total omission of description which is one of the things required by section 32, and so section 142 was inapplicable.
It appears that Lush,J., and Hannen,J. agreed with the conclusion of the Chief Justice with some hesitation.
To the same effect is the decision in Baldwin vs Ellis (2).
In that case the omission to state in the nomination paper the name of the parish for which the person nominated was qualified as a local government elector was held to be non compliance with the requirements of rule 4 of the Rural District Councillors Election Order, 1898, and that the said omission could not be cured by section 13 of the Ballot Act of 1872 since that section applied only to cases where there had been a wrongful admission of a nomination paper and not to those where a nomination paper had been rejected.
It was also (1) (2) 650 held that the omission in question cannot be treated as inaccurate description of the person nominate within rule 13 of the Order of 1898 but was a clear non compliance with the requirements of rule 4 of that Order and as such it was not cured by rule 33.
It would thus be seen that in both the decisions the question as to whether the particular omission amounted to an inaccurate description was decided in the light of the specific provision of the statute, and so they cannot sustain the broad argument that in no case can omission be treated as a defect.
We may also incidentally point out that Halsbury has read these decisions in the same way (3).
On the other hand the dictionary meaning of the word " defect" is "lack or absence of something essential to completeness", and in that sense omission to specify the age call and would be treated as a defect under section 36(4).
Defect also means " a flaw or a fault or an imperfection"; but whether or not it includes an omission must necessarily depend upon the context in which the word is used.
In our opinion, having regard to the context it would be unreasonable to hold that the word " defect " under section 36(4) excludes all cases of omission to specify the details prescribed by the statute in the nomination paper.
We must accordingly reject the appellants ' argument that the omission in question is not a defect under section 36(4).
The next question which we must consider is whether in the case of such an omission it was obligatory on the returning officer to hold an enquiry under section 36(2) of the Act.
The High Court has held that the returning officer ought to have held an enquiry under section 36(2)(a) and satisfied himself whether or not respondent 5 was eligible to stand for the election.
In our opinion the High Court was in error in coming to this conclusion.
If the nomination paper of respondent 5 did not comply with the provisions of section 33 the case fell squarely under section 36(2)(b) and the only question which can arise in such a case is whether or not the defect arising from the failure to comply with the provisions of section 33 is of a substantial character or not.
If the defect is not of a substantial (3) Halsbury 's 'Laws of England", Vol. 14, 3rd Ed., paragraphs foot note (a) on p. 95. 660 character the returning officer shall not reject the nomination paper on the ground of the said defect; if, on the other hand, the defect is of a substantial character the returning officer has to reject the nomination paper on the ground of the said defect, That is the effect of the provisions of section 36(2)(b) and (4) read together.
An enquiry which is necessary under section 36(2)(a) may and can be held for instance in cases where the nomination paper shows the age of the candidate as above 25, but an objection has been raised that in fact he is below 25 and as such incompetent to stand for election under article 173 of the Constitution; in other words, the impugned nomination has complied with the provisions of section 33 and as such does Dot fall under section 36(2)(b) at all, nevertheless the validity of the nomination can be challenged on the ground that, in fact article 173 is not complied with.
Cases falling under this class must be distinguished from cases falling under section 36(2)(b).
In the latter class of cases the failure to comply with the provisions of section 33 being established there is no scope for any enquiry under section 36(2) (a).
Once the alleged non compliance is proved, the defective nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character.
Therefore, it is not right to hold that even after the returning officer was satisfied that the omission to specify his age showed that the nomination paper of respondent 5 had not complied with the provisions of section 33, he should still have held an enquiry under section 36(2) (a).
Non compliance with the provisions of section 33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the non compliance in question is of a substantial character.
That takes us to the question as to whether the failure to specify the age in the nomination paper amounts to a defect of a substantial character under section 36(4) or not.
There is little doubt that the age of the candidate is as important as his identity, and in requiring the candidate to specify his age the prescribed form has given a place of importance to the declaration about the candidate 's age.
Just as the 661 nomination paper must show the full name of the candidate and his electoral roll number, and just as the nomination paper must be duly signed by the candidate, so must it contain the declaration by the candidate about his age.
It is significant that the statement about the age of the candidate is required to be made by the candidate above his signature and is substantially treated as his declaration in that behalf.
That being the requirement of the prescribed nomination form it is difficult to hold that the failure to specify the age does not amount to a defect of a substantial character.
The prima facie eligibility of the person to stand as a candidate which depends under article 173 of the Constitution, inter alia, on his having completed the age of 25 years is an important matter, and it is in respect of such an important matter that the prescribed form requires the candidate to make the declaration.
It would, we think, be unreasonable to hold that the failure to make a declara tion on such an important matter is a defect of an unsubstantial character.
In this connection, it is relevant to refer to the fact that the declaration as to the symbols which the prescribed form of the nomination paper requires the candidate to make is by the proviso to rule 5 given a subsidiary place.
The proviso to rule 5 shows that any non compliance with the provisions of sub rule (2) of rule 5 shall not be deemed to be a defect of a substantial character within the meaning of section 36, sub section
In other words, this proviso seems to suggest that, according to the rule making authority, failure to comply with the require ments as to the declaration of symbols as specified in rule 5, sub rule (2), would have been treated as a defect, of a substantial character; that is why the proviso expressly provides to the contrary.
This would incidentally show that the failure to specify the age can. not be treated as a defect of an unsubstantial character.
On behalf of the respondents it has, however, been urged before us that the returning officer should not be astute to reject the nomination papers on technical grounds, and that in the present case the returning officer should have looked at the electoral roll and satisfied himself that respondent 5 was duly qualified 86 662 to stand for the election.
His age is 48 and it was shown in the electoral roll against his name.
It was thus a simple matter of looking at the electoral roll be satisfied that the omission to specify the age in the nomination form was no more than a technical breach of the requirements of section 33.
We are not impressed by this argument.
As we have already observed, in cases of non compliance with section 33 which attract the provisions of section 36(2)(b), there would be no occasion to hold an enquiry under section 36(2)(a).
The only point to consider in such cases would be whether the defects in question are substantial or not; and so the argument that the returning officer could have easily verified the age of respondent 5 is not really material in construing section 36(4).
In this connection it is relevant to consider the effect of the presumption which is raised under section 36(7) of the Act and its effect.
As we have already noticed, under section 36(7) a certified copy of the entry in the electoral roll shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency ; but it must be remembered that this presumption is raised for the purposes of this section and it is made expressly subject to the last clause of this subsection, that is to say, the presumption can arise unless it is proved that the person in question is subject to any of the disqualifications men tioned in section 16 of the Act of 1950.
The use of the adjective " conclusive " which qualifies" evidence " is technically inappropriate because the presumption arising from the production of the certified copy is by no means conclusive.
It is also significant that in regard to the conclusive character of the relevant evidence the material provision as it stood originally has been subsequently amended by Act 27 of 1956.
Originally the provision was that the relevant entry shall be conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe the nomination paper as the case may be.
The Legislature apparently thought that the presumption authorised by these words was unduly wide, and so, by the amendment, the prima facie and rebuttable presumption is now limited 663 to the capacity of the person concerned to be treated as an elector and nothing more, and that too unless it is proved that he suffers from any disqualification ' mentioned in section 16.
Section 16 to which reference has thus been made prescribes disqualifications for registration in an electoral roll under three heads, (a) that the person is not a citizen of India, (b) that he is of unsound mind and stands so declared by a competent court, or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt and illegal practices and other offences in connection with elections.
Thus the position is that the certified copy of the relevant entry would prima facie show that the person concerned is not subject to any of the said disqualifications, but this prima facie presumption can be rebutted by evidence to the contrary.
There is yet another aspect of this matter to which reference may be made.
The rebuttable presumption which arises under section 36(7) merely refers to the status of the person concerned as an elector.
Let us consider what this presumption means.
An elector under section 2, sub s.1, (e), of the Act in relation to a constituency means " a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Act of 1950".
That takes us to the conditions prescribed by section 19 of the Act of 1950 for registration in the electoral roll.
Section 19 provides that subject to the foregoing provisions of Part III of the said Act every person who, on the qualifying date (a) is not less than 21 years of age, and (b) is ordinarily resident is a constituency, shall be entitled to be registered in the electoral roll for that constituency.
Thus when a presumption is raised under section 36(7) it may mean prima facie that the person concerned is not less than 21 years of age and is ordinarily resident in that constituency; but for the validity of the nomination paper it has to be proved that the candidate has completed 25 years of age.
article 173 of the Constitution which prescribes the qualification for membership of State Legislature provides 664 that a person shall not be qualified in that behalf unless he (a) is a citizen of India, (b) is, in the case of a seat in the Legislative Assembly, not less than 25 years of age, and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
Confining ourselves to the requirement about age it is obvious that the presumption raised under section 36(7) would not be enough to justify the plea about validity of the nomination paper because the said presumption only tends to show that the person concerned has completed 21 years of age.
It is clear that in regard to persons between 21 to 25 years of age their names would be registered in the electoral and so they would be electors if otherwise qualified and yet they would not be entitled to stand for election to the State Legislature.
Thus it would not be correct to assume that a reference to the certified copy of the electoral roll would in every case decisively show that the age of the candidate satisfied the test prescribed by article 173 of the Constitution; in other words, the requirement about the completion of 25 years of age is outside the presumption under section 36(7), and that must be the reason why the prescribed nomination form requires that the candidate in signing the said form must make a declaration about his age.
This consideration supports our conclusion that the declaration about the age is a matter of importance and failure to comply with the said requirement cannot be treated as a defect of an unsubstantial character.
It now remains to consider some of the decisions which were cited before us by the learned counsel for both the parties.
In Rattan Anmol Singh vs Atma Ram(1) this Court has held that the attestation required in the case of proposers and seconders who are not able to write their names is not a technical or unsubstantial matter, and so the failure to comply with the said requirement would amount to a defect of a substantial character.
The appellants contend, and with some force, that this decision supports their case that like the attestation required in the case of an illiterate proposer or seconder the declaration as to the (1) ; , 665 age of the candidate is a matter of substantial importance, and failure to comply with the requirement of the prescribed form in that behalf cannot be treated as a defect which is not of a substantial character.
In Pranlal Thakorlal Munshi vs Indubhai Bhailabhai Amin (1), the Election Tribunal, Baroda, has held that the omission by the candidate to mention his age in the nomination paper is a defect of a substantial character and that his nomination paper had been properly rejected on that account.
The appellants have naturally relied on this decision in support of their case.
The appellants have then referred us to certain decisions where the effect of the failure to specify the electoral roll number or other particulars has been considered, and it has been held that the failure in question amounts to a substantial defect under section 36(4) of the Act.
(Vide: Rup Lal vs Jugraj Singh (2 ); Brij Sundar Sharma vs Election Tribunal, Jaipur (3 ); Balasubrahmanyan vs Election Tribunal, Vellore (4); and Ramayan Shukla vs Rajendra Prasad Singh (5).
By parity of reasoning the appellants contend that the failure to mention the age is undoubtedly a substantial defect.
It is unnecessary for us to consider the merits of these decisions.
On the other hand the respondents have relied on the decision of this Court in the case of Durga Shankar Mehta vs Thakur Raghuraj Singh (6).
Indeed it appears from the judgment of the High Court under appeal that in coming to its decision the High Court was influenced by certain observations made by Mukherjea, J., as he then was, in dealing with the case of Durga Shankar (6).
In that case the validity of the election of Vasant Rao, respondent 2, was challenged before the Election Tribunal on the ground that he was not eligible to stand for election since at all material times he was under 25 years of age.
It was, how ever, clear that no objection was taken before the returning officer in respect of the nomination paper of respondent 2, and the said nomination paper had been accepted by there turning officer.
The question (1) (1958) 15 E.L.R 484.
(3) (5) [1955] S.C.R. 267. 666 which was raised before this Court was whether the acceptance of respondent 2 's nomination paper could be said to be improper, and this Court held that the acceptance would have been improper if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the returning officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the returning officer came to the wrong conclusion on the materials placed before him.
Since neither of these things had happened in that case, the Court held that the acceptance must be deemed to be a proper acceptance.
Even so it was observed that the validity of respondent 2 's election could be challenged under section 100(2)(c) of the Act.
With that aspect of the matter we are, however, not concerned in the present appeal.
It would thus be clear that in the case of Durga Shankar (1) this Court had no occasion to consider the scope and effect of section 36(2Xb) and (4) of the Act at all, and so the observations made in the judgment on which reliance had been placed by the respondents in support of their plea that an enquiry should have been held in the present case do not really help us.
The said observations must, with respect, be read in the context of the dispute which was raised before this Court in that case.
The respondents have also relied upon the decision of this Court in Pratap Singh vs Shri Krishna Gupta (2).
In that case this Court has no doubt observed that courts should not adopt a technical attitude in dealing with election matters and that " it is the substance that must count and it must take precedence over mere form ; but in appreciating the effect of these observations it is necessary to bear in mind the points which arose for decision in that case.
It was the failure of the candidate to mention his occupation as required by rule 9 (1)(i) on which the validity of his nomination was impeached, and in dealing with that point this Court had to consider the effect of section 23 of the C. P. and Berar Municipalities Act, 2 of 1922, which provided that anything done or any proceeding taken under the said Act shall not be questioned on account (1) [1955] 1 S.C.R. 267 (2) A.I.R. 1956 S.C. 140, 141, 667 of any defect or irregularity not affecting the merits of the case.
So the short point which the Court had to decide was whether the defect in the nomination form affected the merits of the case, and it held that there was no doubt that the said failure, could riot possibly affect the merits of the case.
It was in the context of this legal position that the Court disapproved of the technical attitude adopted by the High Court in dealing with the question of the validity of the impugned nomination.
It is significant, however, that even in that case the Court has referred with approval to its earlier decision in the case of Rattan Ammol Singh (1).
There is another decision of this Court on which the respondents have relied.
That is the case of Karnail Singh vs Election Tribunal, Hissar (2).
It appears that in that case the nomination paper of Sher Singh had been rejected on the ground that column 8 in the nomination form was not duly filled up.
The defect to which objection was taken was that the name of the sub division had not been stated under the relevant columns, though on evidence it was quite clear that there was no defect in identifying the candidate and that the candidate himself pointed out to the returning officer the entry of his name in the electoral roll, and this Court held that the defect in question was purely technical and that the Tribunal was perfectly right in holding that the nomination paper had been improperly rejected.
It is difficult to see how this decision can assist the respondents at all.
As we have already pointed out the omission to make a declaration about the age is, in our opinion, an omission to comply with the substantial requirement prescribed by the form and it cannot be compared with the omission with which this Court was concerned in the case of Karnail Singh (2).
There is one more decision on which the respondents have relied.
In Pt.
Charanjit Lal Ram Sarup vs Lahri Singh Ram Narain (3) the Punjab High Court was dealing with a case where the nomination paper of a candidate had been rejected not only on account of the omission to state the age in the nomination paper but also for the reason that no evidence was led by the (1) [1955) 1 S.C.R. 481.
(2) (3) A.I.R, 1958 Punj.
433. 668 candidate concerned or by his representatives or agents to show that the candidate had completed his 25 years though the returning officer had directed that such evidence should be led.
It appears that the Election Tribunal also found that on the evidence adduced before it could not be determined with any amount of certainty as to whether at the time of filing the nomination paper Mr. Pirthi,the candidate in question, was above or below 25 years of age.
That is why it was held that the rejection of the nomination paper could not be said to be improper.
One of the points urged before the Punjab High Court was that the omission to state the age was not a defect of a substantial character but the High Court did not feel called upon to give a firm finding on this point, because in the case before it there was not only the impugned omission but there was also no material before the returning officer whereby that omission could be made good.
We ought, however, to add that though on the facts proved in that case the election petition should have been dealt with under section 36(2)(b) and (4) it was apparently considered as falling under section 36(2)(a) and that, as we have already pointed out, is not the true legal position.
Besides there are certain general observations made in the judgment which would indicate that the High Court was inclined to hold that the defect arising from the failure to declare the age in the nomination form was not of a substantial character.
It is unnecessary to add that these observations do not correctly represent the effect of section 36(2)(b) and section 36(4) of the Act.
In the result the appeal is allowed, the decision of the High Court is set aside and that of the Tribunal restored with costs throughout.
Appeal allowed.

Output:
Thirteen candidates filed their nomination papers for election to the Legislative Assembly of Madhya Pradesh.
The nomination of U was rejected on the ground that he failed to give a declaration as to his age as required in the nomination paper.
After the poll the appellants were declared duly elected.
Thereupon one of the unsuccessful candidates J filed an election petition challenging the election of the appellants, inter alia, on the ground that the nomination of U had been improperly rejected.
The Election Tribunal dismissed the petition holding that U made no attempt before the returning officer to remedy the defect in the nomination paper, that the defect could not in law have been remedied at the stage of the scrutiny that the defect was of a substantial character and that the rejection of the nomination was proper.
On appeal the High Court held that at the time of the scrutiny U had offered to supply the omission but the returning officer had refused to allow him to do so, that the returning officer was bound to make a summary enquiry before rejecting the nomination, that the non mention of age in the nomination paper was not a defect of a substantial character and that the rejection of the nomination was improper and consequently allowed the appeal and set aside the election of the appellants: 651 Held, that the omission to give the declaration as to age in the nomination paper was a defect of substantial character within the meaning of section 36(4), Representation of the People Act, 1951, and the rejection of the nomination for such an omission was proper.
Rattan Anmol Singh vs Atma Ram, ; , Pranlal Thakorlal Munshi vs lndubhai Bhailabhai Amin, , Rup Lal vs jugaraj Singh, , Brij Sundar Sharma vs Election Tribunal, Jaipur, , Balasubyahmanyan vs Election Tribunal, Vellore, and Ramayan Shukla vs Rajendra Prasad Singh , referred to.
Durga Shankar Mehta vs Thakur Raghuraj Singh, [1955] S.C. 140 and Karnail Singh vs Election Tribunal Hissar, , distinguished.
Charanjit Lal Ram Sarup vs Lohri Singh Ram Narain, A.I.R. 1958 Punj.
433, disapproved.
The word " defect" in section 36(4) included an omission to specify the details prescribed in the nomination.
The distinction drawn in English cases between an " omission " and " inaccurate description" depended upon the specific provisions of the English statutes and did not obtain under the Indian Law.
The Queen vs Tugwell, and Baldwin vs Ellis, , distinguished.
Cases failing under section 36(2) (b) must be distinguished from those falling under section 36(2) (a).
Where the nomination paper did not comply with the provisions of section 33 of the Act the case fell under section 36(2) (b) and the defective nomination had to be accepted or rejected according as the defect was of an unsubstantial or of a substantial character.
In such a case it was not necessary for the returning officer to hold any enquiry.


Input:
Appeal No. 177 of 1960.
554 Appeal from the Judgment and order dated March 27, 1958, of the Orissa, High Court in O. J.C. No. 191 of 1956.
Hemendra Chandra Sen and section Ghose, for the appellants.
N. section Bindra, V. N. Sethi and P. D. Xenon, for the respondents.
April 30.
The Judgment of the Court was delivered by SINHA, C. J.
This appeal on a certificate granted by the High Court of Orissa raises the question of the interpretation of certain provisions of The Orissa Estates Abolition Act, 1951 (Orissa Act 1 of 1952) which hereinafter will be referred to as the Act.
The appellants who were petitioners in the High Court were the proprietors of an Estate, known as Paikpara Estate, in the district of Puri, bearing Touzi Nos.
268, 269 and 270.
The respondents are the State of Orissa and its officials.
The facts on which the High Court based its judgment under appeal areas follows.
Within the said Paikpara Estate, there were several tenures and sub proprietory interests.
The Paikpara Estate vested in the State of Orissa by virtue of a notification issued under section 3 of the Act, on August 23, 1953.
It is common ground that the interests of tenure holders and sub proprietors within the said estate have not yet been taken over under the provisions of the Act.
Under the tenure holders aforesaid, there were some occupancy holdings which Lad been purchased by the proprietors, the appellants in this Court, long ago.
Thus the proprietors by virtue of their purchase became occupancy raiyats, under the tenure holders or sub proprietors, in respect of the holdings purchased by them.
It is also common ground that in the last Settlement Khatians their interests as occupancy 555 raiyat8 in respect of the holdings purchased by them have been recorded.
On the lands of the occupancy holdings, there were several buildings which were used as Katcheri houses by the proprietors, for the administration of their estate.
In January 1954, according to the petitioners in the High Court, the State Officials took illegal possession of those buildings situate on the raiyati land, as aforesaid.
The appellants thereupon made an application to the Collector of Puri for vacant possession of the lands and the buildings, described in the petition, on the allegation that those lands together with the buildings, purchased from tenants with rights of occupancy, were, after purchase by the proprietors, used as Katcheri house by them.
They also alleged that those properties had not vested in the State of Orissa as a result of the said notification, under the Act.
Part of the said house had been let out to the Postal Department.
The Anchal Adhikari of that area wrote to the Postmaster, and Superintendent of Post Offices, not to pay rent to the proprietors.
The Postal Department, therefore, vacated that portion of the building in their occupation, which has gone into the occupation of the State Government.
Another portion of the property, which was used as dhangola was let out for storing paddy, to a third party.
That dhangola was also taken illegal possession of by the Naib Tehsildar of the place.
Other portions of the property also are in illegal possession of the State Government, through its Anchal Adhikari.
It was thus claimed on behalf of the proprietors that the State Government had no right to take possession of the property, as it did not form part of the estate which had been acquired under the Act, and had, on notification, vested in the State Government.
The learned Collector of Puri did not concede the demand of the proprietors, and held that the occupancy holding is situated within the tenure held 556 under the proprietors and lay within the geographical limits of the (state which had vested in the Government.
Being aggrieved by the aforesaid order of the Collector, dated November 20, 1956, the proprietors moved the High Court under article 226 of the Constitution for relief against what was alleged to be illegal interference with their interest not as proprietors but as occupancy tenants.
The High Court dismissed the proprietors ' claim chiefly on the ground that the question raised by the petition before the High Court was "practically concluded by the observations of the Supreme Court in the case of K. C. Gajapati Narayan Deo vs The State of Orissa (1).
It is manifest that the controversy raised in this case has to be answered with reference to the provisions of the Act. 'Estate ' has been defined in cl.
(g) of section 2 of the Act as follows : " 'estate ' includes a part of an estate and means any land held by or vested in an Inter mediary and included under one entry in any revenue roll 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 or under tenures and any jagir, inam or muafi or other similar grant"; Explanation I. Land 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 (1) ; 557 in relation to any land hold 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 land revenue be payable or has been released or compounded for or redeemed in whole or in part".
The definition makes reference to an 'Intermediary ', which has been defined in cl.(h) as follows: 'Intermediary ' with reference to any estate means a proprietor, sub proprietor, landlord, landholder, malguzar, thikadar, gaontia, tenure holder, undertenure holder, and includes an inamdar a jagirdar, Zamindar, Ilaquadar, Khorgoshdar, Parganadar, Sarbaraka r and Maufidar 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 this Act; 558 Explanation II.
The heirs and successors in interest of an Intermediary and where an Intermediary is a minor or of unsound mind or and 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.
Reading the two definitions together, the position in law is that 'estate ' includes the interest, by whatever name called, of all persons, who hold some right in land between the State at the apex and the raiyat at the base.
That is to say, the Act is intended to abolish all Intermediaries and rentreceivers and to establish direct relationship bet ween the State, in which all such interests vest, after abolition under the Act, and the tillers of the soil.
The interest of a raiyat is designated by the word 'holding and is defined by the Orissa Tenancy Act (Bihar and Orissa Act II of 1913), as follows: .
" holding" means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy".
Under the, Orissa Tenancy Act, the unit of interest of a proprietor is an 'estate '.
Under a proprietor may be a number of sub proprietors. 'Sub proprietor ' is also defined in the Tenancy Act, but we are not concerned in this case with that class of holders of land.
The interest of a tenure holder or an under tenureholder is characterised as a "tenure '.
Thus, the process of in feudalist and sub infeudation, which has been similar in all places where the Permanent Settlement took place, that is to say, in Bengal, Bihar and Orissa and Madras and Andhra Pradesh, 559 has led to the coming into existence of proprietors, with their estates, sub proprietors under them, tenure holders and under tenure holders and ultimately the tiller of the soil, the raiyat, whose unit of interest is a 'holding '.
The Act was intended to abolish all proprietors, sub proprietors, tenureholders and under tennure holders, with a variety of names; but did not touch the interest of the raiyat.
The same person, by transfer or by operation of law, might at the same time occupy different status in relation to land.
He maybe in respect of a particular area, which is geographically included in the estate, the proprietor.
That land may be held by a raiyat not directly under a proprietor but under a tenure holder, who holds directly under proprietor.
The proprietor may have acquired the interest of a raiyat.
Thus the proprietor, in his capacity as the owner of the estate holds the entire estate, and he may have by purchase acquired the interest of a raiyat, paying rent for the raiyati interest to his immediate landlord, the tenure bolder.
The tenure holder, in his turn, may have been liable to pay rent to the proprietor.
That is what appears to have happened in this case.
The appellants held the Paikpara estate as proprietors.
They also appear to have purchased the properties in question comprising raiyati lands with certain buildings thereon from the raiyat.
Hence, the position in law is that though these lands with the buildings are situate geographically within the ambit of the appellants ' estate, they are not part of the estate.
In other words, the appellants hold those properties with the buildings not as proprietors as such, but as rayats.
It appears that the Courts below have not kept clearly in view this distinction.
The Collector, in the first instance, and the High Court in the proceedings under article 226 of the Constitution, appear to have fallen into the error of confusing the petitioners ' position as ex proprietors, with their present position as raiyat in 560 respect of the land on which the buildings stand.
The High Court has drawn the conclusion from the decision of this Court in K. C. Gajapati Narayan Deo vs The State of Orissa, (1) and has observed that whether the buildings in question vested in the Government, on the vesting of the estate under section 3 of the Act, world depend not upon whether it formed part of the estate acquired by the Government but on the, purpose for which the buildings wore used by the proprietors.
As the buildings in question had been primarily used as office or Katcheri for the collection of rent or for the use of servants or for storing grains by way of rent in kind, the buildings will vest in the Government on the vesting of the estate itself.
In our opinion, this conclusion drawn by the High Court from the decision of this Court is not well founded in law.
The High Court draw its conclusions from the following observations of this Court in the aforesaid case at Pages 25 26. "Assuming that in India there is no absolute rule of law that whatever is affixed to or built on the soil becomes a part of it and is subject to the same rights of property as the soil itself, there is nothing in law which prevents the State legislature from providing as a part of the estates abolition scheme that buildings, lying within the ambit of an estate and used primarily for management or administration of the estate, would vest in the Government as appurtenances to the estate itself.
This is merely ancillary to the acquisition of an estate and forms an integral part of the abolition scheme.
Such acquisition would come within article 31 (2) of the Constitution and if the conditions laid down in clause (4) of the article are complied with, it would certainly attract the protection afforded by that clause.
Compensation has (1) , 561 been provided for these buildings in section 26(2)(iii) of the Act and the annual rent of these buildings determined in the prescribed manner constitutes one of the elements for computation of the gross asset of an estate.
" The observations quoted above of this Court have reference to the following definition of ,homestead ' in el.
(i) of section 2 of the Act: "homestead ' means a dwelling house used by the Intermediary for the purpose of his own residence or for the purpose of letting out on rent together with any courtyard, compound, garden, orchard and outbuildings attached thereto and included any tank, library and place of worship appertaining to such dwelling house but does not include any building comprised in such estate and used primarily as office or kutchery for the administration of the estate on and from the is day of January, 1946".
it will appear from this definition that the Legislature placed a proprietor 's homestead ' in two categories, namely (1) a dwelling house used by the Intermediary for his own purposes and (2) any building comprised in such estate and used primarily as office or.
Katcheri for the administration of the estate on and from the list day of January, 1946.
In respect of first category the Act provides in a. 6 that portion of the homestead shall be deemed to be settled by the State with the Intermediary, who will continue to hold it as a tenant under the State Government, subject to the payment of fair and equitable groundrent, except where under the existing law no rent is payable in respect of homestead lands.
It will be noticed further that the second category in the definition of homestead, which has not been permitted to the outgoing 562 Intermediary has reference to "any building comprised in such estate".
It has no reference to any building standing on rayati holding or a portion thereof.
This becomes further clear with reference to the provisions of a. 5, which lays down the consequences of vesting of an estate in the State.
Under cl (a) of section 5, the entire estate, including all kinds of lands described in meticulous details, and other non raiyati lands vest absolutely in the State Government.
This Court, while dealing with the constitutionality of the Act, was not concerned with raiyati lands.
Its observations had reference only to such buildings as stood upon the proprietor 's private lands like peel, seer, Zirat, etc., whicl, were in his possession as proprietor or as tenure bolder.
It is thus clear that the very basis of the judgment of the High Court is entirely lacking.
That the High Court was not unaware of this distinction becomes clear from the following passage in its judgment: "Doubtless, Ryoti lands are excluded from the scope of this clause.
But buildings and structures standing on Ryoti lands and in the possession of the proprietor are not expressly saved.
" The first sentence quoted above is correct, but not the second. 'I here is no question of expressly saving structures on ratyati lands, when it is absolutely clear that raiyati lands are not the subject matter of legislation by the Act.
The same remarks apply to the reference in section.
26 (b) (iii).
Section 26 begins with the words ,for the purpose of this chapter", namely, Chapter V, headed "Assessment of Compensation".
Reading section 26 as a whole it is absolutely clear that for the purpose of assessment of the compensation payable to the outgoing proprietor or tenure holder, of the estate to be acquired, gross assets have to be determined, by aggregating the rents payable by 563 tenure holders or under tenure holders and raiyats.
It is, thus, clear that the rent payable by the appellants as raiyats in respect of the disputed lands would form part of the assets which have to be included in the gross assets in determining compensation.
But that does not mean that the interests of raiyats also have become vested in the State as a result of the notification under. 3, read with section 5.
For the reasons aforesaid, it must be held that the appellant 's raiyati interests in the lands and in the buildings standing on those lands have not been affected by the abolition of his interest as proprietors, and that the State authorities had illegally taken possession of those.
The appeal is accordingly allowed with costs here and below.
Appeal allowed.

Output:
The appellants held the Paikpara estate as proprietors.
They had purchased the properties in question comprising raiyati lands with certain buildings thereon from the raiyat.
Thus the proprietors became occupancy raiyat8 under the tenure holders or sub proprietors.
By virtue of a notification issued under section 3 of the Orissa Estates Abolition Act, 1951, the Paikpara estate vested in the State of Orissa.
But the interest of tenure holders and sub proprietors within the estate had not been taken over under the provisions of the Act: 553 The said buildings on the lands of the occupancy holdings were used as Katcheri houses by the proprietors for the administration of their estates.
The state officials took possession of these buildings situated on the raiyati land.
The appellants made an application to the collector, Puri, for vacant possession of the lands and the buildings.
The Collector did not concede the demand and held that the occupancy holding was situated within the tenure held under the proprietors and lay within the geographical limits of the estate which had vested in the Government.
The High Court dismissed the writ petition of the appellant under article 226 on the ground that the question raised was practically concluded by the Supreme Court in K. C. Gajapati Narayan vs Deo State of Orissa.
The appellants came up in appeal on a certificate granted by the High Court.
Held, that the appellants ' raiyati interests in the lands and in the buildings standing on those lands had not been affected by the abolition of their interests as proprietors, and the State Authorities had illegally taken possession of them.
Held, further, that the Orissa Estates abolition Act,1951, was intended to abolish all proprietors,sub proprietors, tenureholders, with a variety of names, but did not touch the interest of the raiyat.
Hence though these lands with buildings was situate geographicaiy within the ambit of the appellant 's estate, they were not part of the estate.
The appellant held those properties with the buildings not as proprietors as such, but as raiyats.
Held, also, that the conclusion drawn by the High Court from the decision in K. C. Gajapati Narayan Deo vs The State of Orissa is not well founded.
The observation of this Court on which it drew its conclusion had reference to the definition of 'home stead ' in cl.
(1) of section 2 of the Act.
This court while dealing with the constitutionality of the Act, in the above case, was not concerned with raiyati lands.
Its observations had reference only to such buildings as stood upon the proprietor 's private land, which were in his possession as proprietor or as tenure holder.
K. C. Gajapati Narayan Deo vs The State of Orissa; , , not applicable.