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Judgment
Jaganmohan Reddy, J.—This is a petition for the issue of a Writ of Certiorari or other appropriate C''der or direction against the order of the District Collector of Visakhapatnam dated III -3-1955 in D; Dis. 26763/54. The Petitioner is the Rani Snheba of Chemudu, Ex-proprietrix of Anakapclli Estate, which became vested in the Government under the Madras Estates Abolition Act XXVI of 1948. She alleged that she we the owner of a private market shandy after the demise of her husband on 12-3-1942 and that the shandy had been in existence from ancient times and when the Municipality of Anakapalli was constituted a licence was granted to the predecessors- in-title of the Petitioner to run it as a private market shandy u/s 262 of the District Municipalities Act.
It is stated that this private market was enclosed by a compound was on all sides and r convenience of the stall-keepers buildings ere also constructed with corrugated zinc sheets vHthin the compound wall. This private market was teased out and the last lease it is alleged was made, on 31-3-1955 for Rs. 4,350/- for three years beginning from 1-4-1955 in favour of one K. Jagga Rao of Anakapalli. The Government of Madras had by notification published in the Gazette dated 21-12-1950 u/s 3 of the Estates Abolition Act took over the estate of Anakapalli though actual possession of the estate was taken on 31-12-1952 after the question of validity of the Abolition Act which was pending in the High Court and in the Supreme Court was determined.
It was after this that the order impugned was passed. By R. C, No. 28U3/53-F dated 16 4-1955 the Tahsildar-Manager of Anakapalli informed the Petitioner that the collector had by his order referred to above said that the Sunday shandy site comprised of S. Nos. 1465/1 and 1.467 of Anakapalli town would vest in the Government under Sub-section (b) of Section 3 of the Madras Estates Abolition Act, that he was directed by the Collector to take possession of the said land and that she should hand over the Sunday shandy in question together with the connected records on 30-4-1955. lie further informed the Petitioner that the Estate was taken over by the Government on 31.-I2-J.952;
as such the Petitioner.......was asked to pay the lease amount Rs. 3,829-11-6 due from her up to the date when the possession was to be handed over.
The Petitioner challenges this order of the Collector on the ground that since there were buildings upon the land which belonged to the Petitioner and which were not used for office purposes or for religious, charitable or education purposes, the Government have no power or jurisdiction to resume or take over such buildings. The Collector in the counter admitted that there was a shandy in Anakapalli town at the time of taking-over of the Estate on 31-12-1952 but he seems to take the position that since the,shandy was being held in the Zamindari lands he was entitled to take over the same under the provisions of Section 3(b) of the Estates Abolition Act 26" of 1948.
In paragraph 4 it is stated that the site comprises of two Survey Numbers bearing 1465/1 and .1467 and that these were classified by Government Survey conducted in 1916 as ''Alahida'' i. e., waste at the disposal of the Estate and registered in the name of Sitabai Rani Saheba of Vadvan, that no rent was payable to the Estate according to the old registers that in 1936 when fresh registers were prepared the Anakapalli Estate was noted as patted for these two Survey Nos. and that therefore the sites were waste lands at the disposal of the Estates and not ryoti lands.
In paragraph 10 he did not deny the allegation of the Petitioner that there were Ijmildings and structures upon the laud where the market or private shandy was being held. On the other hand ho impliedly admitted this fact. He says "that a compound wall or a building raised on this land docs not bring the case of the Petitioner u/s 18 of the Madras Act (26 of 1948) & confer a title on him for the site in question".
It is evident from the detailed rei ort submitted by the Manager to the Collector to which reference was made in the counter, that there are two sheds with zinc sheet roofing erected on pillars constructed with stone and lime. There is a pucca wall and pial. A compound wall also exists around the shandy site.
Now the question iu this Writ Petition is whether the Collector was entitled to pass the impugned orders lor taking over the shandy merely because, it was in Zaniindari land which once belonged to the Estate, or whether the pieso.neo of the buildings therein would confer any right on the Government to take it over under the provisions of the Act. It is therefore necessary In examine the relevant provisions. u/s 3 (b) the; entire Estate including all communal land formbooks etc., can be taken over and under el. (e) all rights and interests created in or over (lie slake before notified dale by the, principal or any other landholder, shall as against the Government cease and determine.
Clause (d) authorises the Government by removing any obstruction that may be, offered forth-with to take possession of the estate all accounts and registers and patois and muehlikas etc. There is this proviso to this clause. Thai proviso excepts certain lands which are not relevant for the purpose. Section 18 reads thus:
18 Every building situated within, the limits of an estate which, immediately before the notified date belonged to any land, holder thereof and was then being used by him as an oilier: in connection with its administration and for no other purpose shall vest in the free of all encumbrance''s with effect on and I mm date.
(2) Every building so situated which immediately before the notified dale belonged lo any such land-holder and the whole or principal part where, of was then in the occupation of any religious, educational or charitable institution, shall also vest in the Government, free of all encumbrances, with effect on and from the notified date; Provided that when such institution ceases to exist, the building shall revert to such land-holder, or if he is dead, to his heirs or legal representatives.
(3) x x x x x
(4) Every building other than a building referred to in Sub-sections (1), (2) and (3) shall with effect on and from the notified date, vest in the person who owned it immediately before that date, but the Government shall be entitled.
(1) in every case to lnvy the appropriate assessment thereon, and (2) in the case of a building which vests in a person other than a land-holder, also to the payments which such person was liable immediately before the notified date to make to any land-holder in respect thereof whether by way of rent or otherwise in so far as such payments may accrue due on or after the notified date.
(2) In this section building includes the sit on which it stands and any adjacent premises occupied as an appurtenance thereto.
A combined reading of the relevant provisions would show that the entire estate of the Zamindar vests in the Government, except those Wildings which are wood 1�y the land-holder and which are not used for the office or for charitable, religious or educational purposes. Buildings which are not: so used belonged to tire land-holder and do not vest in the Government. The landholder is entitled to such buildings subject to what is stated in Sub-section (4).
This appears to be clear from the provisions themselves. Tho learned advocate for the Government contends, firstly, that this is a private shandy on an estate laud and as such it would automatically vest in the Government u/s 3 (b) and that the structures stated to be in the land cannot be said to bo buildings and"that there is nothing in the petition to show that they existed before the notified date. In support of his contention he cites an, unreported judgment of a Bench of the Madras High Court in Writ Petri. No. 381 of 1951, D/--''8-9-1951 (A). That decision, however, is not of much help. In that case the private shandy was being held on the estate lands where there were no buildings and the land-holders were deriving considerable income there from. The land-holders claimed that these lands were their absolute properties and that they were entitled to ryotwari patta of the said lands u/s 12 of the Act.
In these circumstances it was held that since the lands were described as being used for holding private shandy they would not fall within the provisions of Section 12 and that the land-holders were not entitled a ryotwari patta, and also that they were not entitled to the income from tho shandy. The question in this case, as I have already stated, is somewhat different, namely, whether the Government would bo entitled to claim that the building together with tho land enclosed by a compound wall and which is not used for any purpose mentioned in Sub-sections (1), (2) and (3) of Section 18 would vest in it. This is not. a question where a shandy was being held in any estate land where then; are- no structures or buildings. The decision of the Madras Bench has, therefore, no application.
With respect to the second point, that these structures cannot be considered to be buildings within the meaning of Section 18, it is clear from the admission of tire Collector himself as well as the Manager that there is a compound wall and sheds with zinc sheet roofing erected on pillars constructed with stono and limo. There- is also a puce well and pial. These structures cannot be called temporary. They are buildings in the accepted sense of the term. They include the land with tin''s building.
If authority is needed I may refer to the case of R.V.K.M. Surya Rao Bahadur Varu, Rajah of Pithapuram Vs. The Board of Revenue (Settlement of Estates) Madras, where it was held that the provisions of Section 18 of the Act make it clear that the building includes the site as well as the premises occupied as appurtenance thereto. In that case the question which fell for determination was whether the building described in the schedule annexed to, the affidavit formed part of the Polavaram ''B'' Estate, East Godavary District.
The Board of Revenue had held that the said building constituted two separate buildings. One of them was being used as an office before Act 26 of 1948 came into force and the Other a small one being used by visiting officers and the other guests.
In these circumstances the Board had directed that the value of the main building which was used for the office was to be deducted from the compensation payable to the- Zamindar excluding the smaller building from the operation of iho provisions of Section 18 of the Act on the ground that it belonged to the land-holder. The land-holder moved for i: the quashing of that order.
It was held that the out-house was a separate building with a compound of its own and used lor a different purpose. In holding so, the question as to whether not only the buildings but: the land appurtenant to that building which were, examined were held to lay down the principle accepted and embodied in Section 18
In so far as the question whether the shandy is a building at all is concerned I have no doubt that it is a building, in that it has a superstructure which can be used for trade or commerce. or for market. The sheds have a root; I hey have a pial; and the building has facilities for selling and marketing produce.
This is a fact which is admitted by the Respondents. Whether it is a temporary shed or a permanent shed is not really relevant for the enquiry but even this question is determined by Hie Manager''s report which says that it is built of pucca stone and lime. What is a building has been considered by several English authorities which have, been referred to in the case of J. II. Irani v. Chidambaram Chettiar 1952 2 MLJ 221 : AIR 1053 Mad 650) (C) by a Bench of the Madras High Court. No doubt that the case arose under the Rent Control Act buy in considering this question Satyanarnyana Rao, J. at page 225 (of Mad LJ): (at page 054 of AIR) observed as follows:
The word ''building'' is used in several Acts, English and Indian, enacted for different objects, and the learned Counsel on both sides drew our attention to some of the decisions. Lord Esher, M. R., gives the definition of a building as an ''enclosure of a brick or stone work covered in by a roof. Having regard to the Indian conditions the enclosure need not necessarily be of brick or stone work. It may consist of even mud walls but it must, I think, be covered in by a roof. I think this definition accords with the ordinary conception of a building.
From the various authorities citeel therein it appears to me that any super-structure which is intended foi the use and occupation as a habitation or for purposes of trade, manufacture or commerce or some other structure constituting a fabric or edifice will be deemed to be a building. A mere wall or a fence or a gate enclosing lands certainly cannot come under that definition. From this point of view the market has not only a compound wall enclosing a site but it has structures which can be utilised for commercial purposes viz., market. Therefore it comes within, the definition of building u/s 18 (5) of the Estates Land Act.
In these circumstances a land holder would be entitled u/s 18 (4) to that property and ''the Government cannot have any claim thereto. The learned Advocate for the Government contends that it is now here stated in the petition that die building was in existence before the notified date. It is apparent that the Collector has not properly adverted to the provisions relating to the buildings u/s 18. He seems to have merely considered -that since there is a shandy on a Survey Number which belonged to the Estate that would also vest in the Government.
The Petitioner in his petition, as I have already pointed out, clearly stated that the shandy has been in existence from ancient times and when" the Municipality of Anakapalli was constituted a licence was granted to tire predecessors-in-title of the Petitioner to run it as a private market shandy and that the said private market was enclosed by a compound wall on all sides and for convenience of the stall-keepers buildings wers also constructed with corrugated .zinc sheets within the compound wall. Reading the whole paragraph 3 of '' the petition, it would indicate that the market and the stalls were in existence prior to the notified date. There is noil ling in the counter to controvert that fact. If the stalls were not in existence before the notified date that fact should have been denied. When the fact that there were buildings in existence was admitted, it was not difficult for the Collector to have further stated when those buildings came into existence.
The Petitioner has established that the order made by the Collector is certainly not one which ho is empowered to make under any of the provisions of die Estates Lands Act and having regard to .this that order will be quashed by the issue of a writ of certiorari, & consequently the petition is allowed with costs, Advocate''s fee Rs. 100/-.