State of Gujarat and Anr. v. Maharaj Shri Amarshinhji Himatsinhji

TULZAPURKAR, J. The main question raised in this appeal by special leave at the instance of State of Gujarat and the Collector of Sabar-kantha against the Gujarat High Court's judgment and order dated January 30131, 1975 allowing the writ petition of the respondent is. whether once the competent authority under s. 2 ( 4) (i) of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (Bombay Act No. XXXIX of 1954) declares that a particular Jagir is a proprie-tary one, a further inquiry under s. 37(2) of the Bombay Land Rev.e~ue Code (Bombay Act No. V of 1879) with a view to dete1nun~g whether the Jagirdar had any rights to mines or mineral products m his Jagir granted or recognised under any contract, grant or law for the time being in force or by custom or usage is competent ?

The facts giving rise to the said question are these : By Hajur Order No. 116 dated October 27, 1933, the respondent (Maharaj Shri Amar Singji Himatsingji) was granted Daljitgarh Jagir comprising of 10 villages mentioned in the said order in jivarak (for maintenance) by the then Ruler of Idar; by another Hajur Order No. 807 dated January 12, 1934, the respondent was given a further grant in jivarak of 3 villages mentioned in that order with effect from October 1, 1933; by yet another Hajur Order No. 964 dated November 21, 1947, 14 . villages (including Kapoda and Isarwada) were granted in jivarak to the respondent by the Ruler of Idar in substitution of the villages mentioned in the previous two orders. According to the respondent by these grants (parvanas) read together he was given full proprietary rights in the soil of the said villages, that is to say, it was a proprietary Jagir that was granted to him by the then Ruler. Admittedly, on the coming into force of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (hereinafter referred· to as "the Act") i.e. with effect from respondent's Daljitgarh Jagir stood abolished and all his rights in the Jagir villages, save as expressly provided by or under the Act, were extinguished and the respondent became entitled to,compensation under s. 11 of the Act. It appears ti1atfor the purpose of implementing the provisions of the Act the competent authority (Collector of District Sabarkantha) held an inquiry into the question whether the respondent's Jigir was proprietary (involving any right or interest in the soil) or non-proprietary (involving mere assignment of land revenue or rent due to Government) under s. 2(4)(i) of the Act and having regard to the documentary and other evidence led before it, the competent authority by its order dated September 8, 1959, held that the Daljitgarh Jagir of the respondent was a proprietary jagir. It further appears that pursuant to an order dated Novcmoer 24, 1959, passed by the Mamlatdar, Idar, an entry was made on June 18, 1963, in the relevant revenue records (village Form No. 6) of one of the villages Kapoda comprised in the Jagir to the effect that the respondent's right to take out gravel and stones was recognised but the right relating to excavation of mica had been reserved and retained by the Government; this entry was only certified on March 30, 1965. According to the respondent since the entries made in the revenue records in respect of his rights to mines and mineral products were not snfficient and proper and though the Mamlatdar's order dated November 24, 1959 was in respect of two villages, namely, Kapoda and Isarwada, the relevant entry in respect of greval and stones had been made only in regard to village Kapoda, he by his application dafed October 11, 1968, requested the Collector, Sabarkantha, to issue neces·sary orders to the Mamlatdar, Idar, to make appropriate entries regarding his rights in the minerals in village Isarwada. A similar application, containing similar request, was also made by the respondent to the Mamlatdar Taluka Idar on October 4, 1971. Thereupon a notice under s. 37(2) of the Bombay Land Re-venue Code· for the purpose of holding an inquiry into the rights of the respondent to mines and mineral products of the said villages claimed by the respondent was served upon him bnt the respondent raised a preliminary objection that such inquiry was mis-conceived and in-ccmpetent in view of the determination made nnder s. 2(4) (i) of the

Act and having regard to the provisions of s. 10 of the Act his rights to mines and mingal products were expressly saved; the Collector of Sabarkantha (appellant No. 2) over-ruled the preliminary objection and by order dated February 23, 1973, directed that the inquiry shall proceed and the respondent was directed to produce his evidence in support of his claim on a date that would be fixed and intimated to him.

Aggrieved by this order passed by the Collector on February 23, 1973, the respondent preferred a writ petition (Special Civil Appli-cation No. 1224 of 1973) under Art. 227 of the Constitution to the Gujarat High Court and writ of certiorari quashing the order dated February 23, 1973 and a direction restraining the Collector from fur-ther proceeding with the inquiry nnder s. 37 (2) of the Land Revenue Code were sought. These reliefs songht by the respondent were resisted by the State of Gujarat and the Collector (the appellants before us) principally on the ground that the inquiry under s. 37 (2) of the Land Revenue Code into the rights to mines and mineral products in the said villages claimed by the respondent was necessary and proper and could not be said to be concluded by the determination made under s. 2(4)(i) of the Act by the competent authority. The High Court negatived the contentions urgell by the appellants and took the v;ew that in the determination by the competant authority under s. 2(4)(i} of the Act that the respondent's Jagir was a proprietary one there was implicit clccision that the respondent was a grantee of the soil which included sub-soil entitling him to mines and mineral products and as sucb a further inquiry by the Collector under s. 37(2) of the Bombay Land Revenue Code was incompetent ahd without jurisdiction and, therefore, the Collector's order dated February 23, 1973 was liable to be quashed. Accordingly, the High Court set aside the Collector's order and further issued an injunction permanently restraining the State of Gujarat and the Collector from initiating any inquiry under s. 37 (2) in respect of the respondents rights to mines and mineral products in the said villages. The appellants seek to challenge the said judgment and order of th.e Gujarat High Court in this appeal.

Learned counsel for the appellants has contended that the High Court has adopted an erroneous view of the scope and ambit of the inquiry contemplated under s. 2(4) (i) of the Act by the competent authority in asmuch as under the said provision the competent authority had power merely to decide the question whether the respondents Jagir was a proprietary or a non-proprietary Jagir and had no power or jurisdiction to determine whether on the appointed date that is on August 1, 1954 when the Act came into force the respondcnt had subsisting rights to mines and minerals products in the Jagir villages so as to be saved under s. 10 of the Act. He urged that it would be for the Collector acting under s. 37 (2) of the Bombay Land Revenue Code to decide the 1atter question in an inquiry initiated· under that provision. According to learned counsel the mere circumstance that the respondent's Jagir was found under s. 2(4)(i) to be proprietary was not tentamount to the establishment by the respondent of his rights to mines and mineral products in the villages of his Jagir for

GUJARAT STATE v. HIMATSINHJI (Tulzaparkar, J.) 6 79 which tbere must be an actual grant or contract or law or custom or usage recognising such rights and this could only be determined by tbe Collector by holding an inquiry under s. 37 (2) of the Bombay Land Reveune Code, and, therefore the High Court was clearly m error in coming to the conclusion that the inquiry initiated by the second appellant under s. 37(2) of the Bombay Land Revenue Cod.o was incompetent or without jurisdiction. On the other hand, learned counsel for the rnspondent contended that a determination under s. 2(4) (i) of the Act that a particular Jagir \Vas a proprietary one necessarily implied that the grant was of soil and the grantee was en-titled to mines and mineral products which were expressly saved under s. 10 of the Act and in any event on the facts obtaining in the instant case the competent authority acting under s. 2( 4 )(i) of the Act, whik 111·, coming to the conclusion that the respO!Jdent's Jagir was proprietary

one, had relied upon the unqualilied nature of the grant and also consi-dered the evidence led before it touching upon the several rights-such as right to sell fire-wood, babul trees, saltrees, timru trees, right to sell agriculture land and house sites; right to sell stones and gravel, right to sell or allow use of land for manufacture of bricks-enjoyed by the respondent since the time the grant had been made in his favour by the then Ruler and it was ou the basis of such evidence that the competent authority had come to the conclusion that the respondent's J agir was a proprietary one. He urged that having regard to such determination that was made by the competent authority under s. 2 ( 4 )(i) of the Act it would be clear that a further inquiry into the respondent's rights to mines and mineral products, particularly gravel and srones under s. 37(2) of the Code would be misconceived and incompetent. He pointed out that presumably pursuant to this deter-mination, the Mamlatdar, Idar, had passed an order on November 24, 1959, that the respondent's right to stones and gravel in ihe two villages of Kapoda and Isarwada, though not to mica, had been recog-nised by the Government aud accordingly the necessary entry par-taining to respondent's right to stones and gravel had been made in the relevant revenue records at least in the case of village Kapoda and had been duly certified. He further urged that the two letters addressed by the respondent--0ne to the fCollector on October 11, 1968 and the other to the Mamlatdar on October 4, 1971, merely contained a request to make appropriate entries in the Revenue Records based on the Mamlatdar's order dated November 24, 1959 and, therefore, the Collector could not pronounce upon those letters as containing a claim put forward by the respondent for the first tirne to mines and mineral products in the said Jagi,r villages to initiate an inquiry under s. 37 (2) of the Bombay Land Revenue Code. According to the learned counsel for the respondent unless a claim to property or rights over property was made either by the State against any pocson or by any person against the State, there could be no occasion for the Collector to held an inquiry contemplated by s. 37(2) of the Code. He, therefore, urged that the High Court was right in quashing the Collector's order dated February 23, 1973.

Having regard to the rival contentions of the parties summarised above, it will appear clear that really two questions-one general and the other specific in the light of the facts obtaining in the instant case, arise for our determination in this appeal. The general question is whether once the competent authority under s. 2(4) (i) of :the Act declares that the. particular J agir is a proprietary one a further inquiry under s. 37(2) of the Land Revenue Code with a view to determin-ing whether die J agirdar had rights to mines and mineral products in such Jagir subsisting on the appointed date is competent ? The other 11 specific question is whether in the facts of th" case and having regard to the nature of evidence considered and the specific finding made by the competent authority while determing the question under s. 2( 4) (i), the further inquiry initiated by the Collector under s. 37 (2) was mis· conceived and nncalled for ?

Dealing with the first question which is of a general character, it Is clear that the answer thereto depends upon the true scope and ambit of the inquiry under s. 2(4)(i) of the Act and to determine the same it will be necessary to consider the scheme and object of the Act and in particular the purpose of the said inquiry. The enactment as its preamble will show, has been put on the Statute Book with a view to abolishing Jagirs of various kinds in the merged territories and merged areas in the State of Bombay and to provide for matters consequential and inci<lental thereto. Section 2 contains the definitions of various expressions some of which are material. Section 2 (vi) defines the expression "jagir" as meaning the grant by or recognition as a grant by, the ruling authority for the time being before the merger of a village, whe1her such grant i~· of the soil or an assignment of land revenue or both; there is also an inclusive part of definition with which we are not concerned. Section 2 (vii) defines "jagirdar" as meaning a holder of a jagir village and includes his co-sharer. Section 2(xv) defines "non-proprietary Jagir" as meaning a jagir which consists of a right in the jagirdar to appropriate as incident of the jagir, land revenue or rent due to Government from persons holding land in a jagir village, but which does not consist of any right or interest in the soil. Section 2(xviii) defines "proprietary jagir" as meaning a jagir in respect of which the jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil. Section 2(4), though it forms part of a definition section, contain~ ~a snbstantive provision which is material for our purposes and it runs thus :

"2 ( 4) If any question arises,- (i) whether a jagir is proprietary or non-proprietary, (ii) whether any land is Gharked or Jiwai, or (iii) whether any person is a permanent holder, the State Government shall decide the question and such decision shall be final :

Provided that the State Government may authorise any officer to decide questions arising under any of the sub-c\auses (i), (ii) and (iii) and subject to an appeal to the State Government, his decision shall be final."

GUJARAT STATE v. HIMATSINHJI (Tulzapurkar, !.) 681 Section 3, which contains the main provision dealing with abolition of jagirs, provides that notwithstanding anything contained in any usage, grant, sanad, order, agreement or any law for the time being in force, on and frcm the appointed date (which under s. 2(l)(i) is a date on which the Act comes into force, which is August 1, 1954), all jagirs shall be deemed to have been abolished J!nd save as expressly ot provid-ed by or under the provisions of this Act, the right a jagirdar to recover rent or assessment of land or to levy or recover any kind of tax, cess, fee, charge or any hak and the right of reversion or laps~. if I_ any, v1•sted in a jagirdar, and all other rights of a jagirdar or of any

person legally subsisting on the said date, in respect of a jagir village as incidents of jagir 'shall be deemed to have been extinguished. As a cousequence of the abolition of jagirs under s. 3 all Jagir villages became unalienated villages and, therefore, under s. 4 it has been provided that all Jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the Ccide and the Rules made there-under and the provisions of the Code and the Rules relating to unalien-atcd land shall apply to such villages. Sections 5 and 6 make pro-vision as to what persons, upon abolition .of jagirs and con version of jagir land into unalienated land would be occupants, who shall be primarily liable to the State Government for payment of land revenue. Section 8 declares that all public roads, lands, paths, bridges, !itches, IJ dikes, and fences, on or besides the same, the bed of the sea ~nd of hqr hours, creeks below high water mark, and of rivers, streams, n&las, lakes, wells and tanks, and all canals and water courses etc, situated in jagir village shall vest in the State Government and shall be deemed to be the property of the State Government and all rights held by such jagirdars in such property shall ·be deemed to have been extinguished. Section 10 contains an express saving provision relating to rights to, mines and mineral products and it provides that "nothing in this Act or any other law for the time being in farce, shall be deemed to affect the rights of any jagirdar subsisti!lg o°' the appointed date to mines or mineral products in a jagir village granted or recognised 110..Ier any contract, ~rant or law for the time being in force or by custom or u'"gc." Section 11 (1) provides for the quantum of compensation payable to a non-proprietary jagirdar on account of abolition of his .iagir aud extinguishment of his right~; while s. 11 (2) makes similar provision for quantum of compensation to a proprietary jagirdar on account of the abolition of his jagir and extinguishment of his rights. Sections 13 and 14 provide for methods of awarding compensations to jagirdars by th~ Collector and against the awards of the Collector under ciiher of these: provisions a appeal has been provided at the instance of the aggrieved party to the Revenue Tribunal under s. l 6. Section 17 provides the procedure for disposal of appeals by the Revenue Tribu-nal while s. 18 prescribes a period of !imitation for preferring such appeals and s. 20 gives finality to the award made by the Collec:or subject to appeal to the Revenue Tribunal. The rest of the sections are of formal character and not material for our purposes.

The aforesaid snrvey of the material provisions of the Act will bring out two or three aspects very clearly. In the first place the pre-amble and s. 3 of the Act clearly show that the object of the enactment is to abolish J agirs of all kinds in the merged territories and rueroed areas in the State of Bombay and to convert all Jagir villages i7ito unalicnated villages liable to the payment of land revenue in accord-ance with the provisions of the Bombay Land Revenue Code. Secondly, compensation is made payable under s. 11 of the Act to Jagirdars whose Jagirs and other incidental rights have been extinguished but it will be pertinent to note that no provision has been made for payment of r.om-pensation in respect of rights to mines and 111ineral products in a Jagir village, obviously because if by the grant in question the Jagirdar has not been given any rights to mines and 111ineral products no com-pensation would be p_ayable aud if there be a grant of mines and mineral products the same have been saved to the Jagirdar under s. 10 of the Act. Thirdly, the quantum of compensation payable for abolition of Jagir and extinguishment of his other rights depends upon what kind of Jagir has been abolished, whether it is proprietary or non-proprietary; in other words it is clear that the inquiry into the nature of the Jagir' under s. 2 ( 4) (i) is for the purpose of determining the quantum of compensation payable to a Jagirdar inasmuch as !n the case of a non-proprietary Jagir the J agirdar is entitled to compensation at the rate of three times the amount of land revenue received by or due 'D to him as an incident of Jagir during the five years immediately before

the appointed date und<;i:: s. 11 ( 1), while in the case of a proprietary Jagir in respect of land held by a permanent holder the Jagirdar is entitled to compensation equivalent to three multiples of the assess-ment fixed for such land; s. 11 (3) provides for compensation and computation thereof to a Jagirdar having any right or interest in any property referred to in s. 8. In such an inquiry ordinarily no determi-nation of any rights of the Jagirdar to mines or mineral products in a Jagir village will be undertaken for no compensation is payable in r~pect of any rights tQ mines and mineral products in a Jagir village. There is yet one more aspect emerging from the definition of the ex-pression "proprietary jagir" which leads to the same inference. "Proprietary jagir" has been defined in s. 2(xviii) to mean a 1ag1r m respect of which the Jagirdar under the terms of a grant or agreement 'F or by custom or usage is entitled to any rights or interest in the soil; in

other words, the competent authority holding an inquiry under s. 2 ( 4) (i) can come to the conclusion that a particular Jagir is pro-prietary if it finds that the Jagirdar under the terms of a grant or agreement is entitled to some rights or interest in the soil other than mines or mineral products. These aspects bring out true 5cope and ambit of the inquiry under sec. 2 ( 4) (i) and clearly show that the determination of the question whether a Jagir is proprietary or n0t1-proprietary does not necessarily involve the determination of the question whether the Jagirdar had _any rights t_o mines and mineral products C'n the appointed date. It is true that pnima fa~ie the owner of the surface of the land would be entitled to everythmg beneath the land '.Ind ordinarily mines and mineral products would pass with the right to the surface but this would be so in the absence of any reserva!ions made in the grant; if there be reservations or qualifications in regard to mines or mineral products, in the grant, then these would not pass. In this case also notwithstanding the alleged unqualified grant in favour of the respondent the Maqtladar's order dated November 24, 1959, on which the respondent strongly relies, has held that the rights to eY.cavate mica were retained by the State and not granted to the res-pondent, though the material or basis on which it is so held is not a vailabk on the record. It is, therefore, not possible to accept the contention of learned counsel for the respondents that a determination under s. 2( 4 )(i) of the Act to the effect thl't a particular Jagir is a proprietary one necessarily implies that the grantee is entitled lo !!lines and mineral products in the villages compri~d in the grant, especialiy when having regard to the definition given in section 2(xviii) a Jagir could be proprietary without a right to mines and mineral products. In other words, our answer to the general question raised above would be that even after the competent authority has declared a particular Jagir to be a proprietary one under ·s. 2(4) (i) of the Act, a further inquiry under s. 3 7 (2) of the Bombay Land Revenue Code into the question whether a Jagirdar had any subsisting rights to mines and mineral product§ in the Jagir villages on the appointed date would be competent unless the grant of a right to mines and mineral products or the actual enjoyment thereof in keeping with the grant happens to be the basis of the. determination under s. 2 ( 4) ( 1) of the Act.

Turning to the other specific question raised by counsel for the respondent before ris Y'e are clearly of the view that in the facts and circumstances of ibe. case the inquiry initiated by the Collector under s. 37 ( 4) of the Bombay Land Revenue Code will have to be regarded as incompetent, niisconceived and uncalled for. The main valid objection to the said inquiry is that the condition precedent the exis-tence of which can lead to the initiation of such inquiry is absent here. Section 37 (1) of the Code contains the well-known declaratory pro-vision whereunder all public roads, lanes and paths, the bridges, ditches, dikes, beds of the sea, harbours and creeks below high-water-mark, and af rivers, streams, nallas, lakes and tanks etc; and all lands wherever situated, which are not the property of i]dividuals, are declared to be, with all rights in or over the same, or appertaining thereto, the property of the Crown; then follows sub-s. (2) which is material and .F it runs thus :

"37 (2) Whern any property or any right in or over any property is claimed by or on behalf of the Crown or by any person as against the Crown, it shall be lawful for the Collec-tor or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim."

Under sub-s. (3), the decision of the Collector under sub-s. (2) is rendered final subject to the result of a suit· that is required to be instituted in a Civil Court within one year of the said decision. On a reading of sub-s. (2), which we have quoted above, it will appear clear that laying a claim to a property or any right in or over the property either by the State against an individual or by the individual against the State is a condition precedent to the Collector's power to hold an inquiry contemplated by that provision. In other words,. before. the Collector can initiate an inquiry under that provision, either the State or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the Collector whose decision, subject to a civil suit filed within one year, is rendered final. The question in the instant case is whether ·the respondent by making the two applications, one dated October 11, 1968 to the Collector of Sabarkantha and the other dated October 4, 1971, to the Mamlatdar,. Taluka Idar, could be said to have put forward or laid a claim to a right to excavate gravel and stone-a partisular mineral product-so as to afford an occai;io~ fer the Collector to initiate the inquiry. The material on record clearly_ shows that the respondent could not be said to have done so. Adn1ittedly, by his previous order dated November 24, 1959, the Mamlatdar of Taluka Idar, had declared that the respondent had been. granted all the rights, particularly the right to quarry and remove gravel and rtones, in Isarwada and Kapoda villages in !he year 194 7 by the Iclax Staje and that thereafter in the years 1952 and 1953 the Jagir-dar had taken the produce of stone and that, therefore, the Govern-ment could not stop him from "taking out grav.§1 and stones" ])ut that the rights to excavating mica had been retained by the State; further, pursuant to this order the appropriate entry had been made in the relevant village records (Form No. 6) of viJlage Kapcda on June 18, 1963, recognising the respondent's right to take out gravel and stones, which entry was verified and confirmed on March 30, 1965, it was in this situation that the respondent made the aforesaid two applications, one to the Collector, Sabarkantha and the other to the Mamladar Taluka Idar, whereby relying upon the previous order of the Mamlatdar elated November 24, 1959, he requested that appropriate entries pertaining to his right to gravel and stones should be si!Jlilarly made in respect of viJlage Isarwada. It is thus clear that by these two appli-cations the respondent had not put forward any claim as such to ex-cavating gravel and stones for the first time, but, had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the State Government previously. That being the position, there was no occasion for the Collector to initiate the inquiry under s. 37(2) of the Code-in fact, he had no jurisdiction to do so, the condition precedent not being satisfied.

Moreover, having regard to the statement made by counsel for the respondept before us it would be unfair to subject the respondent to the further inquiry under s. 37(2) of the Code. We may state that Counsel foe the respondent categorically stated before the Court that his client was confining his right to excavating only one type of mineral product, nam_ely, gravel and stone·s, and that too from only two villages, namely, Kapoda and Isarwada comprised in his Jagir, in regard to which the Mamlatdar's order dated November 24, 1959, was quite clear and, therefore, he urged that the further inquiry under s. 37 (2) of the Code into that very right was misrnnceived and uncalled for. We find considerable force in this contention. Besides, while deter-mining the proprietary nature of the grant under s. 2 ( 4)(1) of. the Act the competent authority had, on evidence led before it, alluded

GUJAl!.AT STATE iv-l:!IMATSINHJI {Hulzapurkar, !.) 685 among others to the respondent's right to excavate and sell gravel and stones and enjoyment thereof by the respondent. In these circmu-stances it would be fair and proper that tlie respoudent is not subjected .to a further inquiry under s. 3 7 (2) of the Code so far as his right to excavating gravel and stones from the two villages of Kapoda and lsarwada is concerned. If and when he prefers a claim to this parti-cular mineral product from other villages comprised in his grant or to the other mines or mineral products i!) all the villages including Isarwada an_d Kapoda an inquiry into such claim under s. 37 (2) could be held, but even the decision at such inquiry would be subject to adjudication by a Civil Court in appropriate proceedings, for the final pronouncement on such rights must, as is clear from the scheme of the Bombay Land Revenue Code, always rest with the Civil Co·1rt.

In this view of the matter, we feel that the High Court was right ,~_.,.,.in its final conclusion whereby it has quashed the inquiry initiated by

the Collecor under s. 37(2) of the Code and issued the necessary in-junction prayed for by the respondent.

The app_eal is, therefore, dismissed with costs.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1898 of 1976. Appeal by special leave from the Judgment and Order dated 31-1-1976 of the Gujarat High Court in S.C.A. No. 1224 of 1973.

S. T. Desai, R. M. Mehta and. M. N. Shroff for the Appellant. S. L. Singhvi, N. D. Bhatt and K. J. John for the Respondent.