Case: State Of Gujarat And Anr Vs. Maharaj Shri Amarshinhji Himatsinhji

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 t o 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 respondents Daljitgarh Jagir stood abolished and al l 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 that for the purpose of implementing the provisions of t he Act the competent authority (Collector of District Sabarkantha) held an inquiry into the question whether the respondents 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 November 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 respondents 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. Ac cording to the respondent since the entries made in the revenue records in respect of his rights to mines and mineral products were not sufficient and proper and though the Mamlatdars 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 dated October 11, 1968, requested the Collector, Sabarkantha, to issue necessary 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, 19 71. Thereupon a notice under S. 37(2) of the Bombay Land Revenue 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 wag served upon him but t he respondent raised a preliminary objection that such inquiry wag misconceived and incompetent in view of the determination made under s. 2 (4) (i) of the Act and having regard to the provisions of S. 10 of the Act his rights, to mines and mineral products were expressly saved; the Collector of Sabarkantha (appellant No. 2) overruled 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 Application 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 further proceeding with the inquiry under S. 37(2) of the Land Revenue Code were sought. These reliefs sought 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 mine s 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) (1) of the Act by the competent authority. The High Court negatived the contentions urged by the appellants and took the view that in the determination by the competent authority under s. 2 (4) (i) of the Act that the respondents Jagir was a proprietary one there was implicit decision that the respondent was a grantee of the soil which included sub-soil entitling him to mines and mineral products and as such a further inquiry by the Collector under S. 37(2) of the Bombay Land Revenue Code was incompetent and without jurisdiction and, therefore, the Collectors order dated February 23, 1973 was liable to be quashed. Accordingly, the High Court set aside the Collectors 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 the Gujarat High Court in this

Court's reasoning:
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 incidental 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, whether such grant is 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 nonproprietary 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, contains a substantive provision which is material for our purposes and it runs) If any question arises, -(i) whether a jagir is proprietary or non- proprietary,(ii) whether any land is Ghatked or Jiwai, orany 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 clauses(i), (ii) and (iii) and subject to an appeal to the State Government, his decision shall be final?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 from the appointed date (which under S. 2 (1) (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 and save as expressly provided by or under the provisions of this Act, the right of 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 lapse if any, vested 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 consequence of the, abolition of jagirs under s. 3 all Jagir villages became unalienated villages and, therefore, under s. 4 it has been provided t hat all Jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the Code and the Rules made thereunder and the provisions of the Code and the Rules relating to unalienated land shall apply to such villages. Sections 5 and 6 make provision as to what persons, upon abolition of jagirs and conversion 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, titches, dikes, and fences, on or besides the same, the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nalaps 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 force, shall be deemed to affect the rights of any jagirdar subsisting on the appointed date to mines or mineral products in a jagir village granted or recognised under any contract., grant or law for the time being in force or by custom or usage. Section 11 ( 1 ) provides for the quantum of compensation payable to a non- proprietary jagirdar on account of abolition of his jagir and extinguishment of his rights, 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 the Collector and against the awards of the Collector under either of these provisions a appeal has been provided at the instance of the aggrieved party to the Revenue Tribunal under s.16. Section 17 provides the procedure for disposal of appeals by the Revenue Tribunal while s. 18 prescribes a period of limitation for preferring such appeals and s. 20 gives finality to the award made by the Collector subject to appeal to the Revenue Tribunal. The rest of the sections are (if formal character and not material for our purposes.The aforesaid survey of the material provisions of the Act will bring out two or three aspects very clearly. In the first place the, preamble and s. 3 of the Act clearly show that the object of the enactment is to abolish Jagirs of all kinds in the merged territories and merged areas in the State of Bombay and to convert all Jagir villages into unalienated villages liable to the payment of land revenue in accordance 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 compensation in respect of rights to mines and mineral products in a Jagir village, obviously because if by the grant in question the Jagirdar has not been given any rights to mines and mineral products no compensation would be payable and 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 in the case of. a non-proprietary Jagir the Jagirdar is entitled to compensation at the rate of three times the amount of land revenue received by or due to him as an incident of Jagir during the five years immediately before the appointed date under 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 assessment 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 determination of any rights of the Jagirdar to mines or mineral products in a Jagir village will be undertaken for no compensation is payable in respect of any rights to mines and mineral products in a Jagir village. There is yet one more aspect emerging from the definition of the expression proprietary jagir which leads to the same inference. Proprietary jagir has been defined in S. 2(xviii) to mean 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; in other words, the competent authority holding an inquiry wide r s. 2(4) (i) can come to the conclusion that a particular Jagir is proprietary 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 scope 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 nonproprietary does not necessarily involve the determination of the question whether the Jagirdar had any rights to mines and mineral products on the appointed date. it is true that prima facie the owner of the surface of the land would be entitled to everything beneath the land and ordinarily mines and mineral products would pass with the right to the surface but this would be so in the absence of any reservations 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 Mamladars order dated November 24, 1959, on which the respondent strongly relies, has held that the rights to excavate mica were retained by the State and not granted to the respondent, though the material or basis on which it is so held is not available 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 that a particular Jagir is a proprietary one necessarily implies that the grantee is entitled to mines and mineral products in the villages comprised in the grant, especially , 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. 37(2) of the Bombay Land Revenue Code into the question whether a Jagirdar had any subsisting rights to mines and mineral products in the Jagir village s 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 us we are clearly of the view that in the facts and circumstances of the case the inquiry initiated by the Collector under s. 37(4) of the Bombay Land Revenue Code w ill have to be regarded as incompetent, misconceived and uncalled for. The main valid objection to the said inquiry is that the condition precedent the existence of which can lead to the initiation of such inquiry is absent here. Section 37( 1) of the Code contains the well-known declaratory provision where under all public roads, lanes and paths, the bridges, ditches, dikes, beds of the sea, harbours and creeks below high-water-mark, and of rivers, streams, nallas, lakes and tanks etc. and all lands wherever situated, which are not the property of individuals, 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 it runs thus:37(2) Where 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 Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claimUnder 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 Collectors 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 particular mineral product-so as to afford an occasion for the Collector to initiate the inquiry. The material on record clearly shows that the respondent could not be said to have done so. Admittedly, by his previous order dated November 24, 1959, the Mamlatdar of Talukadar, had declared that the respondent had been granted all the rights, particularly the right to quarry and remove gravel and Stones, in Isarwada and Kapoda villages in the year 1947 by the Idar Stale and that thereafter in the years 1952 and 1953 the Jagirdar had taken the produce of stone and that, therefore, t he Government could not stop him from taking out gravel and stones but 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 village Kapoda on June 18, 1963, recognising the respondents 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 dated November 24, 1959, he requested that appropriate entries pertaining to his right to gravel and stones should be similarly made in respect of village Isarwada. It is thus clear that by these two applications the respondent had not put forward any claim as such to excavating 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 respondent 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 for- the respondent categorically stated before the Court that his client was confining his right to excavating only one type of mineral product, namely, gravel and stones, and that too from only two villages, namely, Kapoda and Isarwada comprised in his Jagir, in regard to which the Mamlatdars 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 misconceived and uncalled for. We find considerable force in this contention. Besides, while determining the proprietary nature of the grant under s. 2(4)(1) of the Act the competent authority had, on evidence led be fore it, alluded among others to the respondents right to excavate and sell gravel and stones and enjoyment thereof by the respondent. In these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under s. 37(2) of the Code so far as his right to excavating gravel and stones from the two villages of Kapoda and Isarwada is concerned. If and when he prefers a claim to this particular mineral productfrom other villages comprised in his grant or to the other mines or mineral products in all the villages including Isarwada and Kapodaan 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 Court.