# STATE OF GUJARAT AND ANR v. MAHARAJ SHRI AMARSHINHJI HIMATSINHJI

- **Citation:** [1978] 3 S.C.R. 675
- **Court:** Supreme Court of India
- **Decided:** 1978-04-14
- **Case number:** Civil Appeal No. 1898 of 1976
- **Bench:** V. R. Krishna Iyer, Jaswant Singh, v. D. TULZAPUKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-and-anr-v-maharaj-shri-amarshinhji-himatsinhji-7415
- **Pages:** 11

## Headnote

B
Bon1bav Mergul Territories and Areas (Jagirs Abolition) Act
1953-Sec.
2(4)(1)__:2(vi)(vii)(xv)(xviii), 10, 16-Bombay Land Revenue Code.Sec. 37(2)
-What is the ef]ect of determination by Mamlatdar about a Jagir
nuneProprietary or 11011-Proprietary-Under what circun1stances can the Collector
exercise power conferred by Sec. 37(2).
lVlahantJ Shn Ama1s1nhJi H1mats1nhji was granted certain jagirs.
According to the respondent by several grants he was given full proprietary righ.ts .in
the soil of the villages n1entioned in the grant, i.e. it was a propnetary
1ag.1r.
On the coming into force of the Bombay ~1erged Territories and Areas (Jag1rs
Abolition) Act 1953 \vith effect from 1st August, 1954 Daljitgarh jag~r 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 section 11 of the Act. For the purpose of 1mplemenhng
the provisions of that Act the
competent authority
(Collector of
District
Sabarkantha) held an enquiry into the question \Vhether the respondent's. jagir
was proprietary (involving any right or interest in the soil) or non-propnetary
(involving mere assignn1ent of land revenue or rent due to Government) under
Section 2l4)(l) of the Act and having regard to the docun1entary
and other
evidence laid before it, the competent authority held that the l)a]jitgarh jagir
of the respondent was a proprietary jagir. The necessary entry \V<tS made
in
the revenue record to the effect that the respondent's right to take out gravel
and stones was recognized but the right relating to exc;r:ation o: mica had
been reserved and retained by rhe Gov~rnment.
The respondent 111a<le an application <lnd requested the Collector to
issue
necessary orders to the Mamlatdar to make appropriate entries regarding
his
rights in the minerals in respect of certain villages.
Thereupon a notice under
Sec. 37(2) of the Bombay L1nd Revenue Code for the purpose of holding an
enquiry into the rights of the respondent to mines and mineral products of
the said villages claimed by the respondent \Vas served upcn him. The respondent
raised a preliminary objection that such enquiry was misconceived and incompetent in vie\V of the determination made under Sec. 2(4)(i) of the Act and
having regard to the provision of Section 10 of the Act his rights
to mines
and mineral products were expressly saved.
The Collector
of
Sabarkantha
over-ruled the prelin1inary objection and directed that the enquiry should proceed.
The respondent filed a writ petition in the· High Court.
The High Court
by a writ of certiorari quashed the order of the Collector and issued a direction to the Collector restraining him from further proceeding with the enquiry
under Sec. 37(2) of the Land Revenue Code.
The High Court took the view
that in determination by the competent authority under Sec. 2( 4) (i) of the Act
that respondenfs jagir was a proprietary one there was an 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 further enquiry by the Collector under
Sec. 37(2) of the Bombay Land Revenue Code was incompetent and without
jurisdiction. The State of Gujarat in an appeal by Special Leave contended (i)
The High Court adopted an erroneous view of the scope and
ambit of
the
enquiry contemplated under sec. 2(4)(i) of the Act by the competent authority
inasmuch as under the said Act the competent authority had power merely to
decide the question whether the respondent's jagir was a 'proprietary or a nonproprietary jagir and had no power or jurisdiction to determine whether on lhe
appointed date i.e. on 1st August, 1954 when the Act came into force the respondent had subsisting rights to mines and mineral products in the jagir villages
10 as to be saved under sec. 10 (ii) it was for the Collector to hold an inquiry
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SUPREME COURT REPORTS
(1978] 3 s.c.R.
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675
STATE OF GUJARAT AND ANR.
A
v.
MAHARAJ SHRI AMARSHINHJI HIMATSINHJI
April 14, 1978
[V. R. KRISHNA IYER, JASWANT SINGH AND v. D. TULZAPUKAR JJ.]
B
Bon1bav Mergul Territories and Areas (Jagirs Abolition) Act
1953-Sec.
2(4)(1)__:2(vi)(vii)(xv)(xviii), 10, 16-Bombay Land Revenue Code.Sec. 37(2)
-What is the ef]ect of determination by Mamlatdar about a Jagir
nuneProprietary or 11011-Proprietary-Under what circun1stances can the Collector
exercise power conferred by Sec. 37(2).
lVlahantJ Shn Ama1s1nhJi H1mats1nhji was granted certain jagirs.
According to the respondent by several grants he was given full proprietary righ.ts .in
the soil of the villages n1entioned in the grant, i.e. it was a propnetary
1ag.1r.
On the coming into force of the Bombay ~1erged Territories and Areas (Jag1rs
Abolition) Act 1953 \vith effect from 1st August, 1954 Daljitgarh jag~r 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 section 11 of the Act. For the purpose of 1mplemenhng
the provisions of that Act the
competent authority
(Collector of
District
Sabarkantha) held an enquiry into the question \Vhether the respondent's. jagir
was proprietary (involving any right or interest in the soil) or non-propnetary
(involving mere assignn1ent of land revenue or rent due to Government) under
Section 2l4)(l) of the Act and having regard to the docun1entary
and other
evidence laid before it, the competent authority held that the l)a]jitgarh jagir
of the respondent was a proprietary jagir. The necessary entry \V<tS made
in
the revenue record to the effect that the respondent's right to take out gravel
and stones was recognized but the right relating to exc;r:ation o: mica had
been reserved and retained by rhe Gov~rnment.
The respondent 111a<le an application <lnd requested the Collector to
issue
necessary orders to the Mamlatdar to make appropriate entries regarding
his
rights in the minerals in respect of certain villages.
Thereupon a notice under
Sec. 37(2) of the Bombay L1nd Revenue Code for the purpose of holding an
enquiry into the rights of the respondent to mines and mineral products of
the said villages claimed by the respondent \Vas served upcn him. The respondent
raised a preliminary objection that such enquiry was misconceived and incompetent in vie\V of the determination made under Sec. 2(4)(i) of the Act and
having regard to the provision of Section 10 of the Act his rights
to mines
and mineral products were expressly saved.
The Collector
of
Sabarkantha
over-ruled the prelin1inary objection and directed that the enquiry should proceed.
The respondent filed a writ petition in the· High Court.
The High Court
by a writ of certiorari quashed the order of the Collector and issued a direction to the Collector restraining him from further proceeding with the enquiry
under Sec. 37(2) of the Land Revenue Code.
The High Court took the view
that in determination by the competent authority under Sec. 2( 4) (i) of the Act
that respondenfs jagir was a proprietary one there was an 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 further enquiry by the Collector under
Sec. 37(2) of the Bombay Land Revenue Code was incompetent and without
jurisdiction. The State of Gujarat in an appeal by Special Leave contended (i)
The High Court adopted an erroneous view of the scope and
ambit of
the
enquiry contemplated under sec. 2(4)(i) of the Act by the competent authority
inasmuch as under the said Act the competent authority had power merely to
decide the question whether the respondent's jagir was a 'proprietary or a nonproprietary jagir and had no power or jurisdiction to determine whether on lhe
appointed date i.e. on 1st August, 1954 when the Act came into force the respondent had subsisting rights to mines and mineral products in the jagir villages
10 as to be saved under sec. 10 (ii) it was for the Collector to hold an inquiry
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SUPREME COURT REPORTS
(1978] 3 s.c.R.
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under Sec. 37(2) of the Bombay Land Revenue Code and to recognise the right
of the respondent. On the other hand the counsel for the respondent contended that a determination under s. 2 ( 4) (i} of the Act that a particular jagir was
a proprietary one necessarily implied that the grant was of soil and the
grantee was entitled to mines and mineral products.
It was ~lso contended that
unless a claim to property or rights over property was made by the State against
any person or by any person against the State, there could be no occasion for
the Collector to hold an enquiry contemplated by s. 37(2) of the Act.
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HELD: (1) I-laving regard to the object and scheme of the Act as disclosed
by the Preamble and material provisions and the definition of 'Proprietary Jag~r·
in s. 2(xviii) it is clear that an enquiry 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 and the determination of the question \Vhether a jagir is proprietary or non-proprietary, does ,not necessarily involve the determination of
question whether the jagirdar had any rights to mines and mineral products on
the appointed date. Even if the competent authority has declared a particular
jagir to be a proprietary one under s. 2( 4) (i) of the Act, a further enquiry
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
villages on the appointed date would be competent unless the grant of a right
to mines and minerals products or the actual enjoyment thereof
in
keeping
with the grant happens to be the basis of the determination under s. 2(4)(i)
of the Act. [682 C. F. G, 683 B-D]
(2) Ho\vever, the enquiry initiated by the Collector under s. 37(2) of the
Bombay Land Revenue Code in this case will have to be regarded as incompetent, misconceived and uncalled for because the condition rreccdeilt
which
can lead to the initiation of such enquiry is absent.
It i5 clear from a reading
of s. 37(2) that laying a claim to a property or any right 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 nn enquiry contemplated by that provision.
The respondent by making the rtpplications to the
IVfamlatdar, in the present case, could not be said to ha\c put for\vard or laid
a claim so as to afford an occasion for the Collector to initiate the inquiry.
r683 D, G, H. 684 A·B]
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.
The Judgment of the Court was delivered by
TULZAPURKAR, J. The main question raised in this appeal by special
leave at the instance of State of Gujarat and the Collector of Sabarkantha 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 proprietary 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 ?
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GUJARAT STATE v. HIMATSJNHJI (Tulzapurkar, J.)
677
The facts giving rise to the said question are these : By Hajur
A
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 . B
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
C
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
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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
E
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
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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,
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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 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
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by the respondent was served upon him bnt the respondent raised a
preliminary objection that such inquiry was mis-conceived and inccmpetent in view of the determination made nnder s. 2(4) (i) of the
678
SUPREME COURT REPORTS
[1978] 3 S.C.R.
A 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.
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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 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
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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 entitled 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
coming to the conclusion that the respO!Jdent's Jagir was proprietary
one, had relied upon the unqualilied nature of the grant and also considered the evidence led before it touching upon the several rightssuch 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 determination, 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 recognised by the Government aud accordingly the necessary entry partaining 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
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SUPREME COURT REPORTS
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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 determining whether die J agirdar had rights to mines and mineral products in
such Jagir subsisting on the appointed date is competent ? The other
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 "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, 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 subc\auses (i), (ii) and (iii) and subject to an appeal to the
State Government, his decision shall be final."
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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 provided by or under the provisions of this Act, the right ot 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
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 thereunder and the provisions of the Code and the Rules relating to unalienatcd land shall apply to such villages.
Sections 5 and 6 make provision 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,
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 Tribunal 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 preamble and s. 3 of the Act clearly show that the object of the enactment
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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 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 r.ompensation 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 compensation 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
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 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
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 expression "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
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 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 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 n0t1proprietary 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
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683
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 respondent, 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 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 whereunder all public roads, lanes and paths, the bridges, ditches,
dikes, beds of the sea, harbours and creeks below high-water-mark, and
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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 Collector 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
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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 Jagirdar had taken the produce of stone and that, therefore, the Government 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 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 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 determining the proprietary nature of the grant under s. 2 ( 4)(1) of. the
Act the competent authority had, on evidence led before it, alluded
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685
among others to the respondent's right to excavate and sell gravel and
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stones and enjoyment thereof by the respondent. In these circmustances 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 particular mineral product from other villages comprised in his grant or
to the other mines or mineral products i!) all the villages including
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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 injunction prayed for by the respondent.
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The app_eal is, therefore, dismissed with costs.
P.H.P.
Appeal dismissed.
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