STATE OF GUJARAT Vs. MAHARAJ SHRI AMARSINHJI HIMATSINHJI

JUDGEMENT

(1.) 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 30/31, 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 Revenue Code (Bombay Act No. V of 1879) with a view to determining whether the jagirdar had any rights to mines or mineral products in his Jagir granted or recognised under any contract, grant or law for the time being in force or by custom or usage is competent

(2.) The facts giving rise to the said question are these; By Hajur Order No. 116 dated October 27, 1933, the respondent (Maharaj Shri Amar Singhji 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 the appointed date namely August 1, 1964, under S. 3 thereof the 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 Section 11 of the Act. It appear that for 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 Jagir 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 Section 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, and 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 duly 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 sufficient 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 gravel 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, 1971. Thereupon a notice under Section 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 was served upon him but the respondent raised a preliminary objection that such inquiry was misconceived and incompetent in view of the determination made under Section 2 (4) (1) 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.

(3.) 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 a writ of certiorari quashing the order, dated Feb. 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 relief"s sought by 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) (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) (1) of the Act that the respondent"s 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 Section 37 (2) of the Bombay and Revenue Code was incompetent and 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 respondent"s 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 appeal.