PRADYUMANSINHJI ARJUNSINHJI JADEJA Vs. PATEL NARSHI THAKARSHI

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution of India. The petition has a long and chequered background but the point which arises for determination is a narrow one and that point is about the legality of the order dated 29th March 1962 passed by G. F. Mankodi. Commissioner Rajkot Division in exercise of the power vested in the Government under sec. 63 of the Saurashtra Land Reforms Act 1951 (hereafter called the Reforms Act) by which that officer held that the order dated 22nd October 1956 passed by the former State of Saurashtra was void and restored the order dated 19th October 1954 passed by the Special Mamlatdar Gondal under which it was held that petitioners and their uncle were joint and that therefore they were not entitled to allotment of separate gharkhed lands.

(2.) The facts which are necessary to be stated to dispose of the petition are as follows: One Jethiji was the girasdar holding a giras estate known as Menghani Taluka the giras being situated in Kotdasanghani Mahal. That Jethiji had three sons named (1) Jesangji (2) Arjunsinhji and (3) Mohansinhji. In the present petition we will be concerned with the first two sons of Jethiji. On the death of Jethiji the giras estate devolved upon the aforesaid three sons of Jethiji. Arjunsinhji died in or about 1945 leaving behind him two sons Pradyumansinhji and Balwantsinhji who are respectively petitioners Nos. 1 and 2. The case of Jesangji (hereafter called the uncle) and the two petitioners was that the estate had been divided between petitioners father and their two uncles sometime in 1938 but the Rojkam in that respect was executed only on 20th October 1950 in which the alleged partition of the estate in 1938 was recorded. On 1st September 1951 the giras estate became abolished under the Reforms Act. Petitioners and their uncle contended that each of them was entitled to a separate allotment of gharkhed land on the ground that the giras estate was divided. Therefore petitioners and their uncle separately made an application each on 25th November 1951 under sec. 19 of the Reforms Act to the Special Mamlatdar Gondal for such allotment. The applications were number 552 of 1951-52 and 553 of 1951-52 respectively. It appears from the record that petitioners joined respondents Nos. 1 2 and 3 in their application as opponents alleging that they were their tenants whereas their uncle joined some other persons whom he alleged to be his own tenants as opponents. Both the sets of tenants opposed the applications on the ground that the giras estate was still joint and that therefore petitioners and their uncle were only entitled to joint gharkhed land and not separate. The Special Mamlatdar Gondal held on 4th July 1952 that the estate was joint. Petitioners and their uncle (hereinafter called the girasdars) preferred appeals to the Deputy Collector Gondal which appeals were rejected on 14 May 1953. The girasdars went in revision to the Revenue Tribunal (hereafter called the Tribunal) On 28th of January 1954 the Tribunal passed an order remanding the matter to the Special Mamlatdar Gondal for further enquiry giving certain directions to that officer. The Special Mamlatdar recorded further evidence and by his order dated 19th October 1954 that officer held that (1) the giras was joint (2) that the memo dated 20th October 1950 was not reliable and (3) directed allotment of gharkhed land on the basis that the estate was joint. The girasdars did not file appeals to the District Deputy Collector and therefore the appeals to that officer became time-barred. However on 4th September 1956 petitioners alone filed an application to the Government challenging the order dated 19th October 1954 of the Special Mamlatdar. The application was under sub-sec. (2) of sec. 63 of the Reforms Act which confers power of revision on the State Government. The Government concerned was the State of Saurashtra. That Government decided the revision application on 22nd October 1956 and passed on order (1) setting aside the whole of the order of the Special Mamlatdar dated 19th October 1954 including the order passed against Jesang and in favour of his tenants and (2) remanded the matter to the Mahalkari Kotdasanghani to rehear and decide the case on its own merits. It appears that in the meanwhile the post of the Special Mamlatdar Gondal had been abolished and his jurisdiction became vested in the Mahalkari Kotdasanghani. The latter officer decided the matter by his order dated 21st December 1957 holding (1) that the giras estate was separate and (2) that petitioners were entitled to separate land for gharkhed. It appears that after this order was passed Jesang settled his dispute with the tenants claimed to be his own and therefore the tenants of Jesang did not file an appeal against the above order of the Mahalkari. Respondents 1 2 and 3 however preferred an appeal to the District Deputy Collector which was rejected by that officer by his order dated 25th February 1958. Respondents Nos. 1 2 and 3 preferred a revision application to the Tribunal. By its order dated 29th April 1958 the Tribunal rejected that application holding (1) that it had no jurisdiction to entertain the revision application and (2) that the revision application must be filed under sec. 63 of the Reforms Act to the State Government. Accordingly on 24th May 1958 respondents 1 2 and 3 made a revision application to the State of Bombay which had in the meantime inherited the jurisdiction of the State of Saurashtra under sec. 63 of the Reforms Act. That Government directed the Commissioner Rajkot Division to hear the parties and to pass a suitable order. One P. K. Shunglu who was then the Commissioner Rajkot Division heard the matter and made a report on 10th November 1958 to the State of Bombay recommending that the order dated 21st of December 1957 of the Mahalkari and the order dated 25th February 1958 of the District Deputy Collector should be set aside as they were wrong on merits. The State of Bombay agreed with this report and directed the Commissioner Rajkot Division by its order dated 1st May 1959 that the parties should be heard as to why the above two orders should not be cancelled as proposed by the Government. M. G. Monani the then Commissioner heard the parties and he made a report on 28th September 1959 to the State of Bombay recording inter alia the argument advanced on behalf of respondents 1 2 and 3 that the revisional order dated 22nd October 1956 passed by the State of Saurashtra was void but without himself making any recommendation in that regard. However on or about 19th July 1960 the State of Gujarat which had in the meantime taken the place of the State of Bombay delegated its function under sec. 63 of the Reforms Act by a notification to the Commissioners of Divisions and therefore the matter came back to the Commissioner Rajkot Division for passing of suitable order on the revision application dated 24th May 1958 of respondents 1 2 and 3. By its letter dated 6th November 1960 the State of Gujarat informed the parties to contact the Commissioner. On 29th March 1962 G. F. Mankodi Commissioner Rajkot Division passed the impugned order. As already indicated by that order that officer held that the order dated 22nd October 1956 passed by the former State of Saurashtra was void and restored the order dated 19th October 1954 passed by the Special Mamlatdar Gondal which had been set aside by the above order dated 22nd October 1956. The present petition is directed against the above order dated 29th March 1962.

(3.) The petition as originally framed was only under Article 227 but later on it was amended so as to invoke the jurisdiction of this Court also under Article 226 of the Constitution. By the amendment petitioners challenged the vires of the Bombay Commissioners of Divisions Act under which G. F. Mankodi had acted and the power of the State Government to delegate its authority under sec. 63 sub-sec. (2) of the Reforms Act to the Commissioner. Mr. Nanavati learned counsel for petitioners fairly conceded that he was not able to press the aforesaid two challenges in view of the decision of this Court in Kanaiyalal Maneklal Chinai and others v. The State of Gujarat and others reported in VII G.L.R. page 717 and the decision of their Lordships of the Supreme Court in the case of Arnold Rodricks and another v. State of Maharashtra and others reported in A.I.R. 1966 S. C. page 1788. Mr. Nanavati therefore concentrated his attack upon the legality of the order dated 29th March 1962 passed by Mankodi.