KHUSHALSINGH DAULATSINGH Vs. STATE OF MADHYA BHARAT

JUDGEMENT

(1.) THIS is a petition under Article 226 (and 227 in the alternative) of the Constitution by a Jagirdar praying that this Court should nullify the order of the Government of Madhya Bharat dated 16 -4 -1954 directing that Birakhedi, one of the three villages in the original Jagir, which had been in Shikmi Jagir with the widowed aunt of the Petitioner, should be restored to Brijkishore (Opposite party No. 2) her son by adoption, sanctioned in 1938 by the Durbar of Gwalior. This order was on an application for review by Brijkishore, of the earlier ex parte order made on 20 -10 -1952 that this village should be restored to the Petitioner, subject to his paying Brijkishore a monthly maintenance of Rs. 100; this had been made on an interpretation of an order by the Durbar in 1946, apropos a prayer by Brijkishore for mutation of his name in regard to the Shikmi Jagir during the life -time of his adoptive mother.

(2.) THE Petitioner's position is that in the event of this Court's finding, the latest order, that is the one of 1954, was made by Government in a* judicial or quasi -judicial capacity, it should be set aside in exercise of supervisory powers under Article 227, because Government was legally incompetent to review its earlier order of 1952 and also, on the ground that after the coming into force of the Constitution, the post -constitutional Government of the State of Madhya Bharat had no power to interfere in a matter concluded by the order of the Ruler of Gwalior in 1946. Under Article 226, a writ of the nature of certiorari should be issued, as there was no jurisdiction to pass the order of 1954. It it is found that the Government was acting in an administrative or executive capacity, then also, a direction of the nature of mandamus should be issued that it should not be enforced. In either event, the order of 1952 would be revived for what it is worth to the parties in the new context.

(3.) IN regard to the history of the Jagir and the Shikmi Jagir, the parties take substantially different positions in regard to the happenings at the various stages; the Petitioner, that Hirabai was a life -grantee all the time; the opposite parties' position is that she was a Jagirdar in her own rights, described as Shikmi Jagirdar, because she was given one out of the three villages in the original Jagir, which incidentally was the very village which her husband, the younger brother of the Petitioner's father, had been given in his time. Till there was an adoption, it was necessarily a life tenure under the general law, and the mention of Hirabai in 1914 as a "binhayati" Shikmi Jagirdar was a factual description true at that time and was not a legal restriction. When in 1938 the lady was permitted to adopt, the position changed. As for the order in 1946, it was made apropos a prayer for mutation of the adoptive son's name in place of the mother's during her life -time, which could not take place at any event in view of the provisions of the Qawayad. Thus, the Durbar's cryptic order "Gujarish approved" would apply only to the operative part of the "gujarish" and not to the statements made by the office in regard to the history and other matters While, in 1952, the Government passed an ex parte order reducing the adoptive son to a maintenance -holder with Rs. 100 a month, the order in 1954 after hearing the parties, restoring to him the original proper status of a Shikmi Jagirdar. Whether or not Government's reasoning commends itself to this Court, it was an order passed in exercise of its administrative powers having due regard to the circumstances in fact, the changed circumstances, and to the purpose for which the Jagirs had been granted and the rules in the Jagir manual.