Full Judgment Text
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PETITIONER:
STATE OF GUJARAT AND ANR.
Vs.
RESPONDENT:
MAHARAJ SHRI AMARSHINHJI HIMATSINHJI
DATE OF JUDGMENT14/04/1978
BENCH:
TULZAPURKAR, V.D.
BENCH:
TULZAPURKAR, V.D.
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1978 AIR 1167 1978 SCR (3) 675
1978 SCC (2) 619
ACT:
Bombay Merged 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 effect of determination
by Mamlatdar about a Jagir mine-Proprietary or non-
Proprietary-Under what circumstances can the Collector
exercise power conferred by Sec. 37(2).
HEADNOTE:
Maharaj Shri Amarsinhji Himatsinhji was granted certain
jagirs. According to the respondent by several grants he
was given full proprietary rights in the soil of the
villages mentioned in the grant, i.e. it was a proprietary
jagir. On the coming into force of the Bombay Merged
Territories and Areas (Jagirs Abolition) Act 1953 with
effect from 1st August, 1954 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. For the purpose of. implementing the
provisions of that Act the competent authority (Collector of
District Sabarntha) held an enquiry 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 laid before it,
the competent authority held that the Daljitgarh jagir of
the respondent was a proprietary jagir. The necessary entry
was 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 excavation of mica had
been reserved and retained by the Government.
The respondent made an application and 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 Land 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 was served upon him. The respondent raised a
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preliminary objection that such enquiry was misconceived and
incompetent in view 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 preliminary 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 respondent’s 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 non-
proprietary jagir and had no power or jurisdiction to
determine whether on the 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 so as to be saved under sec. 10 (ii) it was for the
Collector to hold an inquiry
676
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 also 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.
HELD : (1) Having regard to the, object and scheme of the
Act as disclosed by the Preamble and material provisions and
the definition of ’Proprietary Jagir’ 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 whether 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)However, the enquiry initiated by the Collector under
s. 37(2) of the BombayLand Revenue Code in this case will
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have to be regarded as incompetent,misconceived and
uncalled for because the condition precedent which can lead
to the initiation of such enquiry is absent. It is 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 an
enquiry contemplated by that provision. The respondent by
making the applications to the Mamlatdar, in the present
case, could not be said to have put forward or laid a claim
so as to afford an occasion for the Collector to initiate
the inquiry. [683D, G, H, 684A-B]
JUDGMENT:
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 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 ?
677
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 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
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 that for the purpose of implementing the provisions
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of the Act the competent authority (Collector of District
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 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 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 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 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 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, 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 by
the respondent wag served upon him but the 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
678
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) 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.
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 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) (i) of the Act that the
respondent’s Jagir was a proprietary one there was implicit
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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
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 the 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 as much 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 Dower or jurisdiction
to determine whether on the appointed date that is on August
1, 1954 when the Act, came into force the respondent 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 latter
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 tantamount to the establishment by the
respondent of his rights to mines and mineral products in
the villages of his Jagir for
679
which there must be an actual grant or contract or law or
custom or usage recognising such rights and this could only
be determined by the Collector by holding an inquiry under
s. 37(2) of the Bombay Land Revenue Code, and, therefore the
High Court was clearly in error in coming to the conclusion
that the inquiry initiated by the second appellant under s.
37(2) of the Bombay Land Revenue Code. was incompetent or
without jurisdiction. On the other hand, learned 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 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, while coming to the conclusion that the respondent’s
Jagir was proprietary one, bad relied upon the unqualified
nature of the grant and also considered the evidence led
before it touching upon the several rights such 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 on the basis of such evidence that tile competent
authority had come to the conclusion that the respondent’s
Jagir 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 stones under s.
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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
the two villages of Kapoda and Isarwada, though not to mica,
had been recognised by the Government and accordingly the
necessary entry pertaining 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-one to the Collector 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 time to mines and
mineral products in the said Jagir villages to initiate an
inquiry under s. 37(2) of the Bombay Land Revenue de.
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 person 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
680
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 Jagir is a proprietary one a further inquiry
under s. 37(2) of the Land Revenue Code with a view to
determining whether the Jagirdar 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 the case and having regard to the nature of
evidence considered and the specific finding made by the
competent authority while determining the question under s.
2(4) (i), the further inquiry initiated by the Collector
under s. 37(2) was misconceived and uncalled 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 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
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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 thus
"2(4) If any question arises,-
(i) whether a jagir is proprietary or non-
proprietary,
(ii) whether any land is Ghatked 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 subclauses(i), (ii)
and (iii) and subject to ’an appeal to the
State Government, his decision shall ’be
final?"
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 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 that 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
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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 9-315SCI/78
682
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 com-
pensation 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
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custom or usage is entitled to any rights or interest in the
soil; in other words, the competent authority holding an
inquiry wider 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
683
of the respondent the Mamladar’s 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 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 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 will 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 canlead to the initiation of such
inquiry is absent here. Section 37(1) ofthe 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
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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
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, the 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 ex-
cavating 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
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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 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 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 before it, alluded
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among others to the respondent’s 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 ormineral 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.
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.
The appeal is, therefore, dismissed with costs.
P.H.P. Appeal dismissed.
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