LexSTATE OF GUJARAT AND ANR. versus MAHARAJ SHRI AMARSHINHJI HIMATSINHJI
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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 nune- Proprietary or 11011-Proprietary-Under what circun1stances can the Collector exercise power conferred by Sec. 37(2). lVlahantJ Shn Ama1s1nhJi H1mats1nhji was granted certain jagirs. Accord- ing 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 incom- petent 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 pro- ceed. 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 direc- tion 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 non- proprietary 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 res- pondent 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 c D E F G 11 676 SUPREME COURT REPORTS (1978] 3 s.c.R. A 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 contend- ed that a determination under s. 2 ( 4) (i} of the Act that a particular jagir
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