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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 684 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 685 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. 686