State of Madhya Pradesh & Ors Vs.
Sardar D.K. Jadav [1968] INSC 15 (25 January 1968)
25/01/1968 RAMASWAMI, V.
RAMASWAMI, V.
SHAH, J.C.
CITATION: 1968 AIR 1186 1968 SCR (2) 823
CITATOR INFO :
RF 1972 SC1530 (1,7,8)
ACT:
Madhya Bharat Abolition of Jagir Act Samvat
2008 (Act 28 of 1951), ss. 2(i)(ix), 3, 4. 5(c) and 17--Tanks and wells claimed
to be situated on 'occupied land'--Question whether exemption under s. 5(c)
applies-Issue whether can be decided by Jagir Commissioner under s. 17--High
Court's duty in writ proceedings to decide jurisdictional fact on which the
competency of administrative authority depends.
HEADNOTE:
On the. issue of a notification under s. 3 Of
the Madhya Bharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951) all the
property in jagirs including Jagir lands. trees tanks etc. stood vested in the
State under s. 4 of the Act.
Under s. 5(c) of the Act all tanks, private
wells etc. in or on 'occupied land' as defined. in s. 2(i)(ix) of the Act were
excluded from vesting. The Madhya Pradesh and Revenue Code 1959 (Act 20 of
1959) in s. 251 provided that all tanks as described therein which were
situated on unoccupied land and had not already vested in the State under the
Abolition ACt would vest absolutely in the State Government with effect from
6th April, 1959; the section also provided for compensation being paid in
respect of such tanks. Certain tanks belonging to the respondent were treated
as vested in the State! Government. At first he claimed compensation for them.
but later he also claimed before the Revenue authorities that the tanks were
situated on 'occupied land' and therefore under s. 5(c) of the Abolition Act
they were exempt from the vesting provisions. The Revenue authorities having
decided against him, the respondent filed a writ petition before. the High
Court. The High Court held that the question raised by the respondent under s.
5(c) should be decided by the Jagir Commissioner under s. 17 of the Abolition
Act and on this view quashed the orders of Revenue authorities. The State
appealed, along with other appellants.
HELD: (i) The High Court was in error in
holding that s. 17 of the Abolition Act was applicable to the case.
Section 17 is included in Chapter Il1 which
deals with compensation which Government is liable to pay to every jagirdar
whose jagir land has been resumed under s. 3 of the Abolition Act. It follows
therefore that the inquiry made by the Jagir Commissioner under s. 17 on the
question of title is only for the purpose of enabling him to pay compensation
to the persons who in his opinion are entitled to receive it. In other words
the inquiry by the Jagir Commissioner or the decision of the State Government
under s. 17 does not embrace within its scope any dispute as to whether any
particular property falls within s. 4(1)(a) read with s. 5 of the Abolition Act
and whether it has or has not in consequence vested in the State Government by
notification issued under s. 3 of the Abolition Act. [829 DinstallmentG] (ii)
However, if the respondent was right in his contention that the tanks and wells
were constructed on.
'occupied land' belonging to the jagirdar
within the meaning of s. 5(c) of the Abolition Act, it was manifest that the
appellants had no authority to take possession of those tanks and wells because
the title therein did not vest in the State Government in view of s. 5(c) which
has an overriding effect on s. 4 of the Abolition Act.'installment824 It was
therefore the duty of the High Court in the present case to decide the
jurisdictional 'fact as to whether the tanks and wells claimed by the
respondent belonged to the Jagirdar within the meaning of s. 5(c) of the
Abolition Act, and if the High Court reached the conclusion that the claim of
the respondent was substantiated it would be open to the High Court to grant a
writ under Art. 226 of the Constitution directing the appellants to hand over
possession of the aforesaid tanks and wells to the respondent. [830 B-C] [Case
remanded to the High Court accordingly.] Rex v. Shorediteh assessment Committee
[1910] 2 K.B. 859 and White & Collins v. Minister of Health [1939] 2 K.B.
838, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1244 and 1245 of 1967.
Appeals by special leave from the judgment
and orders dated November 30, 1966 of the Madhya Pradesh High Court in Misc.
Petition Nos. 184 and 183 of 1965
respectively.
B. Sen and I. N. Shroff, for the appellant
(in both the appeals).
S. K. Mehta, K. L. Mehta and A. G.
Ratnaparkhi, for the respondents (in both the appeals).
The Judgment of the Court was delivered by
Civil Appeal No. 1245 of 1967 Ramaswami, J. This appeal is brought, by special
leave, from the judgment of the Madhya Pradesh High Court dated November 30,
1966 in Miscellaneous Petition No. 183 of 1965 whereby the High Court allowed
the writ petition of the respondent and quashed two orders dated November 4,
1963 and June 11, 1964 of the Collector of Gwalior (Annexures VIII and XII
respectively) and two orders of the Additional Commissioner, Gwalior Division
dated February 19, 1964 and November 16, 1964 (Annexures X and XIV
respectively) in so far as they purported to decide any question raised by the
respondent under S. 5 (c) of the Madhya Bharat Abolition of Jagirs Act, Samvat
2008 (Act No. 28 of 1951 ), hereinafter referred to as "the Abolition
Act".
In Samvat 1885, the Ruler of the erstwhile
Gwalior State conferred on Shri Bhavdeo Mishra-the predecessor-in-title of the
respondent-the jagir of Mauza Siroli, situated in Pargana Gwalior. After the
issue of the notification under s. 3 of the Abolition Act, all the property in
the jagir including jagir lands, forests, trees, fisheries, wells, tanks, ponds
etc. stood vested in the State under s. 4 of the Abolition Act. Under S. 5 (c)
of the Abolition Act, all tanks, trees, private wells and buildings in or on
occupied land belonging to or held by the Jagirdar or any other person were
excluded from vesting. Section 2 (1 ) (ix) of the Abolition Act defines
"occupied land" as follows:
825 "(ix) 'Occupied land' means land
held immediately before the commencement of this Act on any of the following
tenures, namely:
(a) Ex-proprietary;
(b) Pukhta Maurusi;
(c) Mamuli Maurusi;
(d) Gair Maurusi;
and includes land held as Khud Kasht and land
comprised in a homestead;" Section 3, 4 ( I ) (a) and 5 (c) of the
Abolition Act are reproduced below :
3. Resumption of Jagir-lands by the
Government.installment(1) As soon as may be after the commencement of this Act,
the Government shall by notification in the Gazette, appoint a date for the
resumption of all Jagirlands in the State.
(2) The Government may, by notification
published in the Gazette, vary the date specified under sub-section (I ) at any
time before such date.
(3) The date finally appointed under this
section as the date for the resumption of Jagir-lands is hereinafter referred
to as 'the date of resumption'.
4. Consequences of the resumption of
Jagir-lands.installment(1) As from the date of resumption notwithstanding
anything contained in any contract, grant or document or in any other law,
rule, regulation or order for the time being in force but save as otherwise
provided in this Actinstallment(a) the right, title and interest of every
Jagirdar and of every other person claiming through him (including a Zamindar)
in his Jagir-lands, including forests, trees, fisheries, wells, tanks, ponds,
water-channels, ferries, pathways, village-sites, hats, bazars and melagrounds
and mines and minerals whether being worked or not, shall stand resumed to the
State free from all encumbrances;
5. Private wells, trees, buildings, house-sites
and enclosures.-Notwithstanding anything contained in the last preceding
section, 8 2 6 (c) all tanks, trees, private wells and buildings in or on
occupied land belonging to or held by the Jagirdar or any other person shall
continue to belong to or, be held by such Jagirdar or other person." After
the abolition of jagirs tinder the Abolition Act, proinstallmentceedings were
initiated for determining the compensation payable to the respondent and the
same was determined at a sum of Rs. 22,293/installmentand odd out of which
certain loans were deducted and the amount of Rs. 3,586,/installmentand odd was
paid.
The Madhya Pradesh Land Revenue Code, 1959
(M.P. Act No. 20 of 1959) came into force on October 2, 1959 and s. 251 thereof
reads as follows:
"Vesting of tanks in State Government.-(1)
All tanks situated on unoccupied land on or before the date of coming into
force of the Act, providing for the abolition of the rights of intermediaries
in tile areas concerned and over which members of the village community were,
immediately before such date, exercising rights of irrigation or nistar, shall,
if not already vested in the State Government, vest absolutely in the State
Government with effect from the 6th April, 1959 :
Provided that nothing in this section shall
be deemed to affect any right of a lessee in the tank under a lease subsisting
on the date of vesting of the tank which shall be exercisable to, the extent
and subject to the terms and conditions specified in the lease :
Provided further that no tank shall vest in
the State Government, unlessinstallment(a) after making such enquiry as he
deems fit, the Collector is satisfied that the tank fulfils the conditions laid
down in this sub-section; and (b) notice has been served on the parties
interested and opportunity given to them for being beard.
L1 (2) Any person claiming in any such tank
any interest other than the right of irrigation or nistar, may, within a period
of four years from the date of vesting under sub-section ( I ), make an
application in the prescribed form to the Collector for compensation in respect
of his interest.
(3) Such compensation shall be 15 times the
land revenue assessable on the land covered by the tank and 8 2 7 for purposes
of assessment such land shall be treated as irrigated land on the same quality
as the adjoining land.
(4) The compensation as determined under
subsection (3) shall be paid by the Collector to the person or persons proved
to his satisfaction to be owning interest in the tank concerned.
On April 5, 1961, the respondent made an
application to the Collector, Gwalior under s. 251 of the M.P. Land Revenue
Code, 1959, claiming compensation for the tanks which, according to the
respondent, were built by the respondent and his predecessor-in-title over an
area of 1,679 bighas and 18 biswas of land. By his order dated April 24, 1963,
the Sub-Divisional Officer determined the amount of compensation at Rs. 11,512/installmentand
odd but by his subsequent order dated May 28, 1963, the Sub-Divisional Officer
suo motu cancelled his previous order dated April 24, 1963. The respondent
preferred an appeal before the Collector of Gwalior who, by his order dated
November 4, 1963 dismissed the appeal of the respondent holding that the
property claimed as tanks was really not of that description as all that was
done was to cause temporary obstruction to the flow of waters by creating bunds
and the case did not fall within the purview of s. 251 (I) of the M.P. Land
Revenue Code, 1959 and no compensation was payable. The respondent preferred a
second appeal before the Commissioner, Gwalior Division who dismissed the
appeal, holding that under s. 251 compensation could not be claimed with regard
to the soinstallmentcalled tanks which were situated on 'occupied land'. On
July 4, 1963, the respondent made an application to the Collector of Gwalior
stating that lie was entitled to payment of compensation if the tanks had
vested in the State Government. The application was dismissed by the Collector
on June 11, 1964. Thereupon the respondent moved the High Court of Madhya
Pradesh for grant of a writ under Art. 226 of the, Constitution to quash the
two orders dated November 4, 1963 and June 11, 1964 of the Collector of Gwalior
(Annexures VIII and XII) and the two orders dated Febuary 19, 1964 and November
16, 1964 of the Additional Commissioner, Gwalior Division (Annexures X and
XIV). The writ petition was opposed by the appellants on the ground that the
tanks claimed by the respondent were really no tanks at all and, in any case,
were not on 'occupied land' within the meaning of s. 5(c) of the Abolition Act
and the tanks and wells had vested in the State under S. 4 (I) (a) of the
Abolition Act. By its judgment dated November 30, 1966, the High Court allowed
the writ petition and quashed the four orders aforesaid on the (,round that the
question raised by the respondent under s. 5(c) 828 of the Abolition Act should
be decided by the Jagir Commissioner in the manner required by s. 17 of the
Abolition Act.
It is necessary at this stage to reproduce
ss. 8, 15, 17 and 18 of the Abolition Act which are to the following effect :
"8. Duty to pay compensation.-(I)
Subject to other provisions of this Act the Government shall be liable to pay
to every Jagirdar whose Jagir-land has been resumed under Sec. 3, such
compensation as shall be determined in accordance with the principles laid down
in Schedule 1.
(2) Compensation payable under this section
shall be due as from the date of resumption and shall carry simple interest at
the rate of 2 1/2 per cent per annum from that date up to the date of payment :
Provided that no interest shall be payable on
any amount of compensation which remains unpaid for any default of the
Jagirdar, his Agent or his representative-in-interest." "15. Payment
of compensation money.-(1) After the amount-of compensation payable to a
Jagirdar under Sec. 8 is determined under clause (a) of Sec. 13 and the amount
deducted from it under Sec. 14, the balance shall be payable in maximum ten
annual installments.
(2) The amounts determined under clauses (c),
(d) and (e) of Sec. 13 shall be deducted and paid annually to the persons
entitled thereto, out of the annual installments referred to in sub-section (1)
and the remaining amount of the installment shall be payable by the Government
to the Jagirdar.
........................................
"17. Questions of title.-If, during the
course of an inquiry by the Jagir Commissioner, any question is raised, in
respect of a Jagirdari title to, or right in, Jagir-lands resumed under Sec. 3,
and such question has not already been determined by the Government, the Jagir
Commissioner shall proceed to enquire into the merits of such question and
refer the matter for decision to the Government whose orders shall be
final." "18. To whom compensation shall be payable after the death of
a Jagirdar. If any Jagirdar to whom compensation money is payable under this
Act dies before the full payment of such compensation money to 829 him, such
compensation money as may remain payable to him under this Act, shall be
payable to such of his heirs or successors as may be declared by a competent
Court entitled to receive the same, according to the personal law by which the
Jagirdar is governed." On behalf of the appellants learned Counsel put
forward the argument that the High Court was in error in holding that s.
17 of the Abolition Act was applicable to the
present case and that it was the function of the Jagir Commissioner alone to
inquire whether the claim of the respondent under s. 5(c) was well-founded on
merits and refer the matter for the final decision of the Government under s.
17 of' the Abolition Act. In our opinion the argument put forward on behalf of
the appellants is well-founded and must be accepted as correct. It is manifest
that under s. 17 of the Abolition Act only those disputes which pertain to the
Jagirdari title or right in Jagir lands already resumed under s. 3 of the
Abolition Act, can be raised. The section also contemplates that the disputes
must be raised during the course of an inquiry for assessment of compensation
by the Jagir Commissioner. It should be noticed that s. 17 is included in Ch.
III which deals with compensation which the Government is liable to pay to
every jagirdar whose jagir land has been resumed under S. 3. It follows
therefore that the inquiry made by the Jagir Commissioner under s. 17 on the
question of title is only for the purpose of enabling him to pay compensation
to the person who in his opinion is entitled to receive it. In our opinion, the
scope of the inquiry under s. 17 only relates to disputes with regard to rival
claimants to jagirdari title or right in jagirdari lands already resumed under
s. 3 of the Abolition Act. In other words, the inquiry by the Jagir
Commissioner or the decision of the State Government under s. 17 does not
embrace within its scope any dispute as to whether any particular property
falls within s. 4 (I) (a) read with s. 5 of the Abolition Act and whether it
has or has not in consequence vested in the State Government by the
notification issued under s. 3 of the Abolition Act. It is also necessary to
add that the inquiry contemplated under s. 17 by the Jagir Commissioner relates
to compensation to be paid to the jagirdar whose jagir is vested in the State
Government and once the compensation is determined and paid, no further inquiry
under s. 17 is contemplated. We are accordingly of the opinion that the High
Court was in error in holding that s. 17 of the Abolition Act is applicable to
the case and that the dispute raised by the respondent should have been
determined in accordance with the procedure envisaged in s. 17 of the Abolition
Act.
But this does not necessarily mean that the
respondent is left without any remedy for the redress of his grievance.
If the L3 Sup. CI/68-9 830 respondent is
right in his contention that the tanks and wells were, constructed on 'occupied
land' belonging to the jagirdar within the meaning of s. 5 (c) of the Act it is
manifest that the appellants have no authority to take possession of those
tanks and wells because the title therein does not vest in the State Government
in view of s. 5 (c) which has an over-riding effect on s. 4 of the Abolition
Act. lt was therefore the duty of the High Court in the present case to decide
the jurisdictional fact as to whether the tanks and wells claimed by the
respondent belonged to the Jagirdar within the meaning of s. 5(c) of the
Abolition Act and if the High Court reached the conclusion that the claim of
the respondent was substantiated it would be open to the High Court to grant a
writ under Art. 226 of the Constitution directing the appellants to hand over
possession of the aforesaid tanks and wells to the respondents.
It is well-established that where the
jurisdiction of an administrative authority depends upon a preliminary finding
of fact the High Court is entitled, in a proceeding for a writ, to determine
upon its own independent judgment whether or not that finding is correct. The
matter has been very put by Farwell, L. J. in Rex v. Shoreditch Assessment
Committee(1) as follows:
"The existence of the provisional list
is a condition precedent to their jurisdiction to hear and determine and as the
claimant is entitled to require them to hear and determine, they cannot refuse
to take the steps necessary to give rise to such jurisdiction; if they do,
their refusal may be called in question in the High Court. No tribunal of
inferior jurisdiction can by its own decision finally decide on the question of
the existence or extent of such jurisdiction:
such question is always subject to review by
the High Court, which does not permit the inferior tribunal either to usurp a
jurisdiction which it does not possess, whether at all or to the extent
claimed, or to refuse to exercise a jurisdiction which it has and ought to
exercise. Subjection in this respect to the High Court is a necessary and
inseparable incident to all tribunals of limited jurisdiction; for the
existence of the limit necessitates an authority to determine and enforce it :
it is a contradiction in terms to create a tribunal with limited jurisdiction
and unlimited power to determine such limit at its own will and pleasure such a
tribunal would be autocratic, not limited-and it is immaterial whether the
decision of the inferior tribunal on the question of the existence or
non-existence of its own jurisdiction is founded on law or fact.; a Court (1)
[1910] 2 K. B. 859, 879.
831 with jurisdiction confined to the city of
London cannot extend such jurisdiction by finding as a fact that Piccadilly
Circus is in the ward of Chepe." The same principle was enunciated by the
Court of Appeal in White & Collins v. Minister of Health(1). The question
debated in that case was whether the High Court had jurisdiction to review the
finding of the administrative authority on a question of fact. It appears that
Part V of the Housing Act, 1936, enabled the local authority to acquire land
compulsorily for the provision of houses for the working classes, but s. 75 of
the Act provided that nothing in the Act was to authorise the compulsory
acquisition of land "which at the date of the compulsory purchase forms
part of any part, garden or pleasure ground or is otherwise required for the
amenity or convenience of any house". In accordance with the provision of
this part of the Act, the Ripon Borough Council made an order for the compulsory
purchase of 23 acres of land, it being part of an estate in Yorkshire called
High field, consisting of a large house and 35 acres of land surrounding it.
The owners served notice of objection to the order as being contrary to s. 75
and the, ground of objection was that the land was part of a park and was
required for the amenity or convenience of the house. The Minister of Health
directed a public inquiry, and after holding the inquiry and taking evidence,
the Chairman duly made his report to the Minister, who thereupon confirmed the
order. It was held by the Court of Appeal that the High Court had jurisdiction
to review the Minister's finding and since the land in question was part of the
park of High field, the order of compulsory purchase was quashed. At page 855
Luxmoore L.J. stated:
"The first and the most important matter
to bear in mind is that the jurisdiction to make the order is dependent on a
finding of fact;
for, unless the land can be held not to be
part of a park or not to, be required for amenity or convenience, there, is no
jurisdiction in the borough council to make, or in the Minister to confirm, the
order. In such a case it seems almost self evident that the Court which has to
consider whether there is jurisdiction to make or confirm the order must be
entitled to review the vital finding on which the existence of the jurisdiction
relied upon depends. If this were not so, the right to apply to the Court would
be illusory." For these reasons we allow this appeal, set aside the judginstallmentment
of the Madhya Pradesh High Court dated November 30, 1966 in Miscellaneous
Petition No. 183 of 1965 and the case is (1) [1939] 2 K.B. 838.
832 remanded to the High Court for deciding
it afresh in accordance with the directions given. It will be open to the High
Court to take such further evidence-oral and documentary-as the parties may
decide to give on the points at issue. The parties will bear their own costs up
to this stage.
Civil Appeal No. 1244 of 1967 The material
facts of this case are almost similar to those in Civil Appeal No. 1245 of 1967
and for the reasons given in that judgment, we hold that this appeal should be
allowed and the case should be remanded to the High Court for being decided
afresh in accordance with the directions given in that judgment. The parties
will bear their own costs upto this stage.
G.C. Appeals allowed and cases remanded.
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