Gujarat High Court
Virendrasinh vs State on 20 December, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
SCA/8442/2008 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8442 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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VIRENDRASINH
AMARSINH ZALA - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
JV JAPEE for
Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6
MR
MAULIK NANAVATI, AGP for Respondent(s) : 1,
NOTICE SERVED for
Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 14/12/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The petitioner, by this petition, seeks the prayer to quash and set aside the order passed by the Deputy Collector and its confirmation thereof by the Revenue Tribunal, whereby the application of the petitioner for compensation has been dismissed. The petitioner has also prayed to direct the respondents to initiate the proceedings to determine the compensation under the Land Acquisition Act and to pay the compensation accordingly.
Heard Mr.Japee, learned Counsel appearing for the petitioner and Mr.Nanavati, learned AGP for the State.
It deserves to be recorded that after independence of our country, the petitioner, in capacity as the then Ruler of Prempur State, signed the merger agreement with the Government of Bombay and in the merger agreement, it was provided that all properties which were being used for the benefits of the public or any section thereof, except building, which forms part of Darbargadh used for the residents, shall vest to the Government of Bombay. As per Clause (D), the Ex-Ruler of the said Prempur State was to continue to have the ownership and enjoyment of the properties vests to them, including the superior proprietary rights.
The pertinent aspect is that all properties vested to the then State of Prempur, used for the benefits of the public or any section thereof, were vested to the Government of Bombay. It is the case of the petitioner that after signing of the merger agreement, the order was issued by the Mamlatdar, Himatnagar, intimating the petitioner, in capacity as the Jagirdar, that in his jagir 5% of the total land in each village, which was to be reserved for grazing of cattle, has not been provided and, therefore, the agreement was entered into between the Regional Commissioner and Secretary of Gujarat/Rajasthan Praja Parishad and as per the said agreement, he had to separately mark the land reserved for grazing of cattle (hereianfter referred to as 'Gaucher Land') in the proportion of 40 acres for 100 cattle and it was also intimated by the Mamlatdar, Himatnagar that if the land would not be marked for such purpose by way of reservation then further proceedings shall be taken to take over the management under Section 44 of the Bombay Tenancy and Agricultural Lands Act. It is the case of the petitioner that on account of the said threat, the petitioner marked the land as 'gaucher land'. It is undisputed position that in the revenue record, based on the said agreement and thereafter, the land was provided as reserved being 'gaucher land', and the entry was also mutated. It was shown as 'gaucher land', meaning thereby to be used for public purpose of grazing of cattle by the citizens or the public at large, who were residents of that area. Thereafter, the remaining properties continued to be held by the petitioner as jagir. In view of Jagir Abolition Act in the year 1953, known as Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, the Jagirs were abolished and as per the said Jagir Abolition Act, the compensation was to be paid to the petitioner and has been paid and on the said aspect, there is no dispute.
The contention of the petitioner is that the land, which was marked for grazing of cattle by way of gaucher land prior to the abolition of jagir, would continue to have the status of his own properties as jagir and, therefore, he would be entitled for the compensation under Jagir Abolition Act, but as the properties were shown in the revenue record as reserved and marked for grazing of cattle namely; gaucher land, no compensation was paid to him. He alternatively contended that if the land was not treated as jagir of the petitioner, he would be entitled for the compensation under the Land Acquisition Act prevailing then, as if the properties were taken away by the State of Bombay for public purpose. He, therefore, contended that the claim for compensation has been wrongly rejected by the Deputy Collector with the confirmation of the Tribunal or in alternative, this Court may direct the State to pay the compensation by initiating proceedings under the then Land Acquisition Act or in accordance with law and pay the compensation to the petitioner.
The examination of the said contention shows that it is not a case where any citizen was holding any individual property belonging to him and the possession was taken over by the State for any public purpose after independence, but is a case where the then Ruler was claiming to be the owner of the property, which was reserved for the common facility of the public at large in his State. As observed earlier, the merger agreement did specifically exclude the claim of individual right of Jagirs or the properties, which were used for the benefits of the public or for any section thereof and was to so vest in the State of Bombay. It appears from the order of the Mamlatdar, copy whereof is produced on page 94 at Annexure-Q, that as per the provisions of the Land Revenue Code, the petitioner, in capacity as the Jagirdar being superior holder, had also to make available the land for grazing of the cattle for the purpose of the public at large to the extent of 5% of the total land of the village, which was under his control. As was not done, thereafter the matter was persuaded and the agreement was entered into for reserving the same. As the said agreement was not implemented the Mamlatdar intimated for enforcement of the same. Therefore, once the land was marked by the then Ruler for grazing of the cattle being facility for public at large and for the benefits of the public at large, it ceased to be the jagir of the petitioner in individual capacity as sought to be canvassed. The pertinent aspect is that even in the proceedings under Jagirs Abolition Act, the properties in question, which were reserved for grazing of cattle, were not shown as the individual jagirs. The petitioner would be entitled to the compensation of the jagir, which has been abolished as per the provisions of the Jagirs Abolition Act and not the compensation for any property, which was not included as jagir.
Taking the case in either way, if the right was to be claimed as per the merger agreement, the properties had so vested to the State of Bombay and the petitioner had no right over the land, which was used for the benefits of the public or any section thereof, and such would include the land used for grazing of the cattle. Merely because the land was to be earmarked as per the provisions of the Land Revenue Code read with the Rules prevailing then for benefits of the public was not reserved and subsequently reserved, would not invest any additional right to the petitioner as per the merger agreement, nor under Jagir Abolition Act because after the land was marked, it vests to the State of Bombay and the petitioner had ceased to have any right.
Such has been considered accordingly by the Deputy Collector as well as by the Tribunal.
The learned Counsel relied upon the decision of the Apex Court in the case of State of U.P. and Ors v. Manohar, reported in AIR 2005 SC, 488 for contending that if the property of the citizen is taken away by the State for any public purpose, the compensation is required to be paid under the Land Acquisition Act or any other law, which has not been paid and, therefore, this Court may direct the State to pay the compensation as per the provisions of the Land Acquisition Act prevailing then.
As recorded herein above, it is not a matter of acquisition of any property of any citizen in his individual capacity but is a matter of land took over by the State of Bombay from the then Ruler or the then State of Prempur. Be it noted that the individual property or a personal property of the then Ruler would not stand at par with the property which was marked and used for the purpose of any public or any section thereof. The spirit did provide for that and the petitioner also agreed at the time when the merger agreement was signed by the then Ruler for its merger with the then State of Bombay. Therefore, as per the said agreement such properties for the benefits of the public vested to the State of Bombay and the petitioner did not continue to have any right over the same. Therefore, when the State of Bombay has taken over another State namely; the then State of Prempur, the said property, meant for common purpose and common use for the benefits of the public, has vested to another State, the petitioner cannot claim the individual right as if a citizen holding any individual property or personal property of himself. So far as the remaining properties are concerned, over which the right of the petitioner as superior holder or other individual properties, the same are covered under the Jagirs Abolition Act and the petitioner has been paid the compensation and on that aspect, there is no dispute. Hence, the decision upon which the reliance has been placed cannot apply to the present case and, therefore, the same is of no help.
The aforesaid is coupled with the circumstances that the award under Jagirs Abolition Act for payment of compensation was accepted by the petitioner and not challenged. Therefore, it can be considered that the petitioner, at the relevant point of time, when the proceedings under Jagirs Abolition Act were initiated and concluded, did not consider the property as if his own and the dispute for the first time was raised in 1987, whereas the award is of 1961. In any case, as we find that no right continued, the said aspect would not be of much reliance, but the fact remains that at a belated stage, the claim is sought to be canvassed, which otherwise also, on merits, lacks substance.
In view of the above, we find that no case arises for interference. Hence, the petition is dismissed.
(Jayant Patel, J.) (S. R. Brahmbhatt, J.) vinod Top