STATE OF GUJARAT v. AMBALAL MANGALDAS PATEL — 1968 DIGILAW 26 (GUJ)

V. R. SHAH, J. ( 1 ) * * * * ( 2 ) THE next question is whether the river bed of river Banas has vested in the Government under the provisions of the Jagirs Abolition Act. In order to decide this question it will be necessary to scrutinize the various provisions of the Jagirs Abolition Act. The definition clauses are to be found in sec. 2 of the Act. The words Jagir village are defined as a village or part of a village held as Jagir as defined in clause (vi ). The word Jagir is defined in clause (vi) as meaning the grant by or recognition as a grant by the ruling authority for the time being before the merger of a village a group of villages or a portion of a village whether such grant is of the soil or an assignment of land revenue of both and includes villages groups of portions of villages. Jagir villages are of two kinds proprietary and non proprietary. It is admitted that the village in this case is a proprietary Jagir village. By sec. 13 of the Jagirs Abolition Act all Jagirs are deemed to have been abolished and all rights of the Jagirdars subsisting on the said date in respect of a Jagir village as incidents on Jagir are also deemed to have been extinguished. Such rights of the Jagirdar would include the right to recover rent or assessment of land or to levy or recover any kind of tax cess fee charge or any half and the right of reversion or lapse. Having abolished the Jagirs and all rights on the Jagirdars as incidents of Jagir sec. 4 proceeds to make provision 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 lands shall apply to such villages. After extinguishing the rights of the Jagirdars in Jagir villages sec. 5 proceeds to confer upon them certain rights as occupants of the land. Clause (a) of sub-sec. (1) of sec. 5 relates to Gharkhed lands that is lands which are cultivated personally by the Jagirdar. Clause (b) of sub-sec. (1) of sec. After extinguishing the rights of the Jagirdars in Jagir villages sec. 5 proceeds to confer upon them certain rights as occupants of the land. Clause (a) of sub-sec. (1) of sec. 5 relates to Gharkhed lands that is lands which are cultivated personally by the Jagirdar. Clause (b) of sub-sec. (1) of sec. 5 refers to lands other than Gharkhed lands which are either in the actual possession of the Jagirdar or are in possession of a person other than a permanent holder holding through or from the Jagirdar. In respect of these two categories of land under the provisions of sec. 5 Jagirdar becomes an occupant of the land and is held primarily liable to pay to the Government the land revenue in respect of such lands. Clause (c) of sub-sec. (1) of sec. 5 then refers to Jiwai land held by a cadet of the Jagirdars family and the cadet is made the occupant of the land in case of such land as is in possession of the cadet and cultivated by him personally or is in the possession of a person other than a permanent holder holding through or from the cadet. Clause (d) of sub-sec. (1) of sec. 5 deals with permanent holders of land and such permanent holders are themselves made occupants of the lands. Therefore sec. 5 confers certain rights of occupant on the Ex-Jagirdars or on the permanent holders of the land only in respect of those properties which are designated or described in sec. 5 of the Act. The first proviso to sec. 5 entitles a person who not being a permanent holder holds actual possession of land from the Jagirdar to become an occupant of the land by paying six times the assessment of the land to the Jagirdar. I may add that the plaintiff in this case claims to be entitled to be an occupant of the land under this first proviso to sec. 5. I am not concerned with the further provisions sub-secs. 1a and 1b because they are not applicable to the facts of this case. Sub-sec. (1) of sec. 5 of applies to a proprietary Jagir village; sub-sec. (2) of sec. 5 applies to a non-proprietary Jagir village and similar arrangement is made in the case of a nonproprietary Jagir village with certain changes which are necessitated by the change in the nature of the Jagir. Sub-sec. (1) of sec. 5 of applies to a proprietary Jagir village; sub-sec. (2) of sec. 5 applies to a non-proprietary Jagir village and similar arrangement is made in the case of a nonproprietary Jagir village with certain changes which are necessitated by the change in the nature of the Jagir. Similar provision in the case of a life time Jiwai Jagir village is made in sec. 6. Sec. 7 refers to payment of assessment in case of lands which are not surveyed and settled. Then comes sec. 8 and I would quote the relevant portion of it as follows :-ALL public roads lanes and paths the bridges ditches dikes and fences on or beside the same the bed of the sea and of harbours creeks below high water mark and of rivers streams nalas lakes wells and tanks and all canals and water courses and all standing and flowing water all unbuilt village site lands all waste lands and all uncultivated lands which are situate within the limits of any Jagir village shall except in so far as any rights of any person other than the jagirdar may be established in or over the same vest in and shall be deemed to be with all rights in or over the same or appertaining thereto the property of the State Government and all rights held by a jagirdar in such property shall be deemed to have been extinguished. . . . . . . . PROVISIONS under secs. 10 and 11 onwards provide for compensation in case of rights extinguished. ( 3 ) THE argument which found favour with the learned District Judge and which was adopted by Mr. Barot before me is that this river bed land which belonged to the Jagirdar before the Jagirs Abolition Act came into force was in actual possession of the plaintiff who derived title to hold it through the Jagirdar and therefore this land was covered by sec. 5 (1) (b) of the Jagirs Abolition Act and therefore the Jagirdar became the occupant of this land; the further argument is that the plaintiff became entitled to became an occupant thereof on payment of six times the assessment to the Jagirdar. On this basis Mr. Barot urged that the Government has no right to the land; therefore the Government cannot threaten to evict him from the land. Mr. On this basis Mr. Barot urged that the Government has no right to the land; therefore the Government cannot threaten to evict him from the land. Mr. Barot advanced this contention irrespective of the question whether the plaintiff has in fact become the occupant of the land by paying the requisite amount to the Jagirdar or not. Mr. Barot urged that even if he has not paid the occupancy price to the Jagirdar still the Jagirdar would continue to be the occupant of the land and therefore the Government who has no right to the possession of the land cannot threaten to evict him from the land. This argument as I stated above has been accepted by the learned District Judge. ( 4 ) THE argument advanced on behalf of the State is that the riverbed is specifically referred to in sec. 8 of the Jagirs Abolition Act and therefore it became vested in the Government as owner and all rights of the Jagirdar thereon are extinguished. The State further contended that even if at the time when the suit land became vested in Government on 1 August 1954 the plaintiff as tenant in the land had a right to possession of that land for the unexpired portion of his tenancy that right of his came to an end on Aso Vadi 30 of S. Y. 2013 (that is on 23rd October 1957 and therefore after that date there is no right in the plaintiff to remain in possession of the land and the Government as owner of the land has a right to evict him. According to Mr. Vidhyarthi learned Assistant Govt. Pleader sec. 8 of the Jagirs Abolition Act deals specifically with specific items and properties and therefore it creates an exception to the general rule applicable to the different kinds of properties mentioned in sec. 5 of the Act. Mr. Vidhyarthi therefore contended that the provisions in sec. 8 specifically deal with the vesting of a river bed in Government and it should over ride the general provisions in sec. 5 relating to all lands in possession of the Jagirdar or some one claiming through him. Mr. Vidhyarthi therefore contended that the State can evict the plaintiff from the land as he has no more any right to the land after 23rd October 1957 In my opinion the argument advanced by Mr. 5 relating to all lands in possession of the Jagirdar or some one claiming through him. Mr. Vidhyarthi therefore contended that the State can evict the plaintiff from the land as he has no more any right to the land after 23rd October 1957 In my opinion the argument advanced by Mr. Vidhyarthi is correct and should be accepted. It is true as urged by Mr. Barot that on the facts of this case the provisions of sec. 5 (1) (b) would be applicable. It is equally true that since the land in dispute is a river bed land the provisions of sec. 8 are also applicable. The question therefore that arises for decision by me is which of the two provisions of law should prevail in the circumstances of this case. The Legislature after abolishing a Jagir proceeds to substitute an alternative arrangement in place of the one abolished. By sec. 4 it makes all provisions of Land Revenue Code and rules thereunder which relate to unalienated lands applicable to the Jagir land and makes such lands liable to payment of land revenue. Therefore a Jagir village is substituted by an unalienated village liable to pay land revenue. Next the Legislature proceeds to lay down as to what lands can form the subject matter of occupancy rights and who can become occupant of those lands. This is provided for in secs. 5 and 6. At the same time the Legislature proceeds to lay down what lands would vest in it thereby indicating as to what lands cannot form the subject matter of an occupancy. These lands are specified in sec. 8 of the Act. Except unbuilt village site lands waste land and uncultivated lands all other kinds of property mentioned in sec. 8 are such that they are useful to public generally or to a section of the public. The three items of property just mentioned above are not of any present use to anyone this is indicated because the lands are either unbuilt waste or uncultivated. It may be that they may be useful to individuals in future; but at the time of abolition of Jagir no one derived any benefit out of it. The Legislature may well have thought to acquire them also with a view to grant them to such persons as would make immediate use of it. It may be that they may be useful to individuals in future; but at the time of abolition of Jagir no one derived any benefit out of it. The Legislature may well have thought to acquire them also with a view to grant them to such persons as would make immediate use of it. Sec. 8 therefore concerns itself with such items as are or are capable of being used for general public benefit. In respect of these items the Legislature has indicated its mind that on abolition of Jagir they should vest in Government. It is therefore clear that the Legislature has expressed a clear indication as to what should be done after the abolition of Jagir in respect of the properties mentioned in sec. 8 of the Jagirs Abolition Act. To the extent that sec. 8 would over lap sec. 5 the provisions of sec. 8 should prevail as they deal specifically which specific items of land unlike the provisions of sec. 5 which deal generally with all kinds of properties. In my opinion therefore even though sec. 5 (1) (b) would apply to the facts of this case a specific provision in respect of the river bed is made in sec. 8 and therefore sec. 8 should have preference over the provisions of sec. 5 (1) (b) of the Jagirs Abolition Act. ( 5 ) A point of this nature arose for decision before my learned brother Divan J. in Second Appeal No. 756 of 1960 decided on 17th February 1965 In that case the point in dispute was about the right of a contractor to cut trees in a forest belonging to the Jagirdar after coming into force of the Jagirs Abolition Act on 1st August 1954. The State contended that the Jagirdars rights over the forest and the trees came to an end and therefore the contractor who derived his right to cut trees through the Jagirdar also lost his right and therefore the State contended that the contractor can no more cut the trees and take away the produce. There also it was found that the forest lands were in the actual possession of the Jagirdar and it was also found that they were not cultivated for a continuous period of three years immediately before coming into force of the Jagirs Abolition Act. Therefore in view of the explanation to sec. There also it was found that the forest lands were in the actual possession of the Jagirdar and it was also found that they were not cultivated for a continuous period of three years immediately before coming into force of the Jagirs Abolition Act. Therefore in view of the explanation to sec. 8 of the Act these forest lands were uncultivated lands in possession of the Jagirdar. If the provisions of sec. 5 (1) (b) of the Jagirs Abolition Act were applicable the Jagirdar being in actual possession of the lands would be an occupant of the lands and accordingly the contractor would continue to have a right to cut the trees from those lands. On the other hand it was urged that the forest lands being uncultivated lands within the meaning of explanation to sec. 8 of the Act were included in the items mentioned in sec. 8 of the Act and there fore those lands vested in Government and the Jagirdars rights thereon were extinguished. Divan J. accepted the view that in such circumstances sec. 8 carves out an exception from sec. 5 (1) (b) of the Act in so far as uncultivated lands as defined in the explanation to sec. 8 in the actual possession of the Jagirdar are concerned. I agree with the view accepted by my learned brother Divan J. and accordingly I come to the conclusion that the river bed land being specifically mentioned and included in the items of properties specified in sec. 8 is governed by the provisions of sec. 8 and is therefore taken out from the provisions of sec. 5 (1) (b) of the Jagirs Abolition Act. In this view of the matter the right of the Jagirdar in the river bed land became extinguished on and from 1st August 1954 and therefore he cannot become an occupant of the land within the meaning of sec. 5 (1) (b) of the Act. It is clear that as a consequence of this decision the plaintiff cannot claim any right of an occupant by paying six times the assessment to the Jagirdar. ( 6 ) MR. 5 (1) (b) of the Act. It is clear that as a consequence of this decision the plaintiff cannot claim any right of an occupant by paying six times the assessment to the Jagirdar. ( 6 ) MR. Barot relied upon a decision of a Division Bench of this Court in Fidaali v. State II Gujarat Law Reporters 343 In that case Fidaali had entered into a contract with the Jagirdar to cut trees in a forest before the coming into force of the Jagirs Abolition Act on 1st August 1954. The Court followed the decision in Special Civil Application No. 2146 of 1958 decided on January 14 1959 and held that the forests and trees did not vest in Government. As pointed out by Divan J. the provisions of sec. 8 of the Jagirs Abolition Act were not considered by the Division Bench. The decision in Special Civil Application No. 2146 of 1958 was based not on a consideration of sec. 8 of the Act but on a concession made on behalf of the State that the forest did not vest in Government. ( 7 ) IF the land vests in the Government under sec. 8 the rights of the Jagirdar in the land are deemed to be extinguished. However by virtue of the express language in sec. 8 of the Act the rights of any person other than Jagirdar established in or over the property mentioned in sec. 8 of the Jagirs Abolition Act are saved. The plaintiff can only claim to have a right to unexpired tenancy in respect of the land. He has already enjoyed the property for the unexpired period of his tenancy that is from 1st August 1954 to 23rd October 1957 He has no other right left over the property. The Mamlatdar had asked him to vacate the land after the expiration of the term of his tenancy. It is clear that after the expiry of the term of his tenancy the plaintiff is no more entitled to retain the possession of the land and therefore the State as owner of the land is entitled to evict him from the land. ( 8 ) MR. Vidhyarthi learned Assistant Government Pleader urged that on the vesting of the river bed in the Government under sec. ( 8 ) MR. Vidhyarthi learned Assistant Government Pleader urged that on the vesting of the river bed in the Government under sec. 8 of the Act the right of the plaintiff for the unexpired portion of his tenancy also came to an end and the tenancy in his favour was extinguished. He did not cite any authority in this behalf. However in Letters Patent Appeal No. 1 of 1966 decided on 12th July 1967 by a Division Bench of this Court to which I was a party (Salebhai v. State IX G. L. R. 340) it has been held that the rights of third persons which are in existence at the date when the property vested in Government are saved by the very provisions in sec. 8 itself. Mr. Vidyarthis argument therefore that the tenancy came to an end on 1st August 1954 cannot be accepted. .