DINSHAWJI BAMANJI DALAL v. STATE — 1969 DIGILAW 24 (GUJ)

J. B. MEHTA, J. ( 1 ) THE petitioners grantee of the three disputed lands challenge in this petition under Article 227 the final order of the Gujarat Revenue Tribunal dated March 30 1963 by which the Revenue Tribunal has dismissed the appeal of the petitioners in the inquiry under sec. 37 (2) of the Land Revenue Code hereinafter referred to as the Code on the ground that the petitioners right in relation to mines and minerals in these lands were extinguished by the Bombay Talukdari Tenure Abolition Act 1949 which came into force from August 15 1950 The petitioners are the heirs of one Dr. Bamanji Dalal in whose favour the then Collector of Panch Mahals acting as administrator of the Talukdari estates made the grant of the lands in question by a deed of grant dated September 30 1908 On the abolition of the Talukdari Tenure by the said Act records of rights were prepared. The petitioners challenge these entries as their rights as per the said grant in respect of the mines and mineral rights for these three lands S. No. 1/2 5 of village Rustampura were not entered in the column of other rights. A formal inquiry was therefore held under sec. 37 (2) of the Code. The Mamlatdar disallowed this claim by the order dated August 23 1957 After the Prant Officer dismissed the appeal and the Collector also dismissed a further appeal the matter was first remanded to the Collector by the order of the Gujarat Revenue Tribunal dated December 15 1961 Thereafter the Collector by the order dated September 8 1962 recognised their rights to cut timber for certain lands but as the right of the petitioners in respect of mines and minerals was held to be extinguished the petitioners filed an appeal before the Revenue Tribunal. The Revenue Tribunal has also dismissed this appeal by the impugned order dated September 30 1963 and therefore the petitioners have filed the present petition. ( 2 ) THERE is no dispute as to the terms of the grant. The Revenue Tribunal has also dismissed this appeal by the impugned order dated September 30 1963 and therefore the petitioners have filed the present petition. ( 2 ) THERE is no dispute as to the terms of the grant. The Revenue Tribunal has reproduced the material clause 17 of the deed of grant as under :-SUBJECT to the rights of His Majesty and to any law or rules of Government for the time being in force relating to mines or mineral products and the working and searching for the same the Grantee shall be entitled to work and search for the mines and mineral products in these lands But the Grantee shall pay to the Grantor a sum equal to 21% of the royalties from time to time payable by the Grantee to the British Government in addition to the annual assessments payable under the provisions hereinbefore contained such sum to be ascertained in the manner herein after mentioned. . . . . . THE only material question which the Tribunal considered was that on the abolition of the Talukdari tenure these rights were extinguished and were not saved and on that ground the Tribunal had disallowed the claim of the petitioner in respect of these rights mentioned in clause 17 for the three lands. ( 3 ) UNDER sec. 3 of the Act with effect from the date the Act came into force (I) the talukdari tenure shall wherever it prevails be deemed to have been abolished; and (II) save as expressly provided by or under the provisions of this Act all the incidents of the said tenure attaching to any land comprised in a talukdari estate shall be deemed to have been extinguished. SEC. 5 (1) (b) provides that subject to the provisions of sub-sec. (2) a talukdari holding any talukdari land. . . . . . shall be deemed to be an occupant within the meaning of the Code or any other law for the time being in force. Sec. 5a (1) provides under :-NOTWITHSTANDING anything contained in sec. SEC. 5 (1) (b) provides that subject to the provisions of sub-sec. (2) a talukdari holding any talukdari land. . . . . . shall be deemed to be an occupant within the meaning of the Code or any other law for the time being in force. Sec. 5a (1) provides under :-NOTWITHSTANDING anything contained in sec. 5 a permanent tenant in possession of any talukdari land and also an inferior holder holding such land on payment of annual assessment only shall be deemed to be occupants within the meaning of the Code in respect of such land in their possession and shall be primarily liable to the State Government for the payment of land revenue due in respect of such land and shall be entitled to all the rights and shall be liable to all the obligations in respect of such land as occupants. . . . . . . THE proviso (b) provides that such inferior holder shall be entitled to the rights of an occupant in respect of such land on payment to the talukdari of the occupancy price equivalent to two multiple of the assessment fixed for such land and for the extinguishment or modification of any rights of the talukdari including the right of reversion in the land of a further sum equivalent to such assessment. Under sec. 6 all public roads etc and all standing and Sowing water all unbuilt village site lands and all waste lands and all uncultivated land (excluding the lands used for building or other non-agricultural purposes) which are not situate within the limits of Vantas belonging to a talukdari in a talukdari estate shall except in so far as any rights of any person other than the talukdari be established in and over the same and except as may otherwise be provided by any law for the time being in force vest in and shall be deemed to be with all rights in or over the same or appertaining thereto the property of the Government and all rights held by a talukdari in such property shall be deemed to have been extinguished and it shall be lawful for the Collector subject to the general or special orders of the Commissioner to dispose them of as he deems fit subject always to the rights of the public or of individuals legally subsisting. The Explanation provides for the purposes of this section that the land shall be deemed to be cultivated if it has not been cultivated for a continuous period of three years immediately before the date on which this Act comes into force. Sec. 7 (1) provides for compensation to the taluqdars for extinguishment of rights under the preceding section. Sec. 14 (1) is a residuary section which provides that if any person is aggrieved by any of the provisions of this Act as extinguishing or modifying any of his rights in any land other than those in respect of which provision for the payment of compensation has been made under sec. 7 and if such person proves that such extinguishment or modification amounts to transference to public ownership of such land or any right in or over such land such person may apply to the Collector for compensation on or before the 31 day of March 1952. Sec. 16 then provides that subject to the provisions of the Act the provisions of the Code apply and are hereby declared to apply to all talukdari lands subject to the modifications specified in Schedule 1. The principal modification in Schedule 1 which is material for our purpose is one in sec. 69 of the Code so that sec. 69 of the Code now runs as under :-THE right of the Government to mines and mineral products in ail unalienated lands is and is hereby declared to be expressly reserved. Provided that nothing in this section shall be deemed to affect any subsisting rights of any occupant of such land in respect of such mines or mineral products. THEREAFTER sec. 17 repeals enactments mentioned in Schedule II including the Gujarat Taluqdars Act 1968 The proviso saves in clause (a) the validity invalidity effect or consequence of any alienation of or any encumbrance created on a talukdari land or of anything already done or suffered to be done under the said enactments before the date of the commencement of the Act (b) any obligation or liability already incurred or accrued before such date; (c) and any declaration made or any agreement recognised. . . . . . . . . under the provisions of any of the enactments hereby repealed. ( 4 ) FROM the aforesaid scheme of the Act it is clear that under sec. . . . . . . . . under the provisions of any of the enactments hereby repealed. ( 4 ) FROM the aforesaid scheme of the Act it is clear that under sec. 3 with effect from the date on which the Act comes into force the Talukdari tenure stands abolished and all the incidents of the Talukdari tenure are deemed to have been extinguished except to the extent that express provision is made under this Act by any other provision. We have therefore to see whether any other provision of the Act saves any such right. Secs. 5 (1) and 5a (1) provide that the Talukdari holding talukdari land or any inferior holder holding such land shall be deemed to be an occupant who shall be liable for payment of land revenue and who shall be entitled to all the rights as occupant. It should be kept in mind that secs. 5 (1) and 5a (1) apply to all kinds of talukdari lands. The expression any talukdari lands is of the widest import which include all land whether it was waste cultivated forest land stony mines land or any other kind of land. In case of all these lands the talukdari holding land or a permanent tenant in possession of inferior holder holding land on payment of annual assessment is made occupant either under sec. 5 or 5a. We are not concerned with the case of any permanent occupant as those petitioners grantees would be inferior holders from the Ex-talukdari. Another specific section of the Act is sec. 6 which deals with only specific properties by in terms providing the expression such property in which all rights of the taluqdars are deemed to have been completely extinguished and such properties vest in the State Government. In contradistinction with secs. 5 (1) and 5a (1) where any talukdari land has been mentioned the legislature in sec. 6 mentions only public roads rivers beds etc. and all unbuilt village site lands all waste lands all uncultivated lands other than lands used for buildings or for non-agricultural purposes in a talukdari estate. Therefore only a limited kind of properties mentioned in sec. 6 are made to vest in the Government in which all the rights of the talukdari are extinguished and the taluqdars right is one of only compensation in terms of sec. 7 (1 ). Therefore only a limited kind of properties mentioned in sec. 6 are made to vest in the Government in which all the rights of the talukdari are extinguished and the taluqdars right is one of only compensation in terms of sec. 7 (1 ). Sec. 7 (1) also emphasises this concept by providing the right of compensation of the talukdari for extinguishment of rights under sec. 6. The Explanation to sec. 6 makes it clear that it creates a fiction for only those lands which remained uncultivated for three years and therefore the expression uncultivated land would apply to those lands which have that characteristic of being capable of cultivation and which remained uncultivated. Even the exclusion of lands used for building or other non-agricultural purposes makes it clear that all talukdari lands are not sought to be covered under sec. 6 but only those which are specified in sec. 6. Therefore only waste lands or uncultivated lands which are not used for building or other nonagricultural purpose would only vest in the State Government and only in such properties the rights of the talukdari can be completely extinguished except for the limited compensation under sec. 7. For other kinds of lands sec. 5 (1) and sec. 5a (1) would completely apply where the rights of the taluqdars or permanent tenants or inferior holders are specifically saved to become occupants. Therefore such lands which do not vest in the State as being waste lands and uncultivated lands but which are mineral lands where there would be no question of any cultivation would even come under the specified saving as to occupancy under sec. 5 (1) or 5a (1 ). These being express provisions even when the talukdari tenure is abolished under sec. 3 these specific rights would be saved. Therefore from the aforesaid scheme it is abundantly clear that mineral rights in such mines lands which are so valuable lands and which though unfit for cultivation could never fall under the definition of waste lands or uncultivated lands have not been made to vest in the State under sec. 6 and still a provision is made to save the rights by creating occupancy rights under sec. 5 (1) or 5a (1 ). This intention is further sought to be clarified by sec. 6 and still a provision is made to save the rights by creating occupancy rights under sec. 5 (1) or 5a (1 ). This intention is further sought to be clarified by sec. 16 itself which provides that the provisions of the Code shall apply and are here by declared to apply to all talukdari lands with the modifications in Schedule I. This application of the Code is made subject to the provisions of the Act. Therefore if the rights of the occupants in all such lands are recognised so that their proprietary rights in respect of the use and appropriation of mines and minerals survive the rights of those occupants would not be affected by the application of the Code in any manner whatsoever. In fact even in sec. 69 itself this saving is clearly provided even when the right of the Government to mines and mineral products in all talukdari lands is declared to be expressly reserved by stating that nothing in sec. 69 shall be deemed to effect any subsisting rights of any occupant of such land in respect of such mines or mineral products. In the present case the effect which was sought to be achieved by the modification of sec. 69 of the Code in its application to the talukdari lands under sec. 16 of the Act was already achieved by recognition of the sovereign right of the State to mines and mineral products by the terms of the covenant of the grant itself in clause 17. Even then the right of the occupants talukdari or inferior holder to search and appropriate minerals in these lands would be clearly saved as subsisting rights of such occupants in respect of mines and mineral products subject to the sovereign right and the law in force. That is why even sec. 17 when it repealed Gujarat Talukdari Act 1968 saved whatever was done under the previous enactment and whatever liability or obligation has incurred or any agreement duly arrived at as was done in this case by the act of the administrator by this solemn grant in favour of the petitioners father. Therefore on a complete reading of the entire scheme of the Act we find no provision which extinguished the rights of these grantees to exploit and appropriate mines and minerals subject to the sovereign right to recover royalty as provided in clause 17 of the deed. Therefore on a complete reading of the entire scheme of the Act we find no provision which extinguished the rights of these grantees to exploit and appropriate mines and minerals subject to the sovereign right to recover royalty as provided in clause 17 of the deed. These lands were not sought to be vested in the State under sec. 6 and in fact the rights in these lands were completely saved by granting occupancy of these lands under sec. 5 (1) and 5a (1) to the talukdari or inferior holder concerned and therefore these express provision would clearly save all the numeral rights notwithstanding the abolition of talukdari tenure under sec. 3. ( 5 ) MR. Nanavati however vehemently argued that the lower revenue authorities had arrived at a finding of fact that these lands were waste or uncultivated lands and it was not open to this Court to interfere with the said finding. Mr. Nanavati in this connection pointed out that the Mamlatdar had mentioned that these lands were waste and uncultivated lands as no cultivation was done and the Collector has even assumed this fact. He could not point out anything in this connection from the Tribunals order. Merely because these lower authorities call these lands waste or uncultivated lands on a complete misconception of the meaning of the relevant terms by their assumption of these facts the lands do not alter their legal character and on the basis of such a misconceived assumption no such argument can be advanced that this was a finding of fact. In a group of Special Civil Applications Nos. 570 629 and 634 of 1963 and 283 to 285 and 287 to 309 of 1966 decided by me on November 5 1968 I have pointed out that the meaning of the term waste is in its original sense in which it has been used in sec. 6. I have relied upon a decision of the Supreme Court in Raja Anand Brahma Shah v. The State of Uttar Pradesh A. I. R. 1967 S. C. 1081 (1085) where their Lordships of the Supreme Court held in the context of sec. 17 (1) or (4) of the Land Acquisition Act 1894 that the word waste would mean land which is unfit for cultivation or habitation desolate and barren land with little or no vegetation thereon. 17 (1) or (4) of the Land Acquisition Act 1894 that the word waste would mean land which is unfit for cultivation or habitation desolate and barren land with little or no vegetation thereon. It would not cover forest land even though it was incapable of cultivation. In the subsequent decision in Ishvarlal Girdharlal Joshi v. State of Gujarat A. I. R. 1968 S. C. 870 at page 879 the Supreme Court pointed out that the lands were of different kinds; waste land desert land pasture land meadow land grass land wood land marshy land hilly land etc. and arable land. Thus it was obvious that waste lands would not exhaust the category of land incapable of cultivation. Waste lands in the original sense of vastus would emphasise the contrast with the grass lands or lands for buildings or wood lands marshy lands hilly lands etc. If the lands were used for such building purpose or such other nonagricultural purpose as in the case of stony lands or marshy lands or wood lands even though they might be incapable of cultivation they were capable being put to other use and they would not be waste lands. I also relied upon the decision of our Court by the Division Bench consisting of Shelat C. J. (as he then was) and myself 5 G. L. R. 924. At page 932 we construed the expression waste lands to mean lands which are desolate deserted uninhibited and uncultivated and a building site land would not be regarded as waste land simply because it was not put to any present use. Therefore I interpreted in the light of these decisions the term waste land and held that the test to be applied for holding land to be waste land was not that it was incapable of cultivation but that it was unfit for any use so that the term waste was confined to its original sense of deserted uncultivable waste and in that view of the matter the valuable grass lands were not held to be waste lands. Therefore this question is already concluded and it is not open to Mr. Mankad to urge that such useful lands which would yield manganese and other minerals which could be mined would be covered in the expression waste or uncultivated lands. Therefore this question is already concluded and it is not open to Mr. Mankad to urge that such useful lands which would yield manganese and other minerals which could be mined would be covered in the expression waste or uncultivated lands. Even though they answer the description of being unfit for cultivation would be very useful land which could never be treated as waste lands and being incapable of any cultivation they could never fall even in the category of uncultivated land which must have the characteristic of being fit for cultivation. Therefore on this unwarranted assumption that these lands are waste or uncultivated land and that they vest under sec. 6 in the Government we cannot prove in this case when admittedly the question was of the rights of the mines and minerals. ( 6 ) BESIDES in the aforesaid decisions I have also followed the decision of the Maharashtra High Court by the Division Bench of Chainani C. J. and Gokhale J. dated January 21 1965 in 67 Bom. L. R. 281 on the other part of the reasoning. The Maharashtra High Court had harmoniously construed secs. 5 and 7 of the corresponding Personal Inams Abolition Act corresponding to our secs. 5 and 6 and had held that the grass land of which the concerned Talukdar or Inamdar had become occupant did not vest in the State. Because in the principle of harmonious construction sec. 5 (1) must have an overriding effect as it expressly recognised to limited extent some rights of the Talukdar or Inamdar while the tenure was abolished under the relevant section. On a parity of reasoning in the present case also on a harmonious construction of secs. 5 and 6 so far as such lands are concerned of mines and minerals and which could be used for taking out minerals sec. 5 would prevail as against sec. 6 and these rights of the relevant occupants would be saved. That is made clear even when sec. 16 applies the Code to the provisions of the Act and even the modified sec. 69 of the Land Revenue Code also enacts an express proviso to save all full subsisting rights of these occupants as to mines and minerals. ( 7 ) FINALLY Mr. That is made clear even when sec. 16 applies the Code to the provisions of the Act and even the modified sec. 69 of the Land Revenue Code also enacts an express proviso to save all full subsisting rights of these occupants as to mines and minerals. ( 7 ) FINALLY Mr. Nanavati argued that these rights would not be subsisting rights because no mines were working at present and no such use for getting mines or minerals was done. It is wholly immaterial whether the land is at present put to such use. What is material is its potential capacity. The petitioners only wanted those rights to be recognised subject to the sovereign rights or the law in force. The Revenue Tribunal however on a plain misconstruction of the entire relevant scheme of the Act came to the conclusion that these rights were extinguished under the Act and they were not saved and on that limited ground rejected the petitioners claim. This is a patent error of law by committing which the Tribunal has declined to hear and determine the matter in accordance with law and has thereby declined to exercise its jurisdiction to hear and determine this appeal in accordance with law. ( 8 ) MR. Nanavati also argued that this was the matter within the jurisdiction of the Tribunal as it had the power to determine these questions. There was no question of any collateral or jurisdictional facts and the Tribunal did not lack jurisdiction. Mr. Nanavati also pointed out that on a question of law the Tribunal had complete jurisdiction to decide rightly or wrongly and merely because its conclusion was not acceptable to this Court it could not be held to be a patent error of law especially when the matter would be capable of two reasonably possible views. This question has been very well considered by His Lordship Bose J. in Sangram Singh v. Election Tribunal A. I. R. 1955 S. C. 425. This question has been very well considered by His Lordship Bose J. in Sangram Singh v. Election Tribunal A. I. R. 1955 S. C. 425. At page 428 their Lordships considered the contention that the legislature intended the decision of these tribunals to be final on `all matters whether of fact or of law and that accordingly they could not be said to commit an error of law when acting within the ambit of their jurisdiction they decided and laid down what the law was for in that sphere their decisions were absolute as absolute as the decisions of the Supreme Court in its own sphere. Therefore it was contended that the only question that was left open for examination under Art. 226 in the case of an Election Tribunal was whether it acted within the scope of its jurisdiction. In repelling this contention His Lordship Bose J. in terms held that the jurisdiction which Articles 226 and 136 entitles the High Courts and the Supreme Court to examine the decisions of all the tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis--vis all other Courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. It is the same approach as in the case of collateral or preliminary jurisdictional facts in the sphere of law applied by the inferior Courts and Tribunals when their erroneous conclusion as to what the law is treated only as a tentative conclusion. It is the same approach as in the case of collateral or preliminary jurisdictional facts in the sphere of law applied by the inferior Courts and Tribunals when their erroneous conclusion as to what the law is treated only as a tentative conclusion. Just as the inferior Court or tribunal cannot usurp jurisdiction by wrongly affirming a collateral or jurisdictional fact it cannot equally exceed its jurisdiction by wrongly affirming what is the law it has to administer. In both cases such a collateral question is always subject to review by the High Court in its extra ordinary jurisdiction. In the oft quoted words of Farewell L. J. in R. v. Shoreditch Assessment Committee (1910) 2 K. B. 859 (880) subjection in this respect to the High Court is a necessary and inseparable incident to all Tribunals of limited jurisdiction; for it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such point as 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 existence or non-existence of its own jurisdiction is founded on law or fact. Any other construction would have made the decisions of inferior Courts or tribunals even as to what the law is completely absolute. That could never had been intended by the legislature when it invested the High Courts with the powers of superintendence both over the inferior Courts and tribunals so as to lay down the law of the land. Therefore when the question is as to what is the meaning to be given to the legal language the inferior Courts and tribunals could only arrive at tentative conclusion and their decision could never be final for otherwise different Courts and tribunals would come to totally opposite conclusions and it would be a pure gamble for the citizen as to the decision he would get at the hands of these inferior Courts and tribunals. Such a system would be completely destructive of an uniform system of administration of justice under a rule of law which is intended to prevail so that two similarly situated citizens are not discriminated but are equally treated in view of the guarantee of equality before law enshrined in our Article 14 of the Constitution. Such a system would be completely destructive of an uniform system of administration of justice under a rule of law which is intended to prevail so that two similarly situated citizens are not discriminated but are equally treated in view of the guarantee of equality before law enshrined in our Article 14 of the Constitution. Therefore the same reasons which made Lord Esher M. R. to hold that the decisions of the inferior Courts and tribunals on jurisdictional or collateral issues were tentative by holding that the legislature could never have intended that the limited tribunal could determine its own limits so that it can transgress at its sweet will and pleasure those limits made our Supreme Court also to extend that principle even to such erroneous conclusions of law so that the jurisdictional control could be invoked by keeping these inferior Courts and tribunals within the bounds of law by securing an uniform administration of justice according to law. That is why in all such cases where such misconstruction of law vitiates the conclusion of the inferior Courts or tribunals so that it can be said that the Tribunals conclusion was wholly unwarranted if it was properly instructed as to the relevant law which it had to administer the error is treated as a patent error of law which can be interfered with in this extraordinary jurisdiction of the High Court. This is also an error which goes to the root and the tribunal in such cases must be held to have heard and determined the matter not in accordance with law or having declined jurisdiction in the limited sense of want of authority. In that view of the matter the order of the Revenue Tribunal suffers from a patent error of law as it proceeds on the assumption that these mines and mineral rights are extinguished by the Act. This assumption being wholly unjustified the Tribunal has not heard and disposed of the appeal in accordance with law and having failed to exercise the jurisdiction the matter must go back to the Tribunal to decide this appeal in the light of the above observations ( 9 ) IN the result this petition is allowed and the order of the Tribunal is quashed. The Tribunal shall now decide the appeal in accordance with law in the light of these observations. .