- (1.) In this appeal by special leave the two appellants challenge an order of the High Court of Madhya Pradesh dated April 25, 1962 by which a writ petition filed by them in the High Court under Arts. 226 and 227 of the Constitution was rejected in limine although the High Court made a speaking order setting out reasons for its dismissal.
(2.) The matter arises out of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (No. XI of 1952). THE present appellants are a family of Raj Gurus of the erstwhile Rewa and Nagod States. THEir case is that in the year 1735 the then Maharaja of Rewa State established a charitable and religious institution for the performance of Yagna and constituted a body of persons known as Yagna Parishad to manage the institution. For the upkeep of the institution the Maharaja made a gift of as many as twelve villages which according to appellants yielded annually Rs. 17,886-13-6. THE Sayar income came to about Rs. 90,000 annually. On June 30, 1953 the Act was passed abolishing Jagirs in Vindya Pradesh and these villages were resumed by Government on and from July 1,1953. Under the provisions of the Act compensation was payable and the scheme of the Act required every claimant to submit his claim for compensation and the compensation was then determined according to certain provisions of the Act stated in Ch. III. In the present case the compensation has been worked out at Rs. 90,000 and odd. THEre is, however, a section in the Act which reads as follows:- S. 41; "Jagirs held for Religions or charitable institutions - Notwithstanding anything contained in Chapter III of this Act, the Government may in the case of any Jagir held for the maintenance of any religious or charitable institution pay such perpetual annuity and in such instalments as may be prescribed, instead of the compensation payable under the provisions of this Act: Provided that the amount of such annuity shall not be less than the income which will accrue to such institution if the amount of compensation as determined under the provisions of this Act for such Jagir were invested in some Government security bearing interest at 21/2% per annum." A set of rules has been framed under the Act for religious and charitable Jagirs. It appears that a special procedure had to be followed whenever compensation in respect of religious and charitable Jagirs had to be paid. Rules 42 to 45 bear upon the subject. It is, however, unnecessary to quote all of them. It would be sufficient for our purpose if we read Rr. 42 and 43 here. "R. 42: In case of any charitable institution compensation statement will be prepared in the usual manner as given in Ch. VIII in J. A. Form 12. R. 43: It is provided that the Land Reforms Commissioner will record his opinion whether having regard to the nature and public utility of religious and charitable institution for the maintenance of which the Jagir was given a perpetual annuity should be allowed instead of compensation. He will also determine the amount of perpetual annuity and submit the case for the orders of the Government." It would, therefore, follow that if this is a religious and charitable Jagir the special procedure laid down by Rr. 42 and 43 had to be followed. The Land Reforms Commissioner had to prepare a special statement prepared in J. A. Form 12 and also to record his own opinion whether having regard to the nature and public utility of the religious and charitable institution for the maintenance of which the Jagir was given, perpetual annuity should be allowed instead of compensation. The Land Reforms Commissioner was then required to submit papers for the orders of Government. From the record of this case it does not appear that this procedure was at all followed. What happened is that the appellants moved the Director of Land Reforms for action under section 41 of the Act. The Director of Land Reforms instead of forwarding the application to the Government for action, himself proceeded to decide it and after considering the merits of the case he rejected the demand for perpetual annuity. The appellants again being on a wrong track preferred an appeal to the Board of Revenue although no provision of law existed for such an appeal. The Board of Revenue naturally rejected the appeal as incompetent. The appellants thereafter filed the writ petition in the High Court from which the present appeal has arisen. As the matter had never been heard fully in the High Court the State Government had no opportunity of filing a return to the writ petition. Fortunately, we had before us counsel for the State Government and we were able to ascertain, in so far as he could help us, what the exact position was. It appears that no action as required by section 41 and Rr. 42 and 43 has been taken. The State Government does not appear to have passed any order such as R. 43 requires. The matter seems to have been disposed of at a lower level by the Director of Land Reforms who undoubtedly did not possess the power under R. 43 read with section 41 to dispose of the question whether perpetual annuity was more suitable than a lump sum money as compensation. The High Court merely considered whether the powers granted by section 41 were mandatory or directory, and came to the conclusion that they were directory only. The question is not at the moment whether the section conferring power upon the Government is mandatory or directory. The question is whether those powers have at all been exercised by the State Government as the Act requires. The facts are quite clear that the matter has not gone up for the consideration of the Government at all. Although in this appeal from a writ petition we should not normally go beyond what was claimed in the writ petition, we think that it is one of those cases in which we can use our inherent power to pass the order which would shorten litigation. The order we propose is that the application to the Director of Land Reforms which the appellants had made in ignorance of the real position should be treated as a representation to Government for consideration under section 41 and the order of the Director of Land Reforms should be treated as his opinion under Rr. 42 and 43 of the Rules. Of course the Director would be at liberty to add to his opinion any further recommendation which he considers necessary and the matter should then be disposed of by Government in accordance with law. The difficulty here is the opinion of the High Court as to which we have not expressed any opinion ourselves. We think that Government should be left free to reach its own conclusion whether it should grant perpetual annuity or not without advertence to the opinion expressed by the High Court. The order of the High Court will accordingly be dissolved.
(3.) The appeal will be allowed to this extent that the matter will be disposed of in the light of our observations here. THEre will be no order as to costs.;