- (1.) This appeal is brought, by special leave, from the judgment of the Madhya Pradesh High Court dated November 30,1966 in Misc. Petn. 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 Section 5 (c) of the Madhya Bharat Abolition of Jagirs Act, Samvat 2008 (Act No. 28 of 1951), hereinafter referred to as "the abolition Act".
(2.) 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 Section 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 Section 4 of the Abolition Act. Under Section 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 :- "(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;" Sections 3, 4 (I) (a) and 5 (c) of the Abolition Act are reproduced below: "3. Resumption of Jagir-lands by the Government.- (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 Jagir-lands in the State. 2. The Government may, by notification published in the Gazette, vary the date specified under sub-section (1} at any time before such date. (3) The date finally appointed under this section as the date for the resumption of Jagirlands is hereinafter referred to as 'the date of resumption'." "4. Consequences of the resumption of Jagir-lands.- (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 Act (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, * * * * * * (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 on other person."
(3.) After the abolition of jagirs under the Abolition Act, proceedings were initiated for determining the compensation payable to the respondent and the same was determined at a sum of Rs. 22.293 and odd out of which certain loans were deducted and the amount of Rs. 3,586 and 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 the 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 unless - (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 heard. (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 (1), make an application in the prescribed form to the Collector for compensation in respect of his interest. * * * * * * (3) Such compensation shall be fifteen times the land revenue assessable on the land covered by the tank and for purposes of assessment such land shall be treated as irrigated land of the same quality as the adjoining land.;