Judgement

VAIDIALINGAM, J. :- The short question that arises for consideration in this appeal, on certificate, is whether the High Court has complied with the direction given by this Court in its judgement D/- 25-1-1968 in Civil Appeals Nos. 1244 and 1245 of 1967 = (reported in AIR 1968 SC 1186) and adjudicated upon the question whether the claim made by the respondent that the tanks and wells in question were constructed on "occupied land" belonging to the Jagirdar within the meaning of Section 5 (c) of the Madhya Bharat Abolition of Jagirs Act, Samvat 2008 (Act 28 of 1951) (hereinafter to be referred as the Abolition Act).

2. The facts leading upon to the present decision of the High Court may be stated: In Samvat 1885 the Ruler of the erstwhile Gwalior state conferred on the predecessor in title of the respondent the Jagir of Mauza Siroli situated in Pragana Gwalior. The Abolition Act came into force on December 4, 1952. Section 3 provides for resumption of Jagir-land by the Government. Under sub-section 3 as the date appointed under Section 3 as the date for resumption of Jagir-land is "the date of resumption". After the issue of notification under Section 3, appointing a date for resumption, alll the property in the jagir including Jagir-land, forests, trees, fisheries, wells, tanks, ponds etc. stood vested in the State under Section 4 of the Abolition Act. But under Section 5 (c) all tanks, trees, private well and buildings in or on the occupied lands, belonging to or held by the Jagirdar or any other person, were excluded from vesting.

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. Out of the amount, so determined, certain loans were deducted and the balance amount was paid. The Madhya Pradesh Land Revenue Code, 1959 (M. P. Act 20 of 1959) (hereinafter to be referred as the Code) came into force on October 2, 1959. Section 251 of the Code provided for vesting in the State Government all tanks situated on unoccupied lands, in the circumstances mentioned therein. The said section made provision for claiming compensation in the manner laid down therein.

4. The respondent on April 5, 1961 made an application to the Collector, Gwalior under Section 251 of the Code claiming compensation for tanks which, according to him, had been built by himself and his predecessor in title over an area of 1679 bighas and 18 biswas of land. There were various orders passed by the authorities in connection with the said claim for compensation.

5. The respondent moved the Madhya Pradesh High Court under Article 226 of the Constitution by two writ petitions to quash two orders of the Collector of Gwalior and two others of the Additional Commissioner, Gwalior Division. The writ petitions were opposed by the State on the ground that the four tanks claimed by the writ petitioner were really not tanks and in any case the tanks were not on "occupied land" within the meaning of Section 5 (c) of the Abolition Act and the wells claimed by him had also vested in the state under Section 4 (1) (a) of the Abolition Act.

6. The High Court by its judgment dated November 30, 1996 allowed the writ petitions and quashed the four orders, referred to above, on the ground that the claim made by the respondent that the tanks were on "occupied land" under Section 5 (c) of the Abolition Act, has to be decided by the Jagir Commissioner in the manner required under Section 17 of the said Act.

7. The State challenged before this Court in Civil Appeals Nos. 1244 and 1245 of 1967, the decision of the Madhya Pradesh High Court. The contention raised on behalf of the State was that S. 17 of the Abolition Act had no application and that it was the function of the Jagir Commissioner alone to inquire whether the claim of the writ petitioner under Sec. 5 (c) of the Abolition act was well founded on merits and then refer the matter for the final decision of the