Decided on January 27,1967

HEMA Appellant


- (1.)THIS is an appeal under sec. 39 of the Rajasthan Land Reforms and Jagir Resumption Act against the order of the Deputy Collector, Jagir Pali dated the 18th of November, 1964. The facts of the case in brief are that the learned Deputy Collector Jagir on the 25. th of March, 1964 rejected an objection raised against the title of Hema appellant for being considered as the adopted son of Shatidan and ordered the issue of provisional award in favour of the appellant. On 29th of May, 1964 the legal adviser urged that the question involved in this case related to right, title and interest but this was over ruled on the 8th of June, 1964 on the ground that this has already been decided on the 25th of March, 1964. On the 16th of July, 1964 the learned Deputy Collector ordered the issue of the final award. In this case Form No. 10 had not been received but it was ordered that the Tehsildar should deduct the dues of the Government independently of the claim. On the 28th July, 1964 the counsel for the jagirdar requested for a review of the order dated the 16th July, 1964 on the ground that the date determined as the date of resumption was not correct. The learned Deputy Collector also found that the verification had not been properly made. He entrusted the file for re-verification to the audit staff. On the 13th of August, 1964 the re-verification report was received from the audit section and an order was issued for issue of notice to the jagirdar. On the 17th of November, 1964 the learned Deputy Collector without deciding the question raised in review sought to review his order on a different ground. He held that though the name of the appellant was entered as the jagirdar in the settlement record over the whole of the land yet in accordance with the order of the Collector dated the 8th of July, 1959 the share of one of the co-sharers Mst. Tulsi had been escheated to the Government. The final award issued on the basis of Rs. 521. 39 was ordered to be reduced by Rs. 276. 03. With regard to the balance, he held that since Hema was not the natural son of Shatidan the Collector could not decide as per provisions contained in the Jagir Validation Act that he was the successor of Shatidan. The matter had to be decided by the Board of Revenue, and till it was decided the appellant was not entitled to any compensation. Aggrieved by this order an appeal has been preferred before us.
(2.)WE have heard the counsel for the parties and have also gone through the record. The impugned order was attacked on two grounds. First, the Deputy Collector Jagir could not review the order dated 16. 7. 64 on the basis given in the reviewing order of the 18th November, 1964 without setting aside the order of the 29th of May, 1964. Secondly, provisions of O. 47, r. 4 (2) and of R. 8 have not been followed in this case and the learned Deputy Collector Jagir has therefore committed a material irregularity in the exercise of his jurisdiction.
We have examined the objections to the impugned order in the light of the law on the point. Sec. 40-A of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 lays down - " (1) The Board, the Jagir Commissioner or the Commissioner for Khud-kasht Land may either on an application made, within three months of the 18th of January, 1958 or of the date of order, whichever is later, by any interested party or suo motu, review an order passed by the Board or by such Commissioner himself or his predecessor-in-office and pass such order in relation thereto as it or he thinks fit. (2) No order passed by the Board or the Jagir Commissioner or the Commissioner for Khudkasht Lands shall be reviewed under sub-sec. (1) otherwise than on any of the grounds mentioned in R. 1, O. 47 of the First Schedule to the Code of Civil Procedure 1908 (Central Act V of 1908), and the provisions of the said order shall apply. " (Italic by us ).

It will be apparent that in the present case the Jagir Commissioner was reviewing his order suo motu. It was obligatory for him to conform to the provisions of O. 47. O. 47, r. 1 lays down the grounds on which a review has to be admitted. No suo motu review is provided under this section but there can be no doubt that even if the Deputy Collector Jagir wanted to review his order suo motu he could do so only on the grounds given in that rule, i. e. (1) from the discovery of new and important matter of evidence which after the exercise of due diligence was not within his knowledge or could not be produced at the time when the decree was passed or order was made ; (2) on account of some mistake or error apparent on the face of the record ; (4) for any other sufficient reason. R. 4 (2) (a) lays down that where the court is of the opinion that the application for review should be granted, it shall grant the same provided that no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for.

Admiting that the learned Deputy Collector Jagir suo motu formed the opinion that in the present case a review should be made he should have given a previous notice to the opposite party to enable him to appear and be heard in support of the decree or order a review of which was being considered i. e. the appellant must have been told the grounds on which the Deputy Collector Jagir desired to review his order. In the present case though the counsel for the appellant was present but we do not think that it was sufficient compliance of law when the learned Deputy Collector Jagir proceeded to review his own order on grounds very different from what the jagirdar had himself asked for or what the counsel for the appellant could reasonably infer to be the grounds on which the order was being reviewed. Such a procedure would tantamount to reviewing the order without notice to the opposite party. O. 47, r. 8, furthermore lays down that when an application for review is granted, a note thereof shall be made in the register and the court may at once hear the case or make such order in regard to re-hearing as it thinks fit. The proper procedure to be followed by the learned Deputy Collector Jagir in a case where the intention was to review an order suo motu was to record an opinion giving adequate reasons why the review of the order was thought proper. He should then have given due notice to the opposite parly duly intimating them the reasons on which the review was sought to be made, and after hearing the opposite party, if he still thought that the review should be granted, he should have passed the order accordingly and cancelled the order which he was reviewing ; and thereafter he should have latter re-heard the case immediately or fixed a date for re-hearing. In this case, as we have seen above, this procedure has not been followed and as it was obligatory under sec. 40-A of the Jagir Act, a material irregularity in the exercise of jurisdiction has been committed.

Without, therefore, going into other aspects of the case whether the learned Dy. Collector should have referred the matter which involved a question of title and interest in the jagir land and correction of settlement record, to the proper authority, we accept the appeal, set aside the order of the learned Deputy Collector Jagir and remand the case to the Collector for re-hearing it himself or entrusting it to the competent authority for the same purpose, in the light of the observations made above. .

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