KAN SINGH, J. -
(1.)THIS writ petition under Art. 226 of the Constitution, which has been filed by the State of Rajasthan, concerns the legality of certain recovery proceedings started by Tehsildar, Aligarh, against respondent No. 1 Rao Raja Sardar Singh, ex Jagirdar of Uniara for realisation of State dues amounting to Rs. 5,94,215. 30 P. The petitioner State questions the validity of the order of the Revenue Board Ex. 4 setting aside the order of the Tehsildar dated 22-12-61. The State has prayed for an appropriate writ, direction or order. The relevant facts emerging from the writ petition are briefly these :
(2.)RAO Raja Sardar Singh was the Jagirdar of Uniara in the former Jaipur State. According to the petitioner there were outstandings to the tune of Rs. 22,93,000/- and against the Jagirdar of Uniara in the year 1936. The Jagirdar too had put in certain claims against the ex Jaipur State to the tune of Rs. 1,37,000/- on account of what is called 'chitha' allowance and for 'par-varish' on the occasion of marriages in the 'thikana'. These claims came to be settled by the Council of Ministers of the former Jaipur State and it is stated that by Council resolution No. 6 of 1-7-1936 the liability of the Jagirdar was fixed at Rs. 5,54,226. 84 P. payable by yearly instalments of Rs. 15,000/- each for first twenty years and the remaining amount to be paid Rs. 10,000/- a year. It was provided that in case of default interest was to be charged at the usual rate. This settlement is alleged to have been made with the agreement of the Jagirdar. The Jagir of Uniara like other Jagirs in Rajasthan came to be resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (Act No. VI of 1952) (hereinafter to be referred as the Act ). The Jagir Commissioner then took up the question of determining the compensation payable to the Jagirdar on account of resumption of his Jagir lands. During the pendency of these proceedings before the Jagir Commissioner the Government lodged a claim for the recovery of the amount due under the Council resolution and for this a certificate in form No. 10 under Rs. 37 (C) of the Rajasthan Land Reforms and Resumption of Jagirs Rules, 1954, was sent to the Jagir Commissiner by the Collector, Tonk. The Jagirdar opposed this claim on several grounds and urged that as no account had been furnished by the State Government regarding dues to be deducted from the compensation payable to him, the claim should not be entertained. There was then some triangular correspondence between the Jagir Commissioner and the Collector, Tonk, and the Government, but eventually, while deciding the case for compensation, the Jagir Commissioner declined to deduct the amount claimed by the Government saying that inspite of being asked more than once the Government had failed to furnish the accounts of the outstandings. It appears that this order was passed by the Jagir Commissioner on 14-2-61 and it is Ex. P. 3 on the record. It transpires that the Government went up in appeal to the Revenue Board, but the Revenue Board dismissed the State Appeal by its order dated 15-10-63. Soon after the decision of the Jagir Commissioner, but before the disposal of the appeal filed by the State under sec. 39 of the Act, Tehsildar, Aligarh, issued a demand notice against the Jagirdar under sec. 229 of the Rajasthan Land Revenue Act 1956 on 3-11-61. There was some mistake in the notice of demand and the Tehsildar consequently corrected it and issued a revised demand on 22-12-61. As the Jagirdar did not comply with this demand the Tehsildar proceeded to attach the property of the Jagirdar under sec. 230 of the Rajasthan Land Revenue Act, 1956. Aggrieved of the action of the Tehsildar, the Jagirdar went up in revision to the Board of Revenue. The Board of Revenue accepted the revision and quashed the proceedings taken by the Tehsildar in the matter. The Board observed that the State had taken proceedings against the Jagirdar under R. 37 (C) of the Rajasthan Land Reform and Resumption of Jagirs Rules and as the State failed to furnish the necessary accounts to the Jagir Commissioner as demanded by the latter, the Jagir Commissioner had refused to deduct this amount from the compensation payable to the Jagirdar. This order of the Jagir Commissioner, according to the Board, having become final the State was not entitled to resort to the provisions of the Rajasthan Land Revenue Act 1959. The Board relied on the provisions of Sec. 46 of the Act for holding that in view of the decision of the Jagir Commissioner other proceedings were barred. The Board also observed that the proceedings could not have been initiated by the Tehsildar in the manner he did, as the Tehsildar had not complied with the provisions of Sec. 257a of the Rajasthan Land Revenue Act. The Board also referred to some other irregularities committed by the Tehsildar. It is this order of the Board dated 13-1-1964 that is impugned before us in the present writ petition. It was also mentioned in the writ petition that the State would be taking separate proceedings to question the order of the Jagir Commissioner declining to deduct the amount from the compensation payable to the Jagirdar; but nothing appears to have been done in this connection besides the appeal to the Board of Revenue, which was dismissed long before the filing of the present writ petition.
In questioning the validity of the judgment of the Revenue Board in revision, it is contended by the State that the Board was in error in holding that the recovery of the dues from the other properties of the Jagirdar was barred. It was urged that Sec. 22 (e) of the Act kept in tact the liability of a Jagirdar inspite of the resumption of his Jagir and therefore it is claimed that it was open to the State to resort to the procedure under the Rajasthan Land Revenue Act to recover the dues. It was argued in this behalf that the Act only created an additional remedy for the State dues and did not extinguish the other remedies available to the State, It was next contended that the compensation payable to the Jagirdar could be attached in the proceedings under the Rajasthan Land Revenue Act.
The writ petition has been opposed on behalf of respondent No. 1, the ex-Jagirdar of Uniara. Contesting the stand taken by the State it is urged on his behalf that the Revenue Board was correct in thinking that once the State Government pursued the remedy under the Act before the Jagir Commissioner and had failed there, it was thereafter not open to the State to proceed to recover the amount by resorting to the provisions of Rajasthan Land Revenue Act. It was maintained that secs. 46 and 47 of the Act barred the jurisdiction of other authorities. It was also argued that the State Government was party in all the proceedings before Jagir Commissioner and the Revenue Board and consequently the State was not entitled to proceed under any other provision when once it has allowed the order of the Jagir Commissioner to become final.
At the time of arguments the learned Additional Advocate General submitted that he would not invite us to decide the question about the legality of the proceedings taken by the Tehsildar on account of the alleged irregularities resulting from the non-compliance with the provisions of the Land Revenue Act itself and for this the learned Additional Advocate General submitted that in the event of his succeeding on the main question about the availability of the remedy under the Land Revenue Act he would either move the Board to remand the case or the Tehsildar and/or Collector would take fresh proceedings under the Land Revenue Act, In the circumstances he addressed us only on the main point whether the machinery provided under the Rajasthan Land Revenue Act could not be resorted to in the present case by virtue of the provisions of sec. 46 of the Rajasthan Land Reforms and Resumption of Jagirs Act,, 1952.
Accordingly in the circumstance we propose to deal with this question only. At this stage it will be convenient to refer to the relevant provisions of the Act, which we are called |upon to consider. The Act was passed by the Rajasthan Legislature in the year 1952 and it came into force from 18-2-52 and published in the Rajasthan Gazette, Extraordinary No. 156 of even date. Chapter V of the Act relates to the resumption of Jagir lands. Jagir lands are resumed by issuing a notification under sec. 21 of the Act. Sec. 22 lays down the consequences of resumption and we may reproduce the relevant portion thereof hereunder; - "22 (a) the right, title and interest of the Jagirdar and of every other person claiming through him in his jagir lands, including forests, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village site hats, bazars and mela grounds and mines minerals whether being worked or not, shall stand resumed to the Government free from all encumbrances; x x x x (e) all arrears of revenue, cesses or other dues in respect of any jagir land due from the jagirdar for any period prior to the date of resumption including any sum due from him under clause (d) and all loans advanced by the Government or the Court of Wards to the jagirdar shall continue to be recoverable from such jagirdars; x x x x (2) If any such jagirdar fails without reasonable excuse to deliver his record in accordance with the provisions of sub-sec. (1), then, without prejudice to any other action that may be taken against him under any other provisions of this Act or under the provisions of any other law for the time being in force, the Jagir Commissioner may, on the report of the Collector made in this behalf and after making such inquiry as he considers necessary, - (i) impose upon such jagirdar a penalty not exceeding one-fifteenth of the aggregate amount of compensation and rehabilitation grant finally determined under secs. 32 and 38d respectively as payable to him, and (ii) direct the Collector to take recourse to legal process through a competent Magistrate for enforcing the surrender of such records. " Chapter VI relates to the liability of the Government for compensation. Section 26 occurring therein provides that the Government shall be liable to pay compensation to every jagirdar whose jagir lands are resumed under section 21 and such compensation shall be determined in accordance with the principles laid down in the second schedule. Section 31 requires the jagirdar whose jagir land has been resumed to file a statement of claim for compensation before the Jagir Commissioner. It is to be, inter alia, mentioned in such a statement as to what amount of dues and debts are recoverable from the Jagirdar under clause (e) of sub-sec. (1) of sec. 22 of the Act. Sec. 32 provides for determination of compensation by the Jagir Commissioner and it runs as follows : "32. Determination of compensation.- (1) On receipt of a statement of claim under the last preceding section or if no such statement of claim is received within the period specified in that section upon the expiry of that period the Jagir Commissioner shall, after making such inquiry as he deems necessary, by order in writing, provisionally determine - (a) the amount of compensation payable to the jagirdar under sec. 26; (b) the amount recoverable from the jagirdar under clause (e) of sub-sec. (1) of sec. 22 and the Second Schedule; (c) the amount of annual maintenance allowance, if any, payable to person entitled to such allowance under sec. 27; (d) xxxxxx (e) the amount, if any, payable to co-sharers under sec. 29. (2) Nothing contained in this section shall - (a) render the Government liable for the payment of debts incurred by the jagirdar and the jagirdar shall be personally liable for the payment of all such debts; (b) operate as a bar to the recovery through the Collector as an arrear of land revenue by the jagirdar of any sum which is legally due (subject to the deduction of collection charges at the rate of 7% to him by virtue of his rights in the jagir land in respect of any period prior to the commencement of the agricultural year in which the date of resumption falls. (c) preclude the Government from remitting wholly or in part any loans advanced to the jagirdar by the Government and utilised by the jagirdar for the economic or agricultural development of his jagir lands other than khudkasht lands; Provided that where a tenant disputes the Jagirdar's claim for the dues mentioned in clause (b) the jagirdar shall be required to file a suit for such dues according to law. " Sec. 33 provides (hat the Jagirdar shall communicate his decision to all persons concerned. See. 34 lays down as to how dues and deductions are payable. Sec. 34 runs as follows : "34. Dues and deductions how payable - (1) The amounts recoverable from a jagirdar under clause (3) of snb-sec (1) of sec. 22 and those determined in an order made under sub-sec. (2) of sec. 32 shall be deducted from the compensation payable to him under sec. 26. (2) The amount finally determined under clauses (b), (c) and (e) of sub sec. (1) of sec. 32 shall be payable in the same number of instalments as the compensation payable to the Jagirdar. " Sec. 35 provides that after the amount of compensation payable to a jagirdar under sec. 26 is finally determined and the amounts specified in sec. 32, as finally determined, are deducted therefrom, the balance is to be divided into certain annual instalments and then paid to the jagirdar. We may then refer to sec. 46 and 47, which are reproduced hereunder : - "46. Bar of jurisdiction - (1) Save as otherwise provided in this Act,, no Civil or Revenue Court shall have jurisdiction in respect of any matter which is required to be settled, decided or dealt with by any officer or authority under this Act. (2) No order made by any such officer or authority under this Act shall be called in question in any Court. " "47. Act to override other laws.- Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything therein contained being inconsistent with any existing Jagir law or any other law for the time being in force. " Rule 37-C of Rules made under the Act lays down the procedure for realisation of Government dues. It runs as under.- "37-C. Determination of the dues and debts owed by the jagirdar.- (1) For the purpose of determining the amount recoverable from the jagirdar under clause (e) of sub-sec. 22 of the Act, a notice shall be issued to the Jagirdar in Form No. 9 calling upon him to pay up the dues and debts within a period of one month from the date of receipt of notice, to file objections if any within the said period. The notice shall be issued by the Collector concerned, or in the case of departmental loans and dues by the Head of the Officer or the Department concerned, or in the case of loans advanced directly from the Government Treasury, State Bank or Fund, by a Secretary or Assistant Secretary to the Government in the Finance Department. (2) If the Jagirdar submits any objection in reply to the said notice, it shall be decided by the authority issuing the notice. The objections shall be decided within 2 months of the date of its receipt by such authority. (3) On the decision of the objections, or, if no objection is received, on the expiry of the period allowed therefor, the authority concerned shall send to the Jagir Commissioner a certificate in form No. 10 furnishing details of the dues and debts outstanding on the date of the certificate. Such certificate shall in no case enter the amount of dues or the rate of interest at a figure or a rate higher than that mentioned in the notice under sub-rule (l ). Where an objection has been filed by the jagirdar within the time allowed for in, no decision shall be given unless the jagirdar has been given a reasonable opportunity of showing cause against it. (4) On receipt of the certificate in form No. 10 sent under sub-rule (3), the Jagir Commissioner shall effect the deduction of the amount as entered in the certificate from the compensation (including rehabilitation grant) as provided by sub-sec. (1) of sec. 34 and sec. 38-C of the Act. He shall also sent an intimation of such deduction to the authority issuing the certificate in Form No. 10. That authority shall take necessary steps for adjustment of the recovery so effect, and further recovery of the balance, if any, that might remain outstanding against the Jagirdar. Provided that in case of the Jagirdars whose financial position is not good the deduction of the Rehabilitation Grant effected under this Rule shall not exceed: - (i) 50% in the case of Jagirdars having an income below Rs. 5,000/- per annum. (ii) 66,2/3% in the case of Jagirdars having an income above Rs. 5,000/- and below Rs, 30,000/- per annum. (iii) 80% in the case of Jagirdars having an income of Rs. 30,000/- and above, per annum. (5) Where, after the issue of one notice under sub-rule (1) in Form No. 9, a higher amount of the due or another due is found to be recoverable from a Jagirdar, the authority concerned shall issue immediately a supplementary notice to the Jagirdar, which shall also be in Form No. 9. Subsequent procedure with respect to the amount mentioned in the supplementary notice shall be governed by the provisions contained above for the first notice. (6) Where a dispute arises as to the proper authority to deal with a debt or dues recoverable from a Jagirdar under this rule, the matter shall be referred to the Government in the Finance Department, whose decision shall be final. " We may pause to mention once again that sub-rule (4) of the above rule had been struck down by this court in Chandra Kant Rao vs. The State of Rajas-than (1 ). On the basis of the above provisions we have, therefore, to determine whether the remedy provided under the Act for realisation of State dues from a Jagirdar is an exclusive one or it is only an additional remedy provided by the Act as contended for the State.
Sec. 22 (1) (e) of the Act declares that all arrears of revenue, cesses or other dues in respect of any jagir land due from the Jagirdar for any period prior to the date of resumption and all loans advanced by the Government or the Court of Wards to the jagirdar shall continue to be recoverable from such jagirdar. In other words the resumption of the jagir does not extinguish the liability of the jagirdar in respect of the Government dues outstanding against him whether as arrears of revenue or on account of loans advanced by the Government. The question is whether the machinery provided under sec. 32 alone has to be resorted to by the State in recovering its dues. Sec. 31 of the Act enjoins the Jagirdar to show in his statement of claim as to what dues and debts are recoverable from him under clause (e) of sub-sec. 22. Sec. 32 clearly casts a duty on the Jagir Commissioner to determine the amount of compensation payable to the jagirdar as well as the amount recoverable from the jagirdar under clause (e) of sub-sec. (1) of sec. 22. To start with the Jagir Commissioner provisionally determines these amounts and then he serves a copy of his order on the Government, the jagirdar and every other interested person and the Jagir Commissioner is further required to deduct the amount recoverable from the jagirdar. It is in this context that we have to examine the impact of secs. 46 and 47 on other proceedings. Sec. 46 lays down that save as otherwise provided in this Act, no Civil or Revenue Court shall have jurisdiction in respect of any matter which is required to be settled, decided or dealt with by any officer or authority under this Act and no order made by any such officer or authority under this Act shall be called in question in any Court. We have thus to see whether Jagir Commissioner is required to settle, decide or deal with the State dues recoverable from the jagirdar. Sec. 47 gives an overriding effect to the provisions of this Act and the Rules and orders made thereunder shall have effect notwithstanding anything therein contained being inconsistent with any existing Jagir law or any other law for the time being in force. In the light of sec. 47 the question arises whether the provisions of the Act would not prevail over the provisions of the Rajasthan Land Revenue Act in the matter of settlement or decision by the Jagir Commissioner about the State dues recoverable from a Jagirdar under sec. 32 of the Act. Learned Additional Advocate General submitted that the "act provides only an additional remedy to the State for the recovery of the State dues and therefore cannot extinguish the remedies under other Acts including a remedy of a civil suit. He contended that the Jagir Commissioner determines-the amount recoverable from the Jagirdar only with the limited purpose of making deductions from the compensation payable to the jagirdar and therefore it is not the duty of the Jagir Commissioner to determine or decide as such the question relating to the existence of the liability of the Jagirdar. Learned Additional Advocate General takes his stand on the language of sec. 22 and urges that so far as the liabilities of the Jagirdar were concerned they had already been placed beyond doubt.
Two competing considerations have to be kept in view for seeing whether a statute creating new rights would necessarily take away the existing ones. The Legislature is presumed to pass the laws with full deliberation and with full knowledge of all existing ones on the same subject and therefore it is not reasonable to conclude that the Legislature in enacting a statute does not clearly intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. The following passage from Crawford on Statutory Construction (p. 633) brings out the above principle : "as laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowan vs. Leass, 5 Hill 236. It is a rule says Sedgwick, that general statute without negative words will not repeal the particular provisions of a former one, unless the two Acts are irreconcilably in consistent". The reason and philosophy of the rule", says the author, "is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject, in a general manner, and not expressly contradicting the original Act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter Act such a construction in order that its words shall have any meaning at all. " There is another consideration that a later Act conferring a new right would repeal an earlier right if the co-existence of such right would produce inconvenience. This will be clear from a passage at page 161, of 'maxwell Interpretation of Statutes', 11th Edition : "a later Act which conferred a new light would repeal an earlier right if the co-existence of such right would produce inconvenience, for the just inference from such a result would be that the Legislature intended to take the earlier right away. " Now when the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. was brought into force from 18 2-52 the State of Rajasthan had not enforced the Public Demands Recovery Act, which came into force on 21. 6. 52. The Rajasthan Laud Revenue Act came into force much later. Learned Additional Advocate General has not been able to tell us, though we granted him time for it, if there was any law analogous to Rajasthan Public Demands Recovery Act in the former Jaipur State. Under the Jaipur Land Revenue Act 1947, sec. 107 thereof made provision for recovery of revenues only, but it did not relate to the other dues like loans recoverable from a Jagirdar. The Council Resolution Ex. 1 does not throw sufficient light on the nature of the dues; whether they were arrears of revenue only or they were loans. The Appendix to the Council Resolution does contain certain items. The first item therein refers to some previous Council Resolution of 25-9-29. Then there are two items of interest on 'mamla' and 'havalgi Khajana'. Further, there is a small item of Rs. 600/- which was said to be 'mamla' dues of St. Year 1987. From the Annexure, therefore, one cannot say definitely as to what was the nature of the dues covered in the major item at No. 1. Sec. 22 (l) (e) of the Act includes even loans advanced by the State to a Jagirdar and under sec. 32 of the Act the Jagir Commissioner is required to determine all the dues payable by a Jagirdar includings loans and the Jagir Commissioner is then required to deduct all the outstanding from the compensation payable to the Jagirdar. We are, therefore, satisfied that in the matter of the loans recoverable from the jagirdar it is for the first time that the Act created the speedy machinery for recovering such loans from the jagirdars without the necessity of a suit. It is in this context that we have to see the impact of secs. 46 and 47 of the Act. It has to be further borne in mind that the State Legislature was making a law for resuming jagir of all kinds situated in more than 20 ex-covenanting States that came to be integrated with the United State of Rajasthan. It may very well be that being aware of the position that in many of the covenanting Slates there were no laws providing for speedy recovery of State dues, the Legislature thought that when the jagirs were being resumed and compensation was to be paid unified machinery be created for the recovery of the State dues from jagirdars. That is why, it appears, the Jagir Commissioner was not only empowered, but it was made obligatory for him to determine the State dues "recoverable from a jagirdar, whose jagir lands were resumed and to deduct the amount from the compensation payable to the jagirdar. We are, therefore, of the opinion that the determination of State dues is a matter which is required to be settled, decided or dealt with by the Jagir Commissioner within the meaning of sec. 46 of the Act. In that situation a civil or revenue court shall have no jurisdiction in respect of such a matter unless it is otherwise provided by this Act itself. Now, no other contrary provision has been brought to our notice. Likewise the effect of sec. 47 is that the Act and the rules and the orders made thereunder shall have effect notwithstanding anything therein contained being inconsistent with any existing Jagir law or any other law for the time being in force. Thus the Jagir Commissioner being the authority, who was duty bound to determine the debts recoverable from the jagirdar no other authority, in our view, will be entitled to determine such dues. Here we may advert to a well known rule of construction "expressio uniusest exclusion alterious", which means that the express mention of a thing excludes things which are not mentioned.
We are unable to accept the contention of the learned Additional Advo-cate General that the amount once determined by the Jagir Commissioner could be ignored; it being only for the purpose of making deductions according to Additional Advocate General. It is note-worthy that under sub-sec. (2) of sec. 34 the amount held recoverable from the Jagirdar is also payable in the same number of instalments as the compensation payable to the jagirdar. This means that the Jagir Commissioner has not only to determine the amount recoverable from the jagirdar, but he has to recover the same only in instalments. The effect of secs. 48 and 47 on such a determination is that no other authority, be it the civil or the revenue, can go behind it and proceed to recover anything over and above it. It was put by us to the learned Additional Advocate General as to what would happen if the Jagir Commissioner were to determine in the present case, say for example that Rs. 6,00,000/- were recoverable from the jagirdar, and the jagirdar were to question the determination. Could he go and challenge it in a civil or revenue court and urge that nothing was recoverable from him or he will have to avail of only the remedy of appeal provided in the Act itself. Learned Additional Advocate General could not say, and in our view rightly, that it would be open to the jagirdar to question the decision of the Jagir Commissioner otherwise than by an appeal under the Act by virtue of sec. 46, and 47 of the Act. Now if the jagirdar cannot question the decision of the Jagir Commissioner, would it be open to the State to ignore the decision of the Jagir Commissioner where he refuses to determine the amount recoverable by the State ? In our view it could not possibly be the intention of the Legislature to create a bar only for one party and not for the other. Therefore, we are driven to the inference that where the Jagir Commissioner has given a decision not favorable to the State regarding the existence of State dues recoverable from the jagirdar, it is not open to the State to challenge that decision except by an appeal under sec. 39 of the Act. In other words, once the Jagir Commissioner has considered the matter and arrived at a decision it is not open to the State Government to stick to its position and proceed to recover the amount by a process under the Rajasthan Land Revenue Act 1956.
Let us now see whether the Jagir Commissioner had given a decision on the point. The order of the Jagir Commissioner giving the award in Ex. P. 3 is on record. In para 8 of this order the Jagir Commissioner has referred to the certificate sent by the Collector, Tonk. The Jagir Commissioner also observed in this behalf that the Collector and the Finance Department were asked to give the accounts as demanded by the jagirdar. Further, the counsel for the Government was asked to furnish the accounts. The Collector took the stand that Form No. 10 sent by him should be taken to be enough. It was in these circumstances that the Jagir Commissioner held that the amount cannot be deducted from the compensation. It was laid down by this Court in Chandra Kant Rao's case (l) that it was for the Jagir Commissioner to determine the amount recoverable from the Jagirdar under sec. 22 (1) (e) of the Act and he cannot be held debarred by rule 37-G (4) of the Rajasthan Land Reforms and Resumption of Jagirs Rules, 1954 from determining the amount. It was further held that sub-rule (4) of rule 37-C was ultra vires. The Jagir Commissioner was, therefore, within his powers in demanding the accounts. Ex. 1 the Council Resolution together with its Annexure produced in this Court do not appear to have been produced before the Jagir Commissioner. There is thus no escape from the conclusion that the Jagir Commissioner had in fact passed an order regarding the State dues and the same cannot be set at naught by the executive officers by resorting to the procedure under the Rajasthan Land Revenue Act 1956. As we have already observed we are not prepared to construe sec. 32 so narrowly as suggested by the learned Additional Advocate General that the determination envisaged thereunder is only for the purpose of making payment of compensation. As we have already observed there were more than 20 ex-covenanting States in Rajasthan having diverse laws or some at least having no laws on the subject of recovery of Government dues and consequently there could be difficulties in , making the recoveries in the absence of any law on account of Article 31 of the Constitution. It may very well be that it was in order to provide a speedy and efficacious machinery for the realisation of Government dues from the jagirdars when the jagirs were being liquidated that sec. 32. , 34 and 35 were enacted and immunity under the stated conditions was given to the orders passed by the Jagir Commissioner. It appears that, as we have already observed, the State did challenge the order of the Jagir Commissioner by an appeal before the Board of Revenue and the Board dismissed the appeal by its order dated 15-10-63 a copy whereof has been placed before us by the respondent and it is Ex. A 26 on record. A perusal of this judgment shows that to start with in the provisional award the Jagir Commissioner ordered that Rs. 5,41 748 C6 p. be deducted from the compensation,, but at the time of final award this deduction was not made and the provisional award was confirmed subject to the modification about the deductions of State dues. In the present writ petition it was mentioned that the State would be challenging the order of the Jagir Commissioner separately, but although writ petition was filed as far back as on 16-9 64 nothing seems to have been done uptill now. Indeed it is strange that though the Board had finally disposed of the appeal on 15-10-63, the State was only contemplating certain steps to be taken against the decision of the Jagir Commissioner, which steps never seem to have proceeded beyond the stage of contemplation. In these circumstances we are satisfied that the State Government was not entitled to resort to the provisions of the Rajasthan Land Revenue Act 1956 notwithstanding the decision of the Jagir Commissioner. In Ram Gopal Reddy vs. The Additional Custodian Evacuee Property, Hyderabad (2) their Lordships of the Supreme Court had considered the effect of sec. 46 of the Administration of Evacuee Property Act (1950), which enacted a bar similar to the one in sec. 46 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. Their Lordships held that the Act having provided complete machinery for adjudication of all claims with respect to evacuee property, sec. 46 thereof barred the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to is or is not evacuee property, This view was reiterated by their Lordships in a very recent case in Custodian, Evacuee Property, Punjab vs. Jafran Begum (3 ). In this case their Lordships, however, made it clear that the provisions of the Act did not affect the jurisdiction of the High Court under Art. 226 of the Constitution. We are, thus fortified in thinking that sec. 46 of the Act covers the question relating to the determination of the State dues recoverable from a Jagirdar, whose Jagir was resumed, and, therefore, such a determination cannot be questioned except by an appeal under the Act We may add that in an appropriate case the powers of this Court under Art. 226 of the Constitution could certainly be invoked, but in the present case the order of the Jagir Commissioner or for that matter that passed by the Revenue Board in appeal has not been challenged before us. In these circumstances we are clearly of the opinion that the State dues having been deliberately not deducted from the compensation payable to the jagirdar cannot be recovered by a process under the Rajasthan Land Revenue Act 1956 as that would in our view amount to a clear circumvention of the provisions of secs. 46 and 47 of the Act.
We may further observe that Rajasthan Land Revenue Act makes provision for recovery of certain dues of the State from all persons irrespective of the fact whether they are jagirdars. The provisions contained in secs. 32. 34,35,46 and 47 of the Act on the other hand ate special provisions relating to jagirdars whose jagirs have been resumed under the Act and. therefore, they being the special provisions shall prevail over the general provisions.
We may notice one more submission of the learned Additional Advocate General. He urged that sec. 22 (1) (e) declares the liabilities of the jagirdar in relation to State dues and we should not give an interpretation as would destroy the effect of that section. Now we are mindful of the distinction between the substantive provisions relating to declaration of liability and the procedural provisions relating to determination and made of discharge of that liability. We do not, therefore, mean to suggest that the liability of the jagirdar is extinguished in law, but we are certainly led to the conclusion that in the case of a Jagirdar whose Jagir lands have been resumed the mode of determination of the State dues recoverable from him is the one laid down in the provisions of the Act.
We may here advert to one more aspect of the matter. Supposing in a case the compensation payable to a jagirdar is much less in comparison to the State dues recoverable from him. Then would it not be open to the State to recover such dues as cannot conceivably be fully recovered from the compensation payable to the jagir ? In the present case, however, we are not called upon to go into such a contingency and we should not, therefore, be understood to lay down as to what is to happen in such a case. The order of the Jagir Commissioner shows that whereas the net compensation payable to the jagirdar was determined at Rs. 16,00,000/- and the claim of the State was for deducting a sum of Rs. 5,41,000/- and odd. Thus if the amount were held payable by the Jagir Commissioner he would undoubtedly have been able to recover it by yearly instalments as envisaged under the Act. In such a case as the present one, therefore, the only machinery that could be available for the realisation of State dues is the one provided by the Act.
(3.)LASTLY, we may add a word about one more contention of the learned Additional Advocate General. Learned Additional Advocate General further argued that unlike the jagirdar the State was not required to file its claim for dues recoverable from the jagirdar. When his attention was invited to rule 37-C itself in this behalf which made it obligatory for the authority concerned to send a certificate in Form No. 10 furnishing the details of the dues etc. outstanding on the date of the certificate, he argued that the whole of rule 37-C was bad. We may point out that in Chandra Kant Rao's case (1) only sub-rule (4) of this rule was struck down because it was found to be repugnant to sec. 32 of the Act. The same thing cannot be said regarding sub-rule (3) of rule 37-C. To our mind it was open to the rule making authority to make provision for matters which were not provided in the Act, but which are designed to carry out the purposes of the Act. Sub-rule (3) is not shown to be repugnant to any provision of the Act. Thus the position is that both the jagirdar and the State Government have to present their points of view about the State dues recoverable from the Jagirdar and this is a matter which Is required to be determined by the Jagir Commissioner. Therefore, we are satisfied that the Board was not unjustified in quashing the proceedings taken by the Tehsildar for the recovery of the State dues under sec. 229 of the Rajasthan Land Revenue Act 1956.
In view of what we have said above the writ petition has no force and it is hereby dismissed ; but we leave the parties to bear their own costs. .