GROVER J. - (1.) THIS is an appeal by special leave from a judgment of the Madhya Pradesh High Court allowing a writ petition and quashing an order dated August 8, 1963 of the Board of Revenue of the State made in certain proceeding under the Madhya Bharat Abolition of Jagirs Act, 1951, hereinafter called the "Act".
(2.) THE respondent was a jagirdar of certain villages in the erstwhile State of Gwalior including the villages Nevari and Bhanwarasa. THE grant of these two villages had been made for maintenance of Paiga (cavalry). On August 4, 1917, a mutation was made by which the respondent Jagirdar was relieved of his duty of maintaining a 'paiga'. His Jagirdari was, however, continued subject to payment by him of a sum of Rs. 30,000 every year to the State in lieu of paiga. This arrangement continued up to the date of enforcement of the Act by which all the jagirs in the then State of Madhya Bharat were resumed. Under the Act the Jagir Commissioner has to determine the amount of compensation to be paid to the Jagirdar. The compensation is determined by taking into account his net income. The net income is determined by deducting certain items given in clause 4 of Schedule 1 of the Act from the gross income of the basic year. Clause 4 of the Schedule has six heads under which deductions are required to be made. The first head refers to what is called "Tanka". The sixth head refers to "other dues". The Jagir Commissioner had served on the respondent a notice called compensation slip dated October 14, 1957 in which details as to how compensation was proposed to be determined were given. In that slip a sum of Rs. 30,000 payable by the respondent in lieu of his liability to maintain paiga was shown as amount that was deductible under the head "Tanka". The total amount shown in item 13 in this slip was Rs. 51,664 which included the aforesaid amount of Rs. 30,000. The respondent filed objections. One of his objections was that the amount of Rs. 30,000 was not deductible on account of "Tanka". Towards the conclusion of the objection petition it was stated : "In this manner the total amount of Rs. 50, 350 i. e. Rs. 30,000 with respect to Jagir Navari Bhambrasa and Rs. 20,350 about Jagir Pan Bihar is deductible." The translation appearing in the paper book at page 43 is stated to be incorrect and counsel agreed that for the word "is" the words "may be" should be substituted. By this order dated January 11, 1958 the Jagir Commissioner held that the amount of Rs.30,000 was deductible as "Tanka". He considered the objection in detail and proceeded to say : "If we look to the definition of Tanka as given in the section 115 (1) (9) in the Jagir Manual such amount comes under Tanka. This makes it clear. So the objection regarding this amount having been considered as Tanka is not acceptable." The respondent preferred an appeal to the Board of Revenue against the order of the Jagir Commissioner under section 29 of the Act. It was urged inter alia before the Board on behalf of the respondent that Rs. 30,000 could not be deducted as Tanka. The Board examined the question in detail and came to the conclusion that the sum of Rs. 30,000 could in no proceedings be treated as tribute or Tanka and the Jagirdar could not be taken to have been converted to the status of Tankedar within the meaning of section 115(a) of the Jagir Manual. It was held that the amount of Rs. 30,000 was wrongly deducted by the Jagir Commissioner. When the matter went back to the Jagir Commissioner he gave effect to the decision of the Board that the deduction of Rs. 30,000 from the gross income for the purpose of determining compensation money was wrong. The appellant then preferred an appeal to the Board of Revenue in which the sole point raised was that the Jagir Commissioner was in error in deducting the amount of Rs. 30,000 from the gross income under Head VI of para 4 of schedule 1, namely, "other dues". A preliminary objection was raised before the Board on behalf of the respondent that the appeal was incompetent by virtue of the applicability of the principle of res judicata. This objection was overruled. The Board proceeded to observe that the Jagir Commissioner should himself have considered whether the amount of Rs. 30,000 was deductible under Head VI of para 4 of Schedule I but the Commissioner had not applied his mind to that aspect of the question. The final order of the Board was expressed in these words: "'The preliminary objection of the learned Counsel for the respondent is, therefore, rejected and it is held that the appeal preferred by the State against the impugned order of the Commissioner is maintainable."
(3.) THE respondent filed a petition under Article 226 of the Constitution. for issuance of a writ in the nature of certiorari for quashing the aforesaid order of the Board dated August 8, 1963. THE High Court held that the jurisdiction of the Jagir Commissioner to deal with the case after remand was limited only to certain questions and he had no jurisdiction to decide any other question. Thus it was not open to consider whether Rs. 30,000 could be deducted from the gross income for the purpose of determining the compensation money under any other head in the Schedule except the head "Tanka". In the view of the High Court the principle of res judicata including that of constructive res judicata which was of universal application was fully applicable to the present case. In its opinion it was no longer open to the State to urge that Rs. 30,000 was deductible on any ground other than the ground that it fell within the meaning of the work "Tanka" which matter had been finally decided in favour of the Jagirdar. The sole contention of Mr. B, Sen for the appellant is that the High Court was not right in coming to the conclusion that the question of deducting the amount of Rs. 30,000 under the head "other dues" for the purpose of determining the compensation money was barred by the applicability of the rule of constructive res judicata. According to him it was incumbent on the Jagir Commissioner to determine the compensation in accordance with the principles laid down in Schedule 1. It was therefore obligatory for him to find out whether the amount of Rs. 30,000 was deductible under the Head VI in clause 4 of Schedule 1. At any rate, says Mr. Sen, after the Board had given a decision that the aforesaid amount did not fall within the meaning of the word "Tanka" the Jagir Commissioner was not debarred from looking to the other heads under which deduction had to be made from the gross income for the purpose of arriving at a proper figure of compensation. Moreover the respondent himself had, in the objections filed by him on receipt of the compensation slip, admitted that the amount of Rs. 30,000 "may be deductible". All these matters, according to Mr. Sen, have not been taken into consideration by the High Court.;