- (1.) THIS is an appeal u/s 39 of the Rajasthan Land Reforms & Resumption of Jagirs Act, 1952 (hereinafter referred as Act) which has been preferred by the Jagirdar against the judgment of the Dy. Collector, Jagir, Bharatpur dated 30. 6. 61.
(2.) THE items assailed relate to the income from forests, to the deduction on account of tribute to the summary deduction of Rs. 2250/- from the amount payable, and to a mistake in calculation in the amount of additional rehabilitation payable u/s 38e of the Act, So far as the income form forest is concerned it has been contended that the learned Dy. Collector, had no authority to interfere with the verification made by the Divisional Forest Officer under the provisions of Rule 37a of the Rules made under the Act. This Rule provides that when a claim for compensation is based on income from Jagir forest, the Jagir Commissioner, may call upon any officer of the Forest Department of the Govt. not below the rank of Divisional Forest Officer to inspect the forests and to submit his report about the estimate of income therefrom. Such an officer is required for the purpose of determining the income, to call upon the Jagirdar to furnish information in Form No. 8 within a period of one month and if such statement is not filed within the said period to make a summary enquiry and to make his recommendations to the Jagir Commissioner. THE Jagirdar has to be given an opportunity of hearing in participation of such an enquiry. THE Jagir Commissioner shall, on receipt of the recommendation of the Forest Officer, after giving the Jagirdar an opportunity of being heard and after hearing such other persons as he may like to be heard, make an order determining the period and the average annual income from the Jagir recording the reasons therefor. THE contention on behalf of the appellant is that the authority vested in the Jagir Commissioner and such other person as he may deem think fit by this Rule goes no farther than "hearing" alone. THE argument is that this "hearing" does not entitle the Jagir Commissioner to make any independent enquiry by himself, but that he is only to hear the parties against the report of the Forest Officer and decide only such objections as may be raised by them with respect to the same report. Now this is an interpretation attempted to be put by the learned counsel for the appellant which does not seem to be tenable. It is not laid down by this Rule that the Jagir Commissioner shall hear and decide only the objections, if any, raised against the recommendation of the Forest Officer. If it had been the case the language employed will have been like the one employed in Rule 20 (2) of these very Rules. THErein the Jagir Commissioner is to afford, upon the receipt of the report from the Enquiry Officer, all concerned parties an opportunity " to lodge objections against" such a report and to hear them if they appear with respect to the objections, and also to hear the parties with respect to the report itself. By not prescribing in Rule 37a that the Jagir Commissioner shall hear the parties with respect to objections against the recommendation of the Forest Officer and on the other hand prescribing that he shall hear all persons as he may like to be heard and determine the period and the income from the Jagir forest along with reasons, the legislature has in its wisdom authorised the Jagir Commissioner to make any enquiry he likes even when he has demanded a report from the Divisional Forest Officer and has received that recommendation from him. THEre is nothing in this Rule which may be taken to bind the Jagir Commissioner to accept the recommendation of the Forest Officer unless objected to by any party and specially, the Jagirdar. A mere "hearing" does not mean anything if it is not followed by power of giving any decision thereon. Besides, the Rule authorises the Jagir Commissioner not only to hear the Jagirdar and such other persons as he may like to be heard but also to determine the income and the period along with his reasons for the same. When an Officer is required to give reasons for determination he is required to make, it cannot but be held as implied that he is to make his own enquiry and come to his own conclusions for the reasons to be recorded. THE Jagir Commissioner here includes all the Officers empowered under the Act and the Rules made thereunder. The learned counsel for the appellant has also contended that the learned Dy. Collector, Jagir has wrongly disbelieved all the evidence produced on his behalf and wrongly reduced the income under this head. A perusal of the relevant portion of the judgment goes to show that the learned Dy. Collector has held the verification by the Divisional Forest Officer to be contrary to Rules because of his having so verified before taking over charge of the forest area. True, as contended of the Jagirdar there is nothing in Rule 37a to indicate that such a verification should be done only after the taking over charge of the forest of the Jagirdar. But still as already discussed above it cannot be said that the Dy. Collector, Jagir was bound to accept the verification done by the Forest Officer and was precluded from making his own enquiry and coming to a conclusion of his own for the reasons recorded. The learned Dy. Collector, Jagir has examined the claim made by the Jagirdar in this case elaborately. The claim is based on a lease grant at 5. 10. 55 when the date of resumption of Jagir is 18. 8. 58. The only lessee produced in evidence was one Idukhan who has deposed that the lease had been taken for a sum of Rs. 6500/ -. This evidence has been disbelieved by the learned Dy. Collector on the ground that neither an attesting witness had been produced nor had the Patta and the kabuliat been attested by any independent witness. The other consideration by which the learned Dy. Collector was influenced was that from 1935 to 1949 no lease had ever been given by the appellant and that the present lease was given only after the enforcement of the Act. Another factor that weighed with the learned Dy. Collector was that income being claimed under the head "forests" was about 7 times more than the rental income of the Jagir itself. One more factor weighing with learned Deputy Collector was that the Divisional Forest Officer himself had stated that the lease had not been granted in accordance with the recognised system of granting lease of forests. Although it was also stated by him that it could not even be said that the lease was granted for damaging the forests. On the whole it can be said that involuntarily the considerations of Sec. 26a that the lease was granted after 1. 1. 49 weighed with the learned Deputy Collector. In the circumstances he should have followed the procedure prescribed by Rule 34 of the Rules made under the Act and come to a decision after making the enquiry prescribed thereunder as well. As we have already held above the learned Dy. Collector was not bound by the recommendations of the Forest Officer and he was free to make his own independent enquiry and come to his own independent conclusions for reasons to be recorded. As the enquiry is not complete, as discussed above, it should be got completed in the light of the observations made above. Now, for the deduction of a sum at Rs. 23. 03 np. on account of tribute alleged to be paid by the appellant to the Jagirdar of Sir Mathura, the contention is that how this amount was arrived at has not at all been discussed in the judgment. This contention is not devoid of force. The amount was not deducted in the provisional Award and so the appellant could not have had any occasion to raise any objection to it. If the learned Dy. Collector intended to deduct this amount over and above the amount of tribute already deducted in the provisional Award at the fag end of the case he should have let the appellant have an opportunity of meeting this demand and raising his objections, if any being heard in that behalf. In the absence of the adoption of this procedure this deduction has also to be enquired into and decided afresh. Next about the deduction of Rs. 2250/-; the judgment under appeal goes to show that this sum has been ordered to be deducted on account of the lease for singharas for the period after the date of resumption and which was meant for the period following after the date of resumption. The contention of the appellant in this behalf is that this deduction could not have been made even if he was found to have collected this amount and that on the other hand proceedings should have been taken against him u/s 25 of the Act. This is an argument which cannot be accepted. Vide Sec. 25 a penalty can be imposed only for an action of any recovery on and after the date of resumption. It is only the sums that are also required to be realised as arrears of land revenue under sub-sec. 3 thereof. The amount under dispute here is one which has not been collected on any date on and after the date of resumption but before it and only for the period falling after the date of resumption. As a matter of fact the question for determination should have been what should be the amount to be calculated under appropriate head for this income. The learned Dy. Collector seems to have committed to consider this amount from this point of view and has on the other hand, when it came to his notice that one of the witnesses Guttey produced by appellant himself said that this sum was meant for the period falling after the date of resumption ordered the deduction in this manner. It may be observed that the learned Deputy Collector has also allowed certain sum from the income from singharas under the head "forests" also. Singharas are grown in plots covered with water. The income accruing thereform will not be income from the forests but will be the income under the head "rental Income". The learned Dy. Collector should, therefore, examine this amount from the growing of singharas irrespective of the fact that it has been realised by way of lease or any other manner and should allow only the income that might have accrued for the basic year. Any other income should be disallowed. As for the recovery of any realisation for any period following after the date of resumption action should be taken in accordance with the provisions of Sec. 22 of the Act and the recovery should be made in accordance with the procedure prescribed in that behalf. Regarding the deductions that may be made the appellant should be given an opportunity of being heard and the objections raised by him, if any, should be decided. Now for the error in calculation on account of the additional rehabilitation grant provided by Sec. 38 E. The sum allowed is three times the sum of Rs. 613. 82 np equal to 1840. 26 np which is an error of arithmetical calculation and shall be corrected. The judgment of the learned Dy. Collector, Jagir, is, therefore, set aside and the case remanded to him for enquiry and determination of the various items referred to above in accordance with law in the light of the observations made above and redetermine the final award thereafter. . ;