- (1.) THIS appeal has been filed by the Government of Rajasthan against the order of the Jagir Commissioner dated 4. 6. 57 which was passed in exercise of his powers under sec. 23 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1962 (hereinafter referred to as the Act ).
(2.) A Division Bench of the Board had once already given a decision on 29. 10. 5v but that decision was subsequently reviewed and by an order dated 8. 2. 62 that judgment' of the Board was set aside and the appeal No. 29 Jaipur/1957-State vs. Thakur Shiv Prakash Singh was directed to be posted for hearing and determination afresh in accordance with law. The brief facts of the case leading to this appeal against the order of the learned Jagir Commissioner are that after the resumption of thikana Siwar the Secretary Urban Improvement Board Jaipur made a reference to the Jagir Commissioner Rajasthan on 31. 8. 55 to ascertain the nature of the Jagirdar's title on area of 50 bighas of abadi land known as Lalkothi which had been included by the Urban Improvement Board in a scheme for the extension of the abadi. The Secretary also enquired whether the Jagirdar was authorised to alienate the same by. means of sale etc. The learned Jagir Commissioner after issuing notices to the Jagirdar and the Government Advocate made an enquiry into the matter and as a result of the examination of the documents produced by the respondent and after hearing the parties observed that the aforesaid area was proved to be the personal and private property of the Jagirdar and the same was declared as such under sec. 23 of the Act. An appeal against this order was filed by the State before the Board of Revenue from where the case was remanded to the learned Jagir Commissioner on 17th October, 1958 to enquire into the matter afresh after following the mandatory provisions of Rule 24 of the Rules made under the Act. The learned Jagir Commissioner thereafter issued notices to the parties concerned. No objections seem to have been filed by any of the official on behalf of the Government but the Jagirdar presented a detailed application in which the same facts which had been stated and the documentary evidence relied upon earlier were reiterated in support of the fact that the land in question was his personal and private property. The learned Jagir Commissioner examined these documents and after hearing the Government advocate as well as the counsel for the respondent confirmed his predecessor's order and declared the land in dispute to be the personal and private property of the Thakur. Against this an appeal was filed by the Government before the Board of Revenue and the Board of Revenue by its decision dated 29. 10. 57 confirmed the order of the Jagir Commissioner. On a review application submitted against the order of the Board the judgment of the Board dated 20. 10. 57 was set aside on 17. 10. 58. A writ petition was, however, preferred to the Rajasthan High Court against this order of the Board which was accepted and that order was set aside and the case was sent back for hearing of the review petition by the same members or any of the members if one of them had left the Board in terms of O. 47, Rule 5 C. P. C. By the time the case came back from the High Court for hearing both the Members who had passed the judgment under review had retired, and the review petition was consequently heard by a Division Bench. The Division Bench on 8. 2. 62 accepted the review petition, set aside the judgment of the Board dated 29. 10. 57 and directed that the appeal against the order of the Jagir Commissioner, Jaipur dated 4. 6. 57 be heard and determined afresh in accordance with the law. We have heard the counsel for the parties and have also carefully examined the record. It was urged by Shri Remesh Chandra Swami on behalf of the State Government that when the case was remanded originally by the Board of Revenue for re-hearing in accordance with the law after issuing notices to all the parties concerned the Jagir Commissioner issued notices to the Government as well as to the opposite party. The notices seem to have been issued by the Jagir Commissioner on 23. 3. 57 to the Revenue Secretary, Collector Sawai Madhopur district, Collector Jaipur district, 3 copies to Tehsildar Jaipur and to the Secretary Urban Improvement Board Jaipur and 14th May was fixed for trial. There was nothing on record to show whether any service was effected on all persons to whom the notices were issued and consequently compliance of Rule 23 had not been made. It was further alleged that no copy of any representation made by the opposite party was furnished to the Government nor any documents were produced on the 4th June 1957 the date fixed for hearing. Nor any notice was given to the Government Advocate, to file any objections as were issued to other persons. It was further urged that according to the provisions of 0. 13 Rule 4 Civil Procedure Code every document admitted in evidence should bear a statement of its having been so admitted and the endorsement must be signed or initialled by the Judge and in the absence of any such endorsement documents numbers 1 to 7 produced by the respondent could not be regarded to have been admitted legally. Provisions of Order 13 Rule 5 were neither applicable to this case nor these provisions were complied with, and since there was no endorsement admitting the documents into evidence as required under Order 13 Rule 4, these documents shall be deemed to have been rejected as inadmissible in evidence under Order 13 Rule 6. It was further urged that the judgment of the learned Jagir Commissioner showed that several objections were raised by the counsel for the Government but that the learned Jagir Commissioner did not examine what the objections were and how they were disposed of and no issues were framed and finding given on the issues and that consequently the judgment of the learned Jagir Commissioner could not be called a proper judgment in accordance with Order 20 Rule 5 C. P. C. and that as such the judgment of the learned Jagir Commissioner dated 4th June, 1957 was a nullity. It was also pointed out that the judgment of the learned Jagir Commissioner showed that it was passed arbitrarily, neither issues were framed nor any opportunity to produce evidence was given to the appellant and that no time was given to the parties as the hearing started on 4. 6. 57 and was completed on the same day and thus the ordinary procedure was not followed, On behalf of the respondent it was urged that the order of the Jagir Commissioner clearly showed that the Government counsel was present and that since the Government counsel had not raised any of these objections in writing which he was bound to do the appellant could not now be permitted to raise objections and that the Jagir Commissioner having complied with the provisions of the law in issuing notices to all the parties and having given sufficient opportunity to the appellants had given his decision which was perfectly legal and should be upheld. We have carefully examined all the record and considered the arguments advanced by both the parties. We find that this matter arose out of an urgent letter No. 3896 dated the 31st June, 1955 from the Secretary Urban Improvement Board Jaipur to the Jagir Commissioner in which the Secretary intimated that an area of 50 bighas of land known an 'lal Kothi' lying to the north of present Gandhi Nagar alleged to belong to Thikana Siwar had been included in the scheme of development and that the thikana was willing to give this land to the Urban Improvement Board, that before finalising the deal with the Thikana, it was necessary to ascertain the nature of the title held by the Jagirdar over this land. The Secretary therefore, requested the Jagir Commissioner to let him know whether the thikana had proprietory rights over this land ; whether the thikana was empowered to alienate it and whether the land was in any way subject to the Rajasthan Jagirdari Abolition Act. An application was also submitted on behalf of Thikana Siwar on 15. 10. 55. The Jagir Commissioner vide his letter No. 6271/jc dated 4. 9. 55 requested the Jagirdar to furnish details as to when this land was granted to him and for what purpose and what use it was being put to. On 14. 10. 55 a reply was sent by the Jagirdar that the land in dispute became his personal property under sec. 23 of the Act and that the list had been submitted at the time of the resumption of the Jagir. The Jagirdar had submitted documents in support of his claim. The learned Jagir Commissioner on 29. 12. 55 declared this land as personal property of the Jagirdar under sec. 23 of the Act after making certain enquiries. In appeal, as already stated above by the Government Advocate before this Court the order of the Jagir Commissioner was set aside and the case was remanded to him with the direction that it be heard and determined afresh after issuing notices to all the parties concerned in accordance with the law. On receipt of the file in the court of the Jagir Commissioner, notices were issued vide No 3514/jc/37 dated 2. 3. 57 to : 1. Revenue Secretary, Rajasthan. 2. Collector Sawaimadhopur. 3. Collector Jaipur. 4. Jagirdar Siwar through Shri Umed Singh guardian of Shri Shive Narain Singh. 5. Tehsildar Jaipur (3 copies) 6. Secretary Urban Improvement Board. In this notice it was stated that the above mentioned persons and any other who had any objections were through the said notice to file their objections on 14. 5. 57 in the court of the Jagir Commissioner and that if no such objections were raised on the fixed date, necessary decision on the above personal property would be given and no further objection would be entertained. A letter was also issued simultaneously by the Jagir Commissioner to Tehsildar Jaipur No. 5505/jp dated 4. 3. 57 stating that three copies of the said notice under Rule 24 of the Act were being sent to him and he was asked to affix one copy at the concerned place, another copy on the Notice Board of the Tehsil and the villagers of Lal Kothi be informed by proclamation It was desired that the third copy may be returned after due signature before the date fixed for hearing the case. There is a note on the letter dated 5/3 directing the Jamadar of the Tehsil to comply with the notice. One copy of the notice is on the file at page 50, which bears the following endorsement on the reverse by the Tehsildar vly i= ckn rkehy lefizr. Below that there is an endorsement to the effect that in the presence of 4 persons mentioned below the notice has been affixed : Jhatnalal Thekadar, Bhorilal, Bhura Ram, Mohanlal. There is also an endorsement that the notice had been duly put on the notice board of the tehsil. There is however no other record on the file to show that the notice had been duly served upon (1) the Revenue Secretary, (2) Collector Sawai Madhopur, (3) Collector, Jaipur, and (4) Secretary Urban Improvement Board, Jaipur. It was contended by the learned counsel for the respondent that the endorsement of the Tehsil at page 51 should be deemed to be a compliance of the notices having been duly served to all the parties. But this contention is obviously untenable because it is clear from the letter addressed to the Tehsildar Tehsil Jaipur at page 16 (which is clearly a mistake as it has been inserted between pages 40 and 41 of the file and therefore this page 16 has now been re-paged as 41-A by the Court under date 26. 12. 62) that 3 copies of the notice were being sent to the Tehsil with the direction that one copy may be affixed at a public place in the locality concerned, second copy be affixed on the Notice Board of the Tehsil and the third copy returned after due service. Therefore by the compliance of the Tehsil at page 51 it is clear that the notice had been only served upon the Tehsildar and not the other persons mentioned above. There is nothing on record to show that these other persons have also been duly served with notice. From the notice issued to the parties it is seen that objectors were required to appear before the Jagir Commissioner on 14. 5. 57. No order sheet of the Jagir Commissioner's proceeding is on record. There is a sheet of paper at page 55. This contains a chit signed by Shri Gordhan Singh on behalf of the Jagir Commissioner in which he asked whether any date has been fixed for hearing in the case of the personal property of Lal Kothi Sewad and the Government Advocate is also to be asked to appear, Dated 29/5. At page 55 there is a note dated 29/5 saying that the letter was given to Shri Kalu Singh on 24. 5. 57. This is initialled by some one of the Jagir Department under date 29/5. This is followed by another endorsement that a perusal of the file showed that the office copy of the letter to Shri Harish Chanderji Swami had not been received but the letter for Shri Harish Chandarji had been delivered to his peon Shri Kalu Singh whose signature was in the peon book. This is followed by a letter at page 56 from the Jagir Commissioner addressed to Shri Harish Chander Swami, Government Advocate No. 7283/jac 57, dated 3. 6. 57 in which it was stated that in accordance with the intimation given in the office letter No. 6578 dated 28. 5. 57 the hearing of the case stated above, namely relating to the personal property of thikana Siwar Lal Kothi, had been fixed on 4. 6. 57 and that he had also been informed of this on 22. 5. 57 (or it may be 23 as the figure '3' or '2' is smudged with ink) and he was requested to appear before the Jagir Commissioner on 4. 6. 57 to give the opinion on behalf of the Government. Accordingly the case was heard and decided by the learned Jagir Commissioner on 4. 6. 57. In his order the learned Jagir Commissioner has stated that in accordance with the law and rules notice had been issued to all the parties and the case was heard on that day. He added that the Government Advocate raised a number of objections. From this it would seem that on the date when the case was heard and decided namely on 4. 6. 57 the Government Advocate was present. It was the contention of the learned Government Advocate that the mere fact that the Government Advocate was present on the date when the learned Jagir Commissioner heard the case and decided it, it did not constitute due notice to the parties concerned. He pointed out that since the learned Jagir Commissioner had requested the Government Advocate to appear before him on 4. 6. 57 to give opinion of the Government it may be presumed that the learned Government Advocate appeared but such appearance could by no means be considered to have been the appearance on behalf of the Government. In the first instance, it was pointed out that under Rule 59 of the Land Reforms and Resumption of Jagir Rules that the Jagir Commissioner is required to appoint a date for holding an enquiry into the matter pertaining to the list of personal properties claimed by the jagirdar. Such date shall not be less than two months from the date: of the order and a public notice thereof shall be issued within a week of such order. , Rule 24 prescribes how the notice required to be given under Rule 26 shall be served. Rule 26 provides that on the date fixed in the notice the Jagir Commissioner or the Officer holding the enquiry shall postpone the enquiry if he finds that the notice issued under Rule 24 was not duly served on any of the persons specified in sub-rule (1) of Rule 24 or was not posted on the Notice Board of the Tehsil as required by sub rule (2) of that Rule at least one month before such date. The learned Government Advocate pointed out as there was nothing on record to show that the notice to be served on the Revenue Secretary and the Collectors of Jaipur and Sawai Madhopur district who were necessary parties had been duly served the Jagir Commissioner should have postponed the enquiry to a subsequent date and issued further notices on the concerned parties after fixing another date for hearing. As discussed above, according to the notice the objections were to be filed on 14. 6. 57. There is nothing on record to show that all the parties and particularly the Revenue! Secretary to the Government and the Collector of Jaipur and Sawai Madhopur districts had been duly served for appearance on 14. 5. 57. The Jagir Commissioner should have postponed the enquiry to another date in accordance with Rule 36 and issued fresh notices to them. There is no order sheet to show that the Jagir Commissioner took up the case on 14. 5. 67 as stated in the notice. From the letter issued to Shri Harish Chander Swami Govt. Advocate available at page 56 of the file it would appear that the case was to be heard on 23. 5. 57 though there is nothing on record again to show whether the parties were present on 14. 5. 57 and whether they were all informed of the subsequent date of 23. 5. 57. There is no order sheet on 23. 5. 57 to indicate who was present on that date, although in the letter to the Government Advocate it has been stated that the case shall be heard on 4. 6. 57, there is nothing on record to show again that all the parties concerned had been duly notified of this date. The mere fact that the Government Advocate was asked to appear on 4. 6. 57 to give the opinion on behalf of the Government does not meet the legal requirement of informing the parties concerned, namely the four persons mentioned to whom notices were originally issued when there was nothing on the record to show that those notices had been duly served nor had any reply been received from them. Therefore, it is clear that the proceedings before the Jagir Commissioner on 4. 6. 57 were without due notice to all the parties concerned. The learned counsel for the respondent argued that since the Government Advocate appeared before the Jagir Commissioner on 4. 6. 57, it should be deemed that the State or the Government had the notice and had been given proper hearing as stated by the Jagir Commissioner in his order. This again is not an acceptable stand. The fact that the learned Government Advocate appeared before the Jagir Commissioner on 4. 6. 57 cannot in any way remedy the legal flaw and deficiency which had resulted from the lack of proper service of the notice to the Revenue Secretary and to the Collector of Jaipur and Sawai Madhopur districts. Unless duly authorised, the Government Advocate cannot be said to represent the Revenue Secretary. The objections have to be filed in writing by a duly authorised representative of the Government. The Government Advocate only appears and pleads for the Government when he is duly authorised to do so. Rule 26 clearly provides that the State shall be represented at such enquiry by the Collector or any other Officer not below the rank of a Naib Tehsildar as the Collector by order in writing appoint in that behalf. Therefore, the mere appearance of the Government Advocate before the Jagir Commissioner cannot in the light of these rules be held to be a proper appearance on behalf of the State.
(3.) FROM the facts stated above, it is abundantly clear that the learned Jagir Commissioner in spite of the specific instructions contained in the remand order of this Court dated 10th December 1956 did not carry out the directions of the Court in hearing this case in the manner prescribed in the Rules. In the circumstances, it cannot be held that the order of the Jagir Commissioner dated 4. 6. 57 has been passed after hearing all the parties concerned and consequently the order cannot be upheld. The order of the learned Jagir Commissioner has also been challenged by the learned Government counsel on the ground that since it was not a proper order the order is null and void and has no legal sanction behind it. He pointed out that the learned Jagir Commissioner has stated that the Government counsel had raised a 'number of objections. He has nowhere stated what the objections were nor has he discussed the objections and given his findings on those objections. The order should have clearly stated what the objections raised by the Government Advocate were and the learned Jagir Commissioner should have given his reasons for either agreeing or disagreeing with the objections raised by the learned Govt. Advocate. R. 28 lays down the mode of enquiry regarding personal properties and the enquiry is to be held in the manner provided for the trial of a suit by a revenue court. This statutory provision was not followed. The summary manner in which the learned Jagir Commissioner has disposed of the objections without even stating what the objections were cannot be considered to be a proper disposal of the objections raised by the Govt. counsel. The judgment of the learned Jagir Commissioner therefore also suffers from this deficiency which will vitiate the order. The learned Jagir Commissioner, in the last paragraph of his order in which the had come to the finding that the property in dispute was the personal property of the jagirdar, has also not explained how he came to that conclusion. The learned Jagir Commissioner has also not examined the documentary evidence which had been submitted by the respondent as also the documents which appear to have been vation in paragraph submitted by the Govt. counsel as can be gathered from the obser-3 of the order. He has again not stated what the documents were which had been submitted nor has he discussed them or given any finding whether the documents were to be admitted or not and what effect the production of such documents had in giving his finding. Incidentally it was also pointed out by the learned Govt. counsel that the documents which had been submitted by the respondent and which were on file had not been exhibited or proved nor has the learned Jagir Commissioner in his order of 4. 6. 57 made any reference to those documents. Therefore. , the learned Jagir Commissioner has also not followed the prescribed procedure of conducting the enquiry by giving the parties concerned a proper hearing and an opportunity to adduce evidence in respect of their claims. The mere fact that certain documents had been produced by any party without their being exhibited or admitted cannot lead to such documents having been properly presented and filed in the enquiry. In the absence of following the relevant procedure for admitting document as provided under the law such documents do not have any evidentiary value and cannot be relied upon in arriving at any conclusion. It was contended by the learned counsel for the respondent that it was open to the Government counsel when he appeared before the learned Jagir Commissioner on 4. 6. 57 to have raised all the objections which were now being raised and since he did not do so the present objections advanced by the learned Government counsel were not admissibly. This argument cannot have force. As already observer although the learned Jagir Commissioner had stated that the Government counsel had made a number of objections, he did not state what the objections were or discuss them and give his views in regard to them in a proper manner together with reasons. Therefore, the objections at present raised by the learned Government counsel particularly when those objections are supported by record or by the law have to be admitted. In view of the gross irregularities and deficiencies which have been pointed out, we regret that we cannot uphold the order of the learned Jagir Commissioner dated 4. 6. 57, which is so patently full of legal flaws. We have no other option but to order that the learned Jagir Commissioner's order dated 4. 6. 57 be set aside as unsustainable. We would, therefore, allow this appeal of the State, set aside the order of the learned Jagir Commissioner dated 4. 6. 57 and remand the case back to him with the direction that it be heard and decided afresh in accordance with the law in the light of the observations made above. . ;