DAVE, C. J. - (1.) PETITIONER Raja Narainsingh has filed this application under Art. 226 of the Constitution of India in order to challenge the correctness of the decision of the Board of Revenue, Rajasthan dated the 5th January, 1961.
(2.) THE petitioner was Jagirdar of Toda Bhim in District Sawai Madhopur and his Jagir was resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, hereinafter called the 'act'. After the issue of Notification No. F. 4 (388) Rev. 1/53, dated 15th October, 1954, the petitioner presented his claim for compensation and rehabilitation grant to the Deputy Collector (Jagir) Sawaimadho-pur, on 26th August, 1957. Among other items, he claimed compensation and rehabilitation grant on the income of the following terms - Item Amount Claimed 1. Malguzari Income Rs. 2,416-62 n. p. 2. Cultivable land & sale of land income Rs. 1,249-67 n. p. Rs. 3,666-29 n. p. His claim was sent to the Tehsildar, Toda Bhim, for verification. After receiving the report of Tehsildar, the Deputy Collector (Jagir) gave a provisional award for Rs. 1,915/- in respect of both the items. THE petitioner submitted objections against the provisional award. THE Deputy Collector ( Jagir ), respondent No. 3, got the petitioner's Thikana bahis checked and verified and on the basis of the entries recorded in them from Smt. 1993 to Smt. 2014 he came to the conclusion that the average annual income received by the petitioner from sale of the land came to Rs. 1,116/15/ -. Against this decision, the State of Rajasthan preferred an appeal to the Board of Revenue. THE learned Members of the Board of Revenue allowed the appeal and directed that the said amount be excluded from the petitioners' gross income and his claim should be finalised thereafter. It is this order which is sought to be challenged by the petitioner. It is urged on behalf of the petitioner that the Deputy Collector (Jagir) had given his finding after relying upon the bahis of the thikana which were taken into possession by the Collector soon after the resumption of the jagir. The learned Members of the Board of Revenue observed that the said account books could not fasten any liability on the State of Rajasthan, unless the entries made therein were proved by corroborative evidence under sec. 34 of the Indian Evidence Act. It is contended by the petitioner's learned counsel that the provisions of the Indian Evidence Act did not, in terms, apply to inquiries made under sec. 32 of the Act and that this position was explained by this court in Thakur Bhanu Pratapsingh Vs. The State of Raj. (1) It is pointed out that the learned members of the Board have thus committed a mistake which is apparent on the face of the record and, therefore, this Court should quash the impugned order. The petitioner has placed on record the order of the Deputy Collector (Jagir) dated the 31st December, 1959 and also the judgment of the Board of Revenue dated the 5th January, 1961, which are marked Exs. 1 and 2 respectively. It appears from the perusal of Ex. 1 that the Deputy Collector (Jagir) had first referred the matter to the Tehsildar for verification. After receiving his report, he looked into the account books of the petitioner which were taken over in possession by him even before the petitioner had filed his claim. It was on the basis of these records that he came to the conclusion that the average annual income received by the petitioner during the last twenty years came to Rs. 1,116/15/ -. Adverting to these documents, it was observed by the learned Members of the Board of Revenue as follows: - "section 34 of the Indian Evidence Act lays down that account books kept in regular course of business are admissible in evidence, but unless the entries, therein are proved by corroborative evidence, they cannot be allowed to charge any person with any liability on that basis. In the present case, we find that the respondent was given many opportunities to produce his evidence in support of the account books and yet he did not take steps to examine any person to prove those entries. " The learned Members thought that since the entries were not supported by corroborative evidence, they were not enough to charge the State, with any liability and so the appeal was allowed and the petitioner's claim was rejected. It may be observed that in Thakur Bhanu Pratapsingh vs. State of Rajasthan referred above, a question had arisen whether the Indian Evidence Act or the Code of Civil Procedure in terms, applied to the Proceedings before the Jagir Commissioner under the said 'act'. After some discussion, it was observed as follows: "in our judgment, the Jagir Commissioner is a persona designata, and in so far as he has been empowered by the Act to decide claims for compensation payable to a Jagirdar under the judicial manner. That being so we do not think that either the Evidence Act or the Code of Civil Procedure applies to such proceedings before the Jagir Commissioner. " The learned Judges further posed a question as to what was the kind of the enquiry which the Jagir Commissioner had to make in the case in order to determine the matter of compensation and they proceeded to answer it by the following observation: "sec. 32 provides the answer. It says that the Commissioner shall make 'such enquiry as he deems necessary' before awarding compensation. The point which specially requires to be noted in this connection is that sec. 32 does not merely say 'after enquiry' or 'alter making an enquiry' but it says "after making such enquiry as he deems necessary". The last mentioned expression is by no means rigid and is quite flexible, and therefore, the Jagir Commissioner has been given a discretion to embark upon an enquiry which may suit the requirements of a case before him and it would be going too far to hold that such an inquiry has to be made in accordance with the requirements of the Civil Procedure Code or the Evidence Act. " We are in respectful agreement, with these observations. It may be added that a claim which is made by a Jagirdar for compensation is not in the nature of a suit and it would not be proper to say that by producing his account books, he wants to fasten any liability on the State. It is quid pro quo for the property of which he is deprived by the State in accordance with the Act. It may be pointed out that sec. 22-A of the Act lays down that "every jagirdar whose Jagir lands have been or are resumed under this Act shall, within two months of the date of the commencement of the Rajasthan Land Reforms and Resumption of Jagirs (Eleventh Amendment) Act, 1959, or of the date of resumption of his Jagir lands, whichever may be later, deliver to the Collector, or to any officer authorised in this behalf by the Collector, after obtaining a duly signed receipt from him for the same, all records relating to the administration and management of his jagir lands so resumed or pertaining to the various items of receipts and disbursements mentioned in clauses 2 and 4 respectively of the Second Schedule to this Act, which in respect of such jagir lands, such jagirdars may have maintained or caused to be maintained or which may then be in his possession or power". This section was, no doubt, inserted by sec. 2 of Rajasthan Act No. 34 of 1959, but even before its insertion, there was Rule 21 of the Land Reforms and Resumption of Jagir Rules, 1954, which lays down that the Collector within whose district such jagir or a portion thereof is situated, shall, as soon as may be, after the issue of notification under sec. 21 of the Act, call upon the Jagirdar concerned to hand over charge of his Revenue Records. Sub-rule (5) further lays down that if any Jagirdar fails to hand over charge of Revenue Records of his jagir as required under sub-rule (1), the Collector may get the record prepared and give the Jagirdar a reasonable notice either to pay the amount of costs incurred or to show cause why it should not be recovered from him. The very purpose of calling upon the Jagirdar to hand ever his records and to prepare a new record in the absence of his handing over the old records is to enable the authorities to arrive at a correct estimate about the income of the Jagirdar from various items and to obtain other necessary information. The records of the Jagirdar, which were thus taken over from his possession under the law, could not be thrown out with the mere observation that by themselves they could not be sufficient to charge the State with any liability, unless each item was corroborated by independent evidence. It ought to have been appreciated that a Jagirdar could not think several years before the resumption of his Jagir that his jagir would be resumed some day, and, therefore, he should prepare a false record in order to enable him to claim compensation on its basis. The petitioner's account books should have, therefore, been examined in that perspective and they should not have been discarded summarily on the ground that various items were not corroborated by independent evidence. In our view, the proper course for the learned Members of the Board of Revenue was to look into the documentary evidence produced by the petitioner and judge its reliability on merits. It is one thing not to admit the accounts book in evidence and it is a different thing to consider them reliable of unreliable. The writ application, is therefore, allowed and the impugned order of the learned Members of the Board of Revenue is set aside. The case be sent back with direction to rehear] the parties in the light of the above observations and to decide the case afresh after weighing the petitioner's documentary evidence. In the circumstances of the case, we leave the parties to bear their own costs. .;