Shanker v. Nathu — 1962 DIGILAW 272 (RAJ)

This appeal against the order of the Deputy Collector Jagir, Bhilwara, dated 16th June, 1962, under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as the Act) arises under the following circumstances. The jagir Thekla in Tehsil Sahada was resumed under the Act. Both the parties to the present appeal were found to be entitled to the grant of compensation and rehabilitation therefor. It was also found that they were entitled to get only the rental income and no other. The provisional award was accordingly determined stating the amounts payable to each one of them which were different in accordance with the rent assessed on the jagir lands in their respective possession. The same were the amounts determined finally. No objection was ever raised by anybody against the amount so determined. The bonds to be given to the parties should also, therefore, have been indented accordingly. But the bonds were indented for the total sum in four equal shares for each of the party. When this came to the notice of the appellants, who had been awarded a bigger amount of rental income they submitted an application to the learned Deputy Collector Jagir for rectifying the mistake. In this application anyhow although they meant to state that it was only a clerical mistake which could be corrected by the Deputy Collector Jagir at any time, it was also stated that the learned Deputy Collector could review the case suo-moto and order the correction. This was contested on behalf of the respondents who claimed that they were equal co-sharers and that the bonds had been indented correctly. After hearing the parties the learned Deputy Collector held on 16th April, 1962 that when the parties had taken away the bonds and had not raised any objection at that time, the review application could not be accepted. He also observed that if an objection had been raised at the time of the distribution of the bonds, the mistake could have been rectified and the revised corrected bonds could have been sent for. At the same time he also made an observation and gave a direction that a Departmental enquiry into the affair as to how the bonds different from the amounts finally awarded were indented by the Bonds Section was necessary and he directed that the same be made by Sri Bhatnagar. At the same time he also made an observation and gave a direction that a Departmental enquiry into the affair as to how the bonds different from the amounts finally awarded were indented by the Bonds Section was necessary and he directed that the same be made by Sri Bhatnagar. It is against this order that the present appeal has been preferred. The learned counsel for the respondent has very vehemently opposed the maintainability of this appeal. His grounds are that the order under appeal was not one under sec. 32(2) of the Act, which alone was appealable to the Board. It has been also urged that no appeal lay against an order rejecting an application for review and that for that reason also the appeal could not lie. Both these contentions are not without force. No appeal is provided against an order indenting and distributing the bonds. Nor has an appeal been provided against an order rejecting the review petition. But the main question for determination in this case is whether the impugned order can be taken to be an order of this type above. Now, vide sec. 26 of the Act the Government is liable to pay to every Jagirdar whose jagir lands are resumed under sec. 21 of the Act such compensation as shall be determined in accordance with the provisions laid down in the second schedule of the Act. Such determination is to be made vide sec. 32 of the Act. It is under this section that it is to be determined what is the amount of compensation payable to the Jagirdar under sec. 26 of the Act. Sec. 35 of the Act lays down only a mode of payment of the amount so determined. It says that the balance after deducting the amount specified in clauses (b), (c) and (e) of the sec. 32 shall be divided into fifteen equal annual instalments or at the option of the Jagirdar into thirty equal half yearly instalments. It further lays down that the amount of the instalments remaining after deducting the instalments of deductions referred to in clauses (b), (c) and (e) of sub-sec. (1) of sec. 32 shall be payable by the Government to the Jagirdar. Sec. 35-A lays down that the compensation so payable shall be given in cash or in bonds or partly in cash and partly in bonds as may be prescribed. (1) of sec. 32 shall be payable by the Government to the Jagirdar. Sec. 35-A lays down that the compensation so payable shall be given in cash or in bonds or partly in cash and partly in bonds as may be prescribed. The Rules prescribing the payment are the Rajasthan land Reforms and Resumption of Jagir (Compensation and Rehabilitation Bonds) Rules, 1956. These Rules lay down in Chapter III the provisions for the indenting and the distribution of bonds. Rule 12 thereof lays down that the indents shall be made only after the amount of compensation and rehabilitation payable to a Jagirdar has been finally determined. The indent is also to be made after entries have been made in the Registers in forms 17 and 17A. The entries in these Registers are to be made exactly in accordance with the amount determined to be paid. The indents are also, therefore, to be made exactly in accordance with the amount determined and order passed vide sec. 32 of the Act. The bonds have, therefore, to be strictly in accordance with that order." Any variance in amount of bonds thus amounts to variance with that order. The amount so varied will, therefore, have to be taken to be an amount determined under sec. 32(2) of the Act itself. An order under this section is appealable vide sec. 39 of the Act to the Board. An order varying the amount under this section at the time of the indenting of the bonds will also, therefore, be appealable as an order under sec. 32(2) itself in the same manner as the original order passed under this section would be. In other words, the order indenting the bonds if it is in variance with the order determining the amount finally under sec. 32(2) of the Act, will be treated to be an order somehow or other replacing that order and therefore an order under sec. 32(2) of the Act itself. An appeal will, therefore, lie under sec. 39 of the Act against such an order. Now, for the contention that no appeal could lie against an order rejecting the review petition. An application for review under sec. 40A of the Act can lie only in accordance with the provisions laid down in Order 47, Rule 1 of the Code of Civil Procedure. 39 of the Act against such an order. Now, for the contention that no appeal could lie against an order rejecting the review petition. An application for review under sec. 40A of the Act can lie only in accordance with the provisions laid down in Order 47, Rule 1 of the Code of Civil Procedure. Thereunder a party could apply for review when "from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made on account of some mistake or error apparent on the face of record or for any other sufficient reason". In the present case the appellants have not applied for review on any of these grounds. What they have submitted, as would be evident from the reading of the application dated 5th April, 1962 on the record, was that a clerical mistake had occurred in indenting the bonds of the amounts different from those entered in the final award and that the same could be corrected by the Court suo-moto, although the word used was "review" and not "correction". Sec. 152 of the Civil Procedure Code, which was applicable to such proceedings by virtue of Rule 45 of the Rules referred to above read with the provisions of the Rajasthan Tenancy Act, 1955, authorised the court to correct and rectify either on an application of any party or on its own motion such clerical or arithmetical mistakes or errors arising from any incidental slip or omission. The application dated 5th April, 1962 on which the impugned order has been based could not but therefore be treated to be an application preferred under sec. 152 of the Code and not an application for review under sec. 40A of the Act. Sec. 40 of the Act also provides for the correction of such clerical errors and there was no necessity of taking resort to powers under S.152 of the Civil Procedure Code even. The applicant in his application dated 5th April,1962 itself stated that it had been submitted under sec. 40 of the Act, even though S. 40A had also been added in the title thereof. The applicant in his application dated 5th April,1962 itself stated that it had been submitted under sec. 40 of the Act, even though S. 40A had also been added in the title thereof. The emphasis in the application on the exercise of the powers suo-moto by the learned Deputy Collector himself will go to show that the application was really meant to have corrected the clerical error that had crept in while indenting the bonds for amounts at variance with those determined to be awarded. Simply because a reference had been made to powers of review in the application and the learned Deputy Collector had also without understanding the true purport of the applications submitted to him directed that the review petition be rejected, it could not be said that it was an order under sec. 40A of the Act rejecting a review petition. As stated above, it was really an order on an application preferred under sec. 40 of the Act. This order as stated above purported to reject such an application. As discussed so elaborately above, this meant replacing and substituting the order passed under sec. 32(2) of the Act, so far as the appellants were affected. The appeal would, therefore, he under sec. 39 of the Act. On merits there is nothing much to be decided in the case. The Award determined was as follows:— Appellants: —1. Shanker — Rs. 1989.58 2. Moti — Rs. 1924.06 Respondents:—1. Nathu — Rs. 1763.74 2. Devraj — Rs. 1763.74 Rs. 7441.12 Out of this were to be deducted Rs. 143.25 nP. that had been given to each of these claimants. The final amount to be paid to each of the parties was thus (1) Shanker Rs. 1846.33, (2) Moti Rs. 1780.81, (3) Nathu Rs. 1620.49, (4) Devraj Rs. 1620.49, total Rs. 6868.12. The bonds should have been indented for these amounts and distributed accordingly. Accordingly we accept this appeal, set aside the order of the learned Deputy Collector Jagir, Bhilwara, and remand the case to him with the direction that he shall now correct the indent of the bonds and make payments accordingly. Before parting with this, we would also like to observe that nothing seems to have been done as yet towards the enquiry against the defaulting official directed to be made by the learned Deputy Collector. Before parting with this, we would also like to observe that nothing seems to have been done as yet towards the enquiry against the defaulting official directed to be made by the learned Deputy Collector. He should now see that the enquiry is made and the official making the mistake be punished suitably. A copy of this order be also sent to the Secretary to the Government of Rajas-than in Revenue Department for information and necessary action.