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1969 DIGILAW 30 (SC)

State of M. P. v. Chandroji Rao Angre

1969-01-28

A.N.Grover, J.C.Shah, V.Ramaswami

body1969
JUDGMENT 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 upto the date of enforcement of the Act by which all the jagirs in the then State of Madhya Bharat were resumed. 3. 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 cl. 4 of Schedule I 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 an 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 Naevri Bhambrasa and Rs. 30,350 about Jagir Pan Bihar is deductible. 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 Naevri Bhambrasa and Rs. 30,350 about Jagir Pan Bihar is deductible. The translation appearing in the paper book at the page 43 is stated to be incorrect and counsel agreed that for the word "is" the words "may be" should be substituted. 4. 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 not been considered as Tanka is not acceptable." The respondent preferred an appeal to the Board of Revenue against the order of 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 (1) 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 not deducting the amount of Rs. 30,000 from the gross income under Head VI of para 4 of Schedule I, 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. 30,000 from the gross income under Head VI of para 4 of Schedule I, 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 over-ruled. 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 1 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 of 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". 5. The respondent filed a petition under Art. 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 a certain questions and he had no jurisdiction to decide any other question. Thus it was not open to him to consider whether Rs. 30,000 could be deducted from the gross income for purpose of determining the compensation money under any other head in the Schedule except the head the "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 word "Tanka" which matter had been finally decided in favour of the Jagirdar. 6. 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. 6. 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 I. It was therefore obligatory for him to find out whether the amount of Rs. 30,000 was deductible under the head VI in Cl. 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. 7. We find it difficult to hold that the respondent had made any admission in the matter during the proceedings. The language of the translation in the concluding portion of the objection. is somewhat involved but the respondent at all stages strenuously contested the deduction of the amount of Rs. 30,000 from the gross income. It is apparent from the order of the Board dated November 9, 1960 that the contention of the respondent was that this amount could not be deducted either as Tanka or as the sum due to the Government under any other head of Clause 4 of Schedule 1. It is undoubtedly true that the Board did not give any specific decision on the question whether the disputed amount could be deducted under head VI but it was clearly open to the appellant before the Board to urge that if the amount could not be deducted as Tanka it could be deducted under the head "other dues". It is undoubtedly true that the Board did not give any specific decision on the question whether the disputed amount could be deducted under head VI but it was clearly open to the appellant before the Board to urge that if the amount could not be deducted as Tanka it could be deducted under the head "other dues". No such contention was raised as indeed it ought to have been raised, if the position of the appellant was that this amount could be deducted under' the other head as well. 8. Now section 30 of the Act provides for the procedure to be followed by the Jagir Commissioner and the Board of Revenue. It has been laid down that the procedure which is to be followed is the same as is applicable to proceedings under the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. Section 151 of that Act provides that in matters of procedure regarding which no express provision has been made the procedure laid down in the Code of Civil Procedure shall be followed. It is obvious that if the proceedings in appeal before the Board were governed by section 11 of the Code of Civil Procedure, the appellant could not agitate or take up a ground which it was open, to it to urge before the Board but which it failed to do when a decision was given that the amount of Rs. 30,000 could not be deducted for the purpose of determining the compensation due to the respondent. Even if section 11 of the Code does not in terms apply the principle of res judicata would certainly be applicable for the purpose of achieving finality in litigations. It is well settled that this principle or rule is applicable even to those proceedings which are not governed by the Code of Civil Procedure, In Burn & Co. Calcutta Vs. Their Employees (1956) SCR 781, it was said that although the rule of res judicata as enacted by section 11 of the Code of Civil Procedure does not in terms apply to the award of an Industrial Tribunal its underlying principle which is founded on sound public policy and is of universal application must apply. Calcutta Vs. Their Employees (1956) SCR 781, it was said that although the rule of res judicata as enacted by section 11 of the Code of Civil Procedure does not in terms apply to the award of an Industrial Tribunal its underlying principle which is founded on sound public policy and is of universal application must apply. Explanation IV in section 11 of the Code of Civil Procedure provides that any matter which might and ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The principle of this Explanation which has often been called the rule of constructive res judicata would be fully applicable to the present case. 9. The High Court was therefore right in allowing the writ petition and quashing the order of the Board of Revenue dated August 8, 1963. The appeal fails and it is dismissed with costs.