Bikram Singh v. State of Rajasthan — 1989 DIGILAW 422 (RAJ)

JAIN, M.—This is an appeal under Section 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act of 1952 (hereinafter called the Act) against the order of Jagir Commissioner dated 14.12.79. 2. The appellant is the ex-Jagirdar of Thikana Pokaran which was one of the biggest Thikanas of former Jodhpur State. After the coming into force of the Rajasthan Land Reforms and Resumption of Jagirds Act, 1952 (hereinafter called the Act, Jagir of the appellant was resumed with effect from 23.8.56. The appellant filed the claim for Rs. 3,34,657.7-1/2 Annas. The Jagir Commissioner by his order dated 14.11.62 held that the income from the Jagir was Rs. 1,41,243.63 paisa. Out of this sum the Jagir Commissioner ordered deduction of a sum of Rs. 13,633.23 paisa. 3. In this amount of Rs. 13,633.23 paisa a deduction on account of 'Rekh' was not included because by then form No. 10 had not been received from the Collector because the matter was pending before the Government which was to decide as to whether the Rekh amount Rs. 5,35,849.08 paisa is to be realised from the Jagirdar or not. Therefore the Jagir Commissioner ordered that the Jagir Bonds will not be delivered to the appellant till the Govt. has determined the question of State dues relating to tribute assess-ment. The learned Jagir Commissioner allowed certain items claimed by the appellant and disallowed certain items to which we shall come later on. 4. The State as well as the appellant filed appeals before the Board of Revenue against the order of Jagir Commissioner dated 14.11.62. The appeals were decided by the Board of Revenue on 27.11.63. But no decision was given about the liability of the appellant to pay Rekh. The appellant therefore filed a writ before the Hon'ble High Court but the same was dismissed on 24.2.67 as pre-mature and it was observed that the question of Rekh will be decided by the Jagir Commissioner. 5. Meanwhile Collector, Jaisalmer had referred the matter to the Revenue Secretary in March, 1963 and recommended that Rekh dues amounting to Rs. 4,50,125-50 paisa may be written off after consulting the Legal Remembrancer. The State Government appointed a Committee consisting of Revenue Secretary who was represented by OSD (Revenue) and the Law Department represented by Assistant Legal Draftman. The Law Department was of the opinion that the amount of Rekh is not recoverable. 4,50,125-50 paisa may be written off after consulting the Legal Remembrancer. The State Government appointed a Committee consisting of Revenue Secretary who was represented by OSD (Revenue) and the Law Department represented by Assistant Legal Draftman. The Law Department was of the opinion that the amount of Rekh is not recoverable. OSD (Revenue) suggested that a certificate can be obtained from the Tehsildar and independent of compensation proceedings, the Tehsildar may be directed to proceed according to Land Revenue Act for the realisation of the amount. As there was a difference of opinion between the Law Department and the Revenue Department, the matter was referred to the Advocate General who opined that only Jagir Commissioner is competent to decide the matter and therefore he did not express any opinion of his own. In this way the State Government left the question open. Under these circumstances the matter has been decided by the Jagir Commissioner against the appellant and therefore the resent appeal has been filed. 6. We have heard the learned counsel for the appellant and the learned Government Advocate for the State of Rajasthan and have gone through the record. 7. As stated earlier a number of items are under dispute in the present case but the most controversial item is relating to Rekh or tribute which was Rs. 6768/- per year and the State wants to realise a sum of Rs. 4,50,215-50 paisa on account of past arrears. 8. The fact that Rekh used to be paid by the Jagirdars to former Jodhpur State is not in dispute. In Samvat year 1906 the first revenue report of Jodhpur State was published and at page 360 (Ex. D. 9) the name of Jagirdar of Pokaran is mentioned amongst the 101 Chapawat Jagirdars who were required to pay Rekh to the Ruler of the Jodhpur State. Only three Jagirdars were exempted from paying Rekh in Samvat year 1906 but the name of Jagirdar of Pokaran was not amongst the three Jagirdars who were exempted from Rekh. 9. Even the appellant does not contend that Rekh was not payable by him from the very beginning. His case is that late His Highness Maharaja Jaswant Singhji of Jodhpur had exempted late Thakur Baboot Singhji of Pokaran from the payment of Rekh by issuing a Khas Rukka (Ex.P.1) on Mah Vadi 12 Samvat year 1930. 9. Even the appellant does not contend that Rekh was not payable by him from the very beginning. His case is that late His Highness Maharaja Jaswant Singhji of Jodhpur had exempted late Thakur Baboot Singhji of Pokaran from the payment of Rekh by issuing a Khas Rukka (Ex.P.1) on Mah Vadi 12 Samvat year 1930. Due to this exemption Thikana Pokaran never paid Rekh to the former Jodhpur State and only credit and debit entries called "Bharotias" used to be made in the name of Jagirdar of Pokaran without any actual realisation from him. 10. The case of the appellant further is that on Savan Sudi 1 Samvat year 1933 Maharaja Shri Jaswant Singhji issued another Khas Rukka (Ex.P.2) by which the notional credit and debit entries (Bharotiyes) were also stopped. 11. The first question which arises for our consideration is whether these two Khas Rukkas Ex. P. 1 and Ex. P. 2 of Samvat year 1930 and Samvat year 1933 are genuine documents because it has been contended on behalf of the State that they are forged. The learned Jagir Commissioner has not recorded a categorical finding on this point and therefore we have perused the evidence in this respect. 12. Shri Jaswant Raj Mehta Ex. Tribute Superintendent of Jodhpur and an Ex. M.P. has stated that in the former Jodhpur State he held the post of Chief Secretary and Chairman Board of Revenue also. According to Shri Mehta Khas Rukka issued under the signature of His Highness were entered in Hazoori Daffar and then Deewan of the State used to issue the parwana in the name of the concerned jagirdar. 13. The appellant has summoned the Bahis of Hazoori Daftar which were deposited in the Archives Department Bikaner. It has been found that the Rukka of Samvat 1930 is entered in Ruka Bahi No. 8 of Jodhpur State. Two witnesses from Archives Department namely Shri Brij Lal and Shri Ghanshyam Lal have also been examined. Our attention has been invited to the fact that in Ruka Bahi No. 8 Khas Ruka of Samvat year 1930 has been copied out at page No. 69 but on its reverse side the number of the page is 80. It is also pointed out that this Khas Rukka has been entered in the Bahi at serial No. 1189 on Savan Badi 13 Samvat 2031. It is also pointed out that this Khas Rukka has been entered in the Bahi at serial No. 1189 on Savan Badi 13 Samvat 2031. It is also pointed out that the words ^^ekQh jh** which occur in the copy of Khas Rukka produced before the High Court are not found in the copy contained in the Bahi. 14. On the basis of the above facts the learned Government Advocate has argued that Khas Rukka of Samvat year 1930 is not a genuine document. It is argued that the Rukka was issued on Mah Vadi 12 Samvat 1930 and it has been entered in the Bahi in Savan Badi 13. It is contended that it could not have taken four or five months to get the entry made in the Bahi. It was also argued that in the former Jodhpur State the Samvat was changed in the month of Savan and therefore there was some space in the Bahi in which entry No. 1189 had been interpolated. 15. In our opinion all these criticism are not justified and very minor points have been exaggerated. Had the appellant relied on the copies of the basis alone, something could have been said in favour of the argument advanced on behalf of the Government of Rajasthan but as we will presently show, there is unimpeachable evidence which proves the Maharaja Jaswant Singhji exempted Pokaran Thikana from the payment of Rekh. Apart from Khas Rukka of Samvat 2030 and Samvat 2033 there is a sanad granted by Joshi Askaran the then Deewan of the Jodhpur State and there is also another Sanad granted by Musahib Ala Khan Bahadur Faizullah Khan of Jodhpur. The sanad issued by Joshi Askaran and Khan Bahadur Faizullah Khan are of Samvat year 1933 and there is no reason to disbelieve these documents. 16. There is another Khas Rukka of the late His Highness given in Samvat year 1933. The necessity of the Second Khas Rukka arose because in the first Khas Rukka the Rekh was exempted but it was ordered that debit and credit entries known as "Bharotiyas" shall continue to be made in the account books of the State. By the second Khas Rukka of Samvat year 1933 (Ex. P.2) it was specifically ordered that even Bharotiyas will not be necessary. 17. By the second Khas Rukka of Samvat year 1933 (Ex. P.2) it was specifically ordered that even Bharotiyas will not be necessary. 17. The learned Government Advocate has invited our attention to the fact that in the last line of Khas Rukka of Samvat year 1930 it is mentioned that geksus Jh gtwj lkgcksjh v.k Ns On this basis it was argued that Hazoor Saheb refers to His Highness himself and he could not have taken his own oath. A careful perusal of Khas Rukka however shows that in the third and fourth line of the document the words are Rekh Fkkus Jh gtwj lkgcks ekQh yhoh gS ls geksgh Fkkjk fBdkuk lwa js[k yhjk xlh ughaA The context makes it clear that the word Hazoor Saheb refers to previous Maharaja and in this way the Maharaja issuing the Khas Rukka could have taken the oath of the former Maharaja who was his father. 18. The learned Government Advocate has cited ILR 1962 (12) Rajasthan 83 in which it has been observed that the word signature does not include a seal and the presumption under Section 90 of the Indian Evidence Act is not applicable to prove unsigned documents which merely bear the seal of the executant. However the case relied upon by the learned Government Advocate is not a case under the Jagir Act. So far as Jagir cases are concerned, it has been held in 1965 RLW 143 that Evidence Act does not apply to an enquiry made by the Jagir Commissioner under Section 32 of the Act. 19. The most important document is a letter written by Mr. K.W. K. Bar who was the Resident appointed by British Government. In his letter of 1878 A.D. Mr. Bar has written to the A.G.G. that His Highness himself admitted that Rekh has been remitted to Thakur Bhaboot Singh. The circumstances in which this report was submitted by Mr. Bar to the A.G.G. are interesting. It appears that under the practice prevalent at the time whenever a Jagirdar died and was succeeded by his legal heir a "Hukumnama" had to be obtained from His Highness who used to charge a considerable amount as fee for the Hukumnama. The circumstances in which this report was submitted by Mr. Bar to the A.G.G. are interesting. It appears that under the practice prevalent at the time whenever a Jagirdar died and was succeeded by his legal heir a "Hukumnama" had to be obtained from His Highness who used to charge a considerable amount as fee for the Hukumnama. Pokaran Thikana claimed that they have been exempted not only from paying Rekh but also from the payment of fee of `Hukumnama.' The Thikana relied on some document but His Highness did not admit its authenticity. Therefore a Committee consisting of certain Jagirdars was appointed but they refused to act as arbitrators in the dispute between the Jagirdar of Pokaran and the High Highness. Under these circumstances Mr. Bar was appointed Chairman of the Committee of Arbitrators which consisted of some Jagirdars and some "Sahukars" of Jodhpur. This Committee gave a finding against Pokaran Thikana so far as the exemption from Hukumnama was concerned but in his report to A.G.G. Mr. Bar mentioned that Darbar himself has admitted that in the case of Thakur Bhaboot Singh (the then Jagirdar of Pokaran) yearly payment of Rekh has been remitted. In therefore appears that Mr. Bar was sufficiently high in the hierarchy of British Officers in the former Jodhpur State and he had given a finding against the Thikana and yet in his report to the A.G.G. he mentioned that the His Highness has remitted the Rekh in the case of Thakur Bhaboot Singh. Therefore there should not be any hesitation in accepting this report as correct and in our opinion this alone is sufficient to prove that Maharaj Shri Jaswant Singhji had exempted the Jagirdar of Pokaran from the payment of Rekh. 20. The learned Jagir Commissioner has not given due importance to this report of Mr. Bar and the reason given by the Jagir Commissioner is that the word "remitted" used in the report does not mean exemption. According to learned Jagir Commissioner remissions are granted on some grounds of hardship or on some particular occasion to a particular person and hence on the basis of this document, (in the opinion of the learned Jagir Commissioner) it cannot be construed that Thikana Pokaran was exempted from paying Rekh by the His Highness. 21. According to learned Jagir Commissioner remissions are granted on some grounds of hardship or on some particular occasion to a particular person and hence on the basis of this document, (in the opinion of the learned Jagir Commissioner) it cannot be construed that Thikana Pokaran was exempted from paying Rekh by the His Highness. 21. We have consulted some dictionaries and Legal Glossaries for the exact meaning of word "remit" and we find that in the Concise Oxford Dictionary its meaning has been given as "refrain from exacting or inflicting or executing (dues punishment or sentence). In New Collins English Dictionary the same meaning has been given i.e. to cancel or refrain from exacting a penalty or punishment. In the Legal Glossary published by the Department of Law, Justice and Company Affirms the word "remit" has been defined as to give up partially or wholly a tax, debt, penalty etc.. We are therefore unable to agree with the learned Jagir Commissioner that the use of the word remit does not mean exemption. It is interesting to note in this connection that the word remit has been used in the Jagir Act itself under Section 22(2)(c) and it has been same sense which is given in the dictionaries. 22. Circumstantial evidence in the case also points towards the exemption of Rekh by the His Highness. We have already made a reference to the statement of Shri Jaswant Raj Mehta who was the Tribute Superintendent, Chief Secretary and Chairman Board of Revenue in the former Jodhpur State. Shri Mehta has stated that he served the State from 1933 A.D. to 1946 A.D. and during his tenure the Rekh was never paid. He has also admitted that the Rekh was not paid for the last 90-100 years. The fact that the Rekh was not paid by the Jagirdar for a century and no steps were taken by the State to recover the same is a strong circumstantial evidence which supports the Jagirdar's contention that he was exempted from the payment of Rekh. 23. The State of Rajasthan having failed to prove that Khas Pukkas Ex. 1 and 2 are not genuine documents, has taken the stand that these Khas Rukkas and the letters issued by Joshi Askaran and Musahib Ala Khan Bahadur Faizullah Khan were in the nature of personal letters. 23. The State of Rajasthan having failed to prove that Khas Pukkas Ex. 1 and 2 are not genuine documents, has taken the stand that these Khas Rukkas and the letters issued by Joshi Askaran and Musahib Ala Khan Bahadur Faizullah Khan were in the nature of personal letters. In this connection our attention has been invited to the statement of Shri Jaswant Raj Mehta who has stated that the Khas Rukka was issued by His Highness and was entered in Hazoori Daftar and then it was sent to the Deewan who used to issue a Parwana to the Jagirdar on its basis. The contention is that this procedure was not followed in the present case and no "parwana" was issued by the Deewan and therefore the Khas Rukkas do not have any legal sanctity. We have seen above that Khas Rukka Ex. 1 of Samvat year 1930 was duly entered in Bahi No. 8 maintained by Hazoori Daftar. It is true that no "parwana" by the Deewan appears to have been issued. In our opinion the procedure described by Shri Jaswant Raj Mehta cannot be equated with the rules of business prevalent in the Government today. Under the present rules an order passed by the Minister is to be authenticated by a Secretary to the Government and without such authentication the order of the Minister has no value but the same rule cannot apply to an absolute monarch and in our opinion the orders passed by His Highness cannot be said to be ineffective simply because the Jagirdar has failed to produce a parwana issued by the Deewan. After all we are dealing with an order passed in Samvat year 1930 i.e. 1873 A.D. It was really a difficult task for the Jagirdar to have collected all the necessary papers after a century. 24. The last contention about the Rukkas is again based on the statement of Shri Jaswant Raj Mehta who has stated that during his tenure he brought it to the notice of His Highness that Rekh is not being realised from Pokaran Thikana for the last 90-100 years and the arrears are mounting and therefore it should be decided by His Highness himself as to whether this amount is to be realised. He himself gave an opinion that the Rekh having not been realised for 90-100 years it will not be proper to realise the same. He himself gave an opinion that the Rekh having not been realised for 90-100 years it will not be proper to realise the same. On this matter being brought to the notice of His Highness he appointed a Committee twice. The Committee consisted of a Minister and the Chief Justice of the High Court but so far as his knowledge goes the Committee did not decide the matter. 25. On this basis it has been argued that Pokaran Thikana was not finally exempted from the payment of Rekh and the matter was pending before His Highness. We are not at all impressed by this argument. It is clear that the exemption was granted about 100 years back and Jodhpur State has stopped realising the amount. The report made by Shri Jaswant Raj Mehta was only for the purpose of writing off the amount. At any rate this may be considered to be an attempt to re-open the matter but it is clear that it was not finally decided one way or the other as to whether the practice of realising Rekh is to be restarted. Shri Jaswant Raj Mehta says that he advised His Highness that if Rekh is to be realised an order of Darbar should be issued. It is therefore clear that Shri Jaswant Raj Mehta sought fresh orders for the realisation of the Rekh and such fresh orders were never passed. 26. The next question which we have considered is whether arrears of Rekh for the last 100 years can be realised from the Jagirdar assuming for the sake of the argument that no exemption was granted to him or that the exemption granted suffered from some legal defect. The learned counsel for the Jagirdar has argued that Article 112 (Article 149 in the Limitation Act of 1908) is applicable and the period prescribed is 30 years. Therefore arrears beyond 30 years cannot be realised. The learned Government Advocate has argued that Article 112 applies to suits and the Government of Rajasthan has not filed a suit and therefore this Articles is not applicable. The contention on behalf of the Government is that no Article of Limitation is applicable to the Government and the arrears of 100 years can be deducted. In our opinion this argument is mis-conceived. The contention on behalf of the Government is that no Article of Limitation is applicable to the Government and the arrears of 100 years can be deducted. In our opinion this argument is mis-conceived. It is true that the Government has not brought a suit against the Jagirdar but the demand made by the Government amounts to a set off or counter claim. Order 8 Rule 6 CPC lays down that by way of set off only that amount can be claimed which is legally recoverable. A reference in this connection may be made to AIR 1934 Allahabad 427 in which it has been held that time barred amounts cannot be claimed by the defendant as set off. There was some controversy in the past as to the starting point of limitation in the case of set off and counter claims but that controversy has been set at rest in the Limitation Act of 1963. Section 3(2)(b) of the Indian Limitation Act of 1963 reads as under: "Any claim, by way of a set-off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted.- (i) in the case of a set-off, on the same date as the suit in which the set-off is pleaded; (ii) in the case of a counter-claim, on the date on which the counter-claim is made in Court." In the case before us the claim was filed by the Jagirdar in 1958 and the State filed counter claim in the year 1962. Therefore under Section 3(2)(b)(ii) the starting point of limitation will be 1962. As the limitation under the Act of 1908 was 60 years, the Government can claim arrears for 60 years and the rest is barred by limitation. It may also be added that as soon as the Jagir was resumed on 23.8.56 the Rekh ceased to be payable. This is clear from section 22 sub-section (i) of Jagir Resumption Act of 1952. 27. It was also argued by the learned counsel for the appellant that if any amount is found due against the Jagirdar on account of Rekh arrears, the same will have to be reduced by applying the provisions of the Rajasthan Jagirdars Debt Reduction Act of 1956. 27. It was also argued by the learned counsel for the appellant that if any amount is found due against the Jagirdar on account of Rekh arrears, the same will have to be reduced by applying the provisions of the Rajasthan Jagirdars Debt Reduction Act of 1956. In our opinion this contention is not correct because under Section 2(e) of the Debt Reduction Act the word `debt' has been defined as an advance in cash or in kind and includes any transaction which is in substance a debt. It is therefore clear that only an advance in cash or in kind is included the term "debt". Therefore the arrears on account of Rekh are not covered by the definition of "debt" and as such there can be no scalling down of such arrears by applying the Jagirdar Debt Reduction Act. In this connection we may refer to 1963 RRD 213 (HC) in which it has been held that the provisions of the Jagirdars Debt Reduction Act show that the relief under the Act is to be given by the Civil Court. This contention on behalf of the appellant therefore has no merit. 28. In view of the above discussion we come to the conclusion that no amount is realisable from the appellant by way of Rekh. 29. So far as other amounts are concerned. We find no reason to disagree with the learned Jagir Commissioner. Per Shri Satish Kumar 30. Since I have a different perception of the issue involved on the question whether `rekh' stands remitted or not, I am appending this note of supplement and dissent. 31. We are hearing this appeal under Section 39 of the Act against the order of the Jagir Commissioner. The most contentious of the claims in the case is undoubtedly the question relating to `rekh' - a levy which used to be paid by the Jagirdars to the ruler of the State and which the latter could remit, if he so desired. The evidence on record further shows that the orders of the ruler including those relating to remission of `rekh' took effect only after a procedure was followed for recording the same in a register and subsequent issue of orders by the Deewan of the State. 32. The evidence on record further shows that the orders of the ruler including those relating to remission of `rekh' took effect only after a procedure was followed for recording the same in a register and subsequent issue of orders by the Deewan of the State. 32. The Jagir Commissioner, in his well reasoned and detailed treatment of this issue has held that the question of exemption from the payment of `rekh' or to write off the dues of this levy shown outstanding against a jagirdar prior to the date of resumption of a jagir cannot be decided by the Jagir Commissioner under any of the provisions of the Act. He can only make enquiries about the outstanding dues and order as to whether they are recoverable from the amount of compensation and rehabilitation grant payable to jagirdar. He has further held that since the claimant has failed to prove that the amount of `rekh' dues amounting to over Rs. 4.50 lakh was not recoverable from him, he (Jagir Commissioner) had no option but to order that outstanding dues be recovered from him out of the compensation & rehabilitation grant payable to him. I am in complete agreement with this finding, as it is based on correct interpretation of the provisions of the Act and backed by solid documentary evidence which he cannot disregard. He had before him a certificate issued by the Collector showing `rekh' des as outstanding against the jagirdar which x in turn is backed up by the accounts of the erstwhile Jodhpur State which showed, year after year, that these dues were payable but were not paid and hence continued to be added to the overdue arrears. There is evidence on record to show that when the matter of accumulating `rekh' arrears of the jagirdar was brought to the notice of the them ruler (sometime between 1933 A.D. to 1946 A.D. when Shri Jaswant Raj Mehta was the Tribunal Superintendent. Chief Secretary and Chairman, Board of Revenue of the State) he did not decide the matter but entrusted it to a Committee which could not conclude its work till the State of Jodhpur merged with State of Rajasthan and hence the successor State of Rajasthan inherited this issue. The record further shows that the Govt. of Rajasthan also did not decide the issue and ultimately referred it to the Jagir Commissioner to decide. The record further shows that the Govt. of Rajasthan also did not decide the issue and ultimately referred it to the Jagir Commissioner to decide. Thus, the State of Rajasthan has, it would appear, taken two incompatible stands on this issue-through the Collector's certificate it claims `rekh' arrears recoverable and through an executive instructions, it wants the matter to be adjudicated by the Jagir Commissioner. Added to it is the fact that learned Government Advocate representing the State has vehemently argued before us for recovery of the `rekh' over dues and even questioned the authenticity of the `Khas Rukkas' on which the Jagirdar bases his claim saying that these documents are forgeries and pointing out the `historical' conduct of Pokaran in forging such documents as was established in the case of document purported to give them exemption, from payment of `Hukamnama.' 33. The question whether exemption should be granted from payment of a levy like `rekh' or whether accumulation arrears of the levy should be written off or not are purely executive matters and use of discretion in favour or against is the soureign prerogative of the Government whether now or in the erstwhile Jodhpur State. These matters are not justiciable nor in my view the executive organ of the Govt. is competent to pass on the burden of decision to anyone else including the courts of law. Unfortunately both the ruler of erstwhile Jodhpur State and the successor Govt. of Rajasthan have failed to decide the issue which lies entirely in their province. The former set up a Committee presumably with a view to assisting him in taking executive decision and the latter has passed on the burden to the Jagir Commissioner which he was unable to discharge, the other remifications of its actions have already been pointed out above. 34. However, the fact remains that there is a controversy on this issue between the two parties and the Jagirdar has sought the intervention of this court through appeal to settle the matter. The evidence in his favour is the non-recovery of the `rekh' for 90 to 100 years which is the defacto position plus of course the record he is relying upon. The dejure position, however, is that the State accounts have continued to show `rekh' as payable but not paid. The evidence in his favour is the non-recovery of the `rekh' for 90 to 100 years which is the defacto position plus of course the record he is relying upon. The dejure position, however, is that the State accounts have continued to show `rekh' as payable but not paid. This also is an admitted fact that `Khas Rukkas' did not go through the established procedure of being recorded and followed up by an order signed by the Deewan of the State. Had that happened, it would have become a decision of the State Govt. and its accounts wing would not have show `rekh' payable and thus the account books would not have reflected arrears from year to year. That they did so is a pointer to the fact that in the established practice of the time, the will of the sovereign recorded in the `Khas Rukkas' was not regarded as binding by one important wing of the erstwhile State and hence was not given effect to by it. The subsequent conduct of the Maharaja in not deciding the issue but referring it to a Committee further strengthens the argued case of the State that those two `Khas Rukkas' were regarded not of much value in the erstwhile State of Jodhpur and in this context one has to take note of the facts and circumstance surrounding these Rukkas, the absence of the follow-up of rukkas under the established practice and the past conduct of the Jagirdar. On merits too, therefore, I find myself in agreement with the finding of the Jagir Commissioner that the jagirdar has failed to prove beyond doubt that arrears of `rekh' are not recoverable from him. 35. In my view, there is just no option before the Government but to take an executive decision in this matter i.e. either for holding that the `rekh' was in fact not payable or for writing off the arrears. As far as the courts are concerned, they would rely on the certificate of the Collector, the arguments pleaded by Govt. Advocate before this court in this appeal and other evidence as discussed above, including the submissions of the appellant. 36. On other claims of the Jagirdar too, I am in agreement with the findings of the Jagir Commissioner. 37. In view of the difference of opinion, we request the Hon'ble Chairman to refer this case to a third Member.