The case of the appellant is that the Nistar Officer-CMW-Additional Deputy Commissioner, Sausar, while preparing the wajib-ul-arz of village JK hedi-kala incorrectly entered K. No. 115 as public well and K. No. 68/2 as part of the public road (temporary). According to the appellant these two khasra numbers were his private prop3rfcy and no customary right on them could be recorded without his consent.
2. Before I deal with the merits of the case I may point out the slip-shod manner in which the record of the lower Court has been prepared and maintained. There is no order-sheet in the lower Court's case indicating the progress of day-today proceedings. There is no reference to any provisions of law under which the so-called us for-enquiry was conducted by the Nistar Officer-cum-Additional Deputy Commissioner. The various tables and forms on record have been shabbily written and over-written by several officials in various inks making it impossible to ascertain the finality or the authenticity of the record on the basis of which the final wajib-ul-arz was drawn up. Lastly, it is surprising that due care was not taken even by the Deputy Commissioner in submitting his report on the grounds of appeal. Apart from innumerable typing mistakes, reference to S. 63 (1) (b) of the M. P. A. P. R. Act, as forming the basis of the proceedings-under question, is obviously wrong inasmuch as this section is applicable only to merged territories and not to the area involved in this case. The distinction that, exists between the wajib-ul-arz and the Nisiar Patrak does not seem to have been realised and the two documents have been confused as one in his report. The Revenue Officers are expected to take good care and to act in a businesslike manner in dealing with matters involving important public interests.
3. Adverting to the facts of the case under appeal, the lower Court's record starts with a proclamation dated 10-10-53 enclosing a list in Form A. If the report received from the Deputy Commissioner on the grounds of appeal is any indication, the proceedings fall under section 47 of the M. P. A. P. R. Act which deal with Deputy Commissioner's powers to ascertain and record customs etc. Certain rules have been framed, vide Notification No. 70/XXVIII, dated 3-3-51, which briefly describe the procedure that has to be followed in ascertaining the customs etc. under section 47 ibid. In particular, a proclamation has to be issued in a prescribed form (Form A) informing all concerned the proposal to ascertain customs under section 47 ibid in order that
"any person who desires that any existing entry in the Village Administration Papers should be modified or any new custom recorded under any heading specified in rule 2 should submit an application"
, by the date prescribed in the proclamation. A reference to the proclamation dated 10-10-53, issued in the instant case, would show that its language and' contents are quite different from those prescribed for Form A of the rules. The list styled as Form A on record contains only the plot numbers and area of such lands as were deemed to have vested in the State. This list, however, does not include K. No. 115 or K. No. 68/2 in dispute. The proclamation dated 10-10-53, in contrast to the proclamation under the rules, is to the effect that if any person has any objection against any khasra number mentioned in the 'enclosed' list,. or if any person has legal possession over them or, again, if some khasra numbers have been omitted from the list, then it would be open for the person concerned or anyone else to bring the same to the notice of the Assistant Revenue Inspector in writing within the given time.
4. It further appears that the Assistant Revenue Inspector and the Assistant Superintendent, Land Records visited the village on various dates and on the basis of information that they could collect from the village-papers or otherwise, a draft wajib-ul-arz was prepared and read out to some 7 or 8 villagers. It was on the authority of this draft that the final (or fair) copy of the wajib-ul-arz was prepared and published on 3-4-55 by the N. 0. cum. A. D. C.
5. The contention of the appellant is that his plots in question were not included in the list published with the so-called proclamation dated 30-10-53 and he was, therefore, not called upon to make any submission or objection. The disputed khasm numbers ware not reserved in the previous wajib-ul-arz for any communal purpose and at no stage was he informed that these plots wore going to be ordinal in the final wajib-ul-arz. He had, therefore, no opportunity whatsoever to contest the inclusion of his land in the wajib-ul-arz which was finally published on 3-4-54.
6. From the report of the Deputy Commissioner it is clear that this entry 'for the first time, of these khasra numbers in the W. A. was based on the observations of the Assistant Superintendent, Land Records to the effect that K. No.115 was being used by the people as a public well and that K. No. 68/2 was being used by the villagers for 8 months in the year, as 'Road' leading to Tigaon Railway -Station. It is also obvious from the record that the appellant had no chance to rebut or challenge the observations of the Assistant Superintendent, Land Records. In short, it cannot be denied that K. Nos. 115 and 68/2, claimed as personal property of the appellant, were included in the wajib-ul-arz without any notice to him.
7. The view-point of the Deputy Commissioner is that as the enquiry was made in the village no formal consent of the owner was necessary. On similar grounds formal communication of the final order to the appellant was also deemed unnecessary. Lastly, the present appeal having been preferred after the expiry of 90 days is time-barred.
8. I may say at once that the plea advanced by the learned Deputy Commissioner is entirely untenable. Section 47 ibid deals with the ascertainment and 'the record of customs as also with the modification of any entry in the W. A. rule 2 of the rules referred to above reads as follows: -
"2. Customs shall be ascertained under the following heads and due regard shall be had to the conditions entered in the Village Administration Paper, if any, and the objections urged by the residents of the village."
(Underline mine)
9. Since S. 46, C. P. Land Revenue Act is not superseded by the M. P. A. P. R. Act, vide S. 89 of the latter Act, it may be argued that Deputy Commissioner acting under section 46 was entitled, suo motu to modify the record-of rights which includes wajib-ul-arz. But then it should be remembered that S. 46 is applicable only when certain conditions are satisfied, to wit, the consent 'of all persons interested in the change. In view of definite opposition of the appellant S. 46 cannot coins to the aid of the Deputy Commissioner.
10. The proceedings of the lower Court will, therefore, have to be examined exclusively in the light of the provisions of S. 47 of the M. P. A. P. R. Act and the rules there under. These rules are not exhaustive and it is true that they do not prescribe that after the recommendations in regard to the modifications of existing customs or in regard to the recording of new customs are received by the Deputy Commissioner, the draft proposals should be published for inviting objections of the people. But it is abundantly clear from rule 2, cited above, that in ascertaining the customs, objections raised by the residents of the villages should be given due consideration. Rule 3 contemplates an enquiry by an authorised officer before reporting to the Deputy Commissioner. Apart, therefore, from the principles of natural justice, it is clear that in a case where a custom has-to be recorded involving the property of an individual it is necessary that he should be noticed to have his say in the matter. If this is not done the term 'enquiry' will have little meaning and observance of rule 2 would be impracticable. The custom has to be ascertained and not to be created by a Revenue Officer. Whether it is ascertainment of a custom or it is a modification of an existing custom one cannot get over the essential requirement of notifying the persons directly interested in the matter. In the instant case, the khasra numbers in question i were not subjected to any customary rights in the then existing wajib-ul-arz. Particular care should, therefore, have been taken to consult the appellant if he had any objection to the modification proposed by the Assistant Superintendent,, Land Records. If this rule is not to be observed and the wajib-ul-arz is to be finalised behind the back of a person who is vitally and directly interested, all. principles of equity and justice would be thrown to winds. The absence in the rules of any provisions for the publication of draft wajib-ul-arz cannot, therefore, be a justification to by-pass a person like the appellant whose land was being reserved for communal purpose for the first time. It is entirely unsatisfactory to say that the proposals of the Assistant Revenue Inspector or the Assistant Superintendent, Land Records were made known to half a dozen people at random and that it was all that was needed under the circumstances. The entry in respect of K. Nos. 115 and 68/2 was an innovation and it can hardly be said, on the basis of the record before me that full and due publicity was given to the proposed changes so as really to enable the submission of any objection from any quarter. The Law of Limitation cannot therefore, stand in the way of the appellant.
11. In the circumstances of the case, therefore, I would set aside the entry made in the wajib-ul-arz with respect to K. Nos. 115 and 68/2 and direct that the appellant should be given reasonable opportunity to substantiate his claim and the necessary entry in the wajib-ul-arz, if required, be made thereafter. Case remanded accordingly.
Case remanded.