Full Judgment Text
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PETITIONER:
SUB-DIVISIONAL, OFFICER, MIRZAPUR
Vs.
RESPONDENT:
RAJA SRI NIWAS PRASAD SINGH
DATE OF JUDGMENT:
09/12/1965
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION:
1966 AIR 1164 1966 SCR (2) 970
CITATOR INFO :
RF 1975 SC 865 (34)
ACT:
Uttar- Pradesh Zamindari Abolition and Land Reforms Act,
1952 (U.P. 1 of 1952), v. 343--Compensation Assessment
Roll, Objection to-Notice to State Government-If necessary-
Manner of Service.
HEADNOTE:
The Sub-Divisional Officers of Mirzapur and Chunar Tahsils,
functioning as Compensation Officers under the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1952 prepared
draft Compensation Assessment Rolls, and notified them in
the Official Gazette as required by s. 46(1) (a) of the Act.
A notice was also served on the respondent, who was entitled
to compensation under the Act. The ’respondent filed
objections and claimed higher compensation. The State
Government was not given notice of the objections nor any
intimation of the date of hearing- was sent to it. As a
result of the objections, the Compensation ,awardable to the
respondent was enhanced, and the final compensation Rolls
were then signed and sealed. Nearly eight months
thereafter, the State Government filed applications before
the Compensation Officer for reopening the objection cases,
and claimed to have made these applications on the 30th day
of their knowledge about the revision of the Rolls. The
respondent opposed the applications alleging that the State
had knowledge of the proceedings, and asked for the
production of certain documents to prove that the State
Government had notice of the proceedings and the State, had,
in fact, appeared through the Zamindari Abolition Naib
Tahsildars to contest the objections. The State Government
claimed privilege which was allowed by the Objection
Officer. Thereupon the respondent challenged the claim of
privilege in a writ petition to the High Court, where the
respondent was also allowed to claim a writ of prohibition
against the reopening of the objection cases. The Single
Judge dismissed the writ petition, but on appeal, the
Division Bench quashed the order of the Objection Officer
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holding the documents were privileged. It also issued a
writ of prohibition. In appeal,
HELD : Section 343 says that Government shall be a party to
every proceeding and it was therefore necessary to join
Government and to send it a notice of the objection. The
definition of "person interested" is not an exhaustive
definition and the interest of Government is manifest. When
the section says that Government shall be deemed to be a
party, it only means that Government can appear even if not
joined. [977 G; 978 C]
A notice to Government must be sent to the District
Collector and till notice is so sent Government cannot be
treated as served. [978 F]
Every court and tribunal is entitled to reopen a proceeding
which has proceeded ex parte, not because a party has failed
to appear but because a notice has not been sent to a
necessary party. [980 A-B]
As the question whether the compensation officer would or
would not allow the objection cases to be reopened still
remained to be decided, the High Court was in error in
issuing a writ of prohibition when the
971
Compensation Officer had jurisdiction to determine whether
to reopen the proceedings. The question of jurisdiction can
only be decided after it has been considered by the
Compensation Officer and he proceeds to reopen the
proceedings. [980 E-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 751 of 1963.
Appeal from the judgment and decree dated November 21, 1961,
of the Allahabad High Court in Special Appeal No. 123 of
1960.
C. B. Agarwala and O. P. Rana, for the appellants.
G. S. Pathak, B. Dutta, C. S. P. Singh, S. N. Prasad and
J. B. Dadachanji, for the respondent. The Judgment of the
Court was delivered by
Hidayatullah, J. This is an appeal by certificate under Art.
133(1)(b) and (c) of the Constitution against the judgment
of the High Court of Allahabad in Special Appeal No. 123 of
1960, dated November 21, 1961. By the judgment under appeal
the Divisional Bench reversing the decision of a learned
single Judge of that Court accepted a petition under Art.
226 of the Constitution filed by the present respondent in
the following circumstances.
The respondent Raja Sri Niwas Prasad Singh owned extensive
zamindari interests in tahsils Mirazpur and Chunar of
Mirzapur District in Uttar Pradesh. The present dispute
concerns the assessment of compensation to which the Raja
became entitled under the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 (U.P. Act 1 of 1951) from July 1,
1952. Under that Act, the proprietary interests of the Raja
in the Zamindari properties situated in the two tahsils
vested in the State of Uttar Pradesh. The Sub-Divisional
Officers of Mirzapur and Chunar tahsils, who were
functioning as Compensation Officers under the Act, prepared
draft Compensation Assessment Rolls and they were notified
in the official Gazette as required by cl. (a) of s. 46(1)
of the Act. A copy of the notice was also served on the
Raja along with a copy of the draft Compensation Assessment
Rolls as required by cl. (b). The Raja filed objections to
the draft Rolls, contending that the amount of compensation
should have been higher than what was fixed. It is an
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admitted fact that no notice of the objections filed by the
Raja was given to the State of Uttar Pradesh; nor was any
intimation of the date of hearing sent. The State
Government had, however, issued a notification [No. 145
Z.A.C.-5/158(1953)] on July 29, 1953 instructing all
District Officers that in objection cases, in which it was
deemed
972
necessary to arrange for the State Government to be
represented before the Compensation Officers, the District
Officers should specifically authorise the Zamindari
Abolition Naib Tahsildars to plead on behalf of the State
Government. No special authorisation in terms of the
notification was however, issued in the present case,
although the Naib Tahsildars without authorisation appeared
as a matter of course. As a result of the objections, the
Compensation awardable to the Raja for his zamindari
interest in Mirzapur Tahsil was enhanced by about Rs.
3,01,348-5-0. The compensation in respect of his interests
in Chunar Tahsil was also substantially enhanced. The final
Compensation Rolls were then signed and sealed on various
dates, the last being January 31, 1955 in the Mirzapur case
and December 13, 1954 in the Chunar case. The Raja received
the bonds in respect of the original compensation and also a
part of the enhanced compensation. A sum of over rupees
three lakhs remains still to be paid.
On August 22, 1955 the State of Uttar Pradesh filed two
applications before the Compensation Officers at Mirzapur
and Chunar praying that the objection cases be re-opened and
the State Government given a hearing. The main ground on
which the State Government claimed to have the proceedings
re-opened was that notices of the objections were not issued
to the State Government as required by the Act and that the
State Government, having no knowledge of the objections,
could not appear and contest the case set up by the Raja.
The State Government claimed that the final Compensation
Rolls were not binding upon it. The State Government averred
that information about the revision of the Compensation
Rolls was received by it for the first time on July 22, 1955
and the applications were moved immediately. The Raja
opposed the applications and alleged that the State
Government had knowledge of the proceedings and had actually
participated in them before the Compensation Officers
through its Naib Tahsildars. He urged that the Compensation
Rolls had become final and could not be reopened. The Raja
also stated that the State Government and its officers had
in their possession certain documents from which it could be
proved conclusively that the State Government had full
knowledge of the objections filed by him. In support of his
plea the Raja filed an application on November 11, 1955
before the Compensation Officer, Mirzapur, tinder 0. 11 rr.
12 and 14 of the Code of Civil Procedure for discovery and
production of the documents mentioned in the application.
The State Government claimed privilege under ss. 1-23 and
124 of the Indian Evidence Act and the application was
rejected the same day by the Compensation
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Officer. A similar application for discovery and production
of documents made before the Compensation Officer, Chunar,
on December 15, 1955 was rejected on January 5, 1956 when
the State Government claimed privilege. On October 6, 1956
the District Judge, Allahabad, consolidated the two
compensation cases pending in Mirzapur and Chunar Tahsils
and directed that they should be heard by the Sub-Divisional
Officer (Compensation Officer), Mirzapur.
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When the cases went before the Sub-Divisional Officer-(Com-
pensation Officer), Mirzapur, two fresh applications were
filed on August 22, 1957 for discovery, production and
inspection of the documents already the subject of the
previous applications and some more. The State Government
again objected to the last application, claiming privilege
and also pointing out that similar applications had already
been rejected earlier. The State Government requested the
Compensation Officer, Mirzapur (Mr. R. K. Misra) to decide
the question whether a second application was maintainable
after the first had been rejected. By an order, dated
October 12, 1957, Mr. Misra held that the question could be
reconsidered and directed the State Government to file
objections in detail. Before, however, Mr. Misra could
decide the matter finally he was transferred and was
succeeded by Mr. Upadhaya as Compensation Officer in the
Tahsil. Mr. Upadhaya differed from Mr. Misra and held that
the proceedings could not be reopened. He, accordingly,
rejected the two applications for discovery and inspection.
His order was made on March 31, 1958.
The Raja, thereupon, filed on April 11, 1958, a petition
under Art. 226 of the Constitution, impugning the order
passed by Mr. Upadhaya and asking that it be quashed by a
writ of certiorari. The Raja also asked for a writ of
mandamus or direction to the Compensation Officer, to hear
and determine his (Raja’s) application under 0. 1 1 rr. 12
and 14 of the Code of Civil Procedure. Subsequently, with
the court’s permission, two more grounds were added on May
5, 1958 and one such ground was the following
"Because the Assessment Rolls have become
final and they cannot be opened at this
stage".
Although the matter in dispute really was whether inspection
and discovery had been wrongly disallowed, the High Court at
the hearing permitted the Raja to raise the more fundamental
question : whether the State of Uttar Pradesh was entitled
to
974
claim to reopen the proceedings by which compensation was
revised. The main ground on which the State Government
resisted the plea of the Raja was that it had no notice
under the Act of the proceedings for revision. Mr. Justice
Jagdish Sahai who heard the petition for writ dismissed it
on February 23, 1960, but on appeal his judgment was
reversed by the Divisional Bench on November 21, 1960. The
Divisional Bench quashed the order, dated March 31, 1958,
and issued a writ of prohibition restraining the
Compensation Officer, Mirzapur from proceeding ’with the
applications filed by the State Government for the
restoration of the objection cases to file. The present
appeal has been filed against the last order.
It is hardly necessary to set down the reasons given by Mr.
Justice Jagdish Sahai and the Divisional Bench in reaching
opposite conclusions, or the arguments that were advanced
before us in support of the rival cases. The matter is to
be resolved on a construction of the sections of the Act and
as we proceed to consider them we shall advert to the
arguments where necessary.
Chapter III of the Act deals with the Assessment of Com-
pensation. Under S. 27 every intermediary whose rights,
title or interests in any estate are acquired under the
provisions of the Act is entitled to receive and be paid
compensation. The sections that follow lay down how
compensation is to be assessed. The first step is to
prepare draft Compensation Assessment Rolls in respect of
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each intermediary. After the draft Compensation Assessment
Rolls are ready they are published. Section 46 lays down
how they are to be published. It reads
"46. Preliminary publication of the draft
Compensation Assessment Roll.
(1) After the draft Compensation Assessment
Roll in respect of any intermediary has been
prepared, the Compensation Officer shall-
(a) publish a notice in the Gazette and in
such other manner as may be prescribed to the
effect that the Statement referred to in
section 38 and the draft Compensation
Assessment Roll mentioned in section 40 have
been prepared and are open to inspecti
on by the
persons concerned;
(b) serve or cause to be served on the
intermediary concerned a copy of the notice
aforesaid along with a copy of the draft
Compensation Assessment Roll.
975
(2) The notice under sub-section (1) shall
call upon all persons interested, including a
person who claims that the name of the
intermediary is, in respect of any share or
interest to which such person is entitled,
entered in a representative capacity or in the
capacity of the karta of a joint Hindu family,
to appear and file objections upon such
statement or roll within a period of two
months :
Provided that no objection on the ground that
the intermediary is entitled to a greater or
lesser share or part of the estate or is not
entitled to any share or part thereof shall be
entertained except when it is on any of the
grounds mentioned in the notice or is in
pursuance of any order under section 32 or
33."
A notice was in fact published in the Gazette as required by
cl. (a) of sub-s. (1) and a special notice was served upon
the intermediary as required by cl. (b). The notice’ in
sub-s. (1) is addressed to "persons interested" which term
is defined in s. 63 as including all persons whether or not
recorded in the record-of-rights claiming to be entitled as
intermediaries to the compensation or any part or share
therein to be assessed and paid on account of the
acquisition of the estates under the Act. The definition
does not include Government but it is not exhaustive.
Persons interested are called upon to appear and file
objections within 2 months of the publication. The
question, therefore, is whether the State Government was
bound to appear in answer to a notice published in the
Gazette under s. 46 or a separate notice to the State
Government was necessary when objections were raised to the
amount of compensation. This can only be decided by
referring to a few sections of the Act and some of the rules
framed under it. The first section to consider is S. 343
which provides
"343. State Government to be a party in the
proceedings under chapters HI to V."
(1) The State Government shall be and be
deemed to be a party in every proceeding
before the Compensation Officer or the
Rehabilitation Grants Officer under chapters
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III to V and every notice to be served or
intended to be served on the State Government
may be served on the Collector or any
authority nominated by the Collector.
976
(2) Notwithstanding anything contained in
the said chapters or clause (d) of sub-section
(1) of Section 344, the period of limitation
for filing of an appeal by or on behalf of the
State Government shall be ninety days from the
date of the order appealed against.
This section must be construed with ss. 47 to 52. Under S.
47 it is provided that if any objection is filed it shall be
registered by the Compensation Officer who shall fix a date
for hearing the same and give intimation to the intermediary
concerned and to any person Who may have, appeared in reply
to the notice under s. 46. It is contended on behalf of the
respondent that no notice to the State Government was
necessary because it was not a person interested and had not
appeared in reply to the notice under s. 46. It is
contended on behalf of the State Government that the State
Government was entitled to a notice because the Act intends
that it should be a party to every proceeding before the
Compensation Officer. Both sides refer to ss. 48 to 52 in
aid and construe them in their favour. Under s. 48 it is
stated that in hearing and deciding objections the
Compensation Officer shall have all the powers of a civil
court and, subject to modifications as may be prescribed,
must follow the procedure laid down in the Code of Civil
Procedure for hearing and disposal of suits relating to
immovable properties. The State Government contends that
the proceedings before the Compensation Officer are thus
equated to a suit and the State Government which has to pay
the compensation is in the position of a dependent and must
receive notice of the objection. On behalf of the
respondent it is contended that the State Government is
already a party by virtue of the deeming clause in s. 343
and no notice is therefore required unless the State appears
in answer to the Gazette notification. One thing is clear :
that a notice to the State Government was not sent in the
manner required by s. 343 which says that every notice to be
served or intended to be served on the State Government may
be served on the Collector or any authority ’nominated by
the Collector. No notice could be given except to the
Collector and it was not enough to publish a general notice
in the Gazette because notice to the State Government had to
be in the manner laid down by the section and no other. If
it was desired that the State Government should have notice
of the objection, a notice under S. 343 had to issue. No
notice was served upon the Collector as laid down in the
section and no intimation of the date was sent to the State
Government under s. 47 informing the State Government of the
date fixed for, hearing of the objections. The State
977
Government contends that as under s. 49 the order under S.
48 is deemed to be a decree of a civil court and is
appealable under ss. 50 and 51 to the District Court and to
the High Court, if a notice had been sent to the State
Government it could have availed itself of these sections
and appealed against the decision of the Compensation
Officer and refer to the special limitation laid down for
appeals by State Government in s. 343(2) quoted above.
This, it is contended, indicates that the State Government
is to be a party to the proceedings. The other side, on the
other hand, contends that as a notice was already published
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in the Gazette under s. 46 the State Government was bound to
appear on its own and the only remedy which it had was by
way of an appeal since there is no provision in the Act by
which the order of the Compensation Officer, which is
deemed to be a decree, can be set aside. The respondent
says that the provisions of 0. 9 and s. 151 of the Code of
Civil Procedure under which the decrees which are passed
ex parte, are ordinarily set aside do not apply and contends
that since the State Government did not appear and contest
the objection ’to the amount of compensation and did not
appeal under s. 50 to the District Court the final
Compensation Assessment Roll, which was signed and sealed,
became final under s. 52(1) and (2) of the Act and it cannot
now be re-opened. This is the case accepted by the
Divisional Bench.
We have first to construe s. 343 of the Act which seems to
have led to the rival conclusions in the High Court. That
section says that the State Government shall be deemed to be
a party to every proceeding. Now it cannot be denied that
on the objection being made, a proceeding started before the
Compensation Officer. The State Government must be deemed
to be a party to that proceeding and the only question is
what the Act means by saying that "the State Government
shall be a party" to every proceeding. The learned Single
Judge found the section inartistic but, in our opinion, it
clearly conveys two ideas which are quite distinct. By the
words "the State Government shall be a party" is intended
that the State Government must be joined as a party to every
proceeding under the Act. The effect of the words "the
State Government shall be deemed to be a party to every
proceeding" is that it does not have to apply to be joined
as a party even if not so joined. The State Government can
always appear without being joined because it is always
deemed to be a party. Even if the State Government was left
out by the, objector and no other party asked that the State
Government be joined, the State Government could always
intervene,
978
not by asking to be joined but as one already deemed to
be a party.The section, therefore, works in two-ways.
It entitles State Government to take part in any
proceeding without being in the array of the parties. It
also compels any one starting a proceeding to join the State
Government as a party. The result of this section is that
when a notice is issued under S. 46(1) the State Government
may object to a draft Compensation Assessment Roll if it
chooses, but it must be made a party to a proceeding started
on an objection by any party. The definition of " persons
interested" is not an exhaustive definition and the interest
of the State Government is manifest because it is the party
which is required to pay the compensation. By virtue of s.
343, therefore, State Government is always a person
interested in every proceeding and it was, therefore,
incumbent upon the Compensation Officer to send an
intimation of the date of hearing to the State Government so
that the State Government might make arrangements for
opposing the objections if it chose. It is futile to say
that because the State Government is deemed to be a party,’
it was not entitled to the special intimation which the law
requires should be given to an intermediary as well as every
person interested. There were thousands of such compen-
sation cases and it would be impossible for the State
Government to arrange to appear in every objection case
without intimation and to watch the proceedings in hundreds
of courts for this purpose. It is thus provided by s. 343
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that if a notice has to be sent or is intended to be sent to
the State Government it shall be sent to the District
Collector. No general notice can suffice. Till a notice is
sent, the State Government will not be deemed to be served.
It is, therefore, quite clear that the State Government
ought to have been joined by the objector to the proceedings
for enhancement of compensation. It is equally clear that
even though not joined the State Government was entitled to
a special notice, in common with the intermediaries and
other persons interested, of the date of the hearing. Since
no such intimation was sent the proceedings will not, prima
facie, bind the State Government and that in fact is the
claim made by the State Government by its applications for
the reopening of the proceedings before the Compensation
Officers.
It is contended that under certain notifications all Sub-
Divisional Officers were empowered to discharge the
functions of a Collector under the Abolition Act and all
Assistant Collectors were made ex officio Compensation
Officers and the Compensation Officer having notice, the
State Government must be deemed to have notice also. This
is not correct. The Compensation
979
Officer acts as a court and a-court cannot represent a
party. A separate notice was necessary.
It was contended that the State Government could have
appealed against the decision of the Compensation Officer.
An affidavit has been sworn on behalf of the State
Government that it did not know the decision of the
Compensation Officer till the 22nd July, 1959. The
application for reopening the proceedings was filed on the
30th day and, would be within time for setting aside and ex
parte decree if the intimation did reach the State
Government on July 22 for the first time. This matter must
be tried and has not been tried. The respondent, however,
contends that there is no provision for review; that the
Compensation Rolls became final under s. 52; and that the
State Government not having appealed, the Compensation
Officer cannot reopen the proceedings. This, in our
opinion, is not quite correct. The other side relies upon
Craig v. Kanssen(1) and contends that failure to serve a
notice rendered null and void the order against the State
Government and the State Government was entitled to have it
set aside and the Compensation Officer has inherent power to
set it aside. The other side challenges this inherent
power.
No doubt the Code of Civil Procedure is to be used as far as
may be and even if 0. 9 does not strictly apply the inherent
power conferred by s. 151 of the Code of Civil Procedure
must be available to the Compensation Officer. It is
contended that no general power of review is granted by the
Act and as the Civil Procedure Code provides for the manner
in which ex parte decrees can be set aside, inherent powers
to set aside ex parte decrees may not be invoked by the
Compensation Officer and the proceedings before him for
reopening the objection case must be without jurisdiction.
Reference is also made to S. 61 under which a slip order can
be made and it is contended that the Compensation Officer
after signing and sealing the final Compensation Assessment
Rolls cannot do more than correct slips or errors apparent
on the record.
Here the question is not one of reopening the Compensation
Roll or the objection case for purposes of making a
correction or for review. The question here is that one of
the necessary parties to the objection cases was neither
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joined nor noticed to appear. The most important party,
besides the objector, claiming enhancement of the
compensation, was the State which has to pay the enhanced
compensation. That party had to be joined to the pro-
ceedings under s. 343 and a notice or intimation of the date
of’
(1) L.R. [1943] K.B.D. 256.
the hearing had to be sent as laid down in S. 343. Section
343 prescribes not only the manner of serving notices but
lays down that the State Government must be joined. Every
court and tribunal is entitled to reopen a proceeding which
has proceeded ex parte, not because a party has failed to
appear but because a notice has not been sent to a necessary
party. A decision reached behind the back of a necessary
party to whom notice must be sent is not binding upon such a
party and the Court may in such a case reopen the proceeding
to give the party a chance to state its case.
When the petition for writ was filed the proceedings before
the Compensation Officer were at a very early stage. The
State Government had applied for reopening of the objection
cases and the Zamindar had asked for certain documents to
prove that the State Government had notice of the
proceedings and had, in fact, appeared through the Zamindari
Abolition Naib Tahsildars to contest the objections. The
State Government had claimed privilege and the claim of
privilege was allowed by the Objection -Officer. The
Zamindar had thereupon filed the application to challenge
the claim of privilege and to get the order of the Com-
pensation Officer quashed. As we have said earlier the
matter was allowed to be enlarged so that the respondent was
enabled to claim a writ of prohibition to stifle the case of
the State Government for reopening of the objection case.
The High Court not only quashed the order by which the
documents asked to be produced were held to be privileged,
but at the same time issued a writ of prohibition in the
case. The question whether the Compensation Officer would
or would not allow the objection cases to be reopened still
remains to be decided and the High Court was in error in
issuing a writ of prohibition when the Compensation Officer
had clearly jurisdiction to determine whether to reopen the
proceedings. The question of jurisdiction can only be
decided after it has been considered by the Compensation
officer and he proceeds to reopen the proceedings. No such
question appears to have been raised before the Compensation
Officer and in fact it was not so raised even in the
petition before the High Court. In such circumstances the
writ of prohibition was not called for and ought not to have
been issued. It is manifest that the State Government was
not sent a notice of the hearing of the ,objection cases and
it has a right to move the Objection Officer to reopen the
proceedings. Whether the Compensation Officer would ,reopen
the proceeding or not is a matter for the Objection Officer
to decide in the first instance. It cannot be said at this
stage that there is no jurisdiction in the Objection Officer
to consider the petition of the State Government.
981
In the circumstances, we dissolve the writ of prohibition
which has been issued by the High Court but maintain the
order of the High Court quashing the order, dated March 31,
1958. This does not mean that the State Government is bound
to produce all the documents. The Compensation Officer will
be required to decide, in the light of the decisions of this
Court reported in The State of Punjab v. Sodhi Sukhdev
Singh(1) and Amar Chand Butail v. Union of India and
Others(1), whether the claim of privilege raised by the
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State Government should be sustained or not. That must be
done after appropriate affidavits by the heads of the
Departments concerned are filed and the claim of privilege
is properly examined.
In the result the writ of prohibition issued by the High
Court is dissolved but the order quashing the order, dated
March 31, 1958, is upheld. The claim for privilege which
has not be-en properly raised shall be raised in accordance
with law. The Cornpensation Officer, who undoubtedly
possesses jurisdiction to reopen the case, shall decide
whether to reopen it or not after passing an order on the
claim of privilege in accordance with the rulings of this
Court. The respondent shall be entitled to raise such pleas
in opposition as may be open to him in law. The appeal is
thus allowed in part but in the circumstances the respondent
shall pay the costs of the appellant.
Appeal allowed in part.
(1) [1961] 2 S.C.R. 371.
(2) A.I.R. 1964 S.C.R. 1658,
982