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Dattatraya Jayaram Prabhu Desai Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 292 of 1924
Judge
Reported inAIR1930Bom95; (1929)31BOMLR1235
AppellantDattatraya Jayaram Prabhu Desai
RespondentThe Secretary of State for India
DispositionAppeal dismissed
Excerpt:
.....was correct and that of the district deputy collector was wrong;;(2) that under section 211 of the land revenue code the collector had revisional jurisdiction over the orders passed by the district deputy collector, and that no period of limitation was laid down for the making of an order under the section;;(3) that the agreement by the tenants to pay rent to the plaintiff at the rate of three times the assessment could not avail him, for his lease bad expired and in the absenoe of a final order he had no right or title left in the land. - - the deputy collector says, in the course of his order, that this lessee is a rich man of an intelligent class (gaud brahmin), and that twenty times the annual assessment of the land should be recovered from him as occupancy price. 2. the learned..........did, and if he had, whether the collector's order purporting to be made under section 211 of the land revenue code was a proper and valid one. ordinarily, the duties of a district deputy collector are regulated by the land revenue code, and as has been insisted on by mr. koyajee, section 10 of that act provides that an assistant or deputy collector, placed in charge of a taluka or sub-division, shall perform all the duties and exercise all the powers conferred upon a collector by this act or by any other law at the time being in force, so far as regards the taluka or talukas in his charge. but, in this case, the deputy collector was dealing with a special kind of revenue question, and the, directions which he had to follow were those contained in g.r. 9415 of october 11, 1912, the.....
Judgment:

Murphy, J.

1. The subject matter of this appeal is the disposal of certain land situated in the Malvan taluka of the Ratnagiri District and known as 'Sheri' land. This is Government waste land and the former arrangement was that it was let to certain persons on a thirty years' lease. The group of survey numbers! involved in this suit had originally been leased in 1859 to one appellant's ancestors. His lease was renewed for thirty years in 1883, and expired in 1913. It the meanwhile, the Collector of Ratnagiri and Government had been considering the question of the disposal of the Sheri lands, and in October 1912 Government issued a resolution, No. 9415 of that date, containing order as to their disposal, based on the Collector's report and the comments in forwarding the report of the Divisional Com-of State missioner. In accordance with this resolution, enquiries were Parted, an(j in this case, these were made by the District Deputy Collector in charge of the Malwan taluka. His order was passed on March 18, 1914. It states that he has inspected the land personally, that it is valuable rice land, and that the tenants have done nothing to improve it, but have been cultivating the land annually, as if they were annual tenants. It goes on to state that there is evidence to show that the tenants are annual ones and that there have been variations in the amounts of rent which they were required to pay. It then refers to the Collector's letter, No. 2515 of May 3, 1912, quoted in the Government resolution, which I have already referred to, and state that the officer has thought of giving the long-standing tenants the right of permanent tenancy, but that the lessee has fought hard against this, and had finally consented to an agreement by which the tenants were to be given the rights of permanent tenancy, by the lessee, on the basis of a rent payable by them amounting to three times the assessment of the land they held. He, therefore, directed that the lands should be given to the lessee, Dattatraya Jayaram Prabhu Desai, on full occupancy tenure. The Deputy Collector says, in the course of his order, that this lessee is a rich man of an intelligent class (Gaud Brahmin), and that twenty times the annual assessment of the land should be recovered from him as occupancy price. The grant was subject to the right of Government to resume whenever the land should be wanted for a public, or special purpose. Measurements were to be made of the area of land in the possession of each of the tenants. Nothing further seems to have been done for some time, but ultimately, probably, when the question of altering the revenue records was being considered, the order was brought to the notice of the Collector of Ratnagiri. The papers do not show whether he held a personal enquiry, and his order appears to - -have been written in the vernacular, but it refers to enquiries having been made, The Collector states that the Sheri land in question had not been in the actual occupation of the lease-holder Mr. Desai, but in the possession of the tenants for many years past, and that Mr. Desai not only admitted this fact, but also admitted that the tenure of these tenants was permanent. He states further that the fact of the District Deputy Collector's order of 1914 had come to his notice in the course of the further enquiries as to the alteration of the record and that, in his opinion enquiries as to the al tenants the tenants were permanent tenants, and that the Shen land should have been given to them, after it was assessed and not to the lease-holder. The Collector, therefore, reversed the District Deputy Collector a order and directed that the tenants should be given occupancy rights on the usual terms, The appellant appealed to the Divisional Commissioner and to the Governor in- Council. His appeals have been rejected. has consequently filed this suit. The relief ho claimed in the suit were, (1) that the order of the Collector, dated June 12, 1917, being illegal and unlawful, is void and that he should be declared the full owner of the land, and (2) that he be put into actual possession of the plaint land with a declaration that the right of permanent tenancy of defendants Nos. 2 to 20 had been extinguished by their acting contrary to the landlord's rights, and finally that he should be declared the full owner of the Sheri land and be given symbolical possession.

2. The learned District Judge held that the plaintiff had failed to make out that the Collector's order was wrong, and that it should be set aside and he consequently dismissed the suit. The appellant has appealed to this Court.

3. The main question appears to us to be (1) whether the District Deputy Collector had authority to dispose of the land in question as he did, and if he had, whether the Collector's order purporting to be made under Section 211 of the Land Revenue Code was a proper and valid one. Ordinarily, the duties of a District Deputy Collector are regulated by the Land Revenue Code, and as has been insisted on by Mr. Koyajee, Section 10 of that Act provides that an Assistant or Deputy Collector, placed in charge of a Taluka or Sub-division, shall perform all the duties and exercise all the powers conferred upon a Collector by this Act or by any other law at the time being in force, so far as regards the taluka or talukas in his charge. But, in this case, the Deputy Collector was dealing with a special kind of revenue question, and the, directions which he had to follow were those contained in G.R. 9415 of October 11, 1912, The orders relevant to our present point are contained in paragraph 15 of the Collector's letter to Government, which is printed as a preamble to the Government Resolution in question, and are, that claims to rights on behalf of tenanta and other actual occupiers of the land should be treated as follows'.-Where the claimant can prove that either he or his predecessor-in-interest has been in possession of the land from a date anterior to the grant of the present lessees (i. e., in the ease of the Malvan lands, 1883 or 1886) he shall he held to have a permanent interest in it, either (a) as sub-sharer or (b) as a permanent tenant. The orders in the actual resolution are that or the colector Ratnagiri is authorized to give out the ' sheri lands in the Malvan taluka, on the restricted tenure, or on the full survey tenure in accordance with the orders contained in Government Resolution No. 599 dated January 19, 1912, to such lessees, alienees or their sub-sharers, as actually cultivate the land and to tenants who are found to have permanent rights of tenancy after enquiry, on the lines suggested in paragraphs 15 and 16 of his letter No. 2615 dated May 31, 1912. The second paragraph of the G.R. goes on to say :-

Where the land is not in the actual cultivation and occupation of any of the persona mentioned in the preceding paragraph, the survey occupancy of the land, protected or unprotected In accordance with the orders quoted above, should be given to the person whether lessee, alienee, co-sharer, sub sharer, or permanent tenant, from whom the tenant at will holds the lands and to whom he payathe rent.

4. These are the orders governing the action of the District Deputy Collector and on which he should have acted.

5. The reasons given in the learned District Deputy Collector's order for holding that these persons were annual tenants were, that there had been a variation of the amount of rent, and that one long-standing tenant had been sued by the lessee in eviction, and that the lessee had success in the case. He, therefore, held that it was clearly proved that the tenants were not permanent ones entitled to have the land. But it is clear that there was no admission by these tenants that they were not permanent ones, for in the agreement, Exhibit 88, which they seem to have signed, it is said :-

We are the permanent tenants of Patwala Dattatraya Jayaram Prabhu Desai regarding Kowl No. 42 of Masure. We now agree to the aforesaid land being given under an agreement to Patwala Dattatraya Jayaram Prabhu Desai. Our only demand is that our right of permanent tenancy should be maintained intact permanently.

6. It also appears that some of them, at any rate, had been in occupation of their tenancies for a very long period. The Collector's order proceeds on the basis of the finding of fact that these were permanent tenancies, This being so, the District Deputy Collector's order was clearly wrong, and did not carry out the intentions of the resolution, on the authority of which he purported to be acting. We, therefore, think that on the merits the Collector's order was correct, and that of the District Deputy Collector was wrong.

7. Mr. Koyajee's further argument was that, although the District Deputy Collector's order may have been wrong, yet he having made it, and it having remained unchallenged for nearly three years, it was wrongful for the Collector to set it aside. This argument assumes a finality in the District Deputy Collector's order, which, we think, it did not possess. Section 211 of the Land Revenue Code provides that the Governer in Council end any revenue officer, not inferior in rank to an Assistant or Deputy Collector, or to a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry, or the proceedings of any subordinate revenue officer, for the purpose of satisfying himself as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.

8. Here, the Collector was acting under the revisional authority conferred by this section, and since no period of limitation is laid down for the making of an order under Section 211 of the Land Revenue Code, it is clear to us that he had a right to interfere in this manner. The District Deputy Collector's orders were made subject to the revision of higher authority, and cannot be said to be final.

9. Mr. Koyajee has also argued that his client, in consequence of the District Deputy Collector's order, had paid the occupancy price which had been demanded of him, and had agreed to grant the old tenants the right of permanent tenancy, though actually he was not required to execute any 'kabulayat' and the revenue records were not altered in his favour, so as to show him to be an occupancy tenant of the land. But the issue which was raised in the District Judge's Court as to estoppel, being issue No. 4, was not pressed in that Court and appears to have been given up. In any case, as I have already stated, it seems to us that the District Deputy Collector's order was made subject to the powers of the Collector under the Code, and that this argument cannot avail the appellant now.

10. The appellant's learned advocate, has also urged that the permanent tenants had agreed, in consideration of his granting them the right of permanent tenancy, to pay him rent at the rate of three times the assessment and that he should, at least, be given a decree for this amount, as against them,, Bufc the whole basis of that agreement was the assumption that the appellant had been granted the rights of occupancy tenant and had the power to grant a corresponding right to his sub-tenants. But actually his lease had expired, and in the absence of a final order, he had no right or title left in the land.

11. Finally, it has been urged that Section 212 of the Land Revenue Code bars the jurisdiction of the civil Court in this matter. A finding on this point is not necessary for the decision of this appeal, which, we think, must fail on other grounds. But, it seems to us that Article 212 does not really bar the suit. The provisions of the section are :-

Wherever in this Act it is declared that a decision or order shall be final, such expression shall be deemed to mean that no appeal lies from such decision or order.

The Governor in Council alone shall be competent to modify, annul, or reverse any such decision or order under the provisions of the last preceding section.

12. I think, speaking for myself, that the reference here to finality is confined to finality under the Land Revenue Code, for there are no words expressly excluding the jurisdiction of the civil Courts as in the sections of Acts framed to that end. But, as I have already stated, since the appeal fails upon the merits, it is not necessary to discuss this question further.

13. We confirm the lower Court's decree and dismiss this appeal with costs. There will be two sets of costs.


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