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Daluchad Fulchand Gandhi Vs. Gulabbhai Kanthadji - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in34Ind.Cas.198
AppellantDaluchad Fulchand Gandhi
RespondentGulabbhai Kanthadji
Excerpt:
.....by khatedar for wrongful attachment--mamiatdar not liable--income-tax act (ii of 1884)--seizure of account-books, wrongful--liability to damages. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of..........entered his house; wrongfully attached certain ornaments and wrongfully took away certain account-books of his. the mamlatdar denies that he struck the plaintiff. he admits that he had the ornaments and the account-books taken away from the plaintiff, but submits that this was not wrongful, and in any event he pleads that he acted in pursuance of the law and is protected by section 6 of the bombay revenue jurisdiction act.2. the really material issues of fact in this case are two; (1) whether the mamlatdar did strike the plaintiff, and (2) whether he attached the ornaments on account of arrears of assessment for past years, or on account of the assessment of the then current year. the joint judge of ahmedabad who tried the suit found both these issues in favour of the mamlatdar.....
Judgment:

Heaton, J.

1. The village of Moyad-vas-Rupaji is a talukdari village. The talukdar owner was at one time a minor and the District Court appointed a Government Officer as his guardian, and in consequence of this guardianship the Talukdari Settlement Officer and under him the viamlatdar of the Prantij Taluka had the revenue management of this village, The village was leased to a certain person in consideration of the extinction of certain debts due from the talukdar. The latter part of the period of this lease became vested in one Makhwad Gafoor, and it was during this period that the events with which we are concerned happened. Makhwad maintained that the landholders of the village were paying far too little by way of assessment. The khatedars maintained that they were paying what was customary and all that they could properly be called on to pay. Both sides sent petitions to the mamlatdar, and, on the 20th of March 1911, this officer visited the village in order to find out for himself what was the true state of the case. As the result of what he discovered in the village he came to the conclusion, as his subsequent reports clearly show, that the leaseholder was receiving mush less by way of assessment than he was entitled to. He, whilst in the village, caused the property of two of these khatedars to be attached. He also advised Makhwad, the leaseholder, to file what are called Assistance Suits against certain of the khatedars for the recovery of what he claimed to be due for the current year. Some of these suits were subsequently disposed of by the mamlatdar in favour of the leaseholder. One of the persons whose property was attached, and against whom one of these suits was filed, was the plaintiff in this present suit, and briefly stated, the plaintiff' asserts that on the occasion of the mamlatdar's visit to this village on the 20th of March 1911 he struck the plaintiff with a shoe and with a stick; that he wrongfully entered his house; wrongfully attached certain ornaments and wrongfully took away certain account-books of his. The mamlatdar denies that he struck the plaintiff. He admits that he had the ornaments and the account-books taken away from the plaintiff, but submits that this was not wrongful, and in any event he pleads that he acted in pursuance of the law and is protected by Section 6 of the Bombay Revenue Jurisdiction Act.

2. The really material issues of fact in this case are two; (1) whether the mamlatdar did strike the plaintiff, and (2) whether he attached the ornaments on account of arrears of assessment for past years, or on account of the assessment of the then current year. The Joint Judge of Ahmedabad who tried the suit found both these issues in favour of the mamlatdar defendant and he dismissed the suit entirely.

3. I will now deal with the first of these two issues. After having read the evidence, and heard it commented on, I can find no convincing reason for supposing that the Court below was wrong in holding that it was not proved that the mamlatdar had struck the plaintiff. There is no doubt that the events which have happened have given rise to a great deal of bitterness between the parties, and where this is so, and where we have, as here, a considerable boy of landholders in a village ranged on one side against the proceedings of a superior holder and a revenue officer, it is not to be expected that we should have an accurate account of events from the villagers; and it seems to me that where a Judge who heard the evidence and saw the witnesses, and, as 'in this case, disbelieved the evidence of a personal assault by the mamlatdar, it would require some very convincing reasons to justify a Court of Appeal in reversing his conclusion. Those convincing reasons are not present in this case. So I think that the conclusion of the Trial Judge on this point must be confirmed.

4. The second issue arises in this way. Seeing that the assessment for the current year was due to the leaseholder who was a superior holder, it could only be recovered, if not duly paid, by the leaseholder who, for this purpose can bring Assistance Suits or ordinary civil suits. The assessment for that year could not be recovered by the mamlatdar under the provisions of Section 150 of the Land Revenue Code. This is admitted. Therefore, it is urged on behalf of the plaintiff that the attachments made by the mamlatdar were on account of the current year's assessment because if so, these attachments were admittedly illegal. But it is urged by the mamlatdar that these attachments were made on account of unpaid assessment of previous years and moreover prior to the period of the lease, and that he had power to attach for the recovery of such arrears. Hence arises this issue of fact, as to whether the attachment was on account of the current year's assessment or on account of the assessment of previous years.

5. Now there is in the case correspondence which shows that there were arrears of previous years, and that the plaintiff was liable to pay a certain amount of such arrears. It is asserted, and the assertion is borne out by the correspondence itself, that the existence of these arrears was brought to the notice of the mamlatdar on the 20th of March whilst he was present in the village. Exhibit 78 is a report of the talati bringing the matter of arrears to the notice of the mamlatdar. The mamlatdar's subsequent reports also show that he had made attachments by way of enforcing payment of such arrears. Unless, therefore, there is some reason for supposing that these papers, in particular the talati's report which bears date the 20th of March, were prepared subsequently in order to support the case which is now put forward, there is very good reason for supposing that the mamlatdar's account of the matter is correct. I can find no good reason for supposing that these papers have been prepared subsequently, or are in any way other than they purport to be, except one, and that reason is this: that in the panchnama (Exhibit 80) recording the attachment it is stated twice over that the attachment is made on account of the current year's arrears. The mamlatdar and the talati both explain that this is a verbal error. It is undoubtedly the kind of error that does sometimes appear in such papers and the truth of this explanation is, I think, strongly borne out by the general circumstances of the case, because I can find nothing elsewhere either in probability, or in the events which admittedly happened, to show that the mamlatdar did make the attachments for the current year's assessment and not for the arrears These arrears undoubtedly existed. There had undoubtedly been previous correspondence regarding their recovery. They ha not been recovered, and in a case like the present where the mamlatdar rightly or wrongly had come to believe that there was contumacy in refusing to pay the proper current year's demand, it is very likely that he would inquire whether there were past arrears also, and finding that there were past arrears, and also believing it to be necessary, as bis reports show, that an example should be made of those of the khate-dars that he believed to be most contumacious, he would be very likely to deal with these past arrears. Then we find one of the witnesses for the plaintiff, a witness who is closely identified with the plaintiff's side in this matter, says that on the 20th of March the past arrears were demanded (Exhibit 56). I think, therefore, that the Trial Judge was right in arriving at the conclusion that the attachment was made on account of past arrears and not on account of the current year's assessment. It is established, then, that the attachment of the plaintiff's orna-ments was for the purpose of recovering from him arrears of revenue for past years, not for the assessment of the then current year. That being so we have to consider whether the mamlatdar had lawful authority to recover those arrears by such attachment. First, I will assume that the provisions of the Land Revenue Code applied. Sections 150 and 154 give the power to attach in such a case and the attachment can be made without notice. The power can be delegated to a mamlatdar (section 12). Even if there was no general delegation, yet the correspondence about the recovery of the arrears (Exhibits 52, 78, 61 A, 88, 89 and 68), I think, probably implies a special delegation in regard to the village of Moyad-vas-Rupaji. Moreover the mamlatdar was acting as a subordinate of a guardian of the estate appointed by the District Judge under the Guardians and Wards Act, so the guardian would have a general power to delegate his functions. I see no good reason to suppose that a delegation by the guardian to the mamlatdar to attach moveables would be unlawful.

6. If, therefore, the guardian had the power I find no good reason to suppose either that he could not or did not delegate the power. But I do not find affirmatively on these points, we do not know enough about the case for a positive finding. We do not know even who the guardian was, whether the Collector or the Talukdari Settlement Officer; we do not know what arrangements he made, what orders he gave about the management of the property. I can only say that the mamlatdar is not shown to have been without the delegated power to attach and the circumstances of the case and the correspondence about the arrears do show that both he and his superior thought he had the power. That is enough for my present purpose.

7. So far I have assumed that the provisions of the Land Revenue Code apply. The same reasoning holds good if section III of that Code as modified by Section 33 of Bombay Act VI of 1888 applies. This is a case of a talukdar's estate coming under the temporary management of a Government Officer and the Officer would be empowered to 'conduct the revenue management under the rules for the management of unalienated lands not comprised within a talukdar's estate.' Whatever this latter phrase may mean, whether the provisions of the Code or some set of rules, there would doubtless be power to attach for the recovery of arrears.

8. So here again we find it cannot be said positively that there was not power to attach of that the power had not been delegated to the mamlatdar and it can positively be said that the mamlatdar and his superiors supposed he had the power.

9. If they were wrong then they made a mistake as to the law, but the law is far from simple and the circumstances to which it was to be applied were complicated. I cannot doubt that the mistake, if any, was a bona fule mistake and that it was made in the pursuance of the provisions of the law. The law is there and does contemplate attachment by a mamlatdar in certain oases It may be that the mamlatdar erroneously pursued the law which in this case is somewhat elusive: but if he did his conduct is assuredly covered by the provisions of Section 6 of the Revenue Jurisdiction Act (X of 1876) and the mamlatdar is not liable in damages.

10. But it is urged that all this is beside the point, because the mamlatdar's powers were delegated to him by a guardian duly appointed and the guardianship had come to an end on the minor talukdar attaining majority (section 41, Guardians and Wards Act). No doubt the guardianship had ceased some time prior to the 20th March 1911, the date of the occurrences with which we are concerned. Nevertheless the temporary management of the tulukdar's estate in fact continued and unless that temporary management was unlawful, it would be a temporary management such as is contemplated by Section 33 of Bombay Act VI of 1888 and so the reasoning set out above would still hold good. Now was this management unlawful? It is not shown to be. We do not know why the estate was not handed over to the talukdar, for that point has not been gone into. But we do know that some time later the talukdar formally asked the management of the estate by the Government Officer should continue and that it was then formally continued. That being so, we cannot assume that the informal continuance of the management was without the talukdar's consent. In other words, there is no good reason to suppose the management was wrongful whereas there is some reason to suppose it was not. I find nothing, therefore, in this argument.

11. The case of the seizure of the plaintiff's account-books is different. The mamlatdar does not pretend he attached the books for arrears of revenue. His account is this:

I could see that there was more than enough property to attach. But I thought to myself that I should not spoil any of his goods. So I advised him not to put me to the necessity of doing it and asked him to produce the money under protest if he liked. Then he went inside his house and brought to me two account-books and told me that he had no money with him in cash and that he had to bring Rs. 35 from Prantij to keep him going. Then ] told him to give an ornament as he appeared to be a well-to-do man. So he went into the parsal and brought out a key out of a niche in that wall. Then he offered me the key and asked me to open his box; I declined and asked him to do so. Then he opened the box and took out a bundle of clothes and offered it to me. I declined. Then he opened a secret drawer in the box and gave me another bundle of ornaments in which there were about 4 ornaments (some of silver). I handed it over to my karkun and asked him to take it to the chowra and keep in charge after calling a chowksey and getting the ornaments weighed.'

'At Dalu's house I noticed that his account-books were bulky and I asked him there as to whether he was paying any assessment. He said No'. So I took the books with me, at that time the list of income-tax was under preparation. It was published on 1st April 1918.

'My karkun wrote out a receipt for the books: Dalu signed it. Mr. Himatlal interfered and told Dalu that the receipt was improper as it stated that the books were 'produced' by him and not taken away' by me. So I told him that as he was not engaged in that case he should not interfere. Daluchand at once left off the books there and went away. I had not abused any one at this time either.

'I had not issued on him a notice under the Income-Tax Act. He did not protest to my taking away the books.

12. I agree, therefore, with the Trial Judge that the mamlatdar took the account-books for income-tax purposes. The Trial Judge writes:

Now, the evidence in this case satisfies me that the mamlatdar demanded from the plaintiff his account-books, threatening him that he had been enjoying exemption from income-tax dishonestly. And the plaintiff thereupon handed over the books to him, without a protest. I do not think, I can call this removal an attachment or seizure without the consent of the plaintiff. The mamlatdar wanted the books for lawful purposes and the plaintiff allowed the removal without a protest. The removal was thus also neither illegal nor wrongful.

13. I do not agree here with the Trial Judge. I hold on the mamlatdar's own testimony and the admitted circumstances that the plaintiff did not willingly allow the mamlatdar to take away the books and that the taking was against his consent. How can it have been otherwise? The whole proceeding must have been intensely irritating to the plaintiff; he was unwilling to submit to anything and from that moment to this has vigorously maintained that the mamlatdar acted illegally and oppressively. It seems to me to be a perfectly clear case of seizure of the books by the mamlatdar against the will and inspite of the protests of the plaintiff.

14. That being so, the seizure was unauthorized and wrongful. The Income-Tax Act does not contemplate such a thing. The view of the Trial Judge is expressed in paragraph 30 of his judgment. He finds there was no protest on the part of the plaintiff. I find there was a protest and opposition to the seizure. I do not say the mamlatdar acted absurdly, but that there is no law which in such circumstances or in any circumstances like them empowers a mamlatdar to make such a seizure. He was not pursuing the law for there was no such law to pursue; if he was pursuing anything it was a figment of his own imagination. The matter here seems to me to be quite different from that of the attachment and I cannot hold that the mamlatdar's conduct here is covered by Section 6 of the Revenue Jurisdiction Act. But I do not think the case is one for punitive damages and the actual damages were trivial, for the books were not long detained. I would award Rs. 5 as damages and allow the plaintiff his costs throughout, to that extent allowing the claim.

Basil Scott, C.J.

15. I concur in the conclusion arrived at by my learned brother: but I have a few words to add on the question of the authority of the mamlatdar to distrain moveable property of the plaintiff under Section 154 of the Code. In my opinion the mamlatdar was authorized, because he was invested with the power of making attachment of moveables by delegation from the Collector of Ahmedabad under Section 12 of the Land Revenue Code and the Ahmedabad Collector's memorandum of the 6th November 1903, quoted by the learned Judge and not disputed by the appellant's Pleader. The Mamlaldar then had authority, from 1903 onwards, the Collector's authority and that of his assistant, the Talukdari Settlement Officer, arising from Section 33 of the present Talukdars Act so long as the estate continued under the management of Government Officers.

16. The point urged in appeal is that the Collector's management when the arrears became due was as guardian of the minor talukdar and that the talukdar having attained majority before the occurrences complained of, there was no de jure management by the Collector at that time. In my opinion, however, the authority to manage under the Government Resolution No. 5533 of the 8th of June 1911 issued on the application of the talukdar of an earlier date under Section 28 of the Gujarat Talukdars' Act (Bom. Act VI of 1888) prima facie related to the period of five years from the date from which the management by Government Officers could only be justified by reference to Section 28 of the last-mentioned Act.

17. The de facto management of the Government Officers continued uninterruptedly, notwithstanding the event of the talukdar attaining majority and the successful request of the talukdar, when made, amounted to a ratification of and authority for their management from the date of his attaining majority.


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