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The Secretary of State for India Vs. Husenabu Daudbhai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 299 of 1926
Judge
Reported in(1931)33BOMLR361; 136Ind.Cas.189
AppellantThe Secretary of State for India
RespondentHusenabu Daudbhai
Excerpt:
.....the land was of their ownership. it was objected that the suit was barred under section 11 of the bombay revenue jurisdiction act:--; (1) that the city survey officer not having been a direct subordinate of the collector an appeal would lie to the collector under notification no. 14447 of november 29, 1927; and that it did not appear that any further appeal to the commissioner was necessary to be filed;; (2) that having regard to the terms of the notice in the case, government were not entitled to rely on the bar under section 11 of the bombay revenue jurisdiction act, 1878.; the word 'act' in section 11 of the bombay revenue jurisdiction act, 1876, is wide enough to cover a judicial or quasi-judicial act, viz., the passing of an order or decision by a revenue officer.; quoare, whether..........behalf of the appellant in these appeals is whether the suits are barred under section 11 of. the bombay revenue jurisdiction act x of 1876. the learned district judge held that section 11 of the bombay revenue jurisdiction act did not apply because section 11 contemplates an act, i.e., a positive act of dispossession and would not cover an order or decision by the city survey officer. we think the learned district judge erred in holding that the section did not apply to an order or decision by the city survey officer. the word 'act' is wide enough to cover a judicial or a quasi-judicial act, viz., the passing of an order or decision by a revenue officer. section 11 of the bombay revenue jurisdiction act contemplates the presentation of all such appeals allowed by law before bringing.....
Judgment:

Patkar, J.

1. The question urged on behalf of the appellant in these appeals is whether the suits are barred under Section 11 of. the Bombay Revenue Jurisdiction Act X of 1876. The learned District Judge held that Section 11 of the Bombay Revenue Jurisdiction Act did not apply because Section 11 contemplates an act, i.e., a positive act of dispossession and would not cover an order or decision by the city survey officer. We think the learned District Judge erred in holding that the section did not apply to an order or decision by the city survey officer. The word 'act' is wide enough to cover a judicial or a quasi-judicial act, viz., the passing of an order or decision by a revenue officer. Section 11 of the Bombay Revenue Jurisdiction Act contemplates the presentation of all such appeals allowed by law before bringing the suit. All such appeals would refer to appeals against the act or omission. Section 203 of the Bombay Land Revenue Code, Bombay Act V of 1879, prescribes an appeal against the decision or order passed by a revenue officer. Section 11 of the Bombay Revenue Jurisdiction Act would be rendered nugatory if the contention that the act does not include an order or decision were accepted. In Natha bin Naroji v. The Secretary of State for India (1896) P.J. 341 it was held that passing an order is clearly an act and so comes within the provision of Section 11 of the Bombay Revenue Jurisdiction Act. The section is not a complex statute of limitation for protection of Government, but the object, as stated in Ranchod v. Secretary of State for India ILR (1897) 22 Bom. 583, is to protect Government from being exposed to law suits arising out of the orders of its subordinate officers before its superior officers have been afforded the opportunity of considering, and, it may be, of disallowing the executive orders of its subordinate officials.

2. In Dayal v. Secretary of State : (1920)22BOMLR1089 , where a suit was filed for reversal of order of the Collector directing removal of an encroachment and for an injunction, it was held that the omission to file an appeal from the Collector's order to the Revenue Commissioner or Government barred the suit under Section 11 of the Bombay Revenue Jurisdiction Act.

In Sakharam v. The Secretary of State ILR (1904) 28 Bom. 332, 6 Bom. L.R. 125 it was held that Section 11 of the Bombay Revenue Jurisdiction Act did not apply in the circumstances of that case, because the act or omission which was the cause of action was not an order or decision in respect of which there was a right of appeal under the Bombay Land Revenue Code. The result would have been different if the act was an order or decision against which there was a right of appeal. As a matter of fact, appeals had been presented though beyond the period of sixty days, and it would appear from page 385 that the District Judge felt that he would not be justified in relying on the bar under Section 11 of the Bombay Revenue Jurisdiction Act on the authority of Ranchod's case. The act complained of in that case appears to be an act of Government in giving the river bed for cultivation and was not an order or decision of a subordinate officer against which an appeal lay.

3. In Nathuram v. Secretary of State (1931) 24 Bom. L.R. 402 the decision is based on the ground that there was no order of a revenue officer, the plaintiffs were allowed to continue to hold the land rent-free, no opportunity was given to the plaintiffs to put forward their case, and no order or decision was passed but only notice of demand to pay assessment was given all of a sudden.

4. It has been held in Anant Nulkar v. Secretary of State (1930) 33 Bom. L.R. 213, following the decision in Dongar walad Dagadu Patil v. Secretary of State (1918) F.A. No. 252 of 1915, decided by Beaman and Heaton JJ., on January 30, 1918 (Unrep.), that if an act is preceded by an order, Section 11 would apply. In Dongar walad Dagadu Patil v. Secretary of State it was held that the plain meaning of Section 11 is that where acts are done under the orders of the revenue authorities, no suit will lie in respect of such acts until the aggrieved party has exhausted his rights of appeal against the order or orders, and that the intention was to prevent the aggrieved party from running prematurely to Courts before they had obtained the final decision of the highest revenue authority to whom they could go for much more summary justice. In Bhikhabhai Doolabhjee v. Secretary of State (1919) F.A. No. 2 of 1916, decided by Macleod C.J. and Heaton J., on July 28, 1919 (Unrep.), the same view was taken and it was observed as follows:--

This undoubtedly is a suit against Government on account of an act of a Revenue Officer, the act being the issuing to the plaintiff of a notice under Section 202 of the Land Revenue Code requiring him to vacate certain land. Now no appeal whatever was presented in this matter to any superior revenue officer. But such an appeal might have been presented as is enacted by Section 203 of the Land Revenue Code which provides for appeals against decisions or orders passed by revenue officers, In all probability there was a decision by a revenue officer in this case though it does not appear to be on record.

5. It is urged on behalf of the respondent that Section 11 of the Bombay Revenue Jurisdiction Act does not apply because the city survey officer is not a revenue officer. The survey officer appears to be a revenue officer, and is included in Chapter II of the Bombay Land Revenue Code, and is described as a revenue officer in several sections of the Bombay Land Revenue Code. Whether the city survey officer is a revenue officer has not been decided in any of the decisions which have been brought to our notice. The question has to be decided by reference to the duties of the city survey officer under Bombay Act IV of 1868, or Section 131 of the Bombay Land Revenue Code, or Section 50A of the Bombay District Municipal Act III of 1901, and by reference to the definitions of 'land revenue' and 'revenue officer'' in the Bombay Land Revenue Code and the Bombay Revenue Jurisdiction Act. In Secretary of State v. Yemnappa Sangappa (1925) F.A. No. 34 of 1923, decided by Macleod C.J. and Coyajee J., on March 3, 1925 (Unrep.), the question was considered but not decided, and in Valavbhai Mithabhai v. Secretary of State (1926) F.A. NO. 105 of 1925, decided by Macleod C.J. and Coyajee J., on February 3, 1926 (Unrep.) it was held that it was not proved that the city survey officer was a revenue officer. It is not, however, necessary to decide the point in the present appeals, for, we think, the argument on behalf of the respondents baaed on the notice in these cases is well-founded. The notice given in these cases runs as follows:--

If any person desires to appeal against the abovementioned order he should appeal in the prescribed manner to the Collector within 60 (sixty) days from the date of the said order. If no suit in a Civil Court is filed within one year from the date of the final decision of such appeal or if no appeal is preferred from the date of this order, no civil suit can be instituted in any Court to set aside or vary the said order.

6. It was held in Secretary of State v. Yamnappa Sangappa that such a notice having misled the parties in not filing the appeal against the order, the defendant, the Secretary of State, should not rely on Section 11 as a bar to the suit. A similar view was taken in the case of Chunilal v. Secretary of State (1926) F.A. No. 215 of 1925, decided by Macleod C.J. and Coyajee J., on January 21, 1926 (Unrep.) and the case of Annapurnabai Krishnarao v. Secretary of State (1930) F.A. No. 190 of 1926, decided by Patkar and Baker JJ., on August 13, 1930 (Unrep.) In the present case we are informed that except in one case (F.A. No. 300 of 1926) the parties appealed first to the District Deputy Collector and then to the Collector, though it appears from the plaint in appeals Nos. 301 and 432 that appeals were only filed to the District Deputy Collector. The facts in the cases to which I have referred are somewhat different from the present case, for in those cases the parties did not appeal at all. But in the present case the parties first appealed to the District Deputy Collector and in most of the cases appealed to the Collector. The wording of the notice, which is similar to form 'C' at page 74 of Anderson's Land Revenue Rules and similar to the notice in the cases referred to above, loaves it to the wish of the party to appeal against the abovementioned order and suggests that if he desired to appeal, he should appeal to the Collector within sixty days from the date of the said order, and if no suit is filed within one year from the date of the final decision of the appeal, no civil suit can be instituted in any civil Court to set aside or vary the said order. The notice is likely to mislead the party into believing that it was optional to file an appeal, and in case the party desired to appeal it would be sufficient if an appeal is filed to the Collector.

7. We, therefore, think that the argument advanced on behalf of the appellant that the bar under Section 11 should apply on account of the failure to file appeals to the Commissioner is not well-founded. Further, it appears from the City Survey Manual at page 46, paragraph 112, that 'appeals against the decisions of enquiry officer lie to the Collector only, and the power of hearing them cannot be delegated and they must be preferred within sixty days prescribed by the Code'. The city survey officer is not a direct subordinate of the Collector, and an appeal would lie to the Collector under the Government Notification No. 14447 dated November 29, 1927. We are not satisfied in these cases that further appeals to the Commissioner were necessary to be filed, and having regard to the terms of the notice in the present case we think that the appellant cannot rely on the bar under Section 11 of the Bombay Revenue Jurisdiction Act, We are, therefore, of opinion that the present suits are not barred by Section 11 of the Bombay Revenue Jurisdiction Act,

Broomfield, J.

8. I agree. The District Judge was, in my opinion, clearly wrong in his view that the order of the enquiry officer was not an act within the meaning of Section 11 of the Bombay Revenue Jurisdiction Act. I think that matter is sufficiently clear even without authorities. The word 'act', being derived from the Latin 'actum', means 'a thing done.' Webster's Dictionary quotes this passage from Holland's Jurisprudence. ' Jurisprudence is concerned only with outward acts. An 'act' may therefore be defined for the purposes of the science as a determination of will producing an effect in the sensible world.' The passing of an order or the making of a decision is just as much an act, i.e., a thing done, as the physical act of dispossession, for instance, mentioned by the learned District Judge. Moreover, the authorities on the point are perfectly clear. There are numerous decisions, besides that in Dayal v. Secretary of State : (1920)22BOMLR1089 , which the District Judge rather surprisingly thought he was at liberty not to follow. We have been referred to some unreported decisions of this Court in Dongar walad Dagadu Patil v. Secretary of State (1918) F.A. No. 252 of 1915, decided by Beaman and Heaton JJ., on January 30, 1918 (Unrep.), Bhikhabhai Doolabhjee v. Secretary of State (1919) F.A. No. 2 of 1916, decided by Macleod C.J. and Heaton J., on July 28, 1919 (Unrep.), Salharam Gopal v. Secretary of State (1917) F.A. No. 9 of 1915, decided by Heaton and Shah JJ., on August 22, 1917 (Unrep.), and Anant Nulkar v. Secretary of State 1930) 33 Bom. L.R. 213. There is also the decision in Sakharam v. The Secretary of State for India in Council ILR (1904) 28 Bom. 332, 6 Bom. L.R. 125. The ratio decidendi there appears to be that the only kind of act which can be referred to in Section 11 is an order or decision, because the Land Revenue Code does not provide an appeal from any physical act but only from orders and decisions. The ruling in Nathuram v. Secretary of State (1921) 24 Bom. L.R. 402 has been cited by both the parties to the argument before us. It appears to me, however, to be very clearly in favour of the view that 'act' in Section 11 means 'order'. The decision in that case would apparently have been precisely the reverse of what it was, and Section 11 of the Bombay Revenue Jurisdiction Act would have been held to apply, if there had been there the kind of order which we have in the present case. It would be easy to refer to any number of authorities, and I may mention Abaji v. Secretary of State for India ILR (1896) 22 Bom. 579 and Ranchod v. Secretary of State for India ILR (1897) 22 Bom. 583, in which it has been held by implication that an order, such as we have in this case, is an 'act' within the meaning of Section 11, Indeed, I doubt very much if any authority could be found in which that section has been applied where the ' act' referred to was not an order or a decision.

9. Though the reasons given by the District Judge are unsatisfactory, his decision is correct on other grounds. In each of these cases it appears that the enquiry officer issued a notice in the form ' C ' given at page 74 of Anderson's Land Revenue Rules. That being so the same doubts and difficulties arise as in the case which was dealt with by this Court in Secretary of State v. Yemnappa (1925) F.A. No. 34 of 1923, decided by Macleod C. J. and Coyajee J., on March 3, 1925 (Unrep,), Chunilal v. Secretary of State (1926) F.A. No. 215 of 1925, decided by Macleod C. J. and Coyajee J., on January 21, 1926 (Unrep.), and Annapurnabai Krishnarao v. Secretary of State (1930) F.A. No. 190 of 1926, decided by Patkar and Baker JJ., on August 13, 1930 (Unrep.). The form of notice has been given by my learned brother. It is clearly a very ambiguous and misleading document. It might reasonably appear to the recipient of such a notice that it was not necessary for him to appeal at all and that it would be sufficient if he brought a suit within one year of the enquiry officer's order ; and so in one of the cases to which I have just referred, Secretary of State v. Yemnappa, it was held that the party had been misled and that Section 11 of the Bombay Revenue Jurisdiction Act should not be applied although in that case no appeal had been filed at all. Further, the recipient of such a notice might reasonably suppose that even if he did appeal--and the parties in these cases all of them did appeal--the appeal lay to the Collector and to no other authority. The District Judge says that ignorance of the law is no excuse, but supposing that the parties concerned had shown the utmost caution that could be expected from them, and had looked up the City Survey Manual and the notifications of Government in the matter, they would have found in the first place the provision in paragraph 112 of the Manual which states that appeals lie to the Collector only. They would have next found the notification of Government No. 14447 dated November 29, 1917, in which the Collector has been appointed to hear and determine appeals from the orders of an enquiry officer, without any mention of any further appellate authorities. It appears to me that the position of the present parties is much stronger than the position of the parties in Secretary of State v. Yemnappa, and as it was held that Section 11 should not be applied there a fortiori it could not be applied in the present case. For, hero, after all, the parties have adopted both the alternative remedies which appear to be offered to them by the notice in question.

10. As regards the other points in the case I do not think I need add anything to what my learned brother has said, except that I may refer to the decision of this Court in Valavbhai Mithabhai v. Secretary of State (1926) F.A. No. 105 of 1925, decided by Macleod C.J. and Coyajee J., on February 3, 1926 (Unrep.) In that case this Court held that Section 11 of the Bombay Revenue Jurisdiction Act could not be applied because Government had not satisfactorily proved that a survey officer is a revenue officer within the meaning of the Bombay Revenue Jurisdiction Act. We have listened to a long argument on the question whether assuming that an enquiry officer is a revenue officer any appeal would lie under the provisions of the Land Revenue Code from the decision of the Collector, who has been appointed by Government to hear and determine appeals from the enquiry officer's orders. On the materials placed before us, the point can only be said to be extremely doubtful and we might, therefore, have disposed of the preliminary point before us on the same lines on which it was disposed of in Valavbhai Miihabhai v. Secretary of State (1926) F.A. No. 105 of 1925, decided by Macleod C.J. and Coyajee J., on February 3, 1926 (Unrep.) viz., that Government has failed to prove that the case can be brought within the provisions of Section 11 of the Bombay Revenue Jurisdiction Act.


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