1. This Letters Patent Appeal is preferred by the 1st defendant, the State of Andhra Pradesh, from a judgment of our learned brother, Sanjeeva Row Nayudu, J., given on I4th November, 1960, whereby he dismissed the appeal of the 1st defendant and allowed that of the plaintiffs decreeing their suit. Briefly stated the relevant facts are that the plaintiffs and defendants 3 to 18 are the member of Schedule castes, and that they were assigned the suit lands which are about Acs. 94-56 cents in extent situate in Doddanapudi by the Government in or about 1920 according to the plaintiffs. Defendants 3 to IS subsequently transferred the area of land which was allotted to them, to the plaintiffs. The usual pattas were granted relating to the assignments. The plaintiffs therefore claimed themselves to be in possession either as original grantees or pattadars or as transferees from the original grantees. The District Collector, West Godavari, Eluru, passed an order of resumption on 25th June, 1948, According to that order, the plaintiffs were stated to have violated two conditions of the assignment: (1) that they have transferred the suit lands in favour of the 2nd defendant who does not belong to the depressed classes and (2) that the plaintiffs committed a default in the payment of cist for 1356 Fasli on the due date. It was alleged in the plaint that this order of resumption was subsequently cancelled by the Board of Revenue on 30th June, 1948. Before that order was passed, the Tahsildar, Bhimavaram, submitted a report that he had taken possession of the lands on5-7-1948. In spite of that the Board of Revenue on 27-7-1948 affirmed the previous order of cancellation and held that the re-entry was ineffective and directed the Collector to issue notice to the plaintiffs and after hearing them decide about the resumption. The plaintiffs thereupon issued notices on 6-7-1948 to the Collector, the Revenue Divisional Officer and the Tahsildar asserting that they are still in possession of the land. The plaintiffs also filed an application before the Government on 5-7-1948 requesting the Government to investigate into the matter. The Government granted stay of resumption on 7-7-1948. The Collector also addressed a letter to the Plaintiffs' Advocate on 12-7-1948, but as the plaintiffs could not appear before the Collector nothing was subsequently done. The Government however issued a G. O. on 3-9-1949 ratifying the resumption order passed by the Collector on 25-6-1948 and vacating the stay granted earlier. The plaintiffs therefore laid this suit for declaration that the plaintiffs are absolutely entitled to the plaint schedule lands and for the grant of a permanent injunction restraining the 1st defendant from interfering with their possession, and for refund of the suit money,
2. The 1st defendant raised the defence that the suit lands were not assigned to the plaintiffs and defendants 3 to 18, in or about 1920, but they were granted subsequent to G. O. No- 57 dated 7th June, 1922. These assignments were subject therefore to two conditions, firstly that the assignees will not be entitled to transfer in any manner the land in favour of caste Hindus and secondly that the land revenue must be paid on the due dates. In violation of any one of the two conditions the Government was entitled to resume the grant and re-enter into possession. It was alleged by the 1st defendant that the plaintiffs have violated both the conditions and that the Collector therefore rightly passed an order of resumption on 25-6-1948 in pursuance of which the Tahsildar, Bhimavaram, re-entered into possession of the suit lands. As the plaintiffs subsequently claimed themselves to be in possession, appropriate action treating the plaintiffs as encroachers was started. It was claimed by the 1st defendant that the resumption order does not suffer from any infirmity. Defendants 2 to 18 remained ex parte.
3. Upon these pleadings the Subordinate Judge, Narasapur, framed appropriate issues and after recording the evidence of the parties dismissed the plaintiffs' suit in regard to all the items of the plaint schedule property except twelve acres in R S. Nos. and in regard to the extent of area mentioned in the decree. The leaned Subordinate Judge held that the suit lauds were assigned subsequent to G. O. No. 57 dated 7-6-1922 (Ex. B.30), that the plaintiffs have failed to pay the cist for 1356 and 1357 Faslis on the prescribed dates and that they have, therefore, committed a default in the payment of land revenue. It was however found by the Subordinate Judge that the plaintiffs have not in any manner transferred the suit lands to the 2nd defendant. It cannot therefore be said that the other condition has been violated. The trial Court also found that no notice before resumption was necessary and that the order of resumption passed by the Collector was perfectly valid.
4. The plaintiffs aggrieved by the judgment and decree of the Subordinate Judge came in appeal before this Court. The 1st defendant also preferred an appeal in regard to the decree passed in respect of 12 acres of the suit lands. These two appeals were heard together by our learned brother, Sanjeeva Row Nayudu, J. While the 1st defendant's appeal was dismissed, the plaintiffs' was allowed and consequently the plaintiffs' suit in its entirety was decreed. It is this judgment of Sanjeeva Row Nayudu, J., which is the subject of the present Letters Patent Appeal.
5. The Government Pleader argued that the suit lands were granted to the plaintiffs and defendants Nos. 3 to 18 subsequent to G. O, No. 57 dated 7-6-1922 (Ex. B.30) and that therefore the assignment was subject to the above said two conditions. He submitted that there is abundant evidence on record to show that the grant was so made after the said G. O. was issued and was subject to the abovesaid two conditions. In have submission the plaintiffs have failed to prove that the grants were made in or about 1920. He contended that the resumption order passed by the Collector was valid and cannot be questioned. It was not necessary according to him If, issue any notice to the plaintiffs before resumption was made. The plaintiffs however, in his submission, had notice and they controverted the issue not only before the Collector, but also before the Government. The resumption order therefore does not suffer from any deficiency.
6. The contention of Mr. B. V. Subrahmanyam, the learned Counsel for the respondents, however, has been that the suit lands were assigned before the said G. O. of 1922 was issued; that the assignment therefore was not subject to the condition that if the plaintiffs failed to pay the land revenue on due dates, the lands are liable to be resumed; that the assignment was subject to only one condition i. e., the assignees should not transfer the suit lands to caste Hindus and that the assignees have not committed any default inasmuch as they have not assigned the lands in favour of the 2nd defendant. He contended that the Collector was not competent to resume the lands, that the plaintiffs were not given any notice and that therefore resumption order was bad in law.
7. In order to appreciate these rival contentions in their proper perspective it becomes necessary first to examine the connected evidence. The principal question which was the subject of good deal of debate in this Court is whether the assignment of the suit lands was prior or subsequent to G. O. No. 57 dated 7-6-1922. The best evidence in order to prove that the lands were granted subsequent to the said G. O. was the pattas granted to the assignees. The plaintiffs have not produced the original pattas granted to them or their vendors i. e., defendants 3 to 18. They have stated that the original pattas are burnt and therefore could not be produced.' The trial Court examining this contention of the plaintiffs in para 14 of the judgment came to the conclusion that
'the non-production of the pattas by the plaintiffs is a highly suspicious circumstance, which goes
t.) show that, if produced, they would belie their contention about the date of the grant,'
The learned Judge adverting to this contention merely referred to the arguments of the parties, but instead of giving any finding upon the non-production of the pattas observed that the failure of the Government to produce the counter-parts of the pattas and other registers maintained by them evidencing the assignments in question was more important. The various reasons, therefore, as signed by the Subordinate Judge remained unchallenged.
It is evident from the record that the plaintiffs have produced several documents of the years 1905 to 1908 i, e., Exs. A-11 to A-14 and if the story of the plaintiffs that all the documents were burnt was correct, why these documents alone remained has not been satisfactorily explained by them. Their story was that Malapalli was burnt on three different occasions and in one of the fires all the pattas were burnt. P. W. 4 stated that the first fire took place about 15 years before, the second one ten years back and the third about five years before he gave the statement. He however, admitted that he could save two or three boxes from these fires. It is pertinent to note in this connec-tion that the plaintiffs or the defendants Nos. 3 to 18 never mentioned in anyone of the enquiries about fire that the pattas were burnt away. P. Ws. 8 and 9 who are the other plaintiffs could not also show sufficient reason as to why in spite of losing pattas in this way they did not mention the same to any one of the Officers who had come for enquiry. Although therefore it may be true that Malapalli fire may have taken place on three occasions as claimed by them, but the question whether the pattas were also burnt along with that has not been satisfactorily brought out. The absence of any complaint in this respect either by the plaintiffs or by the concerned defendant and the fact that the plaintiffs in spite of this fire could produce documents of earlier years, go to prove that the reason shown for non-production of the pattas is riot true. It is surprising that although the plaintiffs and the concerned defendants lived separately none of them could save the pattas. P. W. 20 who had obtained lends from another Harijan under Ex. X-l, stated that he was not asked to produce the pattas. The learned Subordinate Judge, in our opinion, was justified in drawing the inference that he has got the pattas of the land covered by Ex. 1, but that was not produced. Similarly under Ex. X-2, P. W. 2; and under Ex. A. 143, P. W. 22, who took a similar lease from another Harijan, could have produced their pattas. Their versions that they have lost the pattas were not believed by the trial Court. It must he remembered that they did not say that their pattas were also burnt. It is also pertinent to note that the loss of pattas in this way was nowhere been mentioned in the plaint. It was only in the evidence for the first time that the plaintilfs came out with that story, which, in our opinion, has rightly been disbelieved by the trial Court. The learned Judge has not dealt with this question at all. After going through the relevant record and the evidence of P. Ws. 4, 8, 9, 20 to 22 we are clearly of the opinion that the non-production of pattas which is the best evidence in regard to the year in which the assignment was
made must entail an adverse inference that if these documents had been produced, they would have contradicted the version as given by the plaintiffs.
(After discussing the evidence of the parties, the judgment proceeds as under;)
8-22. In all these circumstances we have reached the conclusion that the lands in question were assigned to the Harijans subsequent to the C. O. of 1922 and that those assignments were subject to the aforesaid two conditions. We entirely agree with the reasoning and the conclusion to which the trial Court has reached. We regret however that we could not persuade ourselves to agree with 'our learned brother in this respect, as we are satisfied that there is overwhelming evidence in this case which points out to only one direction that the assignment was made subsequent to G. O. of June, 1922. The plaintiffs have failed to prove that the lands were assigned in 1920.
23. The next question which immediately arises for our consideration is whether the resumption made by the Government was valid. It is contended by the plaintiffs that notices of resumption were not given and therefore the entire resumption proceedings were invalid. We fail to see how that argument can be effective. It is conceded that the terms of the grant did not include any notice to be given before resumption is made. It is specifically mentioned in the conditions that in case the lands are assigned to any one except the members of the schedule castes, or the land revenue is not paid on the due dates, the Government can resume the grant and re-enter into possession. Notice is contemplated only in cases where an enquiry has to be made before resumption is directed. In case where the default is of .such a nature that it needs no enquiry it is for the Government to exercise the right of resumption. It must be remembered that the lands have been specifically assigned under these conditions. The assignees at their own option accepted the assignments in their favour subject to these conditions. It scarcely lies in their mouth to say that although they have committed a default, they must be heard before resumption is made.
The counsel for the plaintiffs relied upon R. S. O. 15 in support of his contention that notice ought to be given before resumption is directed. His contention has been that Darkhast proceedings are proceedings of a quasi-judicial nature, that resumption is a part of Dharkhast proceedings and that therefore resumption is also of quasi-judicial nature, and although no notice is specifically mentioned in any of the rules, still the principles of natural justice demand that notice ought to be given before resumption is directed. We do not find any such thing in B. S. O. 15. Part II of the Standing Orders of the Board of Revenue relates to disposal of land. S. O. 15 therefore covers the entire field in regard to disposal of land. S. O. 15 it must be noted is divided into three sections. In the preamble of that order certain instructions are given before lands are disposed of. The scope of the said Standing Order is also clearly mentioned.
Section 1 relates to classification of land. For the purpose of that Standing Order land is classi-fied into land prima facie available for assignment and land prima facie not available for assignment. Reserved lands are also defined which include funds for depressed classes. Section 2 relates to the ordinary Rules which apply to the disposal of the assessed lands not being reserved. Part 'A' of the said Rules indicates the preliminary requirements and Part 'B' indicates the procedure. These Rules show as to when application for assignment should be made and the procedure on receipt of such application and the various factors which ought to be taken into consideration while granting of Darkhast. The order made on Datkhast needs to be communicated and then the grant to be registered and a patta issued on payment in regard to standing trees and buildings. Against any order made by the authority on any Darkhast appeal is provided under Rule 15 and revision under Rule 18. Rule 21 directs the maintenance of Darkhast records.
Section 3 relates to the Special Rules for Special Classes of Land. In that Section lands allottee' to special classes also are mentioned, e. g., conditional assignment to bill tribes see Rule 37. Rule 38 refers to reservation of land for assignment to the depressed classes. Clause (3) of Rule 38 says that Darkhast for land in such areas should be dealt with in accord with the general rules of assignment referred to in Section II but the applications have got to be on behalf of the depressed classes. At page 70 we find the consolidated C. O. which states that if the condition of non-alienation if violated or if the lands ceases to lie owned by the assignee or his legal heir or (after the ten years) other members of their class, owing to sale by process of law or otherwise, or if default is made in the payment of the Government revenue on the dates prescribed, the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money.
It is thus clear from a reading of S. O, 15 that the said S. 0. classifies the land first and then prescribes the ordinary rules which apply to the disposal of assessed lands and that special rules are prescribed in regard to (1) special classes of land (2) special classes of people and (3) special localities. It is only in reference to the land assigned to special classes of people that we are concerned. It is only in regard to the assignment to special classes that the question of resumption lias arisen in this case, The abovesaid extracted G. O. clearly states that any violation of condition on the basis of which grant was made the Government gets a right to resume and re-enter and take the possession of the land without payment of compensation. Thus a conditional grant has to be distinguished from a grant permanently made without any such condition. In the later case if the land has to be resumed it has to be necessarily acquired under the Land Acquisition Act, whereas in the former case the Government can just resume and re-enter and take possession of the land without payment of any compensation whenever any condition is violated. This distinction must be necessarily kept in view.
It is obvious that while resuming the said G. O. or the rules do not mention the necessityof any enquiry. In fact no enquiry is called for and when no enquiry is contemplated, issue of notice before resumption is also not called for. It is difficult to accept that the resumption is a part or the Darkhast proceedings. Darkhast proceedings are regulated as stated above by the II Section. It is only in the third Section that rules in regard to grants to the special classes are mentioned, and by virtue of a specific provision the general rules in regard to disposal of land are made applicable to such classes. Resumption is independent of the Darkhast Rules. It cannot therefore be said that resumption is a part of Uarkhast proceedings. The question of resumption arises only when after the patta is granted, and any condition is violated. As stated above, in the concerned G. O. there is no mention of any enquiry or issue of any notice.
24. It is profitable to refer to the Government Grants Act, XV of 1895 in this connection. That Act was enacted to remove certain doubts which had arisen as to the extent and operation of the Transfer of Property Act and as to the power of the Government to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority. Section 2 of the said Act categorically states that nothing in the Transfer of Property Act contained shall apply or be deemed ever to have applied to any grant or transfer of land or of interest therein and made by or on behalf of the Government to or in favour of any person whosoever, but every grant and transfer shall be construed and take effect as if the said Act had not been passed. Section 3 enjoins that all provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rule of law, statutes or enactment of the Legislature to the contrary notwithstanding. It is thus evident that the ordinary rule applicable to a grant made by a subject does not apply to a grant made by the sovereign authority, and the giants made by the sovereign are to be construed most favourably for the sovereign. It is capable of important relaxations in favour of the subject. If the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In cases where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the sovereign; and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the sovereign's profit
According to the said Act however the Crown has unfettered discretion to impose any condition, limitation, or restriction in its grants. It is not only the Transfer of Property Act that is affected by the Crown Grants Act. Section 3 of the Government Grants Act declares the unfettered discretion of the Crown to impose such conditions and limitations as it thinks fit, no matter what the general law of the land is. The effect of Section 3 therefore is that when a grant has been made by the Crown, the Crown is not with reference to that grant, bound by any of the sectionsof either the Tenancy Act or the Transfer of Property Act or the Contract Act, or any other law for the time being in force. It therefore follows that any grant made has to be construed in accordance with the tenor of the grant, and the grant will certainly be regulated in accordance with such tenor. This is the conclusion which is 'supported by the following decisions.
(a) Ullattuthodi Choyi v. Secy, of State for India, 14 Mad LW 386 at p. 387 : (AIR 1921 Mad 409).
(b) Kallingal Moosa Kutti v. Secy, of Stale, ILR 43 Mad 65 at p. 68 : (AIR 1920 Mad 413 at p. 414).
(c) Janendra Nath v. Jadu Nath, AIR 1938 CaJ 211 at p. 214;
(d) Raja Rajinder Chand v. Sukhi, : 1SCR889 .
(e) Namdeo Lokman v. Narmadabai, : 4SCR1009 .
(f) Haji Fasihuddin v. Mohd. Habib, : AIR1960Pat486 .
Applying these principles to the facts of the present case we experience no difficulty in reaching the conclusion that the tenor of the grant clearly indicates that the land was assigned on condition that the plaintiffs should pay the fond revenue on the prescribed dates. Whenthey have failed to pay, it follows that the Government has the right to resume and re-enter and take 'possession of the land without paying any compensation. No notice therefore is contemplated under the tenor of the grant. Reference in this regard is specifically made to : 4SCR1009 cited-above. That was a case in which the principal question which arose for decision was whether notice as contemplated by Section 111(g) of the Transfer of Property Act was necessary for the determination of a lease for non-payment of rent even where such lease was executed before the corning into force of the Transfer of Property Act. Discussing elaborately the law and authorities their Lordships came to the conclusion that no such notice was necessary and that the defaulting lessee cannot claim the benefit of a notice in writing to complete the forfeiture he has incurred, and that the lessor has to simply express an intention that he is going to avail of the forfeiture and that can be done by the filing of the suit, as in English law, in all cases not governed by the Transfer of Property Act.
In this case no notice to determine the grant was necessary. The Government by an overt act can indicate that they are determining the grant and resuming the land and re-entering and taking possession of the land. Admittedly no such suit in such a case is necessary. We have therefore to go by the words of the assignment made in this behalf. Nothing beyond what is contained in the assignment order is necessary to be looked into. It is also perhaps relevant to refer to . In that case it was held that a tenant of a service tenure who refuses to perform his services is liable to be eject-ed even without a notice to quit. It was found that it was an incident of a service tenure that the holder thereof is liable to ejectment upon refusal to perform service; as this incident would be materially affected, and practically destroyed, if the provisions of Section 155 of the Bengal Tenancy Act relating to relief against forfeiture were made applicable, service tenures must be held to be excepted from the operation of that Section.
25. The Counsel for the plaintiffs however contended that notice for resumption in spite of the abovesaid Grants Act is necessary. He relied upon the decision of the Rajasthan High Court in B S. Jakhar v. Govt. of Rajasthan, . It was decided therein that although there is nothing in Rule 56 of the Rajasthan Minor Mineral Concession Rules, as to whether a notice should be given to the person who has obtained a permit, if rectification was made at the instance of some other applicant for the grant of the same mineral concession, yet the ends of natural justice require that in such a case also a notice should be given to the holder of a permit. In the interest of natural justice, it is also necessary that a notice should be given to the holder of a permit if the rectification is required to be made by the Government or the officer acting under the rules on its or his own motion, as the case may be, which might prejudicially affect the holder of the permit. We do not think that this decision renders any, help to the plaintiffs. This is not a case in regard to either rectification or cancellation of any permit of a licence. This is purely a case of resumption of grant conditionally made. The Crown Grants Act makes a substantive difference in this respect.
26. The next case relied upon is State of Andhra (Now Andh Pra) v. Gangappa, (1957) 2 Andh WR 123 : (AIR 1958 Andh Pra 140). It is no doubt true that it was decided by a Bench o this Court that
'under the Darkhast Rules, the form in which the applications are to be made, the requirement of observing principles of equity in making decisions, the hierarchy of several officers who are to; hear the appeals and finally the exercise of the revising powers, clearly indicate that officers are to perform their duties 'conscientiously with a proper feeling of responsibility' and the decisions in exercising of powers under rules are judicial. That the grants of lands to persons on satisfaction of certain conditions amount to discharge of judicial function.'
We have already stated above that the rule in regard to resumption does not form part of the Darkhast Rules which relate to the grant of land in which several considerations have to be weighed before a grant is actually made. This decision therefore is not of much avail to the plaintiffs.
It is unnecessary to discuss other cases which relate to either gun licences or permits granted, as they do not belong to the same category as that of the resumption of a Crown grant. It is perhaps enough if we discuss Narasayya v. Venkatagiri Rajah, ILR 23 Mad 262. That was a suit to recover possession of a village and its hamlets. In that case that village was given by the plaintiffs ancestors to the ancestors of the defendants onamarkam service. This plaintiff required the defendants to hand over the land and have served two notices on them to that effect. It was held in the circumstances of that case that before any resumption was made by the plaintiff, reasonable notice must be given and that the notices which had been served were insufficient. It is obvious from the decision referred to above that the question of Crown Grants Act was not and could not be made applicable to the facts of that case.
27. It is in our opinion unnecessary to emphasise the difference between a quasi-judicial enquiry and an act which is purely of an administrative nature. In spite of this difference wherever the Executive has exceeded its power under the law or has abused them with an ulterior purpose not sanctioned by law, the action of the Executive can certainly be interfered with by the Court. To this extent the position of art executive body and that of a judicial or quasi-judicial body is not different. But an executive body is not legally bound to follow a judicial procedure in arriving at its decisions. Hence, the failure of an executive body to follow such procedure and to be guided by the principles, which govern the proceedings of a quasi-judicial body, will not he a ground of attack against the act of the Executive. Thus, a purely executive authority is not legally sound, in the absence of express provision to the contrary, to give notice of its proposed action to the party affected, or to give him an opportunity of putting forward his case or to hold an inquiry before passing final orders. But the question whether due opportunity was given to the party against whom action was taken, to represent his case may be relevant in considering the question whether the authority was exercising its discretion properly and not arbitrarily, was not actuated by any ulterior considerations and was acting bona fide,
Moreover, if the law, under which an administrative action is being taken, requires a certain procedure to be followed, as for instance, by holding an enquiry or giving notice to the party affected and hearing his representations, then such requirements must be followed. Otherwise the administrative authority will not be acting within its statutory powers. In this connection, it must be 'noted that the requirement of such a procedure will not necessarily indicate that the authority is a quasi-judicial authority. Whether therefore the exercise of the right of resumption is of a quasi-judicial nature or that of an administrative nature, the question of issue of notice could arise only in case where either it is required under any rule of law, or when it is expressly stated that the authority acted in excess of its powers or that the exercise of its powers was not bona fide and that for the purposes not sanctioned by the law. No such allegation is made in this case. The law does not provide for any such notice. The absence of any notice therefore does not in our opinion vitiate the act of resumption.
28. Assuming that under the principles of natural justice notice is necessary in cases of resumption even when no specific direction in regard to any enquiry or notice is made, even then in this case we are satisfied that the plaintiffs had sufficient notice, that their claims were gone into andrejected by the Government. They cannot therefore complain that they were not, heard in the-case of resumption, In this connection a reference to Ex. B.67 dated 4-7-1948 becomes relevant. That is D. W. 9's report to the Secretary, Board of Revenue wherein he had requested the Board to re-consider the issue. It is stated therein that notices were already issued to them to show cause why resumption should not be taken up and that they had already stated in Exs. B.39 to B.41 that they had no record with them to show the date ol the assignment. It is evident from Exs. B.39-and B.44 that the plaintiffs 2 and 3 gave their statement in the case of resumption that they have no pattas in their possession and that they had no other evidence to show clearly that the lands were granted prior to the G. O. of 1922. When they were thus aware of the resumption proceedings and when their statements were actually recorded, it cannot be said that they had no notice or knowledge of the resumption.
Ex. A-70 is another document which shows-that the plaintiffs had the knowledge and notice of the resumption. Ex, A-70 is a notice issued by Sri J. Atchyutaramayya, advocate for the plaintiffs, to the District Collector, in which it is clearly mentioned that the plaintiffs are continuing in effective possession and., enjoyment of the lands and that any attempt made by the Revenue officials with a view to re-enter and take the possession of the lands would be resisted by them. It is interesting to note in this connection that in reply to the abovesaid notice of the Advocate to D W. 9, the Collector who issued the notice dated? 7-7-1948 asked the plaintiffs' Counsel to appear he-fore him with records on 12-7-1948. The Advocate unfortunately received the notice on 12-7-1948. He- replied on the same date, (Ex. A.77) stating that he ceased to be the Counsel of the plaintiffs and that the Collector should directly contact the plaintiffs. It is interesting in this connection to note that the same Advocate appeared for the plaintiffs throughout the case in the trial Court, tit; will not therefore be wrong in inferring that the plaintiffs were merely playing hide and seek and did not want in effect to meet die question of resumption squarely.
The most effective evidence in tin's regard is Ex. B-32. It is evident from that document that the plaintiffs had appealed for a revision of the orders of resumption of the lands in Doddanapudi village, Bhimavaram Taluk, to the Government. The Government had issued a stay order on 23-11-1949 on their appeal. The Government after carefully examining the appeal rejected it and vacated the stay. It is thus clear that the plaintiffs had sufficient notice of the resumption. They adopted certain remedies to get rid of the resumption order but they were not successful. It cannot therefore be stated that they had no opportunity to represent the case before the Government. We-are therefore of the view that first of all no notice is necessary as no enquiry is contemplated under the rules of resumption, and secondly even if such a notice is found to be necessary, the plaintiffs had enough notice and that they adopted remedies against the resumption and that they therefore cannot complain of the lack of any such notice. The only objection they had put was that the grant was made prior to 1922 which they could not substantiate. The Government and the Collector correctly, in our opinion, found that the grant was made subsequent to June, 1922 and as such in view of the breach of the condition the grant was capable of being resumed. In fact no other question has been in dispute in the present case.
It is obvious that the plaintiffs had no other defence in regard to resumption. They had conceded that they committed a default in the payment of the land revenue for the Faslis 1356 and 1357. In view of the confessions made by them and in view of the fact that the only objection which they had put was found incorrect by the Collector and the Government, much importance to their complaint about notice cannot be attached. The Board of Revenue also did not come to any other conclusion. They were only feeling that a notice ought to be given to the plaintiffs. They never considered the question whether the plaintiffs had actually had notice or not. The question of any formal notice before the resumption loses its significance in view of the facts mentioned above. The attitude adopted by the plaintiffs clearly shows that they were defying even the reentry of the Government. That being the position, we fail to understand how we can be impressed by the argument that the plaintiffs did not get any notice of the resumption and therefore the resumption was invalid. We find therefore no difficulty in rejecting that argument.
29. Lastly it was argued by the learned counsel for the plaintiffs that the Collector was not the competent authority to resume the lands. He invited our attention to C. O. Ms. 3092/ Revenue dated 12-12-1940 in which the power of resuming the grant and ordering re-entry has been stated to be vested in the Revenue Divisional Officer. It must however be remembered that at the same page 70 of the Standing Orders of the Board of Revenue in case of any breach of condition it is clearly stated that the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land. It is for the Government either to directly resume or get it done through its subordinate officials. That the power of resuming such grants vests in the Revenue Divisional Officer does not mean that the Government is divested of its absolute power to resume. As stated above, the plaintiffs went to the Government and the resumption order was finally confirmed by the Government.
Mr, Subrahmanyam, the learned Counsel for the plaintiffs, argued that the Madras Collectors' Regulation, 1803 defines the powers of the Collectors, under which, according to him, the Collector could not have ordered the resumption. That Regulation, it must be remembered, describes and determines the conduct to be observed by the Collector in certain cases only. It is unnecessary for us to go into the details of that Regulation for finding out what are the cases which are regulated under that Regulation. It is enough to say that that Regulation is not of a general nature relating to the duties and powers of the Collector.
There is yet another Regulation which is Madras Regulation VII of 1828. That Regulation declares the powers of the Subordinate and the Asst. Collector in charge of particular divisions of districts and for facilitating proceedings under Regulation 9 of 1822. According to Section 3 of that Regulation the proceedings of Subordinate and Asst. Collectors acting under the preceding clauses shall be subject in all cases and in the fullest manner to the superintendence, control and revision of the Collector who shall have power either t6 direct, generally that the proceedings of any of his subordinates shall be regularly submitted to himself before the decision, order or sentence is carried into execution and to confirm, modify or annul them or issue any further orders in the cases as he may see fit, or in any particular case to direct that that decision, order or sentence of any of his subordinates shall not be carried into execution, and to pass such further orders as he may see fit. It is obvious from the abovesaid provision that all his subordinate officers remain under his superintendence and control and in any particular case he can directly issue any order although the ordinary and normal powers in such cases may fall within the realm of his subordinates' power. The argument therefore that the Collector was not competent to resume and that it was R. D. O. who ought to have resumed has no weight,
In this connection if it is remembered that finally it is the Government who confirmed the resumption, then any such argument loses its significance. It cannot be argued that in cases where subordinate to the Collectors are authorised to act the Collectors cannot act in that regard. The general power of supervision given to a Collector by Section 9 of, the Regulation 2 of 1803 and Section 30 of the Regulation VII of 1828 includes the power to resume under the abovesaid G. O. any land which was conditionally granted to-the depressed classes. We see therefore no infirmity in the order of the resumption made by the Collector. It is clear from the record that after the resumption order, the Tahsildar had made the re-entry and took possession of the lands. The plaintiffs unlawfully deprived the Government of their possession. The Government therefore was in our opinion justified in starting the encroachment proceedings against the plaintiffs. We find it unnecessary to go into the question whether the Civil Court was competent to go into this question; or not. It is sufficient to state that in the present case the Civil Court was competent to go into-the allegation made by the plaintiffs that the resumption was unwarranted because the grant was-not subject to any such condition as alleged by the 1st defendant, and secondly because the principles of natural justice are violated. We are therefore satisfied that the resumption proceedings did not suffer from any infirmity which can vitiate the resumption. The Government will however continue to take the encroachment proceedings only in regard to those lands which they had resumed according to the resumption order of the Collector, Ex. B.15. They have no right to take possession of any other land which they have not so resumed. With this observation we think the plaintiffs' suit ought to be dismissed.
30. Before we part with the case it is in our view necessary to mention that although the trial Court found that the plaintiffs have not alienated in any manner the land in favour of the 2nddefendant, we find there is enough record to show that the 2nd defendant has been virtually in possession and it is he who has been carrying on the cultivation. It is admitted that the plaintiffs are poor persons who allowed the land tax to fall into arrears and cannot can on a huge establishment which was found on the lands by the Revenue officers. It is also clear that they cannot carry on a costly and prolonged litigation such as this. Enough can be said in support of the viewtaken by the trial Court that the 2nd defendant had adopted a method of getting these lands auctioned by the Revenue Officers and purchase the same in public auction thereby defeating the very purpose of granting such lands to the depressed classes. The curious methods adopted by the Revenue Officers in certain cases which are dealt withby the trial Court that in spite of the fact that land revenue due could have been realised by the, auction of the crops at certain time attempts were made to auction the land itself a procedure which on the face of it appears to be not free from suspicion. When instead of the land, crops were tried to be attached and sold, the plaintiff's came forward immediately and deposited the ar-cars of land revenue which in the ordinary course they were unable to pay. These and other several features in the case clearly indicate that the 2nd defendant although is not a transferee in the sense in which the G. O. refers, he is still a person who is behind the entire litigation and it is he who was in possession of the lands. It is not of course our purpose to justify the resumption on the ground that Harijans have transferred the lands in favour of a caste Hindu, that is, the 2nd defendant. The Government also did not confirm the resumption on that ground. The trial Court has clearly found that the 2nd defendant is not a transferee. It was also not pressed before us by the Government Pleader. It is therefore unnecessary for us to find that he is a transferee or not. We had to make this observation to point out how the 2nd defendant was trying to deprive the poor Harijans of the benefit of the lands assigned to them under a specific scheme. Such attempts appear to have been made with the conclusion of the Revenue Subordinate officials. It is for the Government to take necessary steps to stop the repetition of such things.
31. For the reasons we have attempted to state this appeal must he allowed, the judgment and decree of our learned brother, Sanjeeva Row Nayudu, J., must be set aside and the suit of theplaintiffs ought to be dismissed with costs through-out. The 1st defendant will get their costs 'throughout.