1. This is an application by the proprietor of Bodogodo Estate in Ganjam district, under Art. 226 of the Constitution, praying for the issue of a direction in the nature of mandamus against the State of Orissa and the Taluk Officer, Surada, restraining them from executing a distraint order issued by the Collector of Ganjam for the recovery of the costs of survey and preparation of the record-of-rights of the petitioner's estate. The said distraint order was issued for the recovery of a sum of Rs. 48,044/- and odd and was served on the petitioner on 16-3-1951.
The distraint order purports to have been issued under Section 8, Madras Revenue Recovery Act 1864 (Act 2 of 1864) against the proprietor who became a defaulter on failure to pay up the amount. A number of cars belonging to the petitioner, one silver Tamjan, one silver Hauda and some other movables were attached and notified for sale at a public auction.
2. The petitioner contends, in the first place, that he is not liable to pay the charges incurred either for the survey or for the preparation of the record-of-rights, as both these operations were undertaken 'suo motu' by Government.
Secondly, he contends that the said survey was not conducted in accordance with the provisions of the Madras Survey and Boundaries Act, 1923 (Act 8 of 1923) and, as such, it was not a survey authorised by law.
Thirdly, he contends that the apportionment of the expenses between the petitioner and his raiyats in the ratio of half and half was done without notice to the petitioner and is unjust and inequitable as the petitioner has been divested of his estate under the Orissa Estates Abolition Act.
3. The survey of the petitioner's estate was directed by Government in Notification No. 3729-S. S2/38-R, dated 10-9-1938 of the Revenue Department. The notification reads as follows:
'GOVERNMENT OF ORISSA, REVENUE DEPARTMENT.
Dated Cuttack, the 10th Sept., 1938. No. 3729-8. 52/33-R: Whereas in the opinion of the Government of Orissa, a survey and preparation of the record-of-rights are required to secure the raiyats generally and the land-holders of the estates named in the schedule annexed hereto in the district of Ganjam in the enjoyment as such of their legal rights, the Governor of Orissa, in exercise of the powers conferred by Section 17 (b) (ii), Madras Survey and Boundaries Act, 1923 (Act 8 of 1923) and by Sections 164(1) (b) and 182, Madras Estates Land Act, 1908 (Act 1 of 1908), as amended by Madras Act 8 of 1934, hereby directs that the survey of unsurveyed estates & raiyati villages & the resurvey of such unsurveyed estates and of which no record-of-rights has been prepared be made under the provisions of the said Act 8 of 1923 and a record-of-rights be prepared for these villages situate in the estates named in the schedule under the provisions of the said Act 1 of 1908 by the Settlement Officer Ganjam-Koraput who has been appointed Collector under the said Act 1 of 1808 for this purpose.
The record-of-rights shall contain the following particulars:
(a) the name of each raiyat's land-holder and of each land-holder in the estate or a portion thereof;
(b) the name of the raiyat and, where there is no raiyat, the name of the occupant;
(c) the situation and extent of the land held by the raiyat as shown in the survey map of the village;
(d) the description of the land whether it is irrigated, rained or dry; and, if irrigated, whether double or single crop;
(e) the rent lawfully payable at the time the record is being prepared and whether the raiyat is entitled to the benefit of proviso (a) to Clause (i) of Section 30;
(f) how the rent has been fixed; whether by decree or under the provisions of the Madras Estates Land Act or otherwise;
(g) any rights lawfully incident to the holding;
(h) if the rent is a gradually increasing rent, the times at which and the steps by which it increases;
(i) If the land is claimed to be held rent-free whether or not the occupant is entitled to hold the land without payment of rent, and if so entitled under what authority and if the land were liable for rent, the rent payable;
(j) (i) the use by raiyats of water for agricultural purposes, whether obtained from a tank well or any other source of supply; and (ii) the repair and maintenance of works for securing a supply of water for the cultivation of the land held by each raiyat whether or not such works be situated within the boundaries of such lands;
(k) a record of any special rights which, by law or by custom, the raiyats may have in the waste lands of the estate; and
(l) any right of way or other easement attaching to the land for which a record-of-right in being prepared.
Names of Estates.
BY ORDER OF GOVERNOR,
Sd/- E. R. Wood,
Chief Secretary to Government.'
4. It will be noticed that the survey was' directed by Government suo motu, in exercise of the powers conferred by Section 17 (b) (ii), Madras, Survey and Boundaries Act, 1923. Section 17 of the Act empowers Government to direct, by notification, the survey of any estate (a) on the application in writing of the proprietor of such estate, or (b) without such application whenever in the opinion of the Local Government such, survey is necessary (i) for the better and more convenient assessment or levy of irrigation cess; (ii) for any other reason to be recorded prior to the issue of such notification.
The proviso to the Section says:
'Provided (1) that any person making an application under Clause (a) shall forward with his application a statement in writing signed by him to the effect that he will pay the whole cost of the survey and, if required, will deposit the amount in a Government treasury before the survey is commenced and (2) that any survey commenced under that clause may be stopped on the withdrawal of his application by the applicant unless the Local Government sees reason to direct the continuance of the survey in virtue of the power conferred on it by Clause (b).'
The Government notification quoted above clearly says that the powers conferred on Government under Section 17 (b) (ii), Madras Survey and Boundaries Act, 1923 were exercised by Government
'to secure the raiyats generally and the landholders of the estates..........in the enjoyment as such of their legal rights.'
This was the reason given by Government for directing a survey of the petitioner's estate under Section 17 (b) (ii) of the Act. The notification also directed the preparation of the record-of-rights under Section 164 (1) (b) and Section 182, Madras Estates Land Act.
It would thus appear that while the survey was directed to be made under the provisions of the Madras Survey and Boundaries Act, 1923, the record-of-rights was directed to be prepared under the provisions of the Madras Estates Land Act. The officer appointed to prepare the record-of- rights was designated as the Settlement Officer, Ganjam-Koraput who was also appointed as 'Collector' under the Madras Estates Land Act for that purpose.
5. Section 164 (3), Madras Estates Land Act, 1908 as amended by Act 8 of 1934 says that
'the survey shall be made under the Madras Survey and Boundaries Act, 1923 and the record-of-rights shall be prepared in accordance with the rules prescribed by the Local Government.'
Under Section 215, Madras Estates Land Act statutory rules have been made by Government. Rules 5 and 6 made under Chapter XI provide how applications under Section 164 (1) of the Act are to be made for the preparation of survey and record-of-rights. They also prescribe certain forms which are to be used during the operations.
Form No. I is a notice calling upon the landholder's raiyats, occupants, village officers and other persons to clear obstructions to existing survey marks, to present to the Collector written applications for any changes that they desire to be made in the existing registration, and to attend when called upon to supply information for the preparation of the record-of-rights.
It should also be noticed that the prescribed form is to be used in respect of a designated village and the Collector is empowered to take the assistance of persons interested as registered holders in preparing the record of rights after the survey has been completed. This Form No. I is to be used if the preparation of the record-of-rights is undertaken, by Government on the application of the proprietor or of the raiyats.
The rules do not indicate the procedure to befollowed and the forms to be used by the Collectorwhen the record-of-rights register is prepared byGovernment without any application for the purpose whether by the land-holder or the raiyats.Turning to the forms prescribed for use duringsurvey operations, we find that Form No. 1 printedat page 425 of the Madras Survey Manual, VolumeIII, empowers the Officer in Charge of the surveyparty to issue a notification under Section 6, MadrasSurvey and Boundaries Act, 1923 notifying thatthe survey operations of lands in a particularvillage will commence in a particular month, andcalling upon persons claiming to be interested insuch lands to point out the boundaries and supplyinformation in connexion with the survey. Thename of the Survey Officer is to be given in thenotification so that all petitions connected withthe survey may be addressed to him. Form No. 1also contains columns for the name of the villageand the names of persons interested in the surveyon whom the notice is to be served.
It is thus clear that if the survey is to be undertaken as prescribed under Section 164 (3), MadrasEstates Land Act all persons interested should becalled upon by the Officer in charge of the survey,in Form 1, to point out the boundaries and filepetitions if any before the Survey Officer whosename should appear in the notice.
The Survey Officer referred to in Form 1 is defined in the Madras Survey and Boundaries Act, 1923 as 'any person appointed to be a Survey Officer under Section 4' of the Act. It was frankly conceded at the Bar by the learned Advocate-General that no notification was made under Section 4 of the Survey arid Boundaries Act appointing any person to be a Survey Officer for any of the purpose of the Act. It is also clear from sub-SECTION (2) of Section 4 that the powers and duties of a Survey Officer as laid down in the Act can be exercised only by a person so appointed by the Local Government by notification.
6. Soon after Notification No. 3729 of 10-9-1938 was published by Government the Settlement Officer, Ganjam-Koraput, appointed as Collector by the said notification under the Madras Estates Land Act, issued Notification No. 318, dated 22-9-1938. This notification (published at page 119 of the Supplement to the Orissa Gazette, dated 1-10-1938) reads as follows:--
'BY THE SETTLEMENT OFFICER.
No. 318: Notice under Section 6(1), Madras Survey and Boundaries Act 8 of 1923 and R. 6 of the statutory Rules under Chapter XI and Rule 5 of the statutory Rules under Chapter XII of the Madras Estates Land Act 1 of 1908 (VIII of 1934) to the land-holders, raiyats, occupants, village officer and other persons claiming to be interested as registered holders or otherwise in the lands of the raiyati villages which have not been surveyed, or in respect of which no record-of-rights has been prepared in the following estates:
Whereas the Government of Orissa have been pleased to order the survey of the unsurveyed raiyati villages and the resurvey of such of the surveyed raiyati villages for which no record-of-rights has been prepared and the preparation of record-of-rights in respect of all such villages in the above estates under the provisions of the Survey and Boundaries Act 8 of 1923 and of the Madras Estates Land Act 1 of 1908 (8 of 1934).
You are hereby requested--
(1) to clear within 15 days all obstructions to existing survey marks, to whitewash the said marks, drive into the ground whitewashed pegs to indicate your individual rights and occupation and the changes to be made in the existing registration;
(2) to present to the Collector within 15-10-38 a written application in the form approved by the Revenue Commissioner for changes, if any to be made in the existing registration; and
(3) to attend whether in person or by agentat the time and place specified and from time totime thereafter when called upon for the purpose of pointing out boundaries and supplyinginformation for the preparation of Survey andRecord-of-Rights, to produce evidence in supportof your rights, and to provide labour and surveymarks. Chatrapur, 22-9-1938. S. C. Banerjee.Collector.'
This notification appears to be a combined notice under Section 6(1), Madras Survey and Boundaries Act) 1923 and under Rule 6 of the Statutory Rules framed under Chapter XI of the Madras Estates Land Act, and is not in accordance with either. It is not at all clear whether such a form was ever prescribed under Section 215, Madras Estates Land Act. No such claim has been made on behalf of the State government. It is plain, however, that the Form prescribed under the Survey and Boundaries Act was not used. Section 6 of the Act says that the Survey Officer 'shall publish a notification in the prescribed manner.' Section 26 (e) of the Survey and Boundaries Act empowers the Local Government to make rules to carry out the purposes of the Act and to
'provide for the publication of all notifications issued under this Act and for the form, issue and service of all orders, communications and notices to be issued, communicated, given or served under this Act.'
In exercise of the general power vested in them under Section 26 (1) Government have issued a number of departmental rules, wherein Form No. 1 has been prescribed for use in issuing a notification under Section 6 of the Act, and it is in that form alone that the notification should be published. (7) It may also be noticed that the combined notification issued by the Settlement Officer on the 22-9-1938 was issued by him as 'Collector' appointed under the Madras Estates Land Act and not as 'Survey Officer' appointed under the Madras Survey and Boundaries Act. The learned Advocate-General relied on Rule 1(3), under Chapter XI, of the Statutory Rules framed under Section 215 of the Estates Land Act, which says that the Collector appointed under the Act is invested with 'all the powers exercised by a Survey Officer under the Madras Survey and Boundaries Act 1923' and accordingly contended that the Collector could himself act as the Survey Officer and conduct surveys under the Survey and Boundaries Act.
I am unable to accept this contention. All that the rule says is that the Collector functioning under the Madras Estates Land Act will also have the powers of a Survey Officer and may exercise such powers in preparing the record-of-rights. It may well be that while preparing a record-of-rights, the Collector has to go upon the land and if necessary make a re-survey for the purpose of deciding disputes between the parties. But the conferment of this general power would not be sufficient to constitute him the Survey Officer who is specifically required to be appointed under Section 4, Survey and Boundaries Act, 1823. If therefore the Collector makes a survey it cannot be said to be a survey made by a Survey Officer appointed under the Survey and Boundaries Act, which is contemplated in Section 164 (3), Madras Estates Land Act.
Curiously enough the procedure adopted by the Collector was not uniform throughout operations. The notice under Section 9(2), Survey and Boundaries Act purports to have been issued by an officer described as 'Survey Officer'. Who this Survey Officer was and what legal right he had to issue the notice, has not been satisfactorily explained. Even if the learned Advocate-General's contention that the Collector had the power to conduct surveys were to be accepted, the survey in this case does not purport to have been made by him as such, but by some officer describing himself as the 'Survey Officer', and that officer was never invested with the statutory powers of a Survey Officer or Collector. I have therefore no hesitation in holding that the survey of Bodogodo Estate purporting to have been made by the Collector appointed under the provisions of the Madras Estates Land Act is not a survey in accordance with the provisions of Section 164 (3) of that Act and was wholly unauthorised.
8. The next point for consideration is whether the petitioner can be made liable for meeting the survey charges if they are not incurred in accordance with law and if the survey itself is unauthorised. It was made clear to us during argument that the survey charges, as such, have not been separately calculated and that the demand of Rs. 48,044/- and odd made upon the petitioner included the charges lor preparation of the record-of-rights also. The distraint warrant dated 16-3-1951 which was served on the petitioner shows that the amount was due towards 'Survey Charges'. The copy retained by Government and signed by the proprietor, however, shows that the amount represented ''Settlement Charges'. As a matter of fact, the Settlement Charges have not been included in the demand, nor does the demand represent Survey Charges exclusively. In such circumstances the distraint warrant must be held to be unauthorised and to have been issued in contravention of the provisions of the law.
The sale notice issued by the Taluk Officer, Surada, and served on the petitioner on 12-11-1952, shows that the sale was to be held for realization of a single case where such serious discrepancies are present in a solemn document like a distraint warrant or a sale notice affecting the rights of the proprietor of an estate. It only reveals an utter disregard of the' forms and procedure to be observed in such proceedings where the law enables Government to realise such demands as arrears of revenue, with the risk of the estate itself being put to sale in case of default of payment. On the face of it the distraint warrant is wrong and cannot be executed. The attachment of the movables of the petitioner must, in the circumstance, be held to be illegal as it is made for realization of a demand which the petitioner is not bound to satisfy.
9. The question whether a proprietor can be made to meet the expenses incurred for the survey of his estate undertaken suo motu by Government under Section 17 (b) (ii), Madras Survey and Boundaries Act 1923 was argued at some length. It was contended by the learned Advocate-General that even when a survey is undertaken by Government under Section 17 (b) (ii) of the Act, the costs of the survey may be recovered from the proprietor under Section 19 of the Act, read with Section 180, Madras Estates Land Act. Section 19 of the Survey and Boundaries Act says that
'the cost of a survey directed under Clause (b) (i) and (ii) of Section 17 shall be borne by the Local Government unless otherwise provided by any law for the time being in force.'
It was argued that the provision in Section 180, Madras Estates Land Act is a special provision and should prevail over the general provision in Section 19, Madras Survey and Boundaries Act. This contention is not without force, but it is not necessary to test its validity in this case.
Counsel for the petitioner, on the other hand, points out that even if that contention were to be accepted the apportionment of the charges in the proportion of half and half between the petitioner and his raiyats is inequitable as it was not 'determined' as enjoined in Section 180 'having regard to all the circumstances'. The use of the word 'determine' in Section 180 would seem to indicate that Government must exercise the statutory power and act with discretion. Where this is not done and in a bona fide manner the Court can interfere. The statutory power vested in Government does not enable it to act as it pleases. This is clear from the use of the expression 'having regard to all the circumstances'. As I understand it, the expression means that Government shall take into consideration all the circumstances before deciding who should bear, what proportion of such charges.
It must be remembered that the survey as well as the record-of-rights were forced upon the proprietor. The estate has now vested in the Government by virtue of the provisions of the Orissa Estates Abolition Act; and the benefits of the survey as well as of the record of rights are lost to the proprietor as such. These are some of the circumstances which Government have failed to take into consideration. They appear to have simply adopted the recommendation of the Settlement Officer and failed to exercise the statutory power in accordance with Section 180 of the Estates Land Act.
10. It was next contended, on behalf of the petitioner, that the power vested in Government to apportion the expenses implies that it has to prove in the first place that the money spent was expended in accordance with law--for in that case alone the State will be entitled to recover it from the party for whose benefit the money was spent, and in the second place that the expenses have actually been incurred. If the Government could satisfy us that the expenses were lawfully incurred in carrying out the provisions of Chapter XI of the Madras Estates Land Act, the Court would not embark upon an idle enquiry into the propriety or extravagance of the expenses so incurred. Otherwise, Government would be able to wield an absolutely despotic power which the Legislature never intended that it should exercise.
It was conceded by the learned Advocate-General that the manner in which the Settlement Officer proposed to apportion the expenses is open to objection and cannot be wholly justified. The exclusion of Government land, including resumed 'inam lands', presettlement inam lands and communal 'porombokes' from the total expenditure incurred and the distribution of costs over the rest of the lands can hardly be justified as proper or equitable. Similarly, in the case of the private lands of the land-holder the cost of the proceedings under Section 183, Madras Estates Land Act are to be 'apportioned among the parties to the proceedings in proportion to the area which, after the finding may be found to have been wrongfully claimed by each party according to the statutory Rule 5 framed under Section 183 of that Act. There is no indication in the records that this principle was kept in view in recommending that the entire cost of the survey of the private lands of the proprietor should be borne by the land-holder.
'Apportionment' does not denote division but frequently connotes distribution. Government do not give any reason why the cost should have been directed to be divided equally and not proportionately distributed according to the interests of the parties concerned. The petitioner complains that since the passing of the Orissa Tenants Protection Act the share of rent that he was entitled to collect had been considerably reduced and that the apportionment of the expenses if justifiable at all, should be made according to the quantum of interest he has in the land. This argument appears to me to be perfectly reasonable and equitable. I should observe, however, that it is not the function of this Court to indicate what should have been done in this case. The task of apportionment must be left to the Government to decide, according to their discretion after taking every factor into consideration.
11. On the facts of this case we are satisfied that the survey of the petitioner's estate was not justified by law and was done without jurisdiction. The distraint was also levied for an amount which admittedly does not represent 'survey charges' alone. Further, the Local Government did not apply its mind and take into consideration all the circumstances in apportioning the charges in strict compliance with Section 130, Madras Estates Land Act. We would therefore hold that the State is not entitled to recover the demand made on the petitioner. We would accordingly direct the State Government to withdraw the demand and release the properties of the petitioners from attachment. The petitioner shall have the costs of this application which we assess at Rs. 250/- (Rupees two hundred and fifty only).
12. I agree.