1. This is a petition under Article 226 of the Constitution by the ex-proprietor of Jeypore Estate in Koraput district, against the order of the Government of Orissa, calling upon him to pay a sum of Rs. 11,64,497-6-10 being his share of the costs of survey and settlement operations that took place in Jaypore estate during the period when the petitioner and his predecessor in interest were the proprietors of the Estate.
2. The petitioner's adoptive father, Maharaja Shri Vikrama Deo Verma was the proprietor of Jeypore estate till his death on the 15th April, 1951. The petitioner succeeded to the estate and remained as proprietor until the taking over of the estate by the State of Orissa under Section 3 (1) of the Orissa Estates Abolition Act 1051 (Orissa Act I of 1952), on the 29th December 1952.
Survey and settlement operations under the provisions of chapter XI of the Madras Estates Land Act. 1908 (Madras Act I of 1908) had commenced in Jaypore Estate as early as 1941 and continued since then. The operations have not yet been completed. The entire estate was divided into several blocks for the purpose of those operations. In 1951 Government thought it desirable to apportion the costs of survey and settlement operations between the zamindar and his ryots, in the proportion of 50:50, in exercise of their powers under Section 180 (1) of the Madras Estates Land Act. The order of the Minister in charge making the said apportionment is dated the 21st May 1951, passed in file Nos. 109/50 of the Revenue Department. Apparently, the necessity for passing such an order of apportionment even before the completion of the survey and settlement operations in any of the blocks, arose chiefly because Government knew then that the estate was going to be taken over under the provisions of the Orissa Estates Abolition Act, but they thought that the Zamindar should be called upon to pay his share of the costs in respect of the Settlement operations that took place prior to the date of vesting. This order of the Minister was communicated to the Director of Land Records and Surveys by the Deputy Secretary to the Government of Orissa, Revenue Department, in his letter No. 5039 R. S. 108/50 dated the 28th May 1951 which runs as follows:--
'I am directed to say that under Section 180 of the Madras Estates Land Act 1908, Government have been pleased to order that the charge Incurred for the preparation of R. O. Rs. in the 511 villages of Block A of Jeypore Estate in Koraput District should be apportioned on- a 50:50 basis between the Zamindar and the tenants, including the hill tribes. The other proposals of- the Settlement Officer contained in this letter No. 1349-VI-8/50 dated the 17th August 1950 have been approved.'
It will be noticed that though the Minister's order dated the 21st May 1951 did not expressly refer to the costs in respect of Block A of Jeypore Estate, the authenticated order signed by the Deputy Secretary refers only to the costs incurred in respect of 511 villages in Block A of Jeypore Estate. On the date of that order settlement operations were going on . in other blocks of Jeypore Estate also, but for some reason -- not clear from the papers filed before us, the apportionment of costs was not communicated in respect of the other blocks. An order to that effect was actually passed by the Additional Under Secretary, Shri B. Das. on the 27th April 1053 in his letter No. 1240-L R. S./VI-3/53 addressed to the Settlement Officer. Ganjam-Koraput, Berhampur which may also be quoted:
'Ref.:-- Your letter No. 260-K/VI-20-53 dated 24-1-53.
Sub.:-- Major survey and settlement operations Koraput Blocks, B, B-1, C and D-Costs-apportionment Govt. orders Under Section 180 (1) of the Madras Estates Land Act.
'I am directed to say that under Section 180 (1) of the Madras Estates Land Act 1908 Government have been pleased to order that the charges incurred up to and including 28th December 1952 for preparation of record of rights in the villages, of the blocks mentioned above of Jeypore Estate in the district of Koraput should be apportioned on a 50:50 basis between the landholder and the ryots, including the hill tribes and the holders of any land held on favourable terms, if such land is included in the record of rights. Other proposals contained in your letter cited above, have. been approved by Government.
'The principles for apportionment of costs of mam villages (mam estates) as approved for Ganlam district and communicated in Board's office letter No. 1723 L. R. S./IV-2/52 dated tha 15th September 1952 should also apply to the Inam villages (inam estates) of Koraput district.'This order is very clear to the effect that all settlement charges upto the 28th December 1952 in Jeypore estate in respect of all the remaining blocks should be apportioned between the proprietor and his tenants in the ratio of 50:50.' As already pointed out the Estate vested in the Government n the 29th December 1952.
The actual demand on the petitioner on the basis of the said apportionment of costs was made on the dates as given below.
Date of DemandBlock NumberAmount
12.1.52Block A.2,26,945-6-31.5.53Block B.24,224-2-92.10.53Blocks B and B-l.5,06,532-9-78.9.53Block C.1,57,286-15-06.7.54Block D.2,49,508-5-3
3. Before discussing the various questions of law raised by Mr. A. L. J. Rao on behalf of the petitioner I may refer to the relevant provisions of the Madras Estates Land Act and the Orissa Estates Abolition Act.
4. chapter XI of the Madras Estates Land Act is entitled 'Survey, Record of Rights and Settlement of Rents' and that Chapter Includes Sections 164 to 180. The expression 'Survey and Settlement operations' Is used compendiously to denote all operations carried out under the provisions of that Chapter, i. e. detailed cadestral survey of the villages, preparation of the preliminary record of rights, final publication of the record of rights, settlement of rents and other ancillary matters such as appeals and revisions, and apportionment of costs. Section 180 (1) deals with apportionment of costs for carry ng out the provisions of that Chapter and it runs as follows:
'180(1) The expenses incurred in carrying out any of the provisions of this Chapter in any estate or part thereof, or such portion of these expenses as the Provincial Government may direct shall be defrayed by the landholder and ryots in the estate or part thereof, and the holders of any land held on favourable terms within such estate if such land is included in the record of rights, in such proportions as the Provincial Government having regard to all the circumstances, may determine; and the proportion of those expenses so to be defrayed by any person shall be deemed to be land revenue under the provisions of the Madras Revenue Recovery Act 1864 or the Madras City Land Revenue (Amendment) Act 1867 as the case may be.'
This sub-section may be split into two parts, Firstly, the State Government is required to give a direction as to what proportion of the total expenses on account of survey and settlement operations should be defrayed by the landholder and his ryots. Thus, if Government agree to' bear the entire expenses there would be no question of the landholder or ryots being asked to defray any portion of those expenses. If, however. Government decide that the entire expenses should be borne by the landholder and his ryots, the next question is how the expenses should be apportioned between them inter se. The sub-section confers this power also on the State Government and authorises them to determine the portion of the expenses 'having regard to all the circumstances.' Hence, the liability either of the landholder or of his ryots to bear any portion of the total expenses of survey and settlement operations in an estate in South Orissa, would arise only after the State Government had (1) given a direction as to what proportion if any of the total expenses should be borne by Government on the one hand and the landholder and his ryots on the other and (2) determined the ratio in which the landholder and his ryot should bear their share of the expenses. The actual calculation of the expenses may be a ministerial act, but untilthe direction and the determination required by Sub-section (1) of Section 180 of the Madras Estates Land Act have been made by Government, liability of the landholder and the ryots will not accrue. For example if Government in their direction say that they will bear the entire expenses, neither the landholder or his ryots will be liable to pay anything. Similarly, if Government say that the expenses should be borne only by the ryots and not by the landholder in view of the fact that the estate is likely to be taken over soon by Government, the liability of the landholder will not arise and vice versa.
I should further point out that the provisions of Chapter XI of the Madras Estates Land Act are based on the fundamental assumption that the relationship of landlord and tenant between the landholder and his ryots continued to exist throughout and that the survey and settlement operations were intended for their mutual benefit.
5. The Orissa Estates Abolition Act 1951 created a somewhat complicated situation. Se-ction 48 of that Act stated that as soon as an estate in South Orissa was notified under Section 3 of the Act. the Madras Estates Land Act shall be deemed to have been repealed in its applies, tion to that estate. As the survey and settlement operations took place under Chapter' XI of the Madras Estates Land Act, it is obvious that it the said Act be deemed to have been repealed when an estate in South Orissa taken over by Government under the Orissa Estates Abolition Act, no such operation can validly contiune after the taking over of the estate, nor could there beany valid apportionment of the costs of those operations.
This lacuna in the Orissa Estates Abolition Act was sought tc be remedied by the Orissa Estates 'Abolition (Amendment) Act 1952 (Orissa Act XVIII of 1952) by which a new Section namely Section 49, was inserted in the present Act. Sub-section (1) of that Section runs as follows:
'49. (1) Nothing contained in this Act shall in any way affect--
(i) any proceedings pending on the date of vesting with respect to the survey and settlements operations under any of the tenancy laws and any other proceedings pending before any Court of Tribunal on the aforesaid date under any of the said laws; and all such proceedings shall continue as if this Act had not come into force.
(ii) any cause of action arising under any of the tenancy laws prior to the date of vesting and any right of appeal, review or revision arising out of any proceedings with respect to such cause of action; and
(iii) the right of any intermediary to recover any arrears of rent, cesses, or other dues Which accrued before the date of vesting, and the same shall, notwithstanding anything contained in this Act be recoverable as heretofore by the intermediary entitled thereto:
Provided that no decree for arrears of rent or order for ejectment in default of arrears of rent shall be executed by ejectment of the judgment-debtor from his holding'. By virtue of this amendment a fresh lease of life was given to the survey & settlement operations that were then taking place throughout Ganjam and Koraput districts notwithstanding the abolition of the estate in those districts, by issue of appropriate notifications under Section 3 of the Orissa Estates Abolition Act. Thus, though Jeypore estate was taken over on 29th December. 1952 the survey and settlementoperations in that estate have been continued since that date by virtue of the special saving clause provided in Section 49 (1) (i),
6. Mr. A. L. J. Rao's contention is two-fold: Firstly, he urged that the apportionment of the costs of survey and settlement operations between the land-holder and his ryots, as permitted by Section 180 (1) of the Madras Estates Land Act, 1908 was based on the fundamental assumption that the land-holder continued to enjoy the status of a landholder. But where the land-holder has ceased to exist on account of the abolition of his estate he cannot, in law be called upon to pay any portion of the survey and settlement expenses incurred for the period when he was a land-holder.
Secondly, he urged that, even if it be held that he was liable to pay the costs Incurred during the period when he was a land-holder such liability should be limited only to that portion of the expenses that had been actually apportioned and in respect of which a demand had been made on him prior to the date of vesting. According to the second contention, therefore, the demands for expenses in respect of Blocks B, B-1, C and D which were admittedly issued to him after the date of vesting were not payable toy him.
7. The main question for consideration, therefore, is whether Section 49 (1) (i) of the Orissa Estates Abolition Act read with Section 5 (c) of the Orissa General Clauses Act would make a landholder in South Orissa liable to pay the survey end settlement expenses as apportioned under Section 180 (1) of the Madras Estates Land Act even though his estate had been taken over by the State Government and consequently the Madras Estates Land Act should be deemed to have been repealed in its application to his estate.
8. As the Orissa Estates Abolition Act is an 'Orissa Act' and as. by virtue of Section 48 (a) of that Act the Madras Estates Land Act stood repealed in its application to Jeypore Estate which was taken over by Government it is obvious that Section 5 of the Orissa General Clauses. Act would apply in respect of such repeal 'unless a different Intention appears'. Clause (c) of Section 5 of the Orissa General Clauses Act is relevant for our purpose and may be quoted:
'5. When any Orissa Act repeals any enact, ment hitherto made, or hereafter to be made, then, unless a different intention appears the repeal shall not .......
(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed.'
If it could be held that as soon as survey and settlement operations commenced in an estate every land-holder and ryoti in that estate incurred the liability to pay the settlement and survey costs under Section 180 (D of the Madras Estates Land Act even though the actual apportionment might take place at a future date there may be some justification for the contention of the Advocate-General that by virtue of Section 5 (c) of the Orissa General Clauses Act the land-holder is bound to pay his share of the costs even though he lost his estate. But I do not think that such an extreme contention can prevail. I have already, while dealing with Section 180 (1) of the Madras Estates Land Act. shown that the liability either of the land-holder or the ryot to pay any portion of the expenses arises only after the Issue of appropriate directions and the determination by Government in the manner required by that sub-section. Till then nobody incurs any liability. So far as blockA is concerned the Minister's order dated 21st May 1951 was communicated to the Director of Land Records and Surveys by the Deputy Secretary on the 28th May 1951, and the actual demand for Rs. 2,26,945-6-3 was made from the petitioner on 12th January 1952 at a time when he was the land-holder of the estate. Consequently, though he ceased to be a land-holder on 20th December 1952 this liability was Incurred by him prior to that date and by virtue of Section 5 (c) of the Orissa General Clauses Act he is bound to discharge that liability even though the Madras Estates Land Act stood repealed, in its application to his estate, after 29th December 1952.
9. Mr. Rao. on behalf of the petitioner, however, contended that Section 5 of the Orissa General Clauses Act would not apply because from the provisions of Section 49 of the Orissa Estates Abolition Act an intention different from that described in Section 5 of the Orissa General Clauses Act appears as regards the effect of the repeal of the Madras Estates Land Act. According to Mr. Rao if no saving clause had been inserted in the Orissa Estates Abolition Act such as Section 49, file principles of Section 6 of the Orissa General Clauses Act would undoubtedly apply, but where an express saving clause has been inserted in Section 49 in the former Act it must be inferred that the Legislature intended to oust the application of Section 5 of that Act. This argument might have had some force if there is any inconsistency between Section 49 of the Orissa Estates Abolition Act and Section 5 of the Orissa General Clauses Act. I am, however, unable to find any such inconsistency. On the other hand it appears that the provisions of Section 49 (1) of the Orissa Estates Abolition Act are supplementary to those of Section 5 of the Orissa General Clauses Act. There may be some overlapping between the provisions of Clauses (ii) and (iii) of Section 49 (1) of the Orissa Estates Abolition Act and Clauses (c) and (e) of Section 5 of the Orissa General Clauses Act, but there is no repugnancy and there may be certain rights and liabilities which though not included within the scope of clauses (c) and (e) of Section 5 of the Orissa General Clauses Act, may yet come within the scope of Clauses (ii) and (iii) of Section 49 (1) of the Orissa Estates Abolition Act. But so far as the continuance of the pending survey and settlement operations is concerned reliance can be placed only on Section 49 (1) (ii) of the Orissa Estates Abolition Act and not on any of the provisions of Section 5 of the Orissa General Clauses Act.
There is no provision in Section 49 of the Orissa Estates Abolition Act corresponding to Clauses (a), (,b) and (d) of Section 5 of the Orissa General Clauses Act. Hence, in the absence of any express provision in the Orissa Estates Abolition Act it will not be proper to hold that Section 5 of the Orissa General Clauses Act has no application when the Madras Estates Land Act stands repealed in a particular estate in South Orissa.
10. The demand in respect of the other blocks, however, presents some difficulty. The authenticated order of Government apportioning the expenses in respect of these blocks was issued only on 27th April, 1953 long after the date of vesting and the actual demand was made much later. Mr. Rao contended that the liability arose only after ,the demand was made while the Advocate-General contended that the liability arose when the Minister decided about the apportionment under Section 180 (1) of the Madras Estates Land Act. The Minister's order was doubtless made on 21st May 1951, but the authenticated order of theAdditional Under Secretary is dated 27th April, 1953.
I cannot accept the Advocate-General's contention that the date on which the Minister's order took effect would be the date on which he passed the order on the file, namely 21st May, 1951 and not the date on which the authenticated order was Issued under the signature of the Additional Under Secretary, namely 27th April 1953. This is a statutory order in exercise of the power conferred under Section 180 (1) of the Madras Estates Land Act. Any order passed by the Minister in order to take effect must issue in an authenticated form as required by Article 166 of the Constitution. There is no clear provision in the Madras Estates Land Act as to the mode of publication of the direction and the determination of Government under Section 180 (1) of that Act and in the absence of any such provision, the reasonable view would be that the order becomes effective only from the date on which it is made known to the person affected thereby.
It is an order which has the effect of saddling land-holders and ryots in large areas with liability to pay heavy expenses and it will be idle to contend that their liability to incur those expenses arose as soon as the Minister passed an order to that effect on the file. I may, in this connection, refer to Johnson v. Sargent and Son, 1918-1 KB 101 (A), where it was held that orders under the Defence of the Realm Regulations came into operation not on the date on which they were passed, but on the date on which they were made known to the public. The same principle was followed in construing orders issued under the Defence of India Rules See Shakoor Hasen v. Emperor. AIR 1944 Nag 40 (B). There Is no reason as to why this principle should not be adopted in considering the date on which the statutory order under Section 180 (1) of the Madras Estates Land Act passed by the Minister became effective. If that order had been published in the gazette and if the Act had authorised such publication there might be some force in the contention that the date of publication in the gazette would be the date on which it came into force.
But, in any case, the order could not be held to have come into force prior to 27th April 1953, when it was authenticated and issued under the signature of the Additional Under-Secretary of the Revenue Department. The extreme contention put forward by the Advocate General to the effect that it should be deemed to have come into force on the 21st May 1951, cannot be supported. In fact, he could not cite any authority in support of that contention.
If no authenticated order had issued under Article 166 of the Constitution then different consideration might arise as to the date on which the order became effective, but when an authenticated order has, in fact, issued on 27th April 1953, and that order does not either expressly or by necessary implication say that Government's decision should be deemed to be effective from 21st May. 1951 the Advocate-General's contention must be rejected.
For the purpose of deciding this petition It is unnecessary to consider whether the order of Government in respect of the other blocks would take effect from 27th April 1953 or else would take effect only from the dates on which the actual demands were made from the petitioner in respect of each block as shown in paragraph 2 of this judgment. Whatever view be taken, it is clear that the liability was incurred only after the date of vesting, and consequently Section 5 (c) ofthe Orissa General Clauses Act) would not, In any case, apply.
11. The Advocate-General then contended that even if Section 5(c) of the Orissa General Clauses Act did not apply the petitioner was bound to pay the costs by virtue of the provisions of Section 49 (1), (i) of the Orissa Estates Abolition Act. According to him. the apportionment of the expenses Is part of the survey and settlement operations and as the process of apportionment had started when the Minister passed orders on 21st May 1961; such operation should be deemed to have been pending on the date of vesting namely 29th December 1952 and would be kept alive by Section 49 (1) (i).
This argument also appears to me to be unsound. The apportionment of the costs of survey and settlement operations may be said to be ancillary to the said operations, but it is difficult to say that it is part of those operations. At any rate, if it was the intention of the Legislature that the land-holders should be required to bear the costs of survey and settlement operations even though their estates had been taken over the Legislature would have expressly said so when Section 49 (l) (i) was inserted in the parent Act. In the absence of any such provision Jn that Section it will not be fair to give a wide meaning to the expression 'survey and settlement operations' so as to include within it the proceedings relating to apportionment of costs under Section 180 (1) of the Madras Estates Land Act. Such a construction would have the effect of saddling the ex-landholders of estates with heavy financial liability & unless such an intention follows either by express words or by necessary implication it will not be proper to give such a wide meaning, bearing In mind the wellknown canons for construction of statutes which cast financial burdens on subjects.
12. Apart from these considerations it cannot be reasonably held that on the materials available before us, that the proceedings for apportionment of costs in respect of blocks B to D were actually pending on the date of vesting. It is true that the Minister's general order regarding apportionment was made on the 21st May 1951 but when that order was communicated to the Local Settlement authorities on 28th May 1951, by the Deputy Secretary it was expressly limited to the apportionment of costs in respect of 611 villages in Block A.
So far as the costs in respect of the other blocks were concerned that order was entirely silent, and it was only in the later order dated 27th April 1953, issued by the Additional Undersecretary that Government orders regarding the apportionment of costs in respect of the remaining blocks were communicated to the Settlement authorities. Until such an apportionment is made by Government and communicated to the Settlement authorities the proceedings relating to apportionment cannot be said to have validly commenced.
It is true that prior to that date there were some discussions between Government and some Settlement Officers, but those were in the nature of tentative discussions and cannot be held to constitute 'commencement' of the proceedings for apportionment of the costs so as to be saved by Section 49 (1) (i) of the Orissa Estates Abolition Act. In the affidavit filed by Mr. A. K. Sahu, Assistant Secretary to Government in the Revenue Department dated 29th September 1956 it is stated that
'the question of calculating and realising the costs in respect of the other blocks B, B-1, C andD. was taken up since 16th December 1952, before the date of vesting of the estate on Government on 29th December 1952.''
According to this officer, therefore, the proceedings for calculation of costs commenced on 16th December 1952 that is only 13 days before the date of vesting. But these calculations must have been of a tentative nature because in the absence of directions from Government under Section 180 (1) of the Madras Estates Land Act in respect of these blocks there could be no basis for any calculations. I would, therefore, held that even if it be held that the determination of costs under Section 180 (1) of the Madras Estates Land Act be treated as part of the survey snd settlement operations the proceedings for such determination of costs commenced only after the issue of Government orders on 27th April 1953 long after the date of vesting. Section 49 (1) (i) of the Orissa Estates Abolition Act also therefore cannot help Government.
13. For the aforesaid reasons it is hereby declared that the petitioner is liable to pay only the costs of survey and settlement operations in respect of Block A amounting to Rs. 226.945-6-3. He is not liable to pay the costs in respect of the remaining blocks of his estate. A writ shall accordingly issue to Government forbidding them from taking any steps for the realization of costs In respect of those blocks. As the PETITTIONER has substantially succeeded he should get the costs of this application. Hearing fee is assessed at Rs. 100/- (Rupees one hundred only).
14. I agree.