1. When the first title deed granted to the first defendant for the land to which this suit relates was issued by the Tahsildar (Exhibit T dated 8th September 1893), the rules in force with respect to the grant of house-sites were those embodied in the Proceedings of the Board of Revenue, No. 470, of the 15th August 1898. Under paragraph 9 of the standing order then in force, it was directed that when applications were received for house-sites within Municipal limits, the Municipality concerned should invariably be consulted before the applications were considered. The land in the present case is situated within the Erode Municipal limits and the Municipality was not consulted. The grant by the Tahsildar was therefore, in my opinion, rightly set aside as having been granted in violation of the orders then in force.
2. It is urged that although the rules no doubt directed the Tahsildar to consult the Municipal Council before making the. grant, yet that it was open to him either to adopt or reject the opinion of the Council and that the grant made by him could not be held to be invalid, merely because he neglected to follow strictly the procedure laid down in the rules. In support of this contention the decision in Party a Royalu v. Royalu Reddi I.L.R. 18 M. 434 is relied on. It is no doubt the case that it was open to the Tahsildar to accept or reject the opinion given by the Municipal Council as to the advisability of making the grant, but this does not make the rule requiring him to consult the Municipal Council an idle formality. The object of the rule no doubt was to give the Municipal Council an opportunity, if it objected to the grant, of representing the matter to the Collector qt Divisional officer and staying the hands of the Tahsildar till the matter could be fully enquired into.
3. I am further of opinion that the decision reported I.L.R. 18 Mad. 434 has no bearing on the question now under discussion. All that was there held was that it was not competent to the Civil Courts to set aside a grant made by a competent officer under the Darkhast rules merely because certain of the formalities prescribed by those rules have not been observed. Here there is no question of a Civil Court setting aside a grant because of irregularity in the procedure but of a Collector setting aside an order of his subordinate on the ground that he had committed a grave irregularity. No doubt as to the legality of such action seems to have been entertained by the learned Judges who passed this' decision, for they observe' Dharkhast rules are departmental and if they are infringed the remedy is also departmental.' It is further urged that as under the terms of the standing order then in force no provision was made for an appeal from the order of the Tahsildar, the Collector acted ultra vires in setting that order aside. I should be inclined to hold that the general powers of supervision over all his subordinates in the Revenue Department given to a Collector by Section 9, Regulation VI of 1803 and Section 3, Regulation VII of 1828 empowered him to set aside the irregular order of the Tahsildar in the present case. Even, however, if it should be held that the provisions of these regulations'' cannot be deemed to govern the present case, I am decidedly of opinion that the action of the Collector was not ultra vires. The power of granting lands in village sites has been delegated by the Governor in Council to the Tahsildar, but certain rules have been laid down in accordance with which he powers given to him are to be exercised. If he, in direct viola-ion of one of these rules, makes a grant, it must be held that he, in doing so, does not act within the scope of the authority given to him and that the grant irregularly made by him is therefore liable to be cancelled by the Collector his official superior, to whom he is lubordinate in every official act performed by him as Tahsildar. Such it may, I consider, safely be assumed must have been the intention of the Governor in Council when these rules were sanctioned, notwithstanding that there is no explicit provision in them for an appeal from the Tahsildar's order.
4. The Tahsildar issued a second title-deed (Exhibit P) for this land to the 1st defendant on the 9th April 1895. The grant of the hind by him was, however, set aside by the Collector on the 11th December 1895 (Exhibit VII). In his order the Collector states that he sets aside the grant as it was obtained fraudulently, but the District Judge is, no doubt, right in holding (paragraph 4 of his judgment) that what was really meant was that the 1st defendant was not a bona fide applicant in the sense that that term is used in the standing order, inasmuch as he was not an applicant who wanted the site in order to build a house on it in which he intended to reside. That ha was not; such an applicant is clearly shown by the District Judge. Any doubt that then might be as to the. Collector's right to set aside the grant under Exhibit D was removed before tile date of Exhibit F by the proceedings of the Board of Revenue of the 1st February 1894, under which it was directed, with, the approval, of Government, that he standing order should be modified and that an appeal should be from the Tahsildar's order to the Divisional Officer. It is urged that in the present ease the appeal from the Tahsildar's order was irregularly disposed of inasmuch as it was adjudicated on not by the Divisional Officer, the Sub-Collector, but by the Collector. What it appears took place was as follows: - An appeal (Exhibit IV) was presented to the Sub-Collector from Tahsildar's order. The Sub-Collector instead of disposing of this appeal himself made a reference regarding it to the Collector; his reason for doing so being no doubt that the previous order with respect to the grant of this site had been passed by the Collector. The Collector on receipt of the Sub-Collector's letter passed an order ('Exhibit VII) in which he stated that the grant of the land, should be cancelled. This order was communicated to the Sub-Collector who in due course issued a takid or order to the Tahsildar cancelling the grant and issuing further instructions to him in the matter I do not consider that there was anything irregular or improper on the part of the Sub-Collector in asking the Collector for his instructions before he disposed of the appeal that had been preferred to him. The final order passed by the Sub-Collector and issued to the Tahsildar to be carried out was no doubt issued by him in accordance with the instructions that he had received from the Collector, but it was all the same, I consider, the order of the Sub-Collector passed on the appeal petition and was consequently, I consider, not issued in violation of the rule as to appeals in cases such as this.
5. I would, for these reasons, hold that the action of the Revenue authorities in this case was warranted by law and would accordingly dismiss this appeal with costs.
Bhashyam Aiyangar, J.
6. Plaintiff claiming as purchaser from one Subbaraya Asari, the vendee under the 1st defendant, sues the Secretary of State for India in Council, the only contesting defendant, to establish his right to the site mentioned in the plaint on which the 1st defendant erected a building at a cost of nearly Rs. 200. It is alleged that the 1st defendant obtained a valid title to the site by virtue of a grant made by the Tahsildar of Erode, under the Darkhast rules.
7. The second defendant, who will hereafter be referred to as the defendant, in his written statement contests the plaintiff's suit principally upon the f following grounds:
(1) That the two title-deeds on which 1st defendant's title rests having been cancelled in appeal are inoperative;
(2) That the title-deeds were obtained by the 1st defendant not on his own behalf, but benami, on behalf of one Virappasari, to whom the land had been previously refused ; and
(3) That the title-deeds purport to convey an extent of more than 4 cents of land and is therefore ab initio void, so far as relates to such excess (which appears to be about half a cent.)
8. The undisputed facts on which the decision of the case mainly turns are as follows: - On the 2nd September 1893, the 1st defendant applied to the Tahsildar of Erode for the grant to him of the plaint site, and on the 8th September the Tahsildar granted the site to him and issued to him a title-deed (Exhibit I)). After conveying the site to the 1st defendant, the title-deeds provide that he should build a house thereon within three months, and that, in default of his doing so, he shall forfeit his right to the site. One Vadamalai Asari, who had previously applied to the Tahsildar for the same site and was unsuccessful both before the Tahsildar and before the Divisional Officer on appeal (Exhibit V, dated 1st September 1893), preferred an appeal to the Collector (Exhibit III, dated 21st September 1893) against the order of the Divisional Officer refusing to grant to him the site, and also against the subsequent action of the Tahsildar in making the grant to the 1st defendant on the 8th September 1893. The Collector passed the following order on the 22nd February 1894 Exhibit VI) : ' The whole thing is irregular from beginning to end. It is likely that the land is vested in the Municipal Council. If so, Revenue officers have no jurisdiction. Even if not, the present grant is invalid for want of consultation of the Council. All orders about the land are set aside and the Tahsildar must take up the matter de novo.' This order was communicated in due course for information and guidance to the Tahsildar of Erode through the Divisional Officer on the 16th March 1894. The Tahsildar issued orders on the 4th April 1894; informing the 1st defendant and the village officers that, in pursuance of the Collector's order, he has cancelled the title-deed issued to the 1st defendant on the 8th September 1893> and that he should, if so advised, apply to the Municipality for grant of the site. Apparently it was subsequently discovered that the site did not belong to tie Municipal Council, but was at the disposal of Government. The Municipal Council were consulted by the Tahsildar, and they signified their approval of the grant of the site [Exhibits A and H(1) 18.10.94]. The Tahsildar thereupon rejected Vadamalai Asari's application and granted the 1st defendant's application for the site, by his order, dated the 2nd March 1895 (Exhibit XI), which runs as follows:--' Two persons named Vada--malai Asari and Krishnasami Asari apply for this place. The site was granted by the late Tahsildar to Krishnasami Asari, and he has built a building also on it. He has no house in this village. It is learnt that Vadamalai Asari has a house in the village. Consequently the said site has been granted to Krishnasami Asari who has no house in this village and who has already erected a building. He should not interfere with the tamarind tree standing on the ridge. As there are more sites vacant in this village, Vadamalai Asari may take another site.'
9. Accordingly a fresh title-deed was issued to the 1st defendant on the 9th April 1895 (Exhibit F). Vadamalai Asari being dissatisfied with this preferred in appeal to the Sub-Collector of Coimbatore (the Divisional Officer) on the 15th April 1895 (Exhibit IV). The Divisional Officer apparently referred this appeal to the Collector, and on the 11th December 1195, the Collector passed an order (Exhibit VII) annulling the grant. The Collector's order was sent to the Divisional Officer who communicated the same to the Tahsildar for information an guidance and submission of the report at the end of the period.
10. As far as I have been able to ascertain, the Darkhast rules as to the grant of house-sites, bearing upon this case, which were in existence at the time of the first grant (8th September 1893) and of the second grant (9th April 1895) were th6 following:
(1) 'Unclaimed portions' of village sites no being common lands needed for general use, may be granted for building purposes to bonafide applicants in accordance with a scale fixed or to be fixed by Collectors with' reference to the requirements of their districts, subject to the conditions embodied in the title-deed granted under paragraph'3 below. The scale may be drawn up and altered by Collectors at their discretion, but the following is suggested as a guide where no such scale already exists:
To pattadars paying Rs. 50 and upwards--10 cents; to other pattadars--5 cents; to non-pattadars--cents (Board's Proceedings, dated 8th July 1891, No. 409).
(2) 'Tahsildars and Deputy Tahsildars are authorised to grant house-sites with reference to the prescribed scale. If a larger extent than is allowed in the scale is applied for, the sanction of the Divisional Officer should be obtained etc. (Board's Proceedings, dated 8th July 1891, No. 409).
(3) 'When applications are received for house-sites within Municipal limits, the Municipality concerned should invariably be consulted before such applications are considered. It is, moreover, beyond the competence of Revenue officers to deal with lands which have become vested in the Municipal Council (Board's Proceedings, dated 25th May 1893, No. 274).
11. No provision was made for any appeal to a superior officer from the order of a Tahsildar with respect to grants of' building sites until the 1st February 1894; when, with the sanction of Government the following note was added to (2) above:--From the Tahsildar's or the Deputy Talisildar's decision an appeal may, however, be made to Divisional Officer if lodged within 30 days, and his order thereon will be final. No building operations can be commenced on the authority of a grant by a Tahsildar or a Deputy Tahsildar before the expiry of the appeal time prescribed above, and if an appeal has been lodged within that time until it has been disposed of (Board's Proceedings, 1st February 1894, No. 51). This is the only change relevant to the present case, which took place between the dates of the first and second grants which, it may be mentioned, were made by two different Tahsildars.
12. The District Munsif decreed the plaintiff's suit, but the District Judge on appeal after framing and remitting certain additional issues reversed the decree of the District Munsif and dismissed the plaintiff's suit.
13. If the 1st defendant acquired a valid title as against the crown, either under the first grant (of the 8th September 1893) or the second grant (of the 9th April 1895) made by the Tahsildar of Erode, plaintiff would be entitled to the decree , sought for. The District Judge, while approaching the consideration of the question from the correct standpoint, i.e., that the Tahsildar in making the grant acted only as an agent of Government, and if he exceeded the powers delegated to him, he obviously acted in excess of his authority and could not by such act alienate the property of his principal, the Government, has, in my opinion, erred in holding that though no appeal was provided by the Darkhast rules as they stood at the date of the first grant, yet the Collector had power under Section 9 of Regulation II of 1803 to control the proceedings of his subordinate, the Tahsildar, and that he was therefore entitled to revoke the grant under such power, the grant having been made by the Tahsildar without consulting the Municipality. The District Judge evidently overlooked the concluding portion of Section 9 of the said Regulation which expressly provides that the Collector has such power of superintendence and control only so far as the same may relate to the executive administration of the revenue 'under the Regulation now enacted or hereafter to he enacted' (the italics are mine). I have more fully gone into this question and the legal operation of Darkhast rules in my judgment in S.A. 1203 of 1900, and explained that a power conferred by the Governor in Council by an executive act on Tahsildars or Divisional Officers in regard to the disposal of Crown lands cannot be controlled by the Collector under the said Regulation or under Regulation VII of 1828. It is of course open to the Governor in Council by an executive act to subject the exercise of such power to the control of a superior authority and if such superior authority revokes a grant made by Subordinate agent. Civil Courts cannot question such revocation, however arbitrary or even whimsical the grounds may be on which he revokes the grant. At the time when the first grant was made by the Tahsildar, his grant was final if he had acted, within the scope of his authority and the Collector, therefore, acted ultra vires in entertaining an appeal preferred to him by Vadamalai Asari and revoking the grant by his proceedings, dated 22nd February 1894 (Exhibit VI) and his revocation as such is altogether inefficacious.
14. But if the Tahsildar acted in excess of his authority in making the grant, the grant of course would not bind the crown, though the relocation of the same by the Collector, as an appellate authority, may be inoperative. The District Judge apparently considers that the grant would be void by reason of the Tahsildar not having consulted the Municipal Council before making the first grants. If the rule had provided that no grant should be made without the previous sanction of the Municipality, the grant would, no doubt, 'be invalid in the absence of such sanction. That would be a delegation by Government of its power under Sections 22 and 23 Viet., Chapter 41, not to one officer alone but to him jointly with another body. But if the authority is delegated solely to the Tahsildar and he is enjoined in acting within the scope of his authority to consult the Municipal Council and either adopt or reject its advice, the grant would be valid as one made within the scope of the authority of the Tahsildar though he did not observe the regular procedure of consulting the Municipal Council before making the grant. In Periya Royalu v. Royalu Reddi I.L.R. 18 M. 434 it was held that a grant made under the Darkhast rules was not invalidated by reason that the officer making the grant did not follow the procedure prescribed by the Darkhast rules as to the publication of the application in the village by beat of tom-torn, etc. Any other view will lead to infinite confusion and convert all Darkhast rules into rules enforceable by Civil Courts when there is any question as to the validity of a grant or of its revocation by a superior appellate authority. For instance, paragraph 5 of S.O. No. 15 (new edition) prescribes the procedure to be followed on receipt of application, viz., that it should be referred to the village authorities for report, that the fact of application should forthwith be published in the village by beat of tom-tom and that the Tahsildar should consider the village officer's report, etc. Paragraph 8 prescribes some rules of preference when there are two or more, applicants. If an appeal against the Tahsildar's action were provided by the rules, the departmental appellate authority-may no doubt set aside the grant by reason of the Subordinate officer not having observed the formalities prescribe by the Darkhast rules or for any other reason, notwithstanding that the granting officer acted within the scope of his authority. If no appeal be provided for, or if an appeal be not preferred, can a Civil Court hold that the Tahsildar1 s grant does not bind the Crown on the ground that by reason of his not having strictly followed the procedure or the rules of preference among applicants he exceeded his authority and acted beyond its scope If it were competent to a Civil Court to do so, it will be equally competent to it; in the case of a grant which has been confirmed on appeal or superseded by a grant to a rival applicant a entitled to preference, to set aside such grant on the ground that the appellate officer also acted in excess of his authority, in confirming a grant made by the Tahsildar without strictly observing the prescribed procedure and the rules of preference or in making a fresh grant, giving preference to a rival applicant. Unless the distinction between so much of the rules as is really in the nature of a power of attorney defining the scope of the authority of Darkhast officers and the rest which are really in the nature only of instructions to such officers while exercising the power conferred upon them, if fully recognized and enforced, the entire body of Darkhast rules will become unworkable in Civil Courts.
15. The District Judge apparently also holds both the first and second grants to be invalid, firstly, because Krishnasami Asari was not a bonafide applicant and, secondly, because the site in question is by admeasurements a trifle over 4 cents. The order of the Tahsildar, dated 26th. March 1895 (Exhibit XI), shows that he considered the 1st defendant to be a bona, fide, applicant. The District Judge, for reasons stated by him in paragraph 5 of his judgment, inclines to the opinion that ho is not a bonafide applicant whatever that expression may mean and that his object was really to acquire it for his uncle Virappasari whose application for the site had been refused. It is for the officer empowered to make the grant to judge whether the applicant is really in need of a site and his application is a bona-fide one. The Tahsildar certainly acts within the scope of his authority if he considers a particular person to be a bona fide applicant and grants to him the site applied for, and the Civil Courts cannot define who a bona fide, applicant is, and after investigating whether or not a grantee was a bona fide applicant, held that the grant does not bind the crown because the court differing from the Darkhast officer and also it may be from the appellate Darkhast officer, comes to the conclusion that the applicant was not a bona fide applicant If the grant was procured by any fraud or misrepresentation on the part of the grantee (Sections 17 and 18 of the Contract Act), or in collusion with the Tahsildar, or was the result of a mutual mistake of an essential fact (Section 20 of the Contract Act) the grant of course would be invalid and not binding upon the crown. It is not pleaded or found in this case that there was any such fraud misrepresentation, collusion, or mistake.
16. As regards the excess in the area of the site beyond 4 cents, the defendant pleaded that the grant was void only in respect oil, such excess, but, in the opinion of the District Judge, the grant is void in its entirety. Here, again, the District Judge has misconstrued the Darkhast rule in holding that the Tahsildar acted beyond the scope of his authority. The rule (No. 1) quoted above does not fix the scale definitely; it loaves it to the discretion of the Collectors to fix the scale with reference to the requirement of their districts and alter the same at their discretion, and merely suggests 4 cents in the case of non-pattadars as a guide where no scale already exists. It is not in evidence what the scale was as fixed by the Collector of Coimbatoro. Even if no scale had been fixed by the Collector, 4 cents is suggested simply as a guide, and it will be unreasonable to hold that a Tahsildar acted beyond the scope of his authority, if the site is a trifle over 4 cents as in this case or it is subsequently found, by taking a correct measurement, that the extent is slightly over 4 cents.
17. In my opinion therefore the 1st defendant acquired a valid title to the site under the first grant, and even assuming that he did not acquire a valid title under the first grant, the second grant which was made after consulting the Municipal Council, is not invalid for either of the reasons given by the District Judge, viz., that the 1st defendant is not a bona fide applicant and that the site is in excess of 4 cents.
18. It has been1 urged before us in appeal on behalf of the despondence that an appeal was preferred in respect of the second grant j by Vadamalai Asari to the Divisional officer (Exhibit IV, dated J 15th April 1895) and that the Collector by-his proceedings (Exhibit VII, dated 11th December 1893] cancelled the grant. The addition made to Rule 2 (of S.O. No. 37) on the 1st February 1894 providing for an appeal from the Tahsildar's decision to the Divisional officer was in force at the date of the second grant, and if the Divisional officer, to whom the appeal Vas preferred, had annulled the grant, such cancellation will be conclusive and it cannot be questioned in a Civil Court on any ground whatever. But the Divisional officer instead of himself disposing of the appeal either by confirming or annulling the grant, referred the same to the Collector, requesting ' his or3ors on the house-site Darkhast appeal of Vadamalai Asari.' It is 'evident that the 'Divisional officer must have adopted this step, as it was the Collector himself that entertained an appeal by Vadamalai Asari in respect of this very site when it was granted to the 1st defendant by the Tahsildar in 1893. The Collector cancelled the grant and directed that the 1st defendant should be ordered to vacate the house and remove the materials from the land within three months and that report should be made whether this order was obe3red.
19. Under the Darkhast rules above referred to the appeal lies only to the Divisional officer and not to the Collector unless the latter happens to be in charge of the division. The question now is whether the grant made by the Tahsildar was cancelled by the Divisional officer or by the Collector. The Collector's order was .no doubt communicated to the Sub-Collector who communicated the same to the Tahsildar for carrying it out. But if the act of cancellation or revocation was that of the Collector, it cannot be converted into an act of the Divisional officer merely be cause it was communicated to him and by him to the Tahsildar to be given effect to. It is clear that the Collector himself annulled the grant on both the occasions, and that he did so on the assumption that under Regulation II of 1803 and VII of 1828, ho had general power of superintendence and control over the action of his subordinate officers in the matter of disposal of lands under the Darkhast rules. The appeal which, under the Darkhast rules, lies to the Divisional officer not being in the nature of a judicial appeal, the Divisional officer may consult and seek the advice of the Collector, or, as for the matter of that, of any body else and be guided implicitly if he is so, disposed by such advice in the disposal of the appeal; and if he did so no objection could be taken to 'it in a Civil Court. But it will, under the circumstances, be a pure fiction to home that the appeal was disposed of by the Divisional officer in consultation with the Collector, and that the Collector passed the order in question merely by way of communicating to the Sub-Collector his device and opinion in the matter. A fiction of law which is calculated to serve the ends of substantial justice should certainly be welcome and ought not to be closely scrutinized., But I confess that the theory of a legal fiction which is opposed to stern truth does not recommend itself to me when it is resorted not in furtherance of substantial justice, but the very reverse, with the object of invalidating a grant made by a public servant in the discharge of his duty, on the faith of which, the grantee and the persons deriving title under him have, wisely or otherwise, long ago erected buildings and whom, the Revenue officers seek to eject as trespassers, not in due course of law, by imposing what is styled penal assessment on the site and attaching the same with the building thereon under the Revenue Recovery Act, for realizing a crushing penal assessment of Rs. 100 on a plot; of 4 cents, as if it were land revenue due to Government by a ryot holding assessed or Inam land under Government.
20. In my opinion, the 1st defendant had a good title to the site in question under either grant, and the plaintiff claiming under the 1st defendant is entitled to the decree sought for, I would, therefore, allow this appeal and, reversing the decree of the lower Appellate Court, restore that of the District Munsif. The respondent must pay the costs of the appellant both in this and in the lower Appellate Court.
21. As my learned colleague, however, concurs-in the judgment of the lower Appellate Court, the result will be that the decree appealed against will be affirmed under Section 575 of the Civil Procedure Code and this appeal dismissed with coats.