1. This Second Appeal arises out of a suit brought by the plaintiffs for a declaration of the invalidity of the orders passed by the District Collector of West Godavari on 7th June, 1925 and 24th February, 1926, cancelling in part an assignment of land made to the plaintiffs' father on 9th June, 1922. In the alternative, plaintiffs claimed compensation for improvements effected by them on the land. The first Court dismissed the plaintiffs' suit but the lower appellate Court decreed it. Hence this Second Appeal by the Secretary of State.
2. It will be convenient to refer to a few documents, before dealing with the only question which to my mind is the material question in the case, namely, that raised by Issue No. 6. The plaintiffs' father was Government servant for a long period and under some rule in force at the time it was considered that he could be helped by the assignment of certain lands on dharkhast. So far as I can gather from the documents in the case, the idea of assigning the suit land to him first appears in the evidence in Ex. I-b dated 5th April, 1922. There are two documents which have given me some difficulty in understanding the transition from the earlier idea to this, which seems to me to be the later idea. Exs. L (1) and L clearly indicate that in February, 1922, the intention was to sell this plot of land and an adjacent plot after converting them to Ayan. The next document in chronological order is Ex. III, apparently submitted by the Tahsildar to the Revenue Divisional Officer under Rule 23 of the Board's Standing Order No. 15. It is in the sixth column here that the suggestion appears that the suit land and the other land which formed the subject of correspondence in Ex. L (i) and L are proposed to be assigned to peons. This is dated 30th March, 1922. Even this does not clearly indicate that it had any reference to the plaintiffs' father. It is only in Ex. I-b that there is a reference made to the fact that the plaintiffs' father had applied for an assignment of three acres out of the four and a half acres referred to in Ex. III. I again find some difficulty in reconciling the dates appearing in Ex. I-b with the date of the application given in column 2 of Ex. I. In Ex. I the date of application for the dharkhast is given as 26th April, 1922, whereas in Ex. I-b the application is referred to as early as the 5th April, 1922. It has been suggested in the course of argument and it may be that a mere formal application was put in on the later date. I therefore leave the matter there. On the 5th April, the Revenue Divisional Officer ordered on Ex. I-b that the application of the plaintiffs' father be sent to the Tahsildar, with a direction to submit a memorandum for the suit land after observing the formalities. The usual notice was published (Ex. II) and on 5th June, 1922, the Revenue Divisional Officer wrote on Ex. I that the 3 acres are granted under dharkhast to the plaintiffs' father. Curiously enough, it is only after this that the application, Ex. III, to convert the land from poromboke to Ayan is sanctioned by the Divisional Officer, because it is signed by him on 14th June, 1922. There seems to have been some further formal difficulty because this file of papers would appear to have gone to the Collector and to have been returned by him to the Revenue Divisional Officer on 22nd July, 1922. Finally, a patta was issued to the plaintiffs' father on 14th August, 1922; possession was also delivered to him, though the exact date does not appear.
3. By Ex. VII dated 6th July, 1924, that is about two years after the proceedings above referred to, a succeeding Revenue Divisional Officer raised some objections in respect of this grant and referred the matter to the Collector. The objections are set out in Ex. VII and discussed in portions of the correspondence that ensued and I do not think it necessary, for the purpose of the determination of this appeal, to refer to them in detail. Nor need I say how far the suspicions entertained by the authorities as to the circumstances under which the original assignment came to be made are justifiable. It is enough to refer to Ex. B, dated 7th June, 1925, by which, purporting to act in exercise of the revisional powers given to him by the amended dharkhast rules, the Collector set aside the assignment. After some further correspondence between the Collector, the Board of Revenue and the Government, the plaintiffs were allowed to retain one acre out of the three acres, in view of the fact that their father had spent some monies upon improving the land during the time he was in possession. It is this order of cancellation that the plaint attacks.
4. The written statement raised a question as to the validity of the original assignment itself and also raised a further question that the order of the Collector having been passed within the limits of his authority, the Civil Court had no jurisdiction to question the same (paragraph 10). It is on this contention that Issue No. 6 was raised 'whether this Court has no jurisdiction to question the resumption?' The first issue raised the question whether the grant itself was invalid. The District Munsif was of opinion that the grant itself was invalid; but on the question raised by Issue No. 6 he observed as follows:
Defendant's vakil is not able to show how this Court has no jurisdiction to try this suit.
5. On appeal, I do not find any discussion or even a realisation of the bearing of this question of jurisdiction on the case; the learned Subordinate Judge discussed merely the question of the validity of the original grant and relying upon some of the authorities referred to in his judgment, he held that the original grant was valid and that the Collector's order cancelling it was ultra vires.
6. As indicated already, I propose to rest my decision in this Second Appeal on the question of jurisdiction alone, raised by Issue No. 6. The judgment of the learned Subordinate Judge has not given due weight to the change introduced in the scheme of the Standing Orders when a power of revision was expressly provided for. Under the rules as they stood prior to this change, Courts had taken the view that once an officer competent under the rules to make a grant, makes a grant even the non-observance of the rules laid down in the Standing Orders will not invalidate the grant. In the case in Collector of Salem v. Rangappa I.L.R.(1889) 12 Mad. 404 a passage from which is quoted with approval in the Secretary of State for India v. Bundeppa of Konakondla I.L.R.(1908) 32 Mad. 300 : 190819 M.L.J. 206 this Court went the length of holding that even when a mistake on the part of the officer making the assignment is proved, that would not invalidate the grant. As pointed out in Devaramani Bhogappa v. Pedda Bhimaka Gowd (1914) 28 I.C. 51 it was the view laid down in some of these cases that led to a change in the scheme of the rules and it is note-worthy that a power of revision is reserved for a period of three years. This clearly shows that it is not anything like the kind of revision that one knows in judicial proceedings, but was intended to make sure that public interests do not suffer by the act of a subordinate Revenue Officer. And it is worth noting that the powers of revision are reserved in pretty wide terms, that is, if the original assignment was the result of mistake of fact or of fraudulent misrepresentation or was in excess of the limits of authority possessed by the officer making it, and the further power of revision secured to the Board of Revenue is even in wider terms. These provisions must be understood in the light of the fact that they do not relate to the adjudication of rights of two contesting parties as in an ordinary litigation, but are reservations subject to which alone the power vested in the Governor-in-Council by Act of Parliament to dispose of immovable property belonging to Government is delegated to subordinate officers.
7. The learned Subordinate Judge makes a passing observation that even if the officer making the assignment was under an error as to the value of the property assigned, this will not be a mistake under the Contract Act, evidently meaning thereby that it is only a bilateral mistake that could be the ground for the exercise of the power of revision assigned by the rules. There is no justification for this interpretation and it is opposed to the view indicated in Devaramani Bhogappa v. Pedda Bhimaka Gowd (1914) 28 I.C. 51. The learned Subordinate Judge refers to a decision in Karapurathiukkum Pudyottel v. Thamasikam (1924) 84 I.C. 891 but so far as I can gather from the report, no proceedings setting aside the original grant on revision seem to have taken place there and the learned Judge was only dealing with the question whether or not the original grant itself was invalid, on the ground that some instructions had not been properly observed.
8. Prima facie, it seems to me that, if under the rules the Collector had a power of interference in revision, the principle that another tribunal ought not to examine the merits of his order in revision must be applied; before such an order is capable of attack, it must be possible to say that there has been an abuse of the power of revision, or something in the nature of a fraud on the power. Dealing with the order of the appellate authority it was observed by Miller, J., in Muthuveera Vandayan v. The Secretary of State for India I.L.R.(1906) 30 Mad. 270 (F.B.).
the civil Courts have no power to investigate the question whether his decision of the appeal was one which he could or could not have arrived at by strictly following the rules laid down for the guidance of officers in disposing of applications for waste lands.
9. The learned Judge was here concurring with the decision of Benson, J. in Muthuveera Vandayan v. The Secretary of State for India in Council I.L.R.(1906) 29 Mad. 461 and differing from White, C.J., Benson, J. expressed himself to the following effect:
It is not open to the Civil Courts to discuss the sufficiency or otherwise of the grounds on which the Dharkhast authorities - whether original or appellate - grant, or refuse to grant Government lands to parties applying for them, so long as those authorities act within the scope of the authority conferred on them by the rules.
10. With respect, I would add that when powers of revision have been expressly provided for by the rules, the same principle must govern the jurisdiction of the Civil Court in dealing with an order passed by the revisional authority.
11. Mr. Suryanarayana, on behalf of the respondents, referred me to the decision of the Judicial Committee in Secretary of State for India v. Jatindra Nath Chowdhuryi and of the Calcutta High Court following it in Mahabunnessa Bibi v. Secretary of State for India (1924) 51 I.A. 241 : I.L.R. 51 Cal. 802 : 47 M.L.J. 48 (P.C.). They are really not analogous to the present case. They stand on the same footing as several decisions in this Court dealing with the 'finality' of assessments imposed by local bodies. They lay down the principle that even though there may be a declaration of finality in respect an order of passed by an administrative authority fixing assessment upon lands, the same is examinable by the civil Court 'if they had been tainted by fundamental irregularity' meaning thereby 'a defiance or non-compliance with the essentials of the procedure'.
12. Even if I should assume, for the sake of argument, that this last mentioned test is applicable here, I am unable to say that the order of the Collector in revision was passed in defiance or contravention of any material rules. Mr. Suryanarayana's contention is that in Ex. IV, which is the letter written by the Collector reporting his cancellation to the Board of Revenue, the Collector refers to Rule 22 of Standing Order No. 15. I cannot help thinking that the reference to Rule 22 is a slip for Rule 20, as the context suggests. Anyhow, it is not open to the plaintiff to examine a statement contained in some correspondence between the Collector and the Board of Revenue and found an argument thereon if the other evidence in the case discloses the real ground of interference. It is true that Ex. B itself does not state the ground of the decision, but it is not contended that on that ground alone the order is invalid.
13. On the merits, Mr. Suryanarayana's main contention is that the case is not really governed by Rule 20 of Standing Order No. 15 and that therefore there was no ground for interference in revision at all. Here again, assuming that it is open to me to examine the grounds of the Collector's interference, I am unable to agree with Mr. Suryanarayana's contention. The rules contemplate two stages, when an application is made for the assignment of 'poramboke' or unassessed lands. First of all, the Tahsildar has to obtain the permission of the Revenue Divisional Officer under Rule 23 to transfer it to the head of 'assessed'; when that has been done, the land is placed on the same footing as the first group in Rule 2, that is, 'assessed' land. Mr. Suryanarayana contends that once this has been done, the rules governing the further stages are only Rules 4 to 13 and that Rule 20 has no further application. I am unable to agree with this contention. Once Rule 23, refers us back to Clause (1) of paragraph 2, the Rules beginning from Rule 3 become applicable and Rule 3 expressly refers to the special rules prescribed for some description of lands in paragraph 20 and adds:
the assignment of these lands contrary to the provisions of that paragraph, without consulting the officers referred to or without imposing the conditions laid down therein, is ab initio, invalid.
14. Mr. Suryanarayana would read this last sentence as referring only to two violations, namely, (1) without consulting the particular officers, or (2) without imposing the conditions laid down. It does not seem to be a correct reading. It really speaks of three violations and the disjunctive 'or' is rightly put in between the second and the third; the comma after the word 'paragraph 2' clearly shows that. The three violations are (1) contrary to the provisions of that paragraph (paragraph 20), (2) without consulting the officers referred to, and (3) without imposing the conditions laid down therein.
15. His next argument is that, in this case, there has really been no violation of Rule 20 at all. But Exs. L and L (1) not to speak of the other oral evidence in the case, clearly show that the suit land falls under category (b) in Sub-clause 4 of Rule 20, that is, lands likely to be brought under irrigation from a Government source. I am, therefore, of opinion that even if I had the power to examine the grounds on which the Collector set aside the assignment in revision, it is not possible to say that he acted beyond the scope of his authority or without any basis for such interference. The only other question raised on behalf of the respondents is as regards the payment of compensation for improvements. Both the Courts find that the plaintiffs and their father are likely to have spent about Rs. 1,000 in improvements. But even at the time when the-assignment was cancelled, this matter was taken into consideration and it is in view of the expenditure incurred by the plaintiffs' father on improvements, that the authorities allowed the plaintiffs to retain one acre out of the three acres originally assigned. I agree with the trial Court that in these circumstances the plaintiffs have no further claim for compensation for improvements.
16. I would, therefore, allow the Second Appeal and restore the decree of the District Munsif except as to costs. I cannot help feeling that this is a hard case from the point of view of the plaintiffs. The lower appellate Court, even when it gave a decree in favour of the plaintiffs, directed each party to bear his own costs. Though I am now reversing that Court's judgment, similar considerations nevertheless continue to apply so far as the question of costs is concerned. I therefore direct each party to bear his own costs throughout.