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Desayi Chelapathi Reddi Vs. the Provincial Government of Madras, Represented by the Collector of Cuddappah - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtChennai
Decided On
Reported in(1949)2MLJ438
AppellantDesayi Chelapathi Reddi
RespondentThe Provincial Government of Madras, Represented by the Collector of Cuddappah
Cases ReferredAnnamalai Chcttiar v. Muniappa Naidu
Excerpt:
.....come to the conclusion that the appeal must fail. the question whether a grant is a whole village inam or inam of a fraction of the village is a question of fact on which, however strong the prima facie evidence furnished by the recitals of ex. here no notice is taken by the statute of what is to happen if in connection with the latter kind of irrigation works the default to maintain the irrigation work in good repair is that of the holder of a desabandam inam endowed for such repair. i presume however that it is accidental rather than deliberate for i can see no principle on which to infer a legislative intent that the right of re-imbursement should exist in the one class of case and not in the other i am aware too that a casus omissus ought not to be created by interpretation save in..........of evidence of the terms of the original grant. the question whether a grant is a whole village inam or inam of a fraction of the village is a question of fact on which, however strong the prima facie evidence furnished by the recitals of ex. p-1, it would have been open to the defendant to produce evidence by way of rebuttal, had the point been taken in the trial court. moreover in paragraph 9 the judgment of the learned subordinate judge, there occurs the observations:for information sake i may state that, mussalareddipalle is a whole mam village.that observation he makes in the course of his discussion of the applicability of board's standing order no. 56(2), clause 2, to the present case. there was no ground in the memorandum of appeal to the district court objecting to the.....
Judgment:

Raghava Rao, J.

1. This second appeal arises out of a suit instituted by the plaintiff, the appellant here as well as in the lower appellate Court, for a declaration that the Provincial Government had no right to call upon him either to effect any repairs to two tanks called Mussalareddipalle Kunta and Bassampalle Kunta, situate in his shrotriem village of Mussalareddipalle or to pay the costs of the repairs incurred by the Government. The suit was the sequel to action taken by the District Collector of Guddappah under Sub-section (1) of Section 142 of the Madras Estates Land Act and was instituted under Sub-section (3) on both the grounds referred to therein, namely, that the plaintiff was under no obligation to repair the tanks, and that the proportion of the charge which he was liable to pay under Sub-section (1) had been wrongly calculated. In support of the first ground it was alleged in the plaint that there were desabandam inam grants for the repair and maintenance of the tanks confirmed by the Inam Commissioner, at the time of the inam settlement in 1861, that the holders of these inams--not the plaintiff--were the persons liable to repair the tanks, and that the Government had all along been calling upon them only to repair the tanks till in 1938 for the first time it chose to initiate proceedings against the plaintiff under Section 142 (1) of the Act. In support of the second ground there were no definite averments in the plaint which contented itself with the rather negative statement that it was not clear how the Collector had arrived at the figure Rs. 2,083-3-0 in respect of which a bill had been presented to the plaintiff by an order of the Collector dated 29th May, 1941. There were also three more points raised in the plaint all of which were directed to showing that the order of the Collector was altogether outside the scope of Section 142. The first was that the tanks in question did not serve any Government lands at all for Section 142 (1) to come into operation. The second was that there was no complaints from any ayacutdars of the tanks that they required any repairs. The third was that all the repairs contemplated by the estimates prepared by the Government and forwarded by the plaintiff had not been completed and that such completion was the sine qua non of any order of the Collector under Section 142 dividing the charges incurred by the Government for the repairs between themselves and the plaintiff.

2. The plaint allegations were very closely traversed in the written statement. Issues were raised at the trial which are set forth in paragraph 4 of his judgment by the learned Subordinate Judge of Guddappah who tried the cause. It is unnecessary to refer in specific terms or in close detail to the findings recorded by the trial court on all the issues. It is sufficient to state that the learned Subordinate Judge held that the Government had some lands, though very small in extent under the ayacut of the tanks, although not under Section 142 of the Madras Estates Land Act, which, in his opinion, did not apply to a situation like the one in the present case where there was a desabandam inamdar bound to maintain the tanks in good repair, the whole village inamdar, under Board's standing order No. 56(2), Clause 2, like the zamindar under Clause 1, could resume a desabandam inam in the event of default by the inamdar to keep the tank in good repair, and reimburse himself in the amount that he might be called upon to pay the Government under Section 142, and that therefore there was no hardship to the inamdar involved in his being held liable to bear the Collector's apportionment of charges under Section 142(1). In this view of the matter the learned Subordinate Judge dismissed the. suit. He also held that all the repairs originally contemplated were not effected, but that there was however, no evidence adduced by the plaintiff to show that the amount claimed by the Government for his share so far as the' work actually done was concerned was incorrect. There was just one more finding which the learned Subordinate Judge recorded, namely, that the procedure laid down by Section 136(0) and 139(1) was not followed in the present case. An appeal was preferred by the plaintiff against the judgment and decree of the learned Subordinate Judge to the District Court of Cuddappah which confirmed that decree on its acceptance of the findings of fact of the learned Subordinate Judge on the basis of which he had dismissed the suit. The learned District Judge however differed from that judgment as to the inapplicability of Section 142 of the Madras Estates Land Act to at case where there was an inamdar bound to maintain the tank in good repair under a desabandam inam grant and also as to the applicability of the procedure prescribed by S. 136(D) and 139 (1) to the case on hand. Against the judgment and decree of the learned District Judge the plaintiff has preferred this second appeal in which his learned advocate has raised three points only at the hearing, one not raised in the courts below or even in the memorandum of second appeal, and two others which were accepted by the trial court but rejected by the learned District Judge on appeal. I have after a very careful consideration of every one of these points come to the conclusion that the appeal must fail.

3. The new point which I shall deal with first is that the Madras Estates Land Act does not at all apply to the suit shrotriem village which is a Hissa shrotriem as described in the Inam Fair Register Ex. P-1. Hissa shrotriem is defined in Mclean's Mannal of Administration, Volume 3, page 354, column 2, lines 17 to 20,. as an inam village the revenue of which is shared between the inamdar and the Government or between the inamdar and the zamindar as the case may be, and it is said in column 21 of Ex. P-1 that the share of the Government in the Hissa shrotriem of Mussalareddipalle is 12 annas in the rupee and that of the shrotriemdar 4 annas in the rupee on the annual beriz of the village. It is therefore argued by Mr. Venkatadri that the shrotriem is not a whole village Inam governed by the Act. The argument is, in my opinion nonsequitur. The Inam Register is not itself the original grant, though of course a very authentic piece of evidence of the terms of the original grant. The question whether a grant is a whole village inam or inam of a fraction of the village is a question of fact on which, however strong the prima facie evidence furnished by the recitals of Ex. P-1, it would have been open to the defendant to produce evidence by way of rebuttal, had the point been taken in the trial court. Moreover in paragraph 9 the judgment of the learned Subordinate Judge, there occurs the observations:

For information sake I may state that, Mussalareddipalle is a whole mam village.

That observation he makes in the course of his discussion of the applicability of Board's standing order No. 56(2), Clause 2, to the present case. There was no ground in the Memorandum of Appeal to the District Court objecting to the accuracy of the observations so made by the learned Subordinate Judge. I am not in the circumstances prepared to entertain this point in second appeal.

4. The next point urged for the appellant is that, at any rate, Section 142 of the Madras Estates Land Act has no application to the case of a tank in respect of which there is a desabandam inam granted, and that the right of resumption on the part of the shrotriemdar in respect of the desabandam inam situate within the shrotriem in the event of default on the part of the desabandam inamdar which is declared by Board's standing order No. 56 which after all has not the force of law does not affect the inapplicability of Section 142. Assuming that the incidence of the burden of maintaining the tanks in a proper condition is at root on the desabandam inamdar, and assuming further that the Board's standing orders do not necessarily have the effect of clothing the shrotriemdar with the right of resumption, I am still of opinion that by the width of its language Section 142 of the Madras Estates Land Act embodies a general provision applicable to all tanks which serve partly an estate and partly Government land, and there is no reason for restricting its application only to tanks not endowed with desabandam. inams. On a careful scrutiny of the provisions of Chapter VIII of the Madras Estates. Land Act it will be seen that there are three broad contrasts maintained therein, (1) between major irrigation works and minor irrigation works, (2) between irrigation works (major or minor) endowed with desabandam inams and irrigation (major or minor) not endowed with such inams, and (3) between irrigation works (major or minor) serving lands in an estate wholly and irrigation works (major or minor) serving partly an estate and partly Government land. The first of these contrasts has reference to two points of detail; the officer to whom the applications under the chapter shall be made [Vide Section 136 (c)] and the amount of deposit by way of security to be made in connections with applications provided for by Section 138. The second of these contrasts is brought by Section 140 which declares the liability of the desabandam inamdar in the case of tanks endowed with desabandam inams to execute works of the kinds specified in an order passed under Clause (a) of Sub-section (1) of Section 139 or to pay for their execution. The third of these contrasts, is indicated by Section 142 as between irrigation works serving an estate wholly and irrigation works serving partly an estate and partly Government land. The section provides for the invariable execution of works of repairs by the District Collector and apportionment by him of the charges incurred as between the landholder and the Government after notice to the landholder giving him an opportunity to examine the stated cost of the repair and urge his objections thereto. Here no notice is taken by the statute of what is to happen if in connection with the latter kind of irrigation works the default to maintain the irrigation work in good repair is that of the holder of a desabandam inam endowed for such repair. No provision similar to that contained in Section 140(1) is to be found enacted in regard to cases dealt with by Section 142(1). I shall assume for a moment that there is nothing in rerum naturae which would on a priori considerations necessitate the conclusion that Sections 140 and 142 are mutually exclusive; but I must not at the same time disregard the consideration that not merely the locus of section. 140(1) which occurs in between Section 139 and Section 142 but also the specific reference in Section 140(1) to the works specified in the order passed under Clause (a) of Sub-section (1) of Section 139 suggests that the right of re-imbursement on the part of the holder of the estate against the desabandam inamdar provided for by Section 140(1) cannot be extended t o cases of the kind contemplated by Section 142.

5. Whether the absence from the statute of a provision for the landholder's reimbursement against the desabandam inamdar in connection with cases dealt with by Section 142 similar to that contained in Section 140(1) in regard to cases of irrigation works serving an estate wholly is a casus omissus, accidental or deliberate, I cannot say for certain. I presume however that it is accidental rather than deliberate for I can see no principle on which to infer a legislative intent that the right of re-imbursement should exist in the one class of case and not in the other I am aware too that a casus omissus ought not to be created by interpretation save in some case of strong necessity as observed by Lord Fitzgerald in Mersey Docks v. Henderson Brothers (1888) 13 A.C. 595 quoted in Broom's Legal Maxims, 10th edition, page 360. All the same I am not inclined to go so far as to hold that the maxim casus omissus pro omisso habendus est (meaning, a case omitted is to be held as intentionally omitted) applies to the present case. At the same time having regard to the consideration based on the locus and language of Section 140 (1) which I have adverted to above, I am. inclined to hold that it is not part of the function of the Court in a case like the present to strain the language of Section 140 (1) so as to bring within it a claim of re-imbursement by the shrotriemdar against the desabandam inamdar in cases dealt with by Section 142. To quote from Hailsham's, i.e., the 2nd edition of Halsbury's Laws of England, volume 31, page 497, paragraph 635:

It is not competent to any Court to proceed upon the assumption that Parliament has made a mistake there being a strong presumption that Parliament does not make mistakes. If blunders are found in legislation, they must be corrected by the Legislature, and it is not the function of the Court to repair them. Thus, while terms can be introduced into a statute to give effect to its clear intention, by remedying mere defects of language, no provision which is not in the statute can be implied to remedy an omission, in the absence of any ground for thinking that such a course is necessary to carry-out the intention of Parliament.

This does not however mean that the shrotriemdar who has been called upon under Section 142 to pay the Government his proportionate share of the expenditure incurred by them cannot make good that money for himself. I am not satis fled that the right of resumption of the desabandam inam which the shrotriemdar ' may exercise on account of the inamdar's failure to maintain the tank in good repair carries with it per se or as incidental or ancillary to such right as seems to have been supposed by the Courts below, a right of re-imbursement in respect of that proportionate share. The more correct way of sustaining a right of reimbursement in a case like this seems to be to say that this right, like the right of resumption which is incidental to the reversionary right of the shrotriemdar, originates in the desabandam inamdar's failure to fulfil the obligation to maintain the tank in good repair which as between himself and the shrotriemdar is his, although as between the shrotriemdar and his ryots it may be the shrotriemdar's according to the exposition of the law by the Privy Council to be found in Madras Railway Co. v. Zamindar of Carvetnagarmb (1874) L.R. 1 IndAp 364 (P.C.) Even the proportionate share of the amount paid by the shrotriemdar to the Government under Section 142 must in the circumstances be treated as liable to be recovered by the shrotriemdar from the desabandam inamdar under Section 69 of the Contract Act, As the result of an analysis of the situation to its root with reference to the ultimate incidence of the burden of maintaining the tank in good repair it seems to me that as a person interested in the payment of money to the Government which as between himself and the Government would, if unpaid, be recoverable as an arrear of land revenue under Section 142 (1) and which as between himself and the desabandam inamdar the latter was bound to pay on account of his default to maintain the tank in good repair, the shrotriemdar would be entitled to sue the inamdar for re-imbursement in respect of the money paid by him to the Government. This Section as also Section 70 of the Indian Contract Act have been referred to and relied upon in a recent judgment of this Court reported in Annamalai Chcttiar v. Muniappa Naidu : AIR1947Mad189 as supporting a suit by certain mittadars to recover costs incurred by them from the desabandam inamdars in executing certain repairs to a desabandam tank in accordance with the requisition of the Collector under Section 14 of the Indian Railways Protection Act for the proper irrigation of the lands under its ayacut.

6. In this view of the matter, there is no force, I think, in the argumentum ab inconvenienti advanced by Mr. Venkatadri in support of his construction of Section 142. There is a legal maxim casus omissus and oblivioni datus dispositioni communis juris relinquitur, which in simple English means, a case omitted and consigned to oblivion is left to the disposal of the common law (Bishop's case 37(a) 5 Cokes (37-a)) 111 on the basis which I have indicated earlier that the right of re-imbursement on the part of the shrotriemdar against the desabandam inamdar in the cases dealt with by Section 142 is a casus omissus-accidental or deliberate, it does not matter. There is really no hardship resulting to the holder of the estate from the lacuna in the statute since the right in question is one recognised by the common law of contract in England which in India is embodied in Sections 69 and 70 of the Indian Contract Act. I may say in this connection that I am perfectly clear in my mind that Section 142 of the Madras Estates Land Act cannot be construed as negativing the right of re-imbursement under the general law or under another statute. Let us assume on the principle expressio unius est exclusio alterius that finder the Madras Estates Land Act as such no express right of re-imbursement exists in the case of payments made by the shrotriemdar to the Government under Section 142 which exists by way of a specific provision in the cases of tanks solely serving the needs of the estate Even then I do not think the absence of any provision for such a right in one enactment necessarily excludes a similar right by virtue of another or by necessary implication repeals the just and equitable right of re-imbursement under the general law There is nothing in the relevant sections of the Madras Estates Land Act to suggest such exclusion or repeal. In these circumstances the principle embodied in the latin maxims generalia speaalibus non derogant or generalibus speciatlia derogant has no application to the construction of Section 142 of the Madras Estates Land Act with which I am concerned.

7. There is just one other aspect of the matter to which I wish to refer in dealing with the contention of the appellant's learned advocate that the order of the District Collector under Section 142(1) was wrongly made, because the shrotriemdar was, to use the language of, Section 142(3) under no obligation to repair the irrigation work concerned, the party under such obligation being really the desabandam inamdar. It may be argued from the language of Section 142(3)(a) that whatever the generality of the language of Sub-section (1) it stands necessarily curtailed by the implication, if not by the express language of Sub-section 2(a) and that Section 142(1) must therefore be restricted in its operation to cases where there is no desabandam Inamdar at all on the scene. The argument, however, loses its force if only it is borne in mind that under the permanent settlement with the zamindars or the inam settlement with the whole village inamdars the responsibility for the repair of the tanks situate in the estate was treated as that of the holder of that estate in a question between himself and the Government as well as between himself and the ryots. Sub-section 3(a) can therefore be of assistance to the holder of the estate in case proceedings are taken against him by the Government under Sub-section (1), only if he is able to establish that the tank is not situated within his estate or that the needs of the estate are not at all served by it.

8. I now pass on to the third and last contention urged before me on behalf of the appellant which I can dispose of briefly, that the procedure prescribed by Section 136(D) and Section 139 was not followed in the present case. The contention is, in my judgment, altogether unfounded. Those sections have relevancy only to cases of applications made under Section 138 but not to cases in which action is proposed to be taken by the Government under Section 142. The procedure applicable to the latter class of cases is prescribed by that section itself, namely, that of a notice to the landholder by the District Collector giving the former an opportunity to examine the stated cost of the repair and urge his objections thereto. It has been found by the lower appellate court that that procedure was followed in the present case which is one governed by Section 142 and not one in which there is any application of the kind contemplated by Section 138 which would have to be dealt with in accordance with the procedure prescribed by Sections 136(D) and 139. That finding, in my opinion, is correct.

9. All the three points taken before me for the appellant failing, this second appeal in the result necessarily fails and is dismissed with costs. (No leave).


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