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Muthu Veera Vandayan Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1906)ILR29Mad461
AppellantMuthu Veera Vandayan
RespondentThe Secretary of State for India in Council
Cases ReferredIndia v. Kasturi Reddi I.L.R.
Excerpt:
.....authority on the ground of irregularity of procedure. - - 7. rule 14 concludes with these words :it should be distinctly understood that registry ordered by subordinate officers will be considered only conditional, and that it will be liable to cancellation by a superior authority if the grant is found to be irregular and; it is of the utmost importance that grants of land should be made with the knowledge of all concerned, in the manner prescribed by the rules, and if the land is disposed of without this publicity, it is a good ground for interference of the appellate authority. 22. the omission to do this was, no doubt, an irregularity, and it may be that such an irregularity would form a good ground for seeking damages if it caused injury to the person who originally applied..........in time. the appeals, however, were admitted. it seems dear that there was no appeal to the deputy collector at the time when, in the absence of an appeal, it became the duty of the tahsildar, under rule 14, to register the plaintiff, and this being so, the plaintiff was registered in due course.3. on june 15th, 1898, the deputy collector issued a patta to the plaintiff in pursuance of the tahsildar's grant. the plaintiff took possession under the patta and is still in possession.4. on june 28th, 1899, the deputy collector heard the two appeals.5. the date of the first appeal is given in the deputy collector's order of june 28th as march 16th, 1897, but this seems to be a mistake as both sides agree that the dates are correctly stated in paragraph 2 of the subordinate judge's.....
Judgment:

Arnold White, C.J.

1. In this case the plaintiff made an application to the Tahsildar under Rule 4 of Standing Order XV of the Standing Orders of the Board of Revenue for a grant of land. Under Rule 7, the Tahsildar made the grant. If the procedure laid down in the rules was followed, and it is not suggested it was not, the Tahsildar's order was communicated to the plaintiff (Rule 11) and a document was given to him (Appendix III, Form D) stating that his application had been accepted subject to the result of any appeal that might be preferred. The grant was made by the Tahsildar on May 10th, 1897.

2. Certain parties appealed against this grant. One appeal was put in on July 15th, 1897, and the other appeal on November 2nd, 1897. Rule 13 provides that an appeal lies from the Tahsildar's decision in Darkhast cases if made within thirty days. Both the appeals were therefore out of time and one of them was nearly live months out of time. There is power under the rule to admit an appeal after the prescribed period of limitation if sufficient cause is shown for not presenting the appeals in time. It does not appear whether any cause was shown in this case for not presenting the appeals in time. The appeals, however, were admitted. It seems dear that there was no appeal to the Deputy Collector at the time when, in the absence of an appeal, it became the duty of the Tahsildar, under Rule 14, to register the plaintiff, and this being so, the plaintiff was registered in due course.

3. On June 15th, 1898, the Deputy Collector issued a patta to the plaintiff in pursuance of the Tahsildar's grant. The plaintiff took possession under the patta and is still in possession.

4. On June 28th, 1899, the Deputy Collector heard the two appeals.

5. The date of the first appeal is given in the Deputy Collector's order of June 28th as March 16th, 1897, but this seems to be a mistake as both sides agree that the dates are correctly stated in paragraph 2 of the Subordinate Judge's order of November 25th, 1903.

6. By his order of June 28th, 1899, the Deputy Collector cancelled the order of the Tahsildar upon the ground that the Al notice, which is required by Rule 5, had not been duly published, and that the Darkhast proceedings were defective for that reason. The Deputy Collector's order stated that the village was one of those that would be improved by the Vadavar project and it was not, therefore, advisable to assign the land pending the completion of the project. The order does not in terms-purport to cancel or withdraw the patta which had been issued by the Deputy Collector the previous year.

6. It seems to me to be not improbable that when the application for a patta was made to the Deputy Collector the fact that appeals were pending was overlooked and the patta was issued, as of course, in pursuance of the registry by the Tahsildar.

7. Rule 14 concludes with these words : 'It should be distinctly understood that registry ordered by subordinate officers will be considered only conditional, and that it will be liable to cancellation by a superior authority if the grant is found to be irregular and; unauthorized, although there may be not proof of fraud.' In The Secretary of State for India v. Kasturi Reddi I.L.R. 26 Mad. 8, the legal effect of this rule was thus stated : 'This is nothing more than an explicit statement of the legal consequence of any of the officers authorized to dispose of land under the Darkhast rules acting beyond the scope of their authority, i.e., that such grants will be invalid, and the mere fact that the land has been registered in the name of the applicant can give him no title as against the Crown. When the proposal of an applicant is accepted by an officer duly authorized in that behalf by the Darkhast rules and the acceptance is communicated to the applicant, there is a valid contract and disposal of the land, unless the grant was procured by fraud, misrepresentation or mutual mistake as to any matter of fact essential to the agreement (Indian Contract Act, Sections 17, 18 and 20). The grant, therefore, cannot be annulled or revoked by the officer who made the grant, by his successor in office or even by the Governor in Council. Under the very terms of the authority conferred upon the various classes of officers, a grant of land made by any one of them, within the scope of his authority, is subject only to one condition, i.e., it may be revoked or annulled by an officer of a higher grade on appeal preferred to him.'

8. With the exposition of the law contained in the passage, which I. have cited, I entirely agree.

9. In the present case the appellants derived no benefit or, at any rate, no immediate benefit from the cancelling of the Tahsildar's order, and it seems to me to be reasonably clear that the Deputy Collector when cancelling the order upon the ground that there had been irregularity in connection with the Al notice availed himself of the fact that there were certain undisposed of appeals against the Tahsildar's grant - a fact which seems to have been lost sight of when the patta was granted in the previous year - to cancel the order of the Tahsildar not in the interests of the appellants but in the interests of the Vadavar project. I think we have jurisdiction to decide, and it is our duty to decide whether there was any evidence of irregularities in the publication of this notice.

10. It seems to me that it does not follow that, because it is not open to a Civil Court to cancel a patta because some of the formalities of the Darkhast rules have not been observed see Peria Royalu Reddi v. Royalu Reddi I.L.R. 18 Mad. 434 and the observations of Sir Bhashyam Ayyangar in Sappani Asari v. The Collector of Coimbatore I.L.R. 26 Mad. 742 it is not open to a Civil Court to set aside an order of an Appellate Revenue Tribunal which allows an appeal against a grant by a Revenue officer on the ground of irregularity of procedure if the Court is of opinion that there is no evidence of irregularity; also, as it seems to me, it does not follow that, because it would not have been open to a Civil Court to interfere if the Tahsildar had declined to make the grant on the ground of irregularity of procedure, it is not open to a Civil Court to interfere where a grant is set aside by the appellate authority on the ground of, irregularity of procedure if the Court is of opinion that there has been no irregularity. If no grant has been made, there is no contract. If grant has been made, there is a coii'litional contract.

11. In The Collector of Salem v. Rangappa I.L.R. 12 Mad. 404 a patta which had been issued to the plaintiff was cancelled by the appellate Revenue authority on the ground that the darkhast had not been properly published in the village. This Court was of opinion that the case; was one of mistake and the Tahsildar would not have issued the patta if he had known all the facts. The Court nevertheless upheld the grant of the patta to the plaintiff by the Tahsildar. The case of Tirumalaiswami Ayyangar v. Tirumalai Gounden I.L.R. 19 Mad. 324 is not inconsistent with the proposition I have ventured to lay down.

12. In the present case the Tahsildar's order was set aside on the ground that the signatories of the A1 notice were not adjacent landholders. Rule 5 provides that the Al notice should be signed by the manager and the karnam and attested by at least two other persons in token of such publication. The rule further provides that the persons should be holding adjacent lands or other persons having prior claims. If there are none of these, or they are illiterate, any two other respectable inhabitants may attest, but in this case the reason why adjacent land-holders have not attested should be explained in the form. It is the duty of the officers who-sign the form to obtain the signatures of the attestors. Omnia praesumuntur rite esse acta. The form signed in this case has not been produced, but in the absence of any evidence to the contrary, I think it must be presumed that the officers took the signatures other than those of adjacent land-holders because the adjacent land-holders were absent or illiterate. I am of opinion that the fact that the Al notice was not signed by adjacent land-holders does not per se render the grant by the Tahsildar invalid and there cannot be said to have been an irregularity unless it is shown that the provisions of Rule 5 had not been complied with.

13. I think the decree of the Munsif was right and that it should be restored and that of the Subordinate Judge set aside.

Benson, J.

13. In this case the plaintiff asked for a declaration that certain land belonged to him. He alleged as his title a grant from Government under the Darkhast rule (S.O. No. 15 of the Board of Revenue), and the question for decision is whether there was a grant which binds the Crown.

14. The facts are as follows:

The plaintiff applied to the Tahsildar for the grant of the land and the Tahsildar informed him in writing that his application was accepted subject to the result of any appeal that plight he preferred. This order of the Tahsildar was on the 10th May 1897. Against this order two appeals were presented to the Deputy Collector, who is the authority authorized to receive appeals against orders of Tahsildar under the Darkhast rules. The appeals were presented in July and November 1897, respectively. The time ordinarily allowed for appeal is only thirty days, but the appellate authority may, under the rules, admit an appeal even after that period if cause is shown, and there is nothing to show that the Deputy Collector did not in these cases act within the scope of his authority in admitting the appeals. The appeals were, therefore, validly pending before him; and while they were so pending, the jamabandi, or annual settlement, came on and a patta for the land was issued to the plaintiff by the Deputy Collector on the 15th June 1898, and the plaintiff took possession on the 20th June 1898. On the 28th June 1899, the Deputy Collector disposed of the appeals and cancelled the order of the Tahsildar on the ground that the A1 notice which is required by Rule 5 had not been duly published and that this was a material defect in the darkhast proceedings. The question for our decision is whether the Deputy Collector had authority to cancel the Tahsildar's order. I think that there can be only one answer to the question when stated in this simple way and that answer must be in the affirmative. It is admitted that under the Darkhast rules the Tahsildar had no power to make any grant of land except on the condition that the grant should be subject to the result of any appeal that might be made, and his acceptance of the plaintiff's application was, in fact, expressly made subject to that condition. Appeals by persons entitled to appeal were made to the Deputy Collector, who was the proper authority to entertain appeals, and until they were decided, the grant to the plaintiff must necessarily have remained conditional. The fact that a patta was issued to him and that he was let into possession of the land was not intended to make, and, in fact, could not make any difference in the conditional character of grant. In regard to this, there was a great deal of confusion in the argument before us as to the nature of a patta and the effect of its issue. It was constantly referred to as a grant, and it was argued that the Deputy Collector by issuing a patta to the plaintiff in June 1893 confirmed the grant of the land to the plaintiff. That argument, however, proceeds on a fundamental misconception of what a patta really is. As observed by Bhashyam Ayyanger, J., in The Secretary of State for India v. Kasturi Reddi I.L.R. 26 Mad. 272 'reference to the form -and wording of a patta (see revised forms of village accounts, page 57; and Board of Revenue Proceedings, No. 332, dated 17th July 1900, page 4) will show that it is in the nature of a mere bill, and is not, nor does it purport to be, in the nature of a grant or conveyance Freeman v. Fairlie 1 M.I.A. 305. With that description of a patta I entirely agree, and if it is borne in mind, the character of the transaction in the present case at once becomes plain. The plaintiff wanted to be allowed to take the plaint land for cultivation and asked the Tahsildar for it. The latter granted it conditionally subject to the result of any appeal. But as appeals take time to dispose of and as cultivators want to cultivate at once while the ground is fit for it after rain, it is usual (and the Darkhast rules recognize the propriety of the practice) to lot the applicant take possession at once, but subject to the liability to be deprived of the land if the appeal is successful. The patta is then issued, as a matter of course, at the annual settlement of the revenue payable by persons holding land under Government. It is just as necessary to issue it in the case of temporary or conditional grants as in the case of permanent grants, in order that all concerned may know the amount of the assessment that is payable and the instalments by which it is to be paid. The patta issued by the Deputy Collector in this case cannot be understood as evidencing a grant by him. He could not, in fact, make any valid grant of the land while the appeals in respect of it were still pending before him. The patta merely shows that in accordance with the conditional grant by the Tahsildar, the plaintiff was let into possession and was required to pay the assessment on certain dates. The issue of the patta did not in any way deprive the Deputy Collector of his jurisdiction to hear and decide the appeals then pending before him, and this is all that he did. The decision in The Collector of Salem v. Rangappa I.L.R. 12 Mad. 404 is in no way opposed to this conclusion. In that case it was the Collector who issued the patta and who subsequently himself cancelled it. It was held by Collins, C.J., and Shephard, J., that the then Darkhast rules made no provision for such revision of a grant by the authority who made the grant, and the Court expressly observed that in that case there was no contention that the patta was issued conditionally. In the present case the grant was made by the Tahsildar on the express condition that it was subject to appeal, and the cancellation of his order was not by himself but was by the proper appellate authority. In the case of Tirumalaiswami Avyangar v. Tirumalai Gounden I.L.R. 19 Mad. 324 the essential facts were exactly similar to those in the present case. The Collector granted certain land to A and issued a patta at the jamabandi. B after that appealed to the Board of Revenue against the Collector's grant to A and the Board decided that the land should be given to B This Court (Shephard and Subrahmania Aiyar, JJ.) after referring to the case of The Collector of Salem v. Rangappa I.L.R. 12 Mad. 04 held that 'the grant of a patta must, as long as an appeal against the decision of the Collector remains possible, be held to be conditional and subject to the result of the appeal,' and the Court upheld the decision of the appellate Revenue authority. So also in the case of the Secretary of State for India v. Kasturi Reddi I.L.R. 26 Mad. 268 Bhashyam Ayyangar, J., referring to the Darkhast rules observed : 'Paragraph 11 provides that order passed in darkhast cases should at once be communicated by the Tahsildar to all the parties concerned, and paragraph 14 provides that when an appeal is admitted, the admitting authority 'shall forthwith send a notice to the officer whose decision is appealed against informing him of the fact and instructing him to withhold the registry of the land until the appeal has been disposed of, or, if already ordered, such registry will be only considered as conditional till the appeal is disposed of.' With these statements of the law I entirely concur, and in the present case I am of opinion that it is thoroughly established both by reference to the express terms of the grant and by authority, that the registry in the plaintiff's name was conditional on the result of the appeal to the Deputy Collector.

15. But it is further argued that even if the grant by the Tahsildar was conditional, the Deputy Collector was in error in holding that 'the A1 form was not duly published and this is a material defect in the Darkhast proceedings' sufficient to justify him in cancelling the Tahsildar's grant, if it were necessary for 8 me to do so, I would have no difficulty in finding that in this case the A1 form was not duly published, and that this was a material defect sufficient to justify the cancellation of the grant. It is of the utmost importance that grants of land should be made with the knowledge of all concerned, in the manner prescribed by the rules, and if the land is disposed of without this publicity, it is a good ground for interference of the appellate authority. Rule 13 of the Darkhast rules provided that 'from the Tahsildar's decision in Darkhast cases an appeal will lie to the Divisional officer.' The grounds on which an appeal will lie are not specified, nor are they limited in any way. I take it, therefore, that the appellate authority may exercise the same power in regard to the grant or refusal as the original authority. Can it, for a moment, be held that the Tahsildar could not have refused the application when he found that the A1 notice had not been duly published? If the omission would have justified him in refusing the application, it would equally justify the appellate authority in refusing it. As observed by Bhashyarn Ayyangar, J., 'if an appeal against the Tahsildar's action is 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 prescribed by the Darkhast rules or for any other reason, notwithstanding that the granting offioer acted within the scope of his authority ' Sappani Asari v. The Collector of Coimbatore I.L.R. 26 Mad. 742 and again the same learned Judge in speaking of the effect of paragraph 13 of the Darkhast rules says 'its legal effect is to materially qualify the authority conferred upon an inferior agent (Deputy Tahsildar) by subjecting the exercise of that authority to the control of a superior agent (Divisional officer) who, in the even t of the applicant being dissatisfied with the action of the inferior agent and applying to him by way of appeal, is authorized to dispose of the land to which the application relates.' The Secretary of State for India v. Kasturi Reddi I.L.R. 26 Mad. 268.

16. But in my judgment it is not open to the Civil Courts to discuss the sufficiency or otherwise of the grounds on which the Darkhast 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.

17. To do so would, in effect, be equivalent to an assumption by the Civil Courts of the appellate jurisdiction in all matters connected with the administration of the Darkhast rules. Those rules provide for the procedure to be followed in dealing with applications for State lands, and they provide for the exercise of appellate and revisional powers by certain authorities, and it is not open to the Civil Courts to assume to themselves the appellate powers thus conferred on other authorities, It would, of course, be different if the Revenue authorities, purporting to act under the Darkhast rules, acted outside the scope of their authority, but that is not the present case. In the case of Subbaraya v. The Sub-Collector of Chingleput I.L.R. 6 Mad. 303 the late Chief Justice Sir C. Turner held that oven if the plaintiffs had a preferential title under the Darkhast rules to be granted certain lands the Civil Courts could not enforce them. He dismissed their appeal on the ground that 'a Civil Court cannot compel the Revenue authorities to make settlement with a particular person. In that matter the discretion of the Revenue authorities is uncontrolled. It is, therefore, unnecessary to enquire whether the refusal to allow the Mirasidars a preference was, in the case before the Court, justifiable.' This case was followed in Peria Royalu Reddi v. Royalu Reddi I.L.R. 18 Mad. 434 where the Court observed we are unable to agree in the opinion of the Judge that because some of the formalities prescribed by the Darkhast rules have not been observed, he is entitled to cancel the patta granted to the appellant by the Government. Darkhast rules are departmental and if they are infringed, the remedy for such infringement is also departmental. Irregularities in observing those rules constitute no valid ground of interference by the Civil Courts with a grant of land made by the Government. The land in dispute is entered in the pymash account as waste and, as such, it is at the disposal of Government. It is not competent to the Civil Courts to set aside a grant made by an officer competent to make the grant' So also in the ft case of The Secretary of State for India v. Kasturi Reddi I.L.R. 26 Mad. 268 Bhashyam Ayyangar, J., observes : 'The bulk of the Darkhast rules, which are in the nature of instructions issued by Government to the various officers concerned, as to the principles which should guide them in entertaining or rejecting applications for grant of various descriptions of land and determining to which of several competing applicants the grant should be made, if at all, and the procedure to be adopted by them do not concern the Civil Courts' and again in Sappani Atari v. The Collector of Coimbatore I.L.R. 26 Mad. 742 he observed : '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 bond 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 & bond fide applicant is and after investigating whether or not a grantee was a bond fide applicant hold 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 bond fide applicant.'

18. If the Tahsildar in the present case had decided that the A1 notice had not been properly published and had refused the plaintiff's application on that ground, can it, for a moment, be supposed that the Civil Court could have interfered with his decision, and on finding that the notice was, in fact, duly published, could have directed the grant of a patta?. If it is incompetent for the Civil Courts to interfere with the original Darkhast authority in such a matter, it is equally incompetent to interfere with the appellate Darkhast authority in regard to the same matter, so long as that authority acts within the scope of its authority for that would, in effect, be an assumption of the appellate jurisdiction by the Civil Court instead of by the Revenue authority in whom it vests under the rules.

19. It has been suggested that the Deputy Collector's real reason for setting aside the Tahsildar's grant was not the irregularity in publishing the A1 notice, but the fact that the land was found to be valuable, and such as ought not to be granted on darkhast. The Deputy Collector expressly bases, his order on the irregularity found by him to exist in the publication of the notice, and I am certainly not prepared without any evidence to say that the Deputy Collector has made a false statement in this official matter in regard to which he has no personal interest. It is true that at the end of his proceedings he adds that the land will be improved by the Vadavar project and that it should, therefore, not be assigned on patta under the Darkhast rules, but I take it that this is merely an explanation of why he does not grant it either to the appellant, or to the original applicant, or order a fresh notice to issue as he would do, with ordinary waste land. Then it is said that the appellant before the Deputy Collector was not granted the land, and therefore had no interest in opposing the grant to the plaintiff. But this is a mistake. When land of this kind is rendered valuable by irrigation works being carried out, it is not usually granted under the Darkhast rules, but is sold by auction, the State benefiting by the price. In the present case the appellant before the Deputy Collector will be able to bid for the land if it is put up to auction, but had he not appealed against the grant by the Tahsildar, he could never do this. He was therefore, interested in getting that grant set aside and he may eventually benefit by the order of the Deputy Collector. The fact that the Collector and the Board of Revenue based their refusal to grant the land on the ground that it was land affected by the Vadavar project has nothing to do with the matter. They were not acting as appellate authorities, for no second appeal lies The Secretary of State for India v. Kasturi Reddi I.L.R. 26 Mad. 268.

20. The applications to them can only be regarded as original applications which they were free to deal with on any ground that seemed to them sufficient and without reference to anything that had gone before.

21. It is also argued that the Deputy Collector when he admitted the appeal ought to have given notice of it to the Tahsildar, and required him to postpone the registry in the applicant's name.

22. The omission to do this was, no doubt, an irregularity, and it may be that such an irregularity would form a good ground for seeking damages if it caused injury to the person who originally applied for the land. In the present case the lower Appellate Court has given the plaintiff damages apparently on the ground that this omission, and the delay in disposing of the appeal did, in fact, lead the plaintiff to spend money 'in improving tire land. The defendant has not argued this Memorandum of Objections to this part of the decree, and the damages given seem to be the appropriate remedy to which the plaintiff is entitled; but the omission to give notice of the appeal cannot have the further effect of rendering the appeal itself invalid or deprive the appellate authority of its jurisdiction to hear and dispose of the appeal.

23. I find, then, that the Deputy Collector acted within the scope of his authority in entertaining the appeal and in canceling the Tahsildar'a order. I find, too, that it is not open to the Civil Courts to question the sufficiency of the ground on which the Deputy Collector, acting within the scope of his authority, set aside the Tahsildar's order but that, if it were open to the Courts to do so, the reasons, are sufficient. I must, therefore, dismiss this second appeal with costs.

Arnold White, C.J.

24. As my learned colleague differs, the result will be that under Section 575 of the Code of Civil Procedure, the decree appealed against is affirmed and the appeal dismissed with coats. The Memorandum of Objections is also dismissed with costs.


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