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Toke J. Abboy Naidu (Deceased) and anr. Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad1069; 159Ind.Cas.1071; (1935)69MLJ795
AppellantToke J. Abboy Naidu (Deceased) and anr.
RespondentThe Secretary of State for India in Council
Cases ReferredSappani Asari v. The Collector of Coimbatore I.L.R.
Excerpt:
.....way modify the decision. venkatarama aiyar has contended before us that whatever may have been the board's power under the rules as it stood prior to 1921, the action of the board in the present case must be judged with reference to the amended rule of december 1921 and, so judged, he maintains that the board could not have validly made the cancellation after the expiry of three years from the date of the original grant, namely, after the 18th may, 1924. 5. having regard to the dates above stated, an intermediate position may arise in this case in view of the language of the rule which does not require the order of cancellation to be passed within three years as we find in later amendments but only that the collector or the board should be satisfied within three years as to the existence..........of the appellant, mr. venkatarama aiyar has contended before us that whatever may have been the board's power under the rules as it stood prior to 1921, the action of the board in the present case must be judged with reference to the amended rule of december 1921 and, so judged, he maintains that the board could not have validly made the cancellation after the expiry of three years from the date of the original grant, namely, after the 18th may, 1924.5. having regard to the dates above stated, an intermediate position may arise in this case in view of the language of the rule which does not require the order of cancellation to be passed within three years as we find in later amendments but only that the collector or the board should be satisfied within three years as to the existence.....
Judgment:

Varadachariar, J.

1. Both these appeals raise the same point for determination, namely, the title of the appellant's mother to certain plots of land. One appeal arises out of a suit by the Government for possession of these lands and the other appeal arises out of a suit by the appellant against the Government for damages for failure to supply water for the irrigation of these lands. The learned Subordinate Judge has found against the appellant's title and decided both the suits against him. Hence these appeals.

2. The appellant claims title through his mother who became the owner of these properties by conveyance some time in 1922 from four grantees who acquired these properties under darkhast grants by Government on the 18th May 1921. In the course of 1924 it was reported by succeeding revenue authorities that the circumstances under which the darkhast grants were obtained justified the cancellation of the grants. A recommendation to this effect was made by the Collector of Nellore to the Board of Revenue in May, 1924, and the Board of Revenue cancelled the grants by order dated the 2nd June, 1924. The only point that we have got to determine in these appeals is whether this order of the Board of Revenue dated 2nd June, 1924 was an exercise of its power of cancellation within the time available to the Board to do so under the darkhast rules.

3. At the time that the darkhast grants were made, the rules inforce provided for the Board's interference in such circumstances without any time limit. But in December 1921 the Government sanctioned certain amendments to this rule and in the amended form the rule ran as follows:

If at any time within three years of the original or appellate decision the Collector or the Board of Revenue is satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation, the Collector in the case of an order passed by an officer subordinate to him or the Board of Revenue in all cases may set aside, cancel or in any way modify the decision.

4. On behalf of the appellant, Mr. Venkatarama Aiyar has contended before us that whatever may have been the Board's power under the rules as it stood prior to 1921, the action of the Board in the present case must be judged with reference to the amended rule of December 1921 and, so judged, he maintains that the Board could not have validly made the cancellation after the expiry of three years from the date of the original grant, namely, after the 18th May, 1924.

5. Having regard to the dates above stated, an intermediate position may arise in this case in view of the language of the rule which does not require the order of cancellation to be passed within three years as we find in later amendments but only that the Collector or the Board should be satisfied within three years as to the existence of grounds justifying cancellation. Mr. Venkatarama Aiyar rightly contends that in this case we have no materials to show when exactly the Board was satisfied as to the grounds for the cancellation, whether that happened within the three years' period. It is true that the Collector's recommendation was within the three years' period but the grammatical construction of the rule would suggest that the Collector's opinion will satisfy the rule only in cases where he himself cancels the darkhast but in cases where the Board exercised that power it is the Board that must be satisfied as to the existence of the necessary grounds. In the view we take on another aspect of the case it is not necessary to say more about this contention.

6. The learned Subordinate Judge has held that as the grant was made prior to December 1921 the powers of the Board to cancel the same must be determined only with reference to the state of the rules as they then existed and not with reference to a later amendment. Mr. Venkatarama Aiyar has argued before us that that is not the true position, but that on the other hand the amended rule must be held to govern all cases where the power of cancellation is exercised after the date of the amendment. He based his argument on two grounds : (1) that this is in substance a 'remedial' provision which ought to be so construed as to give a liberal effect to it wherever no vested rights are impaired; (2) that this rule is in the nature of a processual provision which merely fixes the time limit within which the revisional powers of the Board ought to be exercised. We are unable to agree that either of these contentions can prevail.

7. It is not right to speak of the amendment as not taking away a vested right. Having regard to the true nature of these darkhast rules as explained in the Secretary of state for India in Council v. Kasturi Reddi : (1902)12MLJ453 namely, that they embody the conditions under which the Governor-in-Council has delegated his powers of disposing of public land vested in the Crown, the true legal position is that the darkhast grant is a conditional grant subject to a power of revocation in the grantor which can be exercised at any time if the grant is found to have been obtained in contravention of the conditions laid down in these rules. This power of revocation is certainly a vested substantive right. The expression 'remedial' is capable of being misunderstood. If it is intended to mean remedial law in the sense of adjective law, this argument is practically the same as the argument under the second head. If on the other hand it is merely meant to indicate cases of relief against hardship as, for instance, relief against forfeiture and so on, there is no particular hardship in a case like this where a grantor reserves to himself the power to put an end to the grant in certain circumstances. The circumstances are undoubtedly known to the grantee but they are presumed to have been kept back from the knowledge of the higher authorities and hence power is reserved to the higher authorities to cancel the grant when these circumstances come to their knowledge. We are therefore unable to say that the amendment is remedial in the sense of relieving a party against any particular hardship.

8. Going next to the second head of the contention, here again, we have to point out that the description of these rules as matters of procedure is somewhat misleading. The rules deal with a number of matters, some of them are no doubt matters of procedure in the sense that they regulate the course to be followed by officers, for instance, holding auction sales and in particular cases inviting objections, in particular cases allowing a right of appeal, and so on. The rules deal with other matters as well, one important head of this kind being the conditions of delegation of the power of the Governor-in-Council. Again, the rules contemplate cases where there may be rival claimants to the grant of a land and the disputes between them may have to be settled as far as possible on judicial principles. But nevertheless it will be a mistake to regard these rules as standing on the same footing as rules of judicial procedure. Rules of judicial procedure may in a sense furnish some analogy, but, as observed in Sappani Asari v. The Collector of Coimbatore I.L.R.(1903) 26 Mad. 742 : 12 M.L.J. 417 the proceeding is not wholly judicial. Even taking it that these rules are in a sense rules of procedure, the argument that there is no presumption against retrospective operation in the case of rules of procedure can properly be applied only to rules regulating the procedure of Courts of law. That is not the position here. It is the case of a grantor, as already explained, reserving to himself or to certain of his officers a power of setting aside the grant. It is therefore not right to assimilate this part of the rules to rules of procedure governing Courts of law to the extent of applying to the former the presumption against retrospective operation.

9. We are unable to agree with the argument that by their very force the words will take in previous grants as well. Looking at the matter in another way, if a grant has once been made to A on certain conditions, the fact that as from a later date grants are to be made on different conditions cannot reasonably be pressed into service for changing the conditions of the original grant. That seems to us the true position in the case.

10. We accordingly agree with the decision of the Court below and dismiss the appeals with costs. The appellant will pay the court-fee payable to Government on the memorandum of appeal in both the cases.


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