1. I am of opinion that a Revenue officer preparing a record of rights under Sections 164 to 167 of the Madras Estates Land Act is only discharging an executive function of Government and is not a Court within the meaning of Section 476 of the Code of Criminal Procedure.
2. In Muhammad Subhanullah v. The Secretary of State for India in Council I.L.R. (1904) All. 382, it was held that a settlement officer preparing a record of rights was not a Court but was simply an executive officer acting in his executive capacity. In Nasarulla Mia v. Amiruddi (1906) 3 C.L.J. 133 and Kurban Ali v. Jafar Ali I.L.R. (1901) Calc. 471, the powers of a Revenue officer disposing of an objection under Section 103-A of the Bengal Tenancy Act which corresponds closely in wording to Section 166 of the Madras Estates Land Act were considered, and it was held that the legal effect of proceedings taken under this section was that the Revenue officer's order was not a judicial order, was not open to appeal and would not operate as res judicata. Section 106 of the Bengal Tenancy Act provides for the institution of suits before Revenue officers preparing records of rights and for suits instituted before them being transferred by them to a competent Civil Court for trial. Section 107 further provides that they shall adopt the procedure of the Code of Civil Procedure in trying such suits and that their decisions shall have the force and effect of a decree of a Civil Court.
3. In contradistinction to this, it may be observed that the Madras Act provides in Section 173 for institution of suits in the Civil Courts having local jurisdiction, whenever the correctness of the record of rights is impugned in certain particulars.
4. In fact a revenue officer proceeding under chapter XI of the Madras Estates Land Act is not anywhere referred to in that Act as a Court in the manner that Collectors and other Revenue officers who hear suits and applications specified in the schedule, are described in Section 189 and elsewhere as Courts. Mr. Grant relies on the provision in Section 164(3) that the survey made by the Revenue officers proceeding under this chapter shall be made under the Madras Survey and Boundaries Act, 1897, and on the provision in Section 29 of that Act applying the procedure of the, Code of Civil Procedure for enforcing the attendance of witnesses and for the recording of evidence, and also on the definition of 'Court' in Section 3 of the Evidence Act.
5. He has referred us to several decisions such as Raqhoobuns Sahoy v. Kohil Singh alias Gopal Singh I.L.R. (1890) Calc. 872, Atchayya v. Gangayya (1892) 15 Mad. 138, and Queen Empress v. Munda Shetti I.L.R. (1901) Mad. 121, in which officers authorized to receive evidence and decide matters on evidence have been treated as Courts.
6. But the notification dated 3rd May 1910 in the Fort St. George Gazette Supplement for June under which the Revenue officer who passed the order under Section 476 now under consideration was appointed does not invest him with powers to record evidence nor with the powers of a survey officer under Act IV of 1897. It merely appoints him to be a Revenue officer for the purpose of making a survey of the Pithapuram estate and for preparing a record of rights in respect of the said estate and it goes on to declare what particulars the record of rights shall show.
7. The said officer's order directing the prosecution of the petitioners for giving false evidence was therefore in my opinion ultra vires and must be set aside.
Seshagiri Ayyar, J.
8. I entirely agree. By a notification dated the 3rd May 1910, Mr. Venkatanarayana Nayudu was appointed to survey and to prepare a record of rights in the Zamindari of Pithapuram. It is conceded that this notification does not empower the officer to administer oath and to record evidence. In pursuance of this notification, the officer entered the name of one Venkataswami Gadu as the occupancy tenant of a holding. This was objected to by the first petitioner, the proprietor. The survey officer came to the conclusion that the petitioners had made false statements regarding the right of Venkataswami Gadu. He took action under Section 476 of the Code of Criminal Procedure and directed the prosecution of the petitioners. The point for consideration is whether an officer recording rights under the Estates Land Act is exercising the function of a Civil or Revenue Court so as to enable him to take action under the Code of Criminal Procedure. I must answer this question in the negative. Under chapter XI of the Estates Land Act, the Local Government may empower a person to conduct three classes of operations: (a) to survey the fields; (b) to enter the names of the tenants in respect of the fields surveyed as occupancy ryots; and (c) to settle the rate of rent. In this case, the officer had no authority to settle the rate of rent. The false statement is alleged to have been made in the enquiry regarding the record of rights. Under Section 166 of the Act, if the record of rights is not objected to, 'it shall be conclusive evidence that the record has been duly made.' No right to contest the record is given either by bringing a suit in that behalf or by perferring an appeal. The right of suit given by Section 173 does not affect the present question. Section 167 lays down in Clause (3) that the entry shall be evidence of the tenant's rights. Neither Section 166 nor Section 167 gives power to the officer to take evidence. Prima facie, therefore, the entry as tenant is a purely administrative act, and the officer cannot be said to he exercising the functions of a Civil or Revenue Court. The decisions in Muhammad Subhanullah v. The Secretary of State for India in Council (1904) 26 All. 382 and Nasarulla Mia v. Amiruddi (1906) 3 C.L.J. 133 which relate to the construction of similar provisions in the Tenancy Acts of the United Provinces and Bengal lay down that the officer entrusted with such duties is not acting judicially, but only in his executive capacity. The learned Public Prosecutor draws attention to the fact that the officer was also performing the duties of a survey officer and as under Clause (3) of Section 164, he is authorized as such to exercise all the powers contained in the Madras Survey and Boundaries Act, he must be deemed to have acted as a Court. In the first place Section 29 of the Boundaries Act which is relied upon lays down that the power to take evidence must be either specially or generally conferred. There is no such authorization in this case. In the second place whatever may be the officer's duties in regard to survey, in recording rights he is not given power to administer oath to witnesses.
9. The fact that in Section 195 of the Code of Criminal Procedure the legislature exempts the offices of the Registrar and of the Sub-Registrar from the designation of Courts strengthens the view that persons exercising quasi-judicial functions are not ordinarily to be regarded as Courts. The decision in Queen Empress v. Munda Shetti I.L.R. (1901) Mad. 121 proceeds on the language of Act III of 1869 which specially empowers the Tahsildar to take evidence during the course of the enquiry and to give his decision upon such evidence. The decision in Atchayya v. Gangayya I.L.R. (1892) Mad. 138 is no longer law, and I do not think that the obiter dicta of some Judges in that case can be relied upon. On the other band, it has been laid down that the mere fact that an enquiry has to be made will not constitute the enquiring officer a Court. In Durga Das Rukhit v. Queen Empress I.L.R. (1900) Calc. 820 it was decided that an officer enquiring into the value of property under the Land Acquisition Act was not a Court. The proper test for ascertaining whether an officer is a Court or not has been stated in Queen Empress v. Munda Shetti (1901) 24 Mad. 121. There must be power to record evidence, and to come to a judicial determination on the evidence so recorded. Mr. Justice Ayling and myself had to consider a similar question in Re Vijiaraghava Pillai : (1914)27MLJ227 . Applying the tests suggested in that case and In re Nataraja Iyer I.L.R. (1913) Mad. 72, I am of opinion that an officer charged with the duty of recording tenant rights in a zamindari under chapter XI of the Estates Land Act is not a Court within the meaning of Section 476 of the Code of Criminal Procedure.