1. These are two applications for the issue of writs of certiorari in respect of certain proceedings of the Board of Revenue under Chap. XI of the Madras Estates Land Act. In C.M.P. No. 6459 the petitioner is the Zamindarini of Mandasa in the Ganjam District. In C.M.P. No. 5155 the petitioner is the Zamindar of Seitur in the Ramnad District. Connected with the latter petition are C.M.Ps. Nos. 2310 of 1931 and 2074 of 1932 in which the petitioners are different sets of tenants in the Zamindari of Seitur. In all the petitions the first important point that arises for decision is whether a writ can be issued in respect of proceedings passed by the Board of Revenue under Chap. XI of the Madras Estates Land Act.
2. The Zamindarini of Mandasa had previously filed C.R.P. No. 192 of 1926 to the High Court in connection with the same matter. At the time when the revision petition was filed, that is, on 17th December, 1925, there was a decision of Devadoss and Waller, JJ., which held in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli I.L.R. (1925) 49 Mad. 499 that a revision petition lies under Section 115, Civil Procedure Code, against a proceeding of the Board of Revenue under Chap. XI of the Act. The remedy by way of revision being open to the present petitioner according to the then existing decision, she could not then apply for a writ of certiorari. While C.R.P. No. 192 of 1926 was pending in the High Court, a Full Bench of this Court, consisting of Phillips, Odgers and Venkatasubba Rao, JJ., held in C.R.P. No. 1027 of 1924 on 12th April, 1928, that no such revision lay. But that decision, Raghunadha Patro v. Govinda Patro : (1928)55MLJ798 , had not been reported in the authorised series and C.R.P. No. 192 came on for hearing before Wallace and Thiruvenkatachariar, JJ. They doubted the correctness of the decision in Raghunadha Patro v. Govinda Patro : (1928)55MLJ798 and referred the matter to a larger Full Bench. C.R.P. No. 192 then came on for disposal before a Full Bench of five Judges, Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450, and it was held by the majority that no such revision petition lay against proceedings of the Board of Revenue under Chap. XI. The very next day the Zamindarini of Mandasa filed the present application for a writ of certiorari. In these circumstances I do not think the application ought to be refused on the ground of delay if it ought to be granted otherwise.
3. It has been strenuously argued by the respondents in these petitions that the Board of Revenue in carrying' out the provisions of Chap. XI of the Estates Land Act is an executive authority and does not act judicially and therefore no writ can be issued against them. Strong reliance was placed upon the judgment of Reilly, J. in Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 with which my Lord the Chief Justice and myself concurred. The conclusion of Reilly, J. is expressed thus:
My conclusion therefore is that the Revenue Officer when making a settlement of rents under Chap. XI of the Act is not a Civil Court. From this it follows...that the Board of Revenue when directing the revision of his proceedings under Section 172 is also not a Civil Court, and therefore that this Court cannot revise....
4. In the course of the judgment giving reasons for this conclusion the learned Judge was considering only the question whether the Revenue Board was a Civil Court and not the question whether the Board was such an authority to which a writ of certiorari could be issued. Whatever description the learned Judge applied to the Board of Revenue, and undoubtedly at some places he described it as an executive authority, it was always in contrast to a Civil Court. In paragraph 4 he stated that the proper way to approach the question was to ascertain whether the legislature intended the Revenue Officer to discharge those functions as an executive officer or as a Court. At the end of paragraph 5 he expresses the conclusion that up to Section 167 the Revenue Officer was acting as an executive officer. Then taking up Sections 168 to 171 he stated the contention for the petitioner that he then becomes a Civil Court. In paragraph 6 he refers to Nilmoni Singh Deo v. Taranath Mukerjee for the characteristics of a Civil Court and winds it up by saying:
We are certainly not in the sphere of ordinary civil rights which can be pursued in the absence of special legislation in a Civil Court.
5. In paragraph 8 he observes that the landholder or ryot is often asking for something which no Civil Court could give. In paragraph 9 he says: 'Here we are far removed from any-possible conception of a Civil Court.' In paragraph 10, after describing the procedure prescribed for effecting alterations of the record, the learned Judge puts the question 'Was ever a Civil Court so treated by the Executive Government?' In paragraph 11 he says that the reliefs include reliefs which no Civil Court could grant. Then he says that the procedure prescribed would be nothing less than scandalous in a Civil Court, and ' on the other hand, if the work of the Settlement Officer is done as an executive officer, there is nothing really surprising or unnatural or unreasonable in the procedure'. In paragraph 13 he observes that
to proceed from that assumption to the conclusion that the Legislature intended to create a travesty of a Civil Court with jurisdiction and procedure, not only unlike those of any Civil Court ever heard of, but foreign to the very conception of a Civil Court, is unjustifiable.
6. I think I have given sufficient number of quotations from the learned Judge's judgment for showing that he was trying to establish that the Revenue Officer and the Board of Revenue are not Civil Courts and in one or two places he also certainly observed that the Revenue Officer was an executive officer.
7. There are other quotations which I might extract for the same purpose, but I think these are enough. It is sought to infer from these extracts that the Board of Revenue is not such an authority as would justify the issue of a writ of certiorari. I have concurred with the judgment of Reilly, J., and I have no desire to recede from the position I have taken in that judgment. But to attribute to me a decision that a writ of certiorari cannot be issued to the Board of Revenue acting under Chapter XI would be to attribute to me what I had not in my mind at all. Anantakrishna Aiyar, J. expressly touched upon this matter and made the following remarks:
Decisions relating to writ of certiorari are not of any direct use here. I am not here concerned with the question whether a writ of certiorari would lie only against proceedings of a Court of Justice. It would seem that the category of bodies against which a writ of certiorari can be issued is wider than that of Courts of Justice.
8. He then refers to the judgment in Rex v. Electricity Commissioners (1924) 1 K.B. 171. It seems to me that the fallacy in the argument which seeks to infer from Reilly, J.'s judgment that the Board of Revenue is not such a tribunal as to justify the issue of a writ of certiorari consists in the assumption that an executive body could never discharge a judicial function and an executive act may not also partake of a judicial character. Now, coming to Chapter XI, up to Section 167, it may be that the functions are purely executive. But, when we come to Section 168, it deals with the settlement of a fair and equitable rent; the executive act of settlement may also be said to partake of a judicial character. One has only to look at Clause (2) which speaks of determining the rates of rent and to Clause (4) which refers to the duty of the Revenue Officer to satisfy himself that the amount of rent even when agreed upon between the landlord and tenant is fair and equitable. Section 169(2) refers to 'any party aggrieved' and provides that entries shall not be revised until reasonable notice is given to the parties concerned to appear and be heard in the matter. Section 170(2) also provides that no entry shall be amended, or omission supplied, until reasonable notice has been given to the parties concerned to appear and be heard in the matter. In my opinion, though the main purpose of the functions of the Revenue Officer is to carry out an executive act, namely, the preparation of the record of rights including settlement of rent, parts of them undoubtedly are of a judicial character so as to make those functions acts of a tribunal. The determination of those portions of the record in a judicial manner is ancillary and necessary for the main executive work of preparing the record of rights including settlement of rents. The conception of an executive officer occasionally having to discharge duties of a judicial nature in the course of carrying out his executive functions is not new and occurs very frequently in Indian enactments. A Registrar has got to register documents. This is generally a mechanical act. It is purely an executive function; but, where the genuineness of a will presented to him for registration is contested, he has got to examine the witnesses for both the parties and decide the question of genuineness and then proceed to register or refuse to register it as the case may be. Here, though the final act is an executive act, for the purpose of the final act he has to discharge a judicial function and yet it is held that a Registrar of documents is not a Court. An Inam Commissioner enfranchising inams is in general carrying out executive functions; but a question as to the ownership of a certain inam or in whose name it should be enfranchised may arise, and in deciding the actual ownership he may have to discharge a judicial function, though the decision will again result in an executive act, namely, enfranchisement. It is unnecessary to give further examples in view of the English cases to which I shall presently refer and which seem to be conclusive on the matter.
9. In Rex v. Woodhouse (1906) 2 K.B. 501 the question was discussed by the Court of Appeal. There the question arose under the Licensing Act of 1904. It seems to me that the work of issuing licences to alehouses is less judicial than deciding a rate of rent between landlord and tenant. At page 512 Vaughan Williams, L. J., referring to an earlier case decided by Buller, J., says:
The reporter seems by his note to doubt whether the decision in that case went beyond deciding that a certiorari would not He to return a ministerial act.
He then observed:
I ask myself, therefore, the question whether the licensing justices in granting or refusing a licence do a judicial act. In my opinion the grant or refusal of such a licence is a judicial act, and the judgment of Lord Halsbury in Sharp v. Wakefield (1891) A.C. 173 seems to be an authority for this view; for he says....that 'an extensive power is confided to the justices in their capacity as justices to be exercised judicially, and discretion means, when it is said that something is to be done within the discretion of the authorities, that that something was to be done according to the rules of reason and justice'.
At page 513 he then observed:
It is impossible to read under the title 'certiorari' in Burn's Justice of the Peace the list of the cases in which a writ of certiorari has been granted and the grounds for granting it without seeing that in practice a certiorari has issued in cases in which it is impossible to say that there was a Court and a 'Lis'.
Provided that the Board of Revenue is required to do something under Chapter XI of the Estates Land Act according to the rules of reason and justice, the mere fact that it is not a Court does not matter. At page 534 Fletcher Moulton, L. J., discusses the question. He says:
It is frequently spoken of as being applicable only to 'judicial acts' but the cases by which this limitation is supposed to be established show that the phrase ' judicial act' must be taken in a very wide sense including many acts that would not ordinarily be termed 'judicial'.
He then proceeds to give examples. One is the case of poor rates to be settled by the Poor Law Commissioners. Another is the case of appointment of constables by Justices. He then says:
The procedure of certiorari applies in many cases in which the body whose acts are criticised would not ordinarily be called a Court, nor would its acts be. ordinarily termed 'judicial acts'. The true view of the limitation would seem to be that the term 'judicial act' is used in contrast with purely ministerial acts.
Can a settlement of rent between landlord and tenant be said to be a purely ministerial act? If a licence can be refused for no ground, it would be a ministerial act; but if it can be refused only on certain proper grounds, it becomes a judicial act in a wider sense of the term. The act of settling rent is an a fortiori case. In Board of Education v. Rice (1911) A.C. 179 the question came up before the House of Lords. The question arose in respect of a decision of the Board of Education, a body which must be described as far less judicial than the Board of Revenue in determining the rates of rent. Lord Loreburn, at page 182, observed that the Board of Education are not bound to treat their enquiry
as though it were a trial; they have no power to administer an oath, and need not examine witnesses ; they can obtain information in any way they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.
It is true that Reilly, J., in the Full Bench judgment observed that the Revenue Officer may act upon his own experience. But the mere fact that such information can be used cannot make the act less a judicial act after these observations of Lord Loreburn. Lord Loreburn then says:
But if the Court is satisfied that the Board have not acted judicially in the way I have described, ...then there is a remedy by mandamus and certiorari.
In Rex v. Electricity Commissioners (1924) 1 K.B. 171, the decision quoted by Anantakrishna Aiyar, J., in the Full Bench judgment, Atkin, L.J., discusses the matter at page 204. At page 205 he says:
But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority, to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.
Can it be said that the Board of Revenue is not a body of persons having legal authority to determine 'questions affecting the rights of subjects '? Is not determination of rent a matter affecting the rights of subjects? Atkin, L.J., then gives examples. The first is fixing a rate for the repair of a county bridge and the case of Poor Law Commissioners prescribing the constitution of a Board of guardians in a parish. He also refers to Board of Education v. Rice (1911) A.C. 179, the case of the Board of Education, and the case under the Licensing Act. The actual case before him was a case relating to the duties of Electricity Commissioners. Here again I may observe that it is a body far less judicial than the Board of Revenue in determining the question of rent. In Frome United Breweries Co. v. Bath Justices (1926) A.C. 586 Lord Atkinson quotes from the oft-quoted judgment of May, C.J., in the Irish case of Reg. John M'Evoy v. Dublin Corporation (1878) 2 L.R. Ir. 371. There the corporation made illegal payments and then imposed a borough rate to make up the deficiency. It was held that a writ of certiorari will lie. May, C.J., observed:
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term 'judicial' does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances and imposing liability or affecting the rights of others.
Here I pause and observe that certainly the Board of Revenue in settling the rent is doing an act with competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights of others. This definition of May, C.J., was approved by Palles, C.B., in two subsequent cases and Lord Atkinson quotes the opinion of May, C.J., with approval. The actual case before him was a licensing case in respect of breweries and Lord Atkinson says that the case before him resembled the case in The Queen v. London County Council (1892) 1 Q.B. 190 where there was a question of licence for music and dancing. The case in Rex v. Minister of Health (1929) 1 K.B. 619 related to a writ of prohibition to the Minister of Health. Lord Hewart, C.J., quotes with approval the judgment in Rex v. Electricity Commissioners (1924) 1 K.B. 171 where it was pointed out that both the writs are on the same footing. The case in Shell Company of Australia, Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275 is a case from Australia. It was very much relied on before the Full Bench and Anantakrishna Aiyar, J., has dealt with it in his judgment. At page 296 Lord Sankey observed:
The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power.
10. Within the meaning of this observation we can certainly say that the Board of Revenue is not a Court; but can we say that it is not even a tribunal? At page 297 the Lord Chancellor enumerates some negative propositions. He says:
(i) A tribunal is not necessarily a Court in this strict sense because it gives a final decision, (ii) Nor because it hears witnesses on oath, (iii) Nor because two or more contending parties appear before it between whom it has to decide, (iv) Nor because it gives decisions which affect the rights of subjects, (v) Nor because there is an appeal to a Court, (vi) Nor because it is a body to which a matter is referred by another body.
11. He then refers to Rex v. Electricity Commissioners (1924) 1 K.B. 171. The reference shows that these negative propositions were stated for the purpose of showing that the tribunal which he was discussing, namely, the Board of Review, was not a Court in the strict sense of the term. By quoting these negative propositions it was not meant to say that they were not a tribunal in any sense of the term. In that particular case it was contended that the constitution of the Board of Review was such as to contravene Section 71 of the Constitution of Australia which applied to Courts in the strictest sense so called and it was held that the Board of Review was not a Court and Section 71 of the constitution was not contravened. But all this does not involve any decision that the Board of Review is not even a tribunal and I do not see how this case can be relied on by anybody for the purpose of showing that the Board of Review is not a tribunal in a loose sense. The observations at page 298 are still more pertinent:
An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called.
12. The Revenue Officer and the Board of Revenue may remain purely administrative authorities, but still they are administrative tribunals and may have to act judicially in at least some portions of their work. The next sentence also shows the same thing:
Their Lordships find themselves in agreement with Isaacs, J., where he says: 'There are many functions which are either inconsistent with strict judicial action...or are consistent with either strict judicial or executive action'.
13. Lower down they observe:
They (Board of Review) are another administrative tribunal which is reviewing the determination of the Commissioner who admittedly is not judicial, but executive.
14. After the English decisions I have examined above, in my opinion it is unnecessary to examine the Indian decisions on writs of certiorari cited before us, viz., Venkataratnam v. Secretary of State for India I.L.R. (1929) 53 Mad. 979 : 60 M.L.J. 25, Muniswami Chetty v. Board of Revenue, Madras I.L.R. (1930) 55 Mad. 137 : 61 M.L.J. 479 and Venkata Narasimha Rao Bahadur v. The Municipal Council of Narasaraopet (1930) 60 M.L.J. 260. There is nothing in any of these decisions which is inconsistent with the position I have laid down above. The learned Government Pleader appearing for the Board of Revenue relied on the use of the word 'non-judicial' in Odgers, J.'s judgment in the Full Bench case already mentioned, Raghunadha Patro v. Govinda Patro : (1928)55MLJ798 . Odgers, J. was not considering a question of writ of certiorari; he must have used the word 'non-judicial' in the sense of not strictly judicial. If he meant more, I do not agree with him. But I do not think he meant anything more than what I have said. In my opinion, therefore, provided the case is a proper case for issuing a writ, there is no objection in issuing a writ of certiorari in respect of proceedings of the Board of Revenue under Chapter XI of the Estates Land Act.
15. Having come to the conclusion that we have got power to issue a writ, the next question that arises is whether the facts of the particular cases before us justify the issue of such a writ. I first take up the case of the Zamindarini of Mandasa. In that case the Board of Revenue, after dismissing an appeal under Section 171, took up the matter of its own motion on the suggestion of His Excellency under Section 172 and passed an order reducing the rate of rent by three annas in the rupee throughout. On the merits of the case we cannot say how far this has prejudiced the Zamindarini. We must assume at least that it was done by the Board fairly and impartially with a view to arrive at what is a fair and equitable rate between the landlord and tenant. It is just possible in the case of an individual holding that such reduction may not be justified; but apart from such a suspicion it must be taken until the contrary is shown that the result arrived at is fair and equitable. The complaint made before us by the petitioner is that under Section 172 the Board has no power to alter the record of rights itself, but it can only direct the revision of the record of rights or any portion of it by the Revenue Officer. It seems to me that the phrase 'direct the revision' cannot enable the Board to proceed to revise the record itself but can only mean that it should direct the revision by some other officer. The 'some other officer,' revision by whom is to be directed, can only be the Revenue Officer who made the original settlement. It cannot mean the confirming authority under Section 170 or the superior Revenue authority which hears appeals relating to objections made under Section 169 (which happens to be the Board by the rules of the Local Government). Undoubtedly, therefore, I agree with the petitioner that there has been an irregularity of procedure. But should we issue a writ of certiorari merely because of an irregularity of procedure without any further inequitable consequences appearing on the face of the order? If the Board had merely passed an order giving reasons for some reduction to the extent of three annas in the rupee and then directed the revision by the Revenue Officer in the light of the observations made by the Board, in the main the same result would have been arrived at in revision by the Revenue Officer. Certainly it could not have made a substantial difference. Therefore, unless we are satisfied that the irregularity led to some substantial injury, I do not think we ought to issue a writ. It is complained that, whereas if it come to the Revenue Officer there will be a right of suit before a Civil Court under Section 173 of the Act, there is no such right of suit to question the order made by the Board itself. In the first place, this result is not very clear. Under Section 173(3)(d) the only ground relating to rent in the civil suit is that any entry made under Clauses (e) and (j) of Section 165 is incorrect. But this entry relates to 'rent lawfully payable at the time the record is being prepared' and how it has been fixed. It does not look as if a new rate of rent fixed by the Revenue Officer under Section 168 or 169, or the amendment made by the confirming authority under Section 170, or by the Board, if any, under Section 171, can be questioned before the Civil Court. I do not wish to express any final opinion on the matter and it must be taken that these criticisms are only tentative. On the other hand it may be said that no purpose can be achieved by giving a right of suit before a Civil Court to question the rate of rent payable at the time the record is being prepared and not the rate of rent fixed as fair and equitable under Sections 168 to 171. This is no doubt a pertinent consideration and, if this interpretation is correct, undoubtedly the Zamindar is deprived of such a right of suit by the Board acting itself under Section 172 and not sending it back to the Revenue Officer. But, while on the one hand I am unable to decide between the two possible interpretations, I am also doubtful whether we should issue a writ for the purpose of correcting an irregularity of procedure so as to result in giving the Zamindar a fresh remedy without being satisfied on the merits that some kind of interference on our part is called for. On the whole, therefore, I am of opinion that no writ ought to be issued in the case of the Zamindarini of Mandasa. But, having regard to the irregularity of procedure adopted by the Board, I would dismiss the petition without costs.
16. I now come to the case of the Zamindar of Seitur. In this matter the complaint does not relate to Section 172 but only to Section 171. There was an appeal under Section 171. On this appeal an order was passed by the Board of Revenue (Mr. Cotton) laying down certain principles and sending the case back to the Revenue Officer. The Revenue Officer 'expressed a difficulty in working out the rents in accordance with the principles enunciated by the Board'. Except a statement to that effect in the subsequent order of the Board we have no other paper on the record showing exactly what he did. However, on his expressing the difficulty, the Board (Mr. Souter) then proceeded to fix the rents on the basis of the information available on the record. It does not appear that Mr. Souter proceeded to fix the rents on the principles stated by Mr. Cotton. A perusal of his order shows that there are new matters introduced in his order which were not the subject of the proceedings before Mr. Cotton, particularly the matter referred to in paragraph 3 of Mr. Souter's order relating to illegal cesses, cartage and merchants' profits. Mr. Souter did not hear the parties again before passing his order and it is possible that some injustice might have been done to the Zamindar in fixing the amount to be deducted on account of illegal cesses without hearing him. Mr. Varadachariar strenuously contended that an appeal ought not to be disposed of without hearing the parties. The language of Section 171 is in very strong contrast to that of Sections 169, 170 and 172, and a proviso similar to the provisos in these three sections does not appear in Section 171. I am unable to agree with the contention of Mr. Varadachariar that disposal of an appeal under Section 171 by the Board without hearing the parties is ultra vires or bad for illegal exercise of jurisdiction. It is true that it is desirable to hear the parties when not merely one or two trivial points but a question relating to the rate of rent in regard to a whole zamindari consisting of eight villages and the amount of cess that ought to be deducted on the ground of illegality arises in appeal. But merely on this ground I do not think we would be justified in issuing a writ. Perhaps the Legislature may suitably amend Section 171 and bring it into a line with the other sections. But there is another matter in this case which requires our interference. Some of the tenants have filed a petition for a writ, C.M.P. No. 2074. Their case is that certain lands whose extent is 84 acres and 241/2 cents in Kovilur village were granted to them by a registered document, dated 12th July, 1895, on the footing of pannai lands on a permanent favourable rate of rent. Under Section 185 of the Estates Land Act any document showing that lands were let out by the Zamindar as pannai lands ought to be considered whenever the question whether a land is pannai or ryoti arises. Regard should be had to such a fact and the fact cannot be ignored. The ryots say that they spent large sums of money for reclaiming the lands. All pannai lands are excluded from the Estates Land Act and no record of rights under Chap. XI can be made with regard to them. The Revenue Officer who made the record of rights took them into consideration. He however made a note that the rent was fixed by agreement between the Zamindar and tenants and he fixed a rate which is practically the same as the rate fixed in (Ex. A. Notices were issued to the tenants, but they did not appear to object as they were satisfied with the rate of rent fixed by the Revenue Officer and the mere name of the lands, whether ryoti or pannai, did not matter to them. But in the revised rolls published under Section 169 these lands were shown at an enhanced rate of rent. The ryots appealed to the Board of Revenue under Section 171 and Mr. Cotton in his first order observed:
All reference to pannai lands which may be given out for cultivation at the proprietor's discretion should be definitely excluded from the settlement record.
17. He intended that the Revenue Officer to whom the matter went back should enquire into the question of pannai lands and if any lands are found to be pannai lands he should exclude them from the record. But, as I have already mentioned, the Revenue Officer did not act upon Mr. Cotton's order, and Mr. Sorter's order makes no reference to pannai lands at all. It is conceded by all the parties in this case that if the lands are pannai they ought to be excluded. It is contended by the Zamindar and the other tenants that hereafter it may be shown by the petitioners in C.M.P. No. 2074 that the lands are really pannai and if so the record of rights as finally made by the Board would not apply to them. But surely this is highly irregular. The very object of Chapter XI of the Act is to settle and make definite the rights of parties and we cannot have entries in such a record which are contingent in their operation, that is, which will have one effect if the entries are found in one way hereafter and another effect if the facts are found in another way. Such an entry is most undesirable in a record of rights. If the question arose as to whether certain lands are pannai, the fact must be found whether they are so or not and if they are found to be pannai they ought to be excluded from the record of rights. Failure to enquire into this question is failure to exercise jurisdiction vested under Chap. XI which justifies the issue of a writ according to all the English cases. It is not clear that only the petitioners in C.M.P. No. 2074 suffered by this erroneous entry. It may be that the entry is ultra vires and may not bind them and it may be that it is open to them to show hereafter in some other proceedings that the entry is ultra vires. But the rent on the other lands having to be fixed on an average so as not to make substantial reduction in the income of the Zamindar on the whole, which was the principle adopted by Mr. MacEwen, the Revenue Officer, and Mr. Souter, it seems to me that the rate of rent due to the Zamindar on the rest of the lands in the zamindari might have been fixed lower than the proper rate on account of the erroneous enhancement in the rent of the lands claimed to be pannai. If the rent on pannai lands is reduced correspondingly the rents on the other lands or some of them may have to be enhanced if the total payable to the Zamindar is not to be diminished. I do not say this ought to be done. All that I say is, it may have to be done on the principles accepted by Mr. MacEwen and Mr. Souter. So that, in my opinion, a writ ought to be issued quashing the whole proceedings, the main object of the writ being to enable the Board to again enquire into the question of pannai lands and then make the consequential reduction in the case of the other lands if they think it proper to do so. I may here observe that, there being a justifiable complaint by the Zamindar that he was not heard about the proportion of the rates which may be said to be illegal and, having regard to the argument that if he had been heard he would be able to show that only a small portion of the rent should be reduced on account of illegal cesses, and that only in some villages, the Board may well hear the Zamindar on such a point as the whole case is again open before them. But beyond this suggestion, I cannot say anything more. A writ will issue accordingly.
18. The petitioners in C.M.P. No. 2074 will get their costs in this petition. The other parties will bear their own costs.
Pakenham Walsh, J.
19. These petitions relate to two orders of the Board of Revenue, the first in connection with the Mandasa Estate in Ganjam District and the second in connection with the Seitur Estate, Ramnad District.
20. Mandasa Estate. - On a settlement of the Mandasa Estate appeals were filed to the Board of Revenue under Section 171, Estates Land Act, against the Special Revenue Officer's order but were dismissed as out of time. Subsequently the ryots waited on His Excellency the Governor when he was touring in the Ganjam District for a review. This request was forwarded to the Board of Revenue who, after notice, acting under Section 172, revised the settlement.
21. A preliminary objection had been raised before the Board that they had no such power. This was overruled by Mr. T. Raghavayya, Commissioner of Land Revenue and Settlement, by his order, dated 27th October, 1925, and his successor, Mr. MacMichael, subsequently revised the rates by his order, dated 17th December, 1925, in the manner narrated by my learned brother. The Rajah of Mandasa invoked the aid of the High Court in revision in C.R.Ps. Nos. 192 and 1109 of 1926. At the time those revision petitions were filed, Devadoss and Waller, JJ. had held in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli I.L.R. (1925) 49 Mad. 499 that the High Court had revisional power over the order of the Board of Revenue on appeals filed under Section 171 of the Estates Land Act. They followed Ramasami Goundan v. Kali Goundan I.L.R. (1918) 42 Mad. 310 : 36 M.L.J. 571 but that was not a case under Chapter XI. But on 12th April, 1928, a Full Bench of three Judges held by a majority of two in Raghunadha Patro v. Govinda Patro : (1928)55MLJ798 that the High Court had no revisional power either under Section 115 of the Code of Civil Procedure or under Section 107 of the Government of India Act to revise orders passed by the Board of Revenue under Chap. XI of the Estates Land Act or under Section 205 of that Act. That case concerned a matter falling under Section 205 only but the two majority Judges, Phillips and Odgers, JJ., answered also the question relating to Chapter XI in the negative. The dissenting Judge, Venkatasubba Rao, J., declined to answer the question so far as it related to Chapter XI. When the matter therefore came before Wallace and Thiruvenkatachariar, JJ., they referred it to a Full Bench. It has now been held by a Full Bench of five Judges, Sundaram Chetti, J., dissenting, in Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 that the High Court has no power to interfere in revision with a decision of the Board of Revenue under Chapter XI. That decision related to revisional power only. The present petitioners seek to invoke the power of the High Court under a writ of certiorari. This matter was alluded to by Anantakrishna Aiyar, J., in the Full Bench case but merely to say he was not concerned with it. Of the petitions before us, CM.P. No. 6459 is by the Zamindarini of Mandasa against the ryots of the zamindari and relates to the order passed by the Board of Revenue under Section 172.
22. Seitur Estate. - The second order of the Board with which we are asked to interfere in revision is one of Mr. Souter,. Commissioner of Land Revenue, on 19th June, 1930, under Section 171, on certain appeals preferred from the orders of the Settlement Officer deputed to settle the Seitur Estate. The facts leading up to this order are as follows:
The Special Settlement Officer, Mr. MacEwen, carried out under Section 168 a settlement of rents for the eight villages comprising the Seitur Zamindari. He submitted his order to the Collector of Ramnad for confirmation. The latter returned it for revision. Meanwhile certain appeals had been preferred to the Board under Section 171. These came before Mr. C.W.E. Cotton, the Commissioner of Land Revenue and Settlement. He passed proceedings on 21st October, 1929, returning the Special Settlement Order for revision on certain lines. The Special Settlement Officer reported that he found difficulty in working out the settlement on the lines indicated. Accordingly Mr. Souter, who had succeeded Mr. Cotton, took the matter up and passed final orders himself settling certain rates.
23. With that order we are asked to interfere by writ of certiorari. The petitions connected with it are C.M.P. No. 5155 of 1930 by the Zamindar and C.M.P. No. 2074 of 1932 by certain of the ryots who claim that lands which they hold are pannai and were therefore wrongly included in Mr. Souter's order. C.M.P. No. 2310 of 1931 is a petition by certain ryots for stay of the Board's order.
24. As there is a common question involved in all the petitions with regard to the power of the High Court to interfere by a writ of certiorari in proceedings of the Board under Chapter XI, all the petitions have been heard together. I agree with my learned brother that we should not refuse to entertain them merely on the ground of the delay in their presentation, which is due to the change in the view of the law.
25. Two questions fall to be decided:
1. Has the High Court power to interfere by a writ of certiorari in proceedings under Chapter XI?
2. If so, should we interfere in either of these cases?
26. With regard to the first question, as we are dealing with only one aspect of Chapter XI, namely, the settlement of rents, I would prefer to confine my decision solely to the matter of rent settlement. In favour of our power of interference by certiorari, Mr. Varadachari argues that the settlement of rents is a matter deciding a dispute between the landholder and the ryots and imposing obligations on the subject, and that, although, according to the ruling of the Full Bench, the Settling Officer is not a Court, yet he acts judicially. The learned Government Pleader, Mr. Venkataramana Rao, on behalf of the Board of Revenue argues that the whole scheme of Chapter XI is to make the procedure under it a purely executive function, that the record of rights prepared under Sections 164 to 167 can be undertaken, if the Local Government thinks fit, without any request from anyone, and that under Section 166(2) the only force of the publication of such a record of rights is that it shall be presumed to be correct until the contrary is proved [Section 167 (3)]. Proceeding to the settlement of rents, he points out that under Section 168 it may be made on the application of the landholder or of the holders of not less than one-fourth of the total extent of the holdings. It may therefore be made without any request on the part of the ryots, and, even when it is made on the request of the latter, it may be against the wishes of three-fourths of them. There need be no dispute between the parties at all with regard to the rents fixed. The Revenue Officer under Section 168(4) may even settle a different rent as fair and equitable from that agreed upon by the parties themselves. So he argues that the discretionary power of the Revenue Officer is unlimited. Some of these powers have been enumerated in the judgment of Reilly, J., who says:
He can use the presumption that the existing rent is fair and equitable; but, if something comes to his notice or is disclosed by his experiments which proves that it is not so, he must proceed on such material as he may find available. If some ryots prove that their rents are inequitable, he cannot refuse to apply the result to other similar cases merely because the ryots concerned take no part in the proceedings.
27. It would even seem that contracts or decisions of Courts settling the rates will not necessarily bind the Revenue Officer in the matter of fixing a fair and equitable rent. The confirming officer, the District Collector, may sit in his office miles away and confirm the settlement without giving any of the parties concerned an opportunity of being heard. Hence Mr. Venkataramana Rao argues that none of the parties have any rights at all to be adjudicated upon and that in fact the transaction is a great act of State such as the Inam Settlement has been described by the Privy Council to be, and he quotes Bhashyam Aiyangar, J., in Madathapu Ramaya v. The Secretary of State for India I.L.R. (1903) 27 Mad. 386 : 14 M.L.J. 37.
28. In reply to this Mr. Varadachari points out that it is not necessary that there should be a 'lis' in order to make the matter one in which a writ of certiorari can be issued; vide Rex v. Woodhouse (1906) 2 K.B. 501. He also points out that, though a settlement of rents might be conducted without any 'lis', yet in these particular cases there certainly was a 'lis' or dispute between the Zamindar and the tenants.
29. I cannot accept the contention of the learned Government Pleader that neither the Zamindar nor the ryots have got any rights and that the Settling Officer's act is therefore a pure act of State. The question whether a settlement between the Government and its own ryots is an act of State need not be discussed here but even in that case Bhashyam Aiyangar, J., remarked in Madathapu Ramaya v. The Secretary of State for India I.L.R. (1903) 27 Mad. 386 at 14 M.L.J. 37:
An assessment which is prohibitive and manifestly in excess of what the land may produce is clearly ultra vires of Government and such action of the executive is not exempted from the jurisdiction of the Civil Courts.
30. In a zamindari, as stated by Reilly, J., the rajabhagam which the State is entitled to collect from the ryots represents the traditional Government share of the produce of the land which, if there was no Zamindar, would be collected by the Government direct. This rajabhagam Government by the Permanent Settlement has left the right of collecting to the Zamindar who in return pays the Government peishcush. Now, if the contention of the learned Government Pleader be correct, it would be open to the Settling Officer to say that the ryots need pay no rent at all or a ridiculously small one to the Zamindar, but the latter would still continue to be liable to pay peishcush to Government while he could not collect the amount of peishcush from the ryots. This extreme case shows that the argument that neither party has got rights to be decided is untenable.
31. There have been several dicta as to the cases in which a writ of certiorari will lie. One of those most frequently quoted is that of May, C.J., in Reg. John M'Evoy v. Dublin Corporation (1878) 2 R. Ir. 371, which is mentioned by my learned brother and which I need not therefore repeat. As stated by him it was quoted with approval by Palles, C.B. in In re Local Government Board, Ex parte Kingstown Commissioners (1885) 16 L.R. Ir. 150 and later by Lord Atkinson in Frome United Breweries Co. v. Bath Justices (1926) A.C. 586. As to the meaning of 'acting judicially' the learned Government Pleader drew our attention to the definition of 'judicial power' quoted in Shell Company of Australia, Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275 as given by Griffith, C.J., in Huddart, Parker & Co. v. Morehead (1909) 8 C.L.R. 330, who says:
I am of opinion that the words 'judicial power' as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
32. Mr. Venkataramana Rao argues that because the Board of Review was held in that case not to have exercised the judicial power of the Commonwealth in reviewing the decision of the Commissioner of Taxation therefore the Settlement Officer in the present case or, to be more correct, the Board of Revenue was not acting judicially. This argument, however, ignores the difference between 'judicial power' and 'acting judicially'. What was denned in that case was 'judicial power' and not 'acting judicially'. The matter at issue there was whether the Board of Review exercised the judicial powers of the Commonwealth. If it did, under Section 71 of the Constitution the tenure of office by its members other than a life tenure (subject to the power of removal contained in Section 72) was illegal and as the tenure was not for life it followed that the Board of Review was not exercising the 'judicial power' of the Commonwealth. The distinction between this and an administrative tribunal acting judicially is clearly seen from the passage at page 298 quoted by my learned brother. Certain negative propositions mentioned on page 207 have also been quoted by him and I need not repeat them. I agree with him that when Odgers, J., in the Full Bench case, Raghunadha Patro v. Govinda Patro : (1928)55MLJ798 , used the word 'non-judicial' at page 810 he was distinguishing the executive function under Chapter XI from those of a Court. If otherwise, I would agree with my learned brother in dissenting from him. As to the varied sorts of cases in which it has been held that a writ of certiorari will lie my learned brother has fully enumerated them. I may perhaps however note some cases quoted on the other side. In Sri Iskwarananda Bharathi Swami v. The Board of Commissioners for Hindu Religious Endowments, Madras : (1932)63MLJ254 it was held that, in an application to a District Court under Section 84(2) of the Madras Hindu Religious Endowments Act in respect of a decision arrived at by the Board on the question whether an institution was a mutt or temple within the meaning of the Act, the jurisdiction of the Court is not restricted to that of an appellate or revisional tribunal. This merely amounts to saying that the Board is not a Court. In re Mrs. Besant I.L.R. (1916) 39 Mad. 1164 : 32 M.L.J. 151 was a case of security for a printing press. A remark of Abdur Rahim, J. at page 1176 may perhaps be quoted. He says:
Our attention has been drawn to many English cases in which writs of certiorari have been issued by the King's Bench in England. In some of them it looks as if the line of differentiation between judicial and administrative acts is very faint. But, whether any particular function was of a judicial character or not in those cases depended on the provisions of the particular statutes concerned and no good purpose would be served by reviewing them.
33. In that case the keeper of the press was liable under the law to give security and the action of the Chief Presidency Magistrate calling for such security was held to be purely executive and not capable of being interfered with by writ of certiorari.
34. Venkata Narasimha Rao Bahadur v. Municipal Council of Narasaraopet (1930) 60 M.L.J. 260 was a case of mere record in a minute book by the Chairman of a Municipal Council of the result of a poll as declared by the Presiding Officer. In Desi Chettiar v. Chinnasami Chettiar (1928) 56 M.L.J. 162 it was held that the act of a President in conducting a scrutiny of nominations to the new electoral roll was purely a ministerial act. I hold therefore that in the present case the settlement of rents, whether in the first instance by the Revenue Officer or finally by the Board of Revenue, was an act deciding disputes between the parties and also imposing liabilities. It was therefore liable to be interfered with by a writ of certiorari. So I agree with my learned brother that the first question must be answered in the affirmative in the present case but I should like to guard myself against saying that every action of an executive officer under Chapter XI is liable to be interfered with in certiorari.
35. Turning now to the merits, it has to be seen whether the orders appealed against are so beyond the jurisdiction of the Board or so contrary to justice that the writ should be issued. I take first the Mandasa case (C.M.P. No. 6459). I have already indicated how the Board came to pass a revised rate of rent under Section 172. They gave notice and heard the parties before doing so, so that there is no objection to their conduct under this head. But the argument is that all they were entitled under Section 172 to do was to send back the record of rights for revision and not to revise it themselves. The section runs:
The Board of Revenue may, in any case, on application or of its own motion, direct the revision of any record of rights, or any portion of a record of rights, at any time within two years from the date of the final publication under Sub-section (2) of Section 166 or, if there has been a settlement of rent under Section 168, two years from the date of republication under Sub-section (3) of Section 170 but not so as to affect any order passed by a Civil Court under Section 173:
Provided that no such direction shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter.
36. It is pointed out that Section 176 states that, subject to the provisions of Section 173, all rents settled under Sections 168 to 170 and entered in a record of rights finally published under Section 166, or settled under Section 171, shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of the Act. This section does not mention Section 172.
37. Section 173 which gives the right of suit in certain cases to a person aggrieved by a settlement of record prepared under Sections 168 to 171 similarly does not mention Section 172. But Section 179 says:
No suit shall be brought in any Civil Court in respect of any order directing the preparation of a record of rights under this chapter, or in respect of the framing, publication, signing or attestation of such a record or of any part of it, or, save as provided in Section 173, for the alteration of any entry in such a record of rent settled under Sections 168 to 172.
Here we find Section 172 mentioned, but it seems clear that, as Section 173 does not provide for a suit against a revision under Section 172, this Section (179) will not provide one. The sections of this chapter, as has been remarked more than once, are extremely difficult to construe and several of these difficulties have been noticed in the Full Bench judgment. In the present case the appeals filed in the Board of Revenue under Section 171 were dismissed as time-barred and doubtless the result of the revision by the Board under Section 172 is that a party may be deprived of a right of suit which he would have had under Section 173, the time for institution being six months from the date of final publication of the record of rights under Sub-section (3) of Section 170 or six months from the date of disposal of the appeal. While Section 172 gives the Board of Revenue two years from the date of the final publication under Sub-section (2) of Section 166 or, if, there has been a settlement of rent under Section 166, two years from the date of re-publication under Sub-section (3) of Section 170, an order passed by a Civil Court under Section 173 is no doubt expressly exempted from interference by a revisional order of the Board under Section 172, but parties who had no grievance under the original order or whose grievance had been redressed in appeal under Section 171 might find themselves, if aggrieved by a revisional order under Section 172, time-barred in the matter of bringing a suit under Section 173 and in any case appear to have no right of suit against the order of revision under Section 172. It is argued that this result could not have been intended whereas, if we understand the words 'direct the revision of any record of rights' to mean that the record has got to be sent back to the Revenue Officer, in which case there will be fresh opportunities of objection and appeal, this disability is removed. On this point I think that, unless this reading of the section is the only possible one, we should not interfere on a mere hypothetical construction or hold that the Board exceeded its jurisdiction. The interpretation of Section 172 suggested has no doubt attractions, but I find some difficulty in reconciling it with the proviso to Section 172 which runs:
No such direction shall be made until a reasonable opportunity has been given to the parties concerned to appear and be heard on the matter.
38. If the Board has determined that the record must be revised the parties could not raise any intelligible objection to the mere sending of it back to the Revenue Officer for this purpose; and it seems hardly likely that the Board should waste its time in hearing objections to the proposed revision itself when the parties will have a fresh opportunity of raising all objections in filing appeals when the record is sent back for revision. The section read with Sections 176 and 179 is undoubtedly obscure and I am not prepared to hold that the Board exceeded its jurisdiction.
39. Another aspect of the matter as noticed by my learned brother is this: - Assuming the power of the Board is only to order the revision, they will order it along certain lines. The Settlement Officer will have no choice except to follow these directions laid down by the Board of Revenue. Consequently for all practical purposes the record will be made in accordance with the directions of the Board of Revenue. Therefore the difference between revising the record itself and ordering its revision is largely formal.
40. In this connection may perhaps be mentioned another difficult matter as to what precisely is the scope of the suit which can be brought under Section 173(3)(d) which states that one of the grounds on which a suit can be filed is that an entry made under Clause (d) of Section 165 is incorrect. Does this mean that a suit can be brought against the fair rent settled by the Revenue Officer under Section 168, or by the Board on appeal under Section 171? This matter was discussed by Reilly and Anantakrishna Aiyar, JJ. in the Full Bench case, though it was not necessary for them to give a final decision on it, nor have we got to do so. Reilly, J. held that a suit could be brought on the ground that the rent settled under Sections 168 to 171 was not correct. He held that otherwise an aggrieved person having merely a right to contest the rent lawfully payable at the time the record is being prepared, that is to say, the rent for the previous year, gains a mere barren privilege. Anantakrishna Aiyar, J. was inclined to take the opposite view though he says that he should have been glad to be able to arrive at the conclusion that the rate of rent fixed under Chapter XI could be challenged in the Civil Courts. I do not agree with Reilly, J., that the power to challenge by the suit the rent entered in the record of rights as payable at the time the record is being prepared, that is, the rent for the previous year, is altogether a barren privilege because the landlord might have to sue for rent, say for the fasli prior to the settlement of the fair rent. Under Section 167(3) every record of right published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until the contrary is proved. It may be material for the landlord to dispute the correctness of this entry in a civil suit and therefore rebut the presumption which arises from it when he sued for the rent of a previous fasli. To my mind the words of Section 165(e) are very clear and I do not see how the rent lawfully payable at the time the record is being prepared can possibly mean the fair rent subsequently to be settled by the Revenue Officer. In this matter I would agree with Anantakrishna Aiyar, J., but I cannot say that I share his feeling as to the desirability that the rate of fair rent fixed under Chapter XI should be the subject of trial by a Civil Court.
41. Himself states that no Court without special legislation could give the Zamindar or the tenant anything but the lawful rent if they filed a suit. A Civil Court could not disregard contracts or decisions of Courts and proceed to act on its own knowledge and on other evidence not admissible in a Court of law, or reject a rent agreed on by both parties. It seems to me that it would be setting the Civil Court an impossible task to call on it to determine the fair rate of rent and this is a further reason for reading the words of Section 165(e) in their natural sense. Therefore, although the power of the Board of Revenue to revise under Section 172 the settlement of rent at a time when a suit under Section 173 will be barred may deprive the party of some remedy by way of suit under Section 173, it will, in my opinion, be only the deprivation of a minor remedy. In any case it is not for the Courts to re-write the Act. I agree with my learned brother that no writ of certiorari should be issued in regard to Mandasa Zamindari. I do not disagree with his order as regards costs in that case.
42. Turning now to the merits of the Seitur case, this is not an order of the Board of Revenue under Section 172 but an order passed on certain appeals under Section 171. To understand the position it is necessary to give a short account of what happened. The Settlement Officer, Mr. M. MacEwen, found widely different rates being paid on similar lands in the Seitur village. To quote the first order, dated 12th October, 1928, he says:
The Zamindari accounts reveal a most extraordinary jumble of rates for both wet and dry lands. Practically every ayacut contains both cash rent lands and waram lands and the cash rates show the most incongruous variation.
43. He continues:
This state of affairs is due partly to years of litigation resulting in a wide diversity of rents fixed by different Courts at different times. It is also due in part, in my opinion, to the very haphazard business methods employed in years gone by in fixing the rents. I asked the present manager if he could explain the system under which rents were arrived at fifteen and twenty years ago; he confessed his inability to do so; and I am led to assume that the previous landlords took just as much as the tenants would give them. A further complication, the most embarrassing of all - as far as Settlement work is concerned - is that in many cases wet lands have been granted at favourable rates. In some cases this favourable treatment was due to personal friendship, in some cases it was reward for services rendered and in the majority of cases it was in consideration of premiums paid to the landlord.
44. Then he goes on to say:
One of the main virtues of a settlement of rents is the standardising of the rates by which the ryot knows exactly where he stands, and varying charges are directly opposed to the fundamental idea of a settlement. Nor can I entertain the objection that the systematic blocking of wet lands is wrong. I have shown in paragraph 3 above that the existing wet rents are hopelessly erratic. The only method of dealing with this jumble is to treat alike lands that are alike in situation and fertility.
45. As I understand his order, he proceeds in the case of wet lands to take the total amount now paid for lands under each ayacut and to work up to that amount by grouping the lands with reference to their fertility, position, etc.
46. When this order went up to be confirmed, the Collector, Mr. Macqueen, remarked:
I take the section [i.e., Section 168(2)] to mean therefore that the Revenue Officer must accept the existing rent or rate of rent as fair and equitable; only if it is proved that it is not so can he proceed to fix it with reference to the considerations which are mentioned in the Act as being proper to the fixing of a rent. No desire to produce order out of chaos will justify the Revenue Officer in interfering with existing rents unless it is proved that they are not fair and equitable.
47. He therefore sent back the record for revision on these lines. Meanwhile there had been appeals to the Board which, after notice, came up before Mr. Cotton for hearing. He passed proceedings on 21st October, 1929. While stating that the award had been worked out with great care he remarked that, as regards wet lands, it was
obnoxious to criticism by the assumption that before fixing rents for the various descriptions of lands and for individual fields or group of fields it is necessary to ascertain as accurately as the circumstances permit the existing aggregate rent-roll under each tank in terms of cash and approximate the financial results of the settlement thereto.
48. Then he says:
A settlement of rents is not identical with a commutation suit or series of commutation suits, and Government have held that in a settlement of rents it is not essential to deal with each individual field separately. The clubbing of fields into groups or blocks under each ayacut followed by the Revenue Officer in the present case has therefore much to commend it provided that he does not lose sight of the fact that until the contrary is proved the existing rent of each field is fair and equitable. Where there are widely varying rates for adjoining fields of the same fertility and in the same ayacut it is obvious that some revision is inevitable but the new rate to be applied uniformly should be fixed without reference to, and independently of, the effect of its adoption upon the total rental of the block.
49. He sent back the award for revision. The Settlement Officer appears to have felt difficulty in carrying out the instructions and finally Mr. Souter, who succeeded Mr. Cotton, took the whole matter up and settled the rates by his order dated 6th June, 1930. As I understand them, Mr. Souter's main lines of procedure were that he deducted from the aggregate rent-roll certain illegal cesses and, instead of taking the rent under the ayacut of each tank as the standard, he classified the tanks themselves, as Government tanks are classified under various Classes, 3, 4 and 5 and imposed similar rates for lands under similar irrigation sources. The objection raised before us to this order of Mr. Souter is that it departs from and contradicts the order passed by Mr. Cotton and that it was passed without notice to the parties. Taking the last objection first, the question arises as to whether any notice is necessary before an appeal under Section 171 is decided by the Board of Revenue. It is most significant that, while Section 169 has a special proviso that no entry in the record under Section 168 should be revised by the Revenue Officer until reasonable notice shall be given to the parties to appear and be heard in the matter, and in the case of the confirming officer, the District Collector, Section 170 has a proviso that no entry shall be amended or omission supplied until reasonable notice is given to the parties concerned to appear and be heard and, while under Section 172 no direction to revise shall be made by the Board of Revenue unless a reasonable opportunity be given to the parties concerned to appear and be heard in the matter, there is no such proviso in Section 171. The omission cannot be otherwise than deliberate.
50. Mr. Varadachari admits that it must have been deliberately omitted. He argues, however, that it is mere justice at least to give notice to the party. In this connection the case reported in Local Government Board v. Arlidge (1915) A.C. 120 is instructive. It is clear from that case that a party is not entitled, where the decision is by a public body, to know which officer of the Board actually decided the appeal. He is not entitled to be heard in person before the deciding body, but Mr. Varadachari argues that, though it was only held in that case that he had no right of personal hearing, yet he had a right to put in his written argument. That precise point was not in question there. The procedure was entirely different from that with which we are concerned. Section 17 of the House and Town Planning Act, 1909, authorises a local authority to make a closing order. This is an ex parte order and against it the party aggrieved has a right to appeal to the Local Government Board as also against a refusal by the local authority to determine or end that ex parte order. The law requires that on receipt of such appeal the Local Government must first hold a public open inquiry. In that particular case when this inquiry was held the appellant appeared before it. Subsequently he claimed that he was entitled to a copy of the report of the officer conducting the inquiry and that he was also entitled to be personally heard by the Government Board before his appeal was dismissed. Both these claims were negatived. In such a case the appeal is by a person who has not yet been heard as the original order was ex parte; and it is rather noticeable that, under this decision, while he has a right to be heard in person before the officer conducting the inquiry, he has not got this right before the Local Government Board which gives the final decision. It would be obviously opposed to justice that a person should be adversely affected by an ex parte order without an opportunity of being heard against it. Under Chapter XI the aggrieved person has the right, when the officer publishes a preliminary record for the estate, of being present in person and raising all his objections. He has a further right to be present and object when the fair rent is settled. The appeal therefore to the Board of Revenue is not one against an ex parte order but against a decision arrived at after full hearing of all persons affected. We have been shown no ruling which states that any public body is bound to send notice in such cases, i.e., in an appeal against a decision passed after the party has had an opportunity of being heard against the order. Kumaraswami v. Muniratna (1932) M.W.N. 524 : I.L.R. 55 Mad. 942 : 63 M.L.J. 282 is quoted by Mr. Venkataramana Rao in this connection. But it is not perhaps decisive in the absence of full particulars (vide column 2, middle of page 525).
51. Even assuming that Mr. Souter's order is contradictory to that passed by Mr. Cotton, I would not hold that, merely because of the absence of notice, the order passed by Mr. Souter was one beyond his jurisdiction because even Mr. Cotton was not bound to give notice to the parties though he did so.
52. Then it is argued that Mr. Cotton's order being a final one on the appeals, it was not open to Mr. Souter to pass subsequently another final order. But Mr. Cotton's order only laid down certain general principles on which the revision was to be made. The Settlement Officer found it difficult to understand how this revision should be carried out and accordingly Mr. Souter took up the matter and did it himself. In my opinion Mr. Cotton's order was not a final one.
53. But can it even be said that Mr. Souter's order did in fact contradict that of Mr. Cotton? With every desire to understand it, Mr. Cotton's order appears to me to lay down two contradictory principles. He held that the whole award was wrong because the standard taken was the aggregate rent under each tank. He recognised that the principle of clubbing adopted by the Revenue Officer was permissible but then said that the Revenue Officer must not lose sight of the fact that, until the contrary is proved, the existing rent of each field is fair and equitable. This last direction appears to me necessarily to involve that the mere fact that adjacent fields of equal fertility pay widely varying rents is not per se any reason for departing from the presumption that the existing rent of each field is fair and equitable. It must be remembered that the Revenue Officer had distinctly reported that the manager could assign no reason for the difference of rates. Under such circumstances, where the difference of rates could not be traced to any particular reason, this principle obviously means that the differences of fertility, etc., should not be any reason for altering the 'lawful rate' in existence. But in the very next sentence Mr. Cotton says:
Where there are widely varying rates for adjoining fields of the same fertility and in the same ayacut, it is obvious that some revision is inevitable.
54. That appears to me to be in contradiction to the principle already laid down. And I am fortified in this view by the fact that the Settlement Officer found great difficulty in carrying out what he was called upon to do. When Mr. Souter in these circumstances took up the matter himself and disposed of it on his own lines, can it be said that his order was contradictory of an order which does not appear itself to be entirely consistent? Two departures from Mr. Cotton's order are alleged before us: (1) Mr. Souter held that the total rent under the settlement should be more or less equal to the rent lawfully due to the proprietor, while Mr. Cotton held that there was no necessity to ascertain the aggregate rent-roll under each tank and approximate the financial results of the settlement thereto. (2) Mr. Souter disallowed 'illegal cesses' about which Mr. Cotton had said nothing.
55. To take the latter point first, 'illegal cesses' we are now told were amongst the matters appealed against so that the question had to be decided even if Mr. Cotton had failed to do so. It is quite possible that when Mr. Cotton said that the aggregate rent-roll under each tank was not to be made a standard he meant that as this might include illegal cesses it was a wrong standard. Anyhow I am not clear that Mr. Souter's disallowance of illegal cesses is in contradiction to Mr. Cotton's orders. As regards the first point, Mr. Souter seems to me by classifying the tanks and assessing the lands with reference to the class of tanks they are under to have complied, at least formally, with the principle that the aggregate rents under each ayacut was not to be assumed as correct.
56. No doubt Mr. Souter held that the total rent under settlement should be 'more or less equal to the rent lawfully due to the proprietor'. As noted above he qualified this by first deducting illegal cesses, but, in any case, in a zamindari of this sort, where the reasons for the existing unequal rates of rent for lands of the same fertility could not be ascertained, the principle insisted on by Mr. Cotton that the lawful rent should be regarded as correct till the contrary was shown, would in practice lead to the total rent fixed under the Settlement being more or less equal to the aggregate of the rents 'lawfully payable'. The same result would therefore be reached by both methods. When Mr. Souter further found that Mr. Cotton had also laid down the principle that where there were widely varying rates for adjoining fields of the same fertility under the same ayacut some revision was inevitable, I do not see how he can be held to have departed from Mr. Cotton's order by attempting the best solution he could find of a very difficult problem. There is, however, one particular matter, in which I agree with my learned brother that his order is liable to revision under the certiorari rule. This is in the matter of the appeal by certain ryots that these lands were pannai lands and therefore should not have been included in the rent settlement. In regard to this Mr. Cotton in his order, paragraph 2(G), posed the question 'whether pannai should be excluded from the Settlement' and his answer is 'pannai lands should be excluded from the Settlement'; but he did not decide whether there were pannai lands or not. Mr. Souter did not specifically answer the question but the lands were entered in the list of lands whose rent was settled under Section 168 with the result that, instead of holding as ryots at a fixed permanent rate of Rs. 10 per acre, with no extra charge for a second crop, the ryots were assessed at a rent of Rs. 14 per acre with a liability to pay a further rate for a second crop. In this case we have the rather peculiar position that the Zamindar is now contending that these were ryotwari lands while the tenants are maintaining that they are pannai lands. It is argued that the tenants, not having objected to the Revenue Officer's notice describing their lands as ryotwari lands, are not at liberty to contend that they are pannai lands. It is to be observed, however, that, as in that order the rent was left at Rs. 10 per acre, there was no reason why the ryots should object to that notice. In fact their position would be better as ryotwari tenants with that rent than as tenants of pannai lands. The lease deed put forward by them is of 1895, so that the presumption under Section 185 of the Act is not applicable. However, we have not here to say whether the claim put forward that the lands are pannai lands is substantiated or not. The fact which entitles us to interfere by writ of certiorari in this matter is that the question as to whether the lands were pannai or not was distinctly raised before the Board of Revenue and had to be adjudicated upon. It was no adjudication merely to say conditionally that pannai lands should be exempted. Though the lands were claimed to be pannai yet in the final order, without any specific adjudication on the point, the fair rent was settled as if they were ryoti lands. Consequently the Board of Revenue failed to exercise a jurisdiction in this matter which it was bound to exercise. On this point I agree with my learned brother that that part of Mr. Souter's order which renders the land liable to assessment must be set aside and, for the reasons given by him, this will entail setting aside Mr. Souter's orders about the other lands also, since the rates fixed for other lands are dependent on the inclusion of those lands which may have to be excluded as not falling under Chapter XI. I agree also that the petitioners in CM.P. No. 2074 should get their costs while the other parties will bear their own costs.