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Secy. of State Vs. Sree Rajah Vasireddi Sri Chendra Mouleswara Prasada Bahadur, Zamindar Garu and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1929Mad676
AppellantSecy. of State
RespondentSree Rajah Vasireddi Sri Chendra Mouleswara Prasada Bahadur, Zamindar Garu and ors.
Cases ReferredLakshmi Venkayamma v. Secy. of State
- - the plaintiff's case is that the suit land was granted by the plaintiff's ancestors to the ancestors of defendants 2 to 4 subsequent to the permanent settlement as service inam on condition of rendering private service, namely, to work as gumasthas to write the private 'accounts and render other private work, and on condition that the lands may be resumed on failure to render service. it is a well-known circumstance that in the year 1864 there was a great cyclone in the kistna district causing the submersion of the town of masulipatam, the capital of the district, by a wave of the sea with a loss of 30,000 men, and some of the records of the government were destroyed. these facts are so well-known in the kistna district itself that some times no attempt is made to adduce some.....ramesam, j.1. these appeals arise cut of suits filed by the zamindar of chintalapativantu, also called mukthyala, against the secy. of state for india praying for a decree establishing the plaintiff's right of resumption over the suit lands, for possession and for loss of profits. defendant 1 is the secy. of state. defendant 2 is the karnam of the suit village in each of the cases. the question of fact and law arising in both suits are similar. they were tried together in the lower court and also heard together here. for convenience, i shall refer to one of the suits throughout this judgment, namely o.s. no. 27 of 1920, the subject of appeal no. 245 of 1922, relating to. the village of peddavaram. the plaintiff's case is that the suit land was granted by the plaintiff's ancestors to the.....

Ramesam, J.

1. These appeals arise cut of suits filed by the Zamindar of Chintalapativantu, also called Mukthyala, against the Secy. of State for India praying for a decree establishing the plaintiff's right of resumption over the suit lands, for possession and for loss of profits. Defendant 1 is the Secy. of State. Defendant 2 is the karnam of the suit village in each of the cases. The question of fact and law arising in both suits are similar. They were tried together in the lower Court and also heard together here. For convenience, I shall refer to one of the suits throughout this judgment, namely O.S. No. 27 of 1920, the subject of Appeal No. 245 of 1922, relating to. the village of Peddavaram. The plaintiff's case is that the suit land was granted by the plaintiff's ancestors to the ancestors of defendants 2 to 4 subsequent to the Permanent Settlement as service inam on condition of rendering private service, namely, to work as gumasthas to write the private 'accounts and render other private work, and on condition that the lands may be resumed on failure to render service. The suit lands were enfranchised by the Inam Deputy Collector under Section 17, Madras Act 2 of 1894, in the year 1909. Ever since defendants 2 to 4 have ceased to render service to the zamindar. From the year 1911, the defendants are paying quit rent to the Government. The plaintiff passed an order resuming the lands and calling upon the defendants to deliver possession to him and as he did not obtain possession, the present suit was filed on 1st March 1920. Defendant 1 contended that the suit lands were pre-settlement grants excluded from the assets of the zemindari at the time of the permanent settlement and afterwards continued by the Government. They were rightly enfranchised under Madras Act 2 of 1894. He also pleaded that the suit is barred by limitation. The Subordinate Judge decreed the plaintiff's suit. He found that the plaintiff has not made out the specific case attempted to be proved by him, namely, that they were granted by plaintiff's ancestors in fasli 1244. He found that the suit lands were granted prior to the Permanent Settlement but he also found that they were granted for private service and not for public services and therefore that they were not excluded from the zamindari at the time of the settlement. He found on issue 4 that the lands were not continued by the Government and that the provisions of Act 2 of 1894 did not apply. He therefore held that the plaintiff is entitled to resume the lands. He also found on 3rd issue that the suit is not barred by limitation. He therefore decreed the plaintiff's suit. Defendant 1, the Secy. of State, appeals.

2. In appeal, the question whether the lands were granted prior to the Settlement or not was again fully argued as the respondent would not accept the Subordinate Judge's finding. On this point, I see no reason to differ from the finding of the Subordinate Judge. (His Lordship dealt with the evidence in detail and concluded as follows). 1 therefore find agreeing with the finding of the lower Court that the suit lands were granted for karnam's service prior to 1802.

3. The next question that arises in the case is what is the effect? of the Permanent Settlement on the karnam's inams? We have first got Ex. 26, an extract from the report of the Circuit Committee which was appointed sometime in 1744 and which reported in 1787. This report contains an abstract of accounts relating to various zamindaris including the suit zamindari. We think the Subordinate Judge has misread Ex. 26. The document contains the general heading

jiroyati villages, average of eight years including village saderwary.

This was in a printed form. The income of the villages was given under this heading but as a matter of fact for this zamindari the village saderwary was not included in the Government collections, and the figure of 36,635 did not include the village saderwary. By ' village saderwary ' is meant the income from the village service lands. There is a separate heading

village saderwary not included in the Government collections, average of eight years

and the figure of 4348 is given under this heading. Finally there is a general abstract which makes the whole thing very clear. Under this abstract, we have got the heading ' Jiroyati villages average of eight years.' The figure of 36635 is repeated and a note made under it:

The village saderwary in this zamindari is not included in Government collections.

4. The Subordinate Judge makes certain remarks against Government to the effect that the Government does not produce the accounts on which this report is based, and it ought to be presumed that the account, if produced, would go against the Government. It is a well-known circumstance that in the year 1864 there was a great cyclone in the Kistna District causing the submersion of the town of Masulipatam, the capital of the District, by a wave of the sea with a loss of 30,000 men, and some of the records of the Government were destroyed. These facts are so well-known in the Kistna District itself that some times no attempt is made to adduce some evidence of the fact on the record of the suit. On behalf of the Government, a document is now filed in appeal being the report of the Collector Mr. Thornhill dated 10th November 1864 giving details of the havoc caused by the cyclone. We have admitted this document (and marked it as Ex. 29) though it seems to me that, so far as the fact of the cyclone is concerned, no such document is necessary and judicial notice can be taken of the fact, for it appears from published books.

5. It seems to me that Ex. 26, the report of the Circuit Committee, is so clear that nothing can turn upon the accounts on which it is based and it is immaterial whether such accounts exist or not, though I believe the case for the Government that the accounts were lost in the cyclone and I am not prepared to make-any presumption against Government. Apart from the existence of loss of the accounts, it seems to me they are unnecessary as Ex. 26 itself shows that the income of the village saderwary was excluded from the assets. I shall now show that under Regn. 25 of 1802, they must. have been so excluded.

6. The Permanent Settlement was effected' by Regn. 25 of 1802. Section 4 of this Regulation says:

The Government having reserved to itself the entire exercise of its discretion in continuing or abolishing, temporarily or permanently, the articles of revenue included, according to the custom and practice of the country, under the several heads of lakhiraj lands (or lands exempt from the payment of public revenue), and of all other lands paying only favourable quit-rents the permanent assessment of the land tax shall be made exclusively of the said articles now recited.

7. The term 'khiraj' means revenue or assessment and 'lakhiraj' means exempt from revenue. The appellant contends that public service land as the holders thereof did not pay any assessment though they rendered service to the public came under the term 'lakhiraj,' The respondent contends (first) that service may be estimated in money and (secondly) that public service lands were included in the assets of the zamindari at the time of the settlement in spite of Section 4. In Pitchayya v. Secy. of State [1920] 11 M.L.W. 186 it was held by this Court that service inam lands were excluded from the settlement and they must be deemed to be continued by the Government within Section 17, Madras Act 2 of 1894 and the Government is entitled to enfranchise them. The decision in Secy. of State v. Chinapragada Bhanumurthi [1913] 24 M.L.T. 538 now relied on by the Subordinate Judge in his judgment as to the meaning of the word 'continued' was commented on and apparently the learned Judges were not disposed to agree with the earlier decision. In a later decision in Kuppu Reddi Nookayya v. Bheimanna A.I.R. 1923 Mad. 454 the question was whether a grant made in 1800, not being a grant for public service, was excluded from the settlement. I then discussed the scope of Section 4 and incidentally observed that the word 'lakhiraj' in that section comprised two items: (1) lands granted for public service and (2) lands granted as free of any burden. I referred to Regn. 29 of 1802, Section 11, Clauses 2 and 3.

8. It is now contended by the respondent that the first decision and the observations in the second are erroneous. He relies on the history of the Permanent Settlement and the Bengal Regulations on which it is based particularly- Bengal Regulation 8 of 1793 which related to the decennial settlement in Bengal, Section 36 as explained by Section 41. Section 36, by itself is similar to our Section 4, but there is nothing in our Regulation similar to Section 41. Section 41 almost suggests that public service lands were liable to be considered as lakhiraj lands but as they were not intended to be excluded in the settlement, a special section was necessary. This argument of the respondent therefore really helps the appellant. The decision in Ranjit Singh v. Kali Dasi A.I.R. 1917 P.C. 8 turned upon Sections 36 and 41, Bengal Regulation. In Madras, we have no decennial settlement and no Regulation like No. 8 of 1793. The Permanent Settlement Regulation here simply corresponds to Bengal Regulation 1 of 1793. To some extent the Permanent Settlement in Madras is based on that of Bengal but it does not follow from this that in every detail both are similar. In Madras we have not got ghatwali lands or thanadari lands. It is said the choukidar corresponds to the village watchman or talayari in Madras and putwari in Bengal corresponds to the karnam in Madras. This may be so and yet it cannot be inferred that all incidents must be the same in both provinces. The respondent relies on the fifth report which contains several appendices. One of these is described as instructions to the Collectors, Appx. 18. It is really a statement from the Board of Revenue explaining the principles of settlement and embodying a prior letter of the Government calling for certain information. The object of the instructions was to obtain accounts from the Collectors under various headings and copies of them were circulated to all the Collectors. Para. 15 says that service lands were not meant to be excluded. It must be observed that this letter of instructions was before the settlement and the exception mentioned therein was not actually embodied in the section. It must be inferred that at the time when the regulation was finally drafted, there was a change of policy. I even doubt whether this letter of instructions can be looked into in construing the regulation. It can be of no more value than the statement of objects and reasons appended to an Act or speeches made in a Legislative Council when an Act is passed. So far as the regulation is concerned, it is very clear that all lakhiraj lands are to be excluded without any exception and the respondent's argument itself shows that village service lands must be regarded as lakhiraj lands. The learned Advocate-General who appeared for the respondent also referred to Section 5 of the Regulation which relates to city and town police. He says if the term 'lakhiraj' includes service lands, there is no need for Section 5. The reply is that the object of Section 5 is to abolish then and there the offices of police in cities and towns but the other offices were not disturbed. Regn. 29 of 1802 which was passed on the same day as Regn. 25 says that the office of karnam is of great importance, and so it is kept up but all the other revenue offices above that of the karnam are abolished. This itself amounts to continuing the office of karnam within the meaning of Madras Act 2 of 1894. Again Regn. 31 of 1802 which corresponds to Regn. 19 of 1793 in Bengal says in the preamble that the permanent settlement was made exclusive of 'alienated lands of every description.' This again shows that village service lands were excluded from the settlement. Reliance is placed upon a recent decision of Wallace and Thiruvenkatachariar, JJ. in A.S. No. 355 of 1922. So far as Wallace, J., is concerned this judgment does not help the respondent. In that case the point now urged was urged also before them. Wallace, J., after referring to the phrase 'alienated lands' in Regn. 31 of 1802 observes:

I think the point is still not finally concluded. In itself the word 'alienated' need not exclude lands over which the right of resumption may still operate.

9. With this last observation I agree; that is, lands held on private service on conditions of being resumed on failure to render service or when the service becomes unnecessary need not be regarded as alienated lands: see also Thiruvenkatacharlu v. Altoo Sahib A.I.R. 1926 Mad. 511 with which I agree) But this observation does 'not cover public service lands, which, according to a long catena of authorities, can never be resumed. So far as they are concerned, I feel no hesitation in holding that the words 'alienated lands', in Regn. 31 throws light on the meaning of Section 4, Regn. 25 and that all public service lands are excluded from the settlement. Beyond the above observation, Wallace, J., expresses no other opinion. But Thiruvenkatachariar, J., uphold the respondent's contention though later on in his judgment he thinks that there is a presumption that service lands were granted by the State and with reference to that principle the zamindar in that case did not get the benefit of his opinion on the construction of the Regulation. His judgment is based on the Bengal Regulations and the instructions to Collectors to which I already referred. I have already pointed out that the exception in para. 15 of the instructions to Collectors was not imported into the Regn. He also relies on para. 16 which related only to allowance of Cauzees and Government Revenue Officers and not to village service inams as he thinks. Para. 26 corresponds to Section 5 of our Regulation. The argument that the Madras Permanent Settlement was based upon the Bengal settlement, seems to have carried a great weight with him, but I respectfully differ. The point came up before Jackson and Reilly, JJ., in Lakshmi Venkayamma v. Secretary of State : AIR1929Mad399 decided on 12th December last. They agreed with my views expressed in Kuppa Reddi Noocayya v. Bheemanna A.I.R. 1923 Mad. 454 though they were obiter. Reilly, J., in particular adds reasons of his own. I respectfully agree with his conclusions.

10. It is also contended before us that the karnam's office was entirely a private office and that the karnam was rendering private service to the zamindar. The Subordinate Judge in para. 14 of his judgment refers to several documents to show that the karnams were rendering private service to the zamindar. Many of these documents do not relate to the suit villages but it is unnecessary to single out the particular documents relating to the suit villages, as the whole of that paragraph is irrelevant to the question under consideration. The point is not whether karnams did not render private service to the zamindars but whether they did not also render public service and were not mainly public servants. There cannot be the smallest doubt in this matter. Section 11, Regn. 25 of 1802, the whole of Regn. 26 particularly Section 11, Section 7, Regn. 26 of 1802, Clauses 2, 3 and 8, Sections 10, 24 and 31 of Regn. 4 of 1816, Sections 9 and 10, Regn 5 of 1816, Sections 13 and 14, Regn. 11 of 1816 all show that the karnam was regarded as a very important public officer. The office is kept up to now, only the lands are enfranchised by Act 2 of 1894. The office still remains hereditary and the devolution of the office and the control is now governed by Madras Acts 2 of 1894 and 3 of 1895.

11. Reference was made to Section 27, Act 2 of 1894 which refers to the possibility of the village offices being included in the assessments, particularly Clause 3. That section classifies various possible cases that may occur and when we remember that in respect of four zamindaris in this presidency namely, Venkatagiri, Kalahasti and Karvetnagar and another, it was held by the High Court and by the Privy Council that the policy of the Regulation was not followed and that village officers' emoluments were included in the zamindaris, the scheme of Section 27 is perfectly intelligible. Those zamindaris had a special history of their own as appears from Mr. Stratton's report: vide Secy. of State v. Maharajah of Venkatagiri : (1916)31MLJ97 affirmed by the Privy Council in Secy. of State v. Rajah of Venkatagiri A.I.R. 1922 P.C. 168. But these special cases have nothing to do with the rest of the zamindaris in this presidency. Some reliance is placed on Ex. T series. They are judgments in connexion with other attempts to resume other inams in the same zamindari but they all came in second appeal to the High Court and the finding of fact that the mothad inams were granted after the settlement was accepted by the High Court. But the mere fact that one of the documents now appearing in the evidence was also used then cannot make those judgments binding on us. The present suits are suits filed before a Subordinate Judge and have come to the High Court as first appeals. Not only are Ex. T series not res judicata, which has not been suggested, but I doubt if they are even evidence in this case.

12. The result is I am of opinion that the suit inams were not only granted prior to the Settlement but they were also attached as emoluments to a public service and were therefore excluded from the Setttlement and the Government could resume them under Section 17, Act 2 of 1894. The whole conduct of the Government in allowing these offices and emoluments to remain from 1802 up to 1894 shows that they are being continued within the meaning of Section 17 and even if an overt act were necessary, the passing of Regn. 29 itself seems to be such an overt act, not to mention other provisions relating to karnams. But I do not see why merely permitting the karnams to continue in enjoyment of the lands does not amount to continuing within the meaning of Section 17. The learned Advocate General argues that Act 2 of 1894 itself was unnecessary if the Government could resume these lands. But it seems to me the object of that Act is not to enable Government to resume but to provide for various other purposes connected with the three offices mentioned in it, to amalgamate more than one office into one or sub-divide one office into more than one, to provide for succession to these offices and other questions of procedure in connexion with the nomination of a successor and finally to provide for the formation of village service fund. The last item was afterwards dropped but the others still continue. I do not think this last argument of the Advocate-General has any force.

13. In the result, I allow the appeals and dismiss the plaintiff's suits as against all the defendants, with costs of defendant 1 throughout. Defendants other than defendant 1 have not appeared before us.' They seem to have taken little interest in the matter. Therefore in the lower Court, they will bear their own costs.

14. Besides the regular fee in A.S. No. 245 of 1922 allowed to the appellant, we also award to the Government Pleader as a special fee, the regular fees in A.S. No. 244 of 22 as in this way, he will get proper remuneration for the difficult nature of the cases.

Venkatasubba Rao, J.

15. We are concerned in these appeals with the propriety of the action of the Government taken under Section 17. Madras Proprietary Estates Village Service Act (2 of 1894). The plaintiff is the proprietor of Chintalapati Vantu or Mukthayala of the Nandigama zamindari. His complaint relates to karnam service inams in two villages named Keesara and Peddavaram. The Government enfranchised under Section 17 of the Act already referred to, the said service inams from the condition of service and imposed quit-rent on the lands in question. The plaintiff alleges that the lands were included in and became a part of his zamindari at the permanent settlement and that the Government had no right to enfranchise the inams which were in fact post-settlement grants. The learned trial Judge has found that the lands were pre-settlement inams but granted for the rendering of private service to the zamindar and on that ground held that the Government had no right to resume the grants.

16. The Government has filed the present appeal. The first question to decide is what is the nature of the inam? Were they granted for private services, or are they village service inam? It is not disputed that they are karnam service inams, but the Subordinate Judge has come to the curious conclusion that they are nevertheless private service inams. I may at once observe that most of the documents to which he refers in this connexion are utterly irrelevant and this fact has not been denied. Those that have any bearing on the point show some directly and some remotely, that karnams in this zamindari sometimes performed duties such as, looking after sales of paddy, supervising vettis or washermen and arranging on festive occasions for supply of torch lights, skins, hides and shoes. The documents are all of recent date (1902 and 1903) with the single exception of Ex. L-14, which relates to 1867. They thus throw no light on the kind of services performed previous to the settlement (1802). But granting they do, can it be held, on such evidence, that the items were private service grants? That karnams had and have public duties to discharge, cannot be doubted, Madras Regn. 29 of 1802 (one of the earliest of the regulations) defines the duties of karnams and a glance at its provisions is sufficient to show that the office is a public office and that the duties are of a public nature. It is significant that in the preamble to that regulation, it is stated expressly that the rules thereby enacted are ' in conformity to the ancient usages of the country. ' Then again, Regn. 4 of 1816, (dealing with Village Munsifs), Regn. 5 of 1816 (dealing with Village Panchayats) and Regn, 11 of 1816 (dealing with general system of police), show most clearly that duties are allotted to karnams of a public kind. It is absurd to infer that they are private servants, from the fact that they render some private service to the zamindar. The position of karnams is one of subordination in many respects to the zarnindars not to speak of the great difference in their social status. The karnam, therefore, as a matter of course, does some kind of private work to the landed magnate. He thereby becomes no more a private servant than a constable who runs on errands for the Magistrate, at whose house he is posted for duty. This part of the Subordinate Judge's judgment does not really require serious notice.

17. The next question of fact is : are these grants pre-settlement or post-settlement inams? The lower Court has found, and I agree, that the inams were granted previous to the settlement. This part of the case need not detain me long. The documents consist of statements of public officers, of the zamindar himself and of the inam holders. They relate to various periods such as 1800. 1848 and 1860. They show most conclusively that the finding of the lower Court is correct, Apart from this, the plaintiff has not been able to put forward any consistent case and has given [contradictory versions. The finding that the grants are pre-settlement inams must be therefore upheld.

18. It has been broadly contended by the Advocate-General for the plaintiff that the term lakhiraj lands in Regn. 25 of 1802, does not comprise village service inams. As they were not lakhiraj, he argues, the revenue from them would be prima facie included in the assets of the zamindari when its peishcush was fixed at the permanent settlement. Section 4 of that regulation provides that the permanent assessment of the land tax shall be made exclusively inter alia (1) of lakhiraj lands (or lands exempt from the payment of public revenue), (2) all other lands paying only favourable quit rents. Without doubt, absolute grants in inam are included in the expression ' lakhiraj lands. ' Then on what footing do (1) private service inams and (2) village service inams stand? So far as the former are concerned, it has been consistently held that they are not lakhiraj. But the reasons adduced in support of that view furnish a clue to the right understanding of the nature-of village service inams. In the case of personal service inams, was there any reason at the time of the permanent settlement for treating them as ' lands exempt from the payment of public revenue. ' The zamindar was receiving income from such lands, though not of course in the shape of cash-rent but in the shape of services; for the rendering of services was one mode paying the rent. It was reasonable therefore, to treat them at the settlement as revenue paying lands.) Thiruvenkatacharlu v. Sahik Altoo Sahib A.I.R. 1926 Mad. 511 Venkatarangiah Appa Row v. P. Appalaraju : (1910)20MLJ728 , Suryanarayana Raju v. Secy. of State [1915] 1 M.L.W. 662 Parthasarathi Appa Row v. Secy. of State [1915] 38 Mad. 620. To this list, I may add a recent case, namely, G. Veerasami v. S. Seetharama A.I.R. 1926 Mad. 1089 where Odgers, J., observes that the grants being for personal service, the village in question may prima facie be taken to form part of the zamindari.

19. Private service inams not being held to be lakhiraj on the ground that they were a source of profit to the zemindar, if the same principle be applied in the case of village service inams, what would be the result? It follows as a corrollory that if the services are of a public nature, that is, if it is not the zemindar that is benefited but the State or the community at large, the 'lands would in that case be regarded as lakhiraj or exempt from public revenue and the income from them excluded from the assets, (kurnam-service inams were held not to be a part of the zemindari in B. Pitchayya v. Secy. of State [1920] 11 M.L.W. 186; similarly, kapu service inams in Secy. of State v. Rajah of Pittapur : (1913)24MLJ530 and nattam service inams in Rama Rao v. Secy. of State [1913] M.W.N. 639. The result of the cases then is, that while in regard to private service inams, the zemindar has the right of resumption, in regard to the village service inams, they are resumable by the Government. My brother Ramesam, J., sitting with Oldfield, J., in a case dealing with sarvadumbala grant (an absolute grant in inam) classifies the lands excluded from the assessment under Section 4 of the Regulation thus:

(1) lands granted on condition of rendering public service (that is, public inams),

(2) sarvadumbala inams,

(3) inams granted on favourable quit-rent; the first two groups together forming the lakhiraj lands mentioned in the section.

20. This means to embody the correct principle and I am prepared with all respect to accept the classification as correct.

21. The language of the various regulations passed at the time seems to throw a good deal of light on the question. For the exclusion of certain articles of revenue (lakhirai lands being one of the several heads) from the assessment, Section 4 already quoted gives as the reason, the fact that the Government, reserved to itself the entire exercise of its discretion in continuing or abolishing' the articles of revenue mentioned. Thus, from the exclusion springs the right of the Government either to continue or to abolish- for, if these various articles were included in the zemindari, what right could the Government thereafter exercise in respect of them? Let us now turn to Regn. 29 of 1802, which, be it noted was also passed on 13th July 1802, the date of the previous Regn. 25 of 1802, In the preamble, it is stated that it is expedient

to abolish the several officers heretofore maintained with the exception of the office of kurnam.

22 It then goes on to state.

It is expedient to provide for the continuance of that office.

23. By this regulation, the Government abolishes certain officers but resolved to continue the office of the karnam. Where does this power come from which has been so exercised? Undoubtedly from Section 4, Regn. 25. Then, it must be noted that the words 'abolish' and 'continue' came to acquire almost a technical meaning. The preamble to which I have referred, points to the fact that the Government considered itself the lawful' authority either to abolish or continue these offices, including the office of the karnam, which again shows, that the lands held by the karnam remained outside the control of the zamindar. Regn. 6 of 1831 also throws some light on the point. It was a regulation passed to prevent the misappropriation of the emoluments annexed by the State to certain' hereditary village offices. The preamble referring to the lands uses the expression 'annexed by the State to various offices as' wages for the performance of public services.' What does this word 'annexed' indicate? That these lands were at the disposal of the Government. The learned Advocate General advances two arguments in support of his position based on the language of Regn. 25 itself. He' asks, if, by the very force of Section 4, all village service inams are excluded, why is a special provision made in Section 5 in regard to one species of such inams, namely, police grants? This may be easily answered. It was inter alia to declare and formulate its policy that the Government' passed the regulation: (see the preamble); and stress was naturally laid' upon police duties, they being a matter of great public importance. Further, by Section 4, the option is reserved to the Government either to continue or to abolish certain articles of revenue; by the very next section, the Government, in the case1 of police service inams exercises at once the option so reserved and abolishes them. The argument founded therefore on Section 5 does not help the plaintiff. Next, there is no force in the contention that the' language of Section 12 supports the position of the Advocate General. Because the word 'lakhiraj' is used in conjunction with devadayam grants, does it follow that village service inams are not comprised in that term?

24. We are next asked to construe the word 'lakhiraj' in the Madras Regulation, in the light of certain Bengal Regulations. The argument is shortly this. It was the declared policy of the Government to frame the Madras Permanent Settlement Regulation, on the lines of the Bengal Regulation, passed some time previously. In this connexion, our attention is drawn to Sections 36 and 41, Bengal Regulation 8 of 1793. Section 36 provides that the assessment shall be fixed exclusive of all existing lakhiraj lands and Section 41 enacts:

the Chakaran lands or lands held by public officers and private servants in lieu of wages are also not meant to be included in the exception contained in Section 36.

which means that they (the chakaran lands) are included in the assessment. From this it is argued, if that is the rule in Bengal, why should a different rule be applied in Madras? For one thing, it seems to me that such inference as may be drawn from these two sections, far from supporting the Advocate General, militates against his contention. Those responsible for the Regulation evidently thought, that if an express provision was not made to the contrary in Section 41, the term 'lakhiraj lands' in the earlier section, would be wide enough to include chakaran lands. Then, these very sections Sections 36 to 41, show that the scheme of the Bengal Regulation is entirely different from that of the Madras one. The elaborate rules made in Bengal give place to a single section, namely, Section 4 in our Regulation. To adopt the argument of the learned Advocate General would be to import all the rules enacted in minute detail in Bengal, into the much simpler Regulation framed in this province. I consider, therefore, the cases cited in this connexion as irrelevant and do not propose to deal with them.

25. It is next contended for the plaintiff, that the term 'lakhiraj' in Section 4 must be construed in the light of the instructions dated 15th October 1799, issued to various Collectors, as a preliminary to the Permanent Settlement : see Appendix No. 18 to the Fifth Report, Firminger's Edn. 3, p. 169). We are referred to para. 15 which reads thu3:

It (the assessment) is also to be fixed exclusive of the salt revenue, and independent of all existing alienated lands, whether exempt from the payment of public revenue, with or without the authority (the village mauniams, or lands held by public and private servants in lieu of wages, excepted); the whole of which are to be considered annexed to the Circar lands, and declared responsible for the public revenue assessed on the zamindari.

26. This paragraph while saying that the assessment is to be fixed exclusive of all existing 'alienated lands' makes an exception in favour of village mauniams which are thus excluded from lands. In other words, it says that they shall be included in the assets. But does this avail the plaintiff? In the first place, the very fact that village mauniams are expressly excepted show that otherwise they would be covered by the term ' alienated lands'. At this point I may note that these words are used in a Madras Regulation as being synonymous with lakhiraj lands' i.e., those exempted from the payment of public revenue : see Preamble to Regn. 31 of 1802. Secondly, granting that the argument is not open to this attack, what prevented this exception from being reproduced in Section 4 of the Regulation itself and why should we assume that the provision that was in the end so differently worded, was intended to convey the same meaning as the original paragraph in the instructions? Whether it is permissible to look into the instructions for construing the regulation is a question which I need not go into. Suffice it to say that the instructions which outlined the intended policy of the Government, were issued to the Collectors not that they might effect the permanent settlement but might merely prepare and forward the necessary material. There is nothing to show that every line, without the slightest change, was, in fact, finally adopted by the Government,

27. There remains one further argument of the learned Advocate General, which I shall now deal with. He contends, the very fact that Section 17 Madras Act 2 of 1894 was enacted shows, that village service inams were treated at the settlement as included in the zamindari. For that very reason, he urges, it became necessary for the Government to take special power by legislation. In other words, the Government was aware that under the Regulation, as it stood, it had no power to resume village service inams and to arm itself with the necessary power, it caused Section 17 to be enacted. This is a fallacious argument. The Government, by Section 1,7 does no more than give notice that it intends to exercise the power already reserved to it under the Regulation. The purpose of the Act (Act 2 of 1894) is to provide for various matters and incidentally it is declared that the Government may enfranchise certain lands. It assumes a pre-existing power and does not create it. The relevant part of Section 17 reads thus:

If the remuneration of a village office consists of lands granted or continued by the State, the Government may enfranchise the said lands.

28. The plaintiff by contending that village service lands are not lakhiraj lands is forced to place a very artificial meaning on the word 'continued' in this section. What he says is, that word means 'continued till the date of the Permanent Settlement'. I do not agree. The matter may be looked at in another way. The Government wanted to take power to enfranchise village service inams. For why else, if the plaintiff's contention is right,, was Section 17 enacted? But by an unaccountable mistake, the legislature used words which failed of their purpose, with the result, that a large class of grants is still outside the section. That is in effect what the plaintiff urges. According to him, only those lands either granted by the State (the British Government or previous rulers) or continued by the State (the British Government) at the date of the settlement, come within the purview of the section. As I have said, this is the only construction that can be suggested consistent with the plaintiff's argument, for the word 'continued' would be meaningless with reference to inams included at the settlement in the zamindary. The learned Advocate General tries to find support for his argument in the language of Section 27 (3). In my opinion, the terms of that subsection suggest an inference not in his favour but against him. It reads thus:

Where the costs of maintaining any office X X X X was included in the assets.

29. If the lands appertaining to every such office had been included in the assets (that is the Advocate General's contention) what can be the force of the word 'where'?

30. The action of the Government, in my opinion, is justified by the terms of Section 17. This is a grant 'continued' by the State. The Government excluded the inam from the zamindari in 1802, declared expressly that it continued karnam grants (Regn. 29 of 1802) and permitted the karnam to retain the lands and perform the services. These facts beyond a doubt show that the grant was continued : see Pitchayya v. Secy. of State [1920] 11 M.L.W. 186.

31. The only authority which the plaintiff has been able to rely upon, is a recent judgment of Thiruvenkatachariar, J., in Appeal No. 355 of 1922, with which I do not agree. The other learned Judge who heard that appeal, Wallace, J., did not express himself in favour of that view. I may state that, even under the judgment of Thiruvenkatachariar, J., the plaintiff in this case cannot succeed, for the learned Judge holds that the presumption in the case of public service inams would be, that the grants which existed at the Permanent Settlement had been made or continued by the State. A still more recent decision Lakshmi Venkayamma v. Secy. of State : AIR1929Mad399 supports the view I have taken. In the result, the lower Court's decision in each case-1 is reversed and I agree with the order made by my learned brother.

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