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R.V.K.M. Surya Rao Bahadur Varu, Rajah of Pithapuram Vs. the Board of Revenue (Settlement of Estates) Madras - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 796 of 1951
Judge
Reported inAIR1953Mad472; (1953)IMLJ362
ActsTenancy Laws; Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Sections 18 and 18(5); Constitution of India - Article 226
AppellantR.V.K.M. Surya Rao Bahadur Varu, Rajah of Pithapuram
RespondentThe Board of Revenue (Settlement of Estates) Madras
Appellant AdvocateRamakrishna Rao, Adv.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Cases ReferredKing v. The Wycombe Ry. Co.
Excerpt:
- - but if it is part of the curtilage and within the circuit of the house, if it is necessary to the enjoyment of the house, if it forms part of that which is necessarily held and occupied with the house, and without which it cannot be enjoyed, then it does pass under the word 'house'.5. these decisions only lay down the principle accepted and embodied in section 18(5) of the act. the provisions of section 18 of the act make it clear that building includes the site as well as the premises occupied as an appurtenance thereto, and that the entire building so defined must have been used as an office......one, being used by visiting officers and by other guests. the board directed the value of the main building to be deducted from the compensation payable to the zamindar, and excluded the smaller building from the operation of the provisions of section 18 of the act. the present application is filed to quash that order.3. learned counsel for the petitioner raised before me three points :(i) the government has no jurisdiction to delegate its power under section 18 of the act to the revenue board, (ii) the building in question is not part of polavaram b estate; and (iii) the main building along with the out-house form component parts of the same building, and the house not being used solely for office purposes the entire building will not fall within the scope of section 18. the first.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application for issuing a writ of 'certiorari' and for quashing the order of the Board of Revenue dated 6-8-1951.

2. The building described in the schedule annexed to the affidavit filed in support of the petition is situated in Polavaram B Estate, East Godavari district. In March 1950 the manager of the Pitapur and other allied estates filed a petition before the Estates Abolition Tribunal for having the value of the said building assessed. That application was referred to the District Collector, Eluru, for enquiry, who forwarded the same to the Board of Revenue. The Board of Revenue held that the said building constituted two sepa-rate buildings, one of them being used as an office before Act 26 of 1948 came into force, and the other, a small one, being used by visiting officers and by other guests. The Board directed the value of the main building to be deducted from the compensation payable to the Zamindar, and excluded the smaller building from the operation of the provisions of Section 18 of the Act. The present application is filed to quash that order.

3. Learned counsel for the petitioner raised before me three points :

(i) The Government has no jurisdiction to delegate its power under Section 18 of the Act to the Revenue Board, (ii) The building in question is not part of

Polavaram B Estate;

and (iii) the main building along with the out-house form component parts of the same building, and the house not being used solely for office purposes the entire building will not fall within the scope of Section 18.

The first two points were not raised before the Revenue Board, and they raise a question of jurisdiction. The petitioner who has submitted to the jurisdiction of the Revenue Board is precluded from questioning the jurisdiction in a writ of 'certiorari'.

4. To appreciate the third point raised, the relevant provision of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 26 of 1948 :

Section 18: 'Every building situate within the limits of an estate, which immediately before the notified date, belonged to any landholder thereof and was then being used by him as an office in connexion with its administration and for no other purpose, shall vest in the Government) free from all encumbrances, with effect on and from the notified date.'

5. In this section 'building' includes the site on which it stands and any adjacent premises occupied as an appurtenance thereto.'

For the purpose of ascertaining the meaning of the word 'building', learned counsel for the petitioner relied upon the decisions in --'Grosvenor v. The Hampstead Junction Ey. Co.', (1857) 26 LJ Ch 731 (A) and -- 'King v. The Wycombe Ry. Co.', (1860) 29 LJ Ch 462 (B). In the former case, the question was whether a railway company could acquire a land appurtenant to a building. It turned upon the meaning of the word 'building' in Section 92, Lands Clauses Consolidation Act (8 and 9 Vict. Ch. 18). If it was a part of the building, the entire building had to be taken. Turner L. J. laid down the following test to find out the meaning of that word at p. 737 : 'The question, therefore, in my view, is what would pass under the conveyance of these houses? That, as I think, must be judged by the particular position and circumstances of the property at the time ..... It is obvious that the intention was that the intervening land should constitute a garden to the houses, and was to be fenced off, according to the plan by an iron fence, separating it from the road.'

The learned Judge therefore held that the land formed part of the building. In the other case, a railway company under the compulsory powers of the Lands Clauses Consolidation Act attempted to take a portion of a garden and an orchard essential to the enjoyment of a mansion and premises. The mansion and the premises were surrounded by a brick wall, and the railway company took a portion of the garden and orchard, divided one part of the premises from another and destroyed all internal communications. It was held that the company was bound to take the whole estate. The Master of the Rolls observed at p. 405 :

'The Act must be construed liberally, and not to the detriment of existing rights ......The Courts therefore have held, that the word 'house' was intended to comprise such adjuncts as were within its circuit and necessary to its use and enjoyment.' Later on, he proceeded to say : 'Land held with a house does not necessarily pass under the word 'house' even although it was intended to pass; but if it is part of the curtilage and within the circuit of the house, if it is necessary to the enjoyment of the house, if it forms part of that which is necessarily held and occupied with the house, and without which it cannot be enjoyed, then it does pass under the word 'house'. '

5. These decisions only lay down the principle accepted and embodied in Section 18(5) of the Act. The provisions of Section 18 of the Act make it clear that building includes the site as well as the premises occupied as an appurtenance thereto, and that the entire building so defined must have been used as an office. If any portion of that building was used immediately before the notified date for a purpose other than an office purpose, it would not vest in the Government.

6. The question therefore is whether the out-house was occupied as an appurtenance to the main building. The Revenue Board found on the evidence that the out-house was a separate building with a compound of its own and used for a different purpose. It therefore held that the main building and the out-house could not be treated as a single unit. Indeed, the attempt made before the Revenue Board was to exclude the out-house from the main building on the basis that it was a separate building. If the petitioner conceded before the Revenue Board that the out-house was a part of the main building, they might have held that the out-house was also used for office purposes providing lodging to the visiting officers. The petitioner cannot, therefore, in view of his earlier attitude and the finding of the Revenue Board take a contrary position and contend that the out-house is a part of the building. The finding of the Revenue Board was based on the evidence, and is not vitiated by any error on the face of the record. A building may be called an out-house, but may be used, as in the present case, as a separate building.

7. The petition therefore fails and is dismissed with costs, advocate's fee, Rs. 100.


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