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Secretary of State for India Vs. Purnendu Narayan Roy - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1913)ILR40Cal123
AppellantSecretary of State for India
RespondentPurnendu Narayan Roy
Cases ReferredDamodar Gordhan v. Deoram Kanji
Excerpt:
ultra vires - bengal tenancy act (viii of 1885), section 101, clauses 2 (a) and 3---'a large proportion of landlords' meaning of---order passed by local government under section 101, clause 2 (a), at the instance of landlords having large proportion of interest, effect of---jurisdiction of civil court to question validity of the order, after issue of notification under the section. - .....an order of the government of bengal dated the 25th november 1908 passed under section 114 of the bengal tenancy act, apportioning the cost of the survey and preparation of records-of-rights of estates fateh singh in the district of murshidabad and directing the recovery of their share from the plaintiffs should be declared to be invalid, and that the certificate subsequently issued under the provisions of the public demands recovery act against them for the recovery of the sum should also be declared to be bad in law and invalid, and that, therefore, it should be declared that the plaintiffs were not liable to pay any amount of the costs of the survey and settlement proceedings referred to in the order. the amount which the plaintiffs were called upon to pay was first fixed at rs......
Judgment:

Brett and Sharfuddin, JJ.

1. The suit out of which the present appeal arises was brought by the plaintiff respondents, who are the proprietors of estate No. 254 on the roll of the Collector of Murshidabad, against, the defendant appellant, the Secretary of Stale for India in Council, to have it declared that an order of the Government of Bengal dated the 25th November 1908 passed under Section 114 of the Bengal Tenancy Act, apportioning the cost of the survey and preparation of records-of-rights of estates Fateh Singh in the district of Murshidabad and directing the recovery of their share from the plaintiffs should be declared to be invalid, and that the certificate subsequently issued under the provisions of the Public Demands Recovery Act against them for the recovery of the sum should also be declared to be bad in law and invalid, and that, therefore, it should be declared that the plaintiffs were not liable to pay any amount of the costs of the survey and settlement proceedings referred to in the order. The amount which the plaintiffs were called upon to pay was first fixed at Rs. 26,053 but this was afterwards reduced to Rs. 23,582-9, and the certificate was issued for the latter amount. The ground on which it was alleged that the order under Section 114 of the Bengal Tenancy Act was illegal was that the original notification dated the 20th February 1905, issued under the provisions of Section 101, Clause 2 (a) of the Bengal Tenancy Act on the 20th February 1905, was illegal and that therefore the subsequent order under Section 114 of the Bengal Tenancy Act providing for an apportionment of the costs of the settlement was also illegal.

2. It appears that the original estate, Fateh Singh, belonged to the Raja of Baidanga and the Raja of Jamooe in equal shares. The estate was divided in 1786 into two estates Nos. 253 and 254 of the Collectorate roll of the district of Murshidabad and estate 253 was allotted to the Raja of Baidanga and estate 254 to the Raja of Jamooe. The zemindary right of the Raja of Baidanga in estate No. 253 was sold by auction on the 15th September 1898, and was purchased by the Nawab of Murshidabad (13 annas), and his two brothers (1 1/2 annas each or a total of 3 annas). The two brothers afterwards executed in favour of the Nawab a patni lease of their 3 annas share.

3. It appears that in estate No. 253 there are certain mouzas belonging exclusively to that estate and other mouzas held jointly with the owners of estate No. 254 and the same is the ease with estate No. 254.

4. In 1902 the Nawab of Murshidabad applied to Government for a survey and settlement of the mouzas lying in estate No. 253, and the application was granted and a notification published under Section 3 of the Bengal Survey Act V (B.C.) of 1875 on the 25th November 1902.

5. In 1903 the Nawab applied for the preparation of a record-of-rights in the same villages under the provisions of the Bengal Tenancy Act, and on the 3rd December 1903 the application was granted and a notification published under Section 101 Clause 2 (a) of the Bengal Tenancy Act.

6. With these notifications we have no concern in the present appeal.

7. An application was then made by the Nawab of Murshidabad in 1905 in which, after pointing out that the survey and settlement proceedings ordered by Government would cover not only the mouzas held by him exclusively as proprietor of estate No. 253 but also some 85 mouzas which as such proprietor he held jointly with the proprietors of estate No. 254, and that the proceedings would virtually cover the lands of all these mouzas held by the proprietors of both estates jointly, and after further pointing out that the proprietors of estate No. 254 would benefit in respect of those mouzas as much as he would, he prayed for the issue of a further notification covering not only the half share of the Nawab in those mouzas but also the share of the proprietors of estate No. 254 so as to make the proceedings valid and complete. Notice of this application was given to proprietors of estate No. 254, who put in a petition of objection. The objections were overruled, and on the 20th February 1905 a notification was issued under Section 101 Clause 2(a) covering the lands included in the half share of those mouzas which belonged to the proprietors of estate No. 254.

8. This is the notification which in their suit the plaintiffs attacked as being invalid and contrary to law.

9. The survey and settlement proceedings and the preparation of the record-of-rights were duly carried through, the plaintiffs being properly represented throughout the proceedings, and having disputes between them and their tenants settled under the provisions of Section 106 and other sections of the Bengal Tenancy Act. After the completion of the proceedings and the final publication of the record-of-rights a notice was issued by the Settlement Officer to the plaintiffs on the 17th February, 1908 calling on them to deposit the sum of Rs. 26,053 as their share of the cost of the proceedings. On the 23rd March 1908 the plaintiffs put in a petition of objection but the objections were overruled and the order for apportionment was made by the Local Government on the 5th June 1908 and duly published in the Gazette on the 25th November 1908. The sum to be recovered from the plaintiffs was afterwards reduced, on a careful calculation being made, to Rs. 23,582-9, and a certificate was issued against them under the Public Demands Recovery Act for the recovery of that sum.

10. The present suit was instituted on the 3rd August 1908, after the order of apportionment had been made on the 5th June 1908.

11. The two main points taken on behalf of the plaintiffs were first that the notification issued by the Government of Bengal dated 20th February 1905 under Section 101, Clause 2(a) of the Bengal Tenancy Act (as that Act stood before the last amendment by Bengal Act I of 1907) was illegal because the application for the order under that section was not made by 'a large proportion of the landlords,' as required by the section. It was admitted that the Nawab and the plaintiffs each had an equal half share in the villages in which the record-of-rights was to be made, but it was contended that because the Nawab was only one and the plaintiffs were five in number, therefore, the application being made by the Nawab could not be said to have been made by a large proportion of the landlords. It is to be noticed that the Nawab died in 1904 and that the successors to his interests were, three in number at the time the notification was issued.

12. For the plaintiffs it was argued that 'the large proportion of landlords' as contained in Section 101 Clause 2(a) was not confined to the proportion numerically but that it referred to the interests which the landlords had in the estate and that this was made clear when the Bengal Tenancy Act was amended by Bengal Act I of 1907. Further, it was argued that Section 101 Clause 3 of the Bengal Tenancy Act expressly deprived the Civil Court of any jurisdiction to entertain this question when once the notification in the official Gazette had been published. Further, it was contended, that the Civil Court had no jurisdiction to interfere with the apportionment of costs made by the Local Government under Section 114 of the Bengal Tenancy Act as that was a matter placed by the law absolutely in the discretion of the Government.

13. The second main point taken in support of the suit was that the plaintiffs could not be held liable to pay any amount for the costs of the proceedings for the preparation of the record-of-rights as the Assistant Settlement Officer had given an undertaking absolving them from, all such liability in the notice which he issued to them on the 25th September 1904.

14. On behalf of the defendant it was argued, that not only had the Assistant Settlement Officer no power under the law to absolve the plaintiffs from liability to pay their share of the expenses of preparing the record-of-rights, but that in fact-his notice had no such meaning or intention. The notice was issued in consequence of an application made by the Nawab to have the whole of the joint villages brought under the settlement and record-of-rights because (inter alia) he was bearing ail the costs while the proprietors of the other half share in all the villages would reap part of the benefits. From their petition of objection it was clear that the plaintiffs were aware of this and it was argued that the suggestion made in their behalf was not entitled to consideration.

15. The Subordinate Judge found in favour of the plaintiffs on both these points and granted a decree in their favour by which he declared 'that the plaintiffs were not liable to pay any cost of the survey and record-of-rights of Tauzi No. 254 claimed by the defendant, and that the defendant be permanently restrained from realising the amount of the certificate on account of such cost.'

16. The defendant has appealed to this Court.

17. Before us the two points which have been pressed for the appellant are, first, that the lower Court erred in holding (a) that the order and notification issued by the Government of Bengal under Section 101 Clause 2(a) on the 20th February 1905 and 22nd February 1905 respectively were ultra vires and therefore invalid, and (b) that in consequence the order of apportionment passed by the Government of Bengal under Section 114 of the Bengal Tenancy Act on the 5th June 1908, which was published in the Calcutta Gazette on the 25th November 1908, was also invalid and not binding on the plaintiffs. It was contended that the jurisdiction of the Civil Court to question the legality and effect of the order and notification issued tinder Section 101 of the Bengal Tenancy Act was expressly barred by the provisions of Clause 3 of Section 101 of the Act. Farther, it was contended, that the Civil Court had no jurisdiction to question or interfere with the order passed by the Local Government under Section 114 of the Bengal Tenancy Act as by that section exclusive power and discretion was given to the Local Government.

18. The second point taken has been that the lower Court erred in holding that the notice issued by the Settlement Officer to the plaintiffs on the 25th September 1904 contained any undertaking on the part of that officer that the plaintiffs would be exempted from all liability for any of the costs of the proceedings for the settlement and the record-of-rights.

19. The learned pleader for the respondents has not assailed the soundness of the contention advanced on behalf of the appellant that ordinarily the Civil Court has not jurisdiction to question or interfere with an order passed by the Local Government under Section 114 of the Bengal Tenancy Act; but he has argued that if the order and notification issued under Section 101 Clause 2(a) be held to be ultra vires and invalid then on that account the order under Section 114 of the Tenancy Act, arising out of the proceeding taken under that notification, cannot hold good but must also be held to be invalid and of no effect against the plaintiffs.

20. A considerable portion of the judgment of the lower Court has been devoted to the discussion of various cases which appear to have been relied on by the plaintiff to support the contention that the Civil Court had power to set aside the order passed by the Local Government under Section 101 Clause 2 (a) of the Bengal Tenancy Act. These for the most part relate to the provisions of other Acts and it appears to have been argued that by analogy they could be applied to the facts of the present case. The learned pleader for the respondents as well as the learned Counsel for the appellant have not thought it necessary to enter into any discussion of these cases before us, and we think that they have very wisely refrained from doing so. In our opinion, those cases can have no application to the present case which must be decided on the provisions of the law and on the facts before us.

21. A contention was advanced by the learned Counsel for the appellants that the provisions of Section 111 A of the Bengal Tenancy Act debarred the Civil Court from jurisdiction to determine that the order issued by the Local Government under Section 101 Clause 2(a) of the Bengal Tenancy Act was ultra vires and illegal. The point was not very strongly pressed and in our opinion cannot be maintained. Section 111 provides that '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 etc.,'. What, however, is attacked in this case is not the order itself but the conditions under which it was issued. This, it is argued, did not fulfil the requirements of Section 101 Clause 2(a) of the Act and therefore the order was illegal and ultra vires, and that does not appear to be a point covered by Section 111 A of the Act.

22. The most important question which we have now to consider is (i) whether the order passed by the Local Government under Section 101 Clause 2(a) of the Bengal Tenancy Act was ultra vires and. therefore invalid; and (ii) whether the Civil Court had power after the issue of the notification to question the validity of the order.

23. The lower Court has held that the order was ultra vires because the application was not made to the Local Government by 'a large proportion of the landlords.' In fact it appears to have been made by three landlords holding a half interest in the estate, the other half interests being held by live landlords. The learned Judge has held that the word 'proportion' in the section must be interpreted to mean 'numerical proportion' only, and cannot mean proportion of the interest held in the estate by the landlords, and he considers that he is supported in that conclusion by the amendment which was made in the Act by Bengal Act I of 1907. In. support of this view the learned pleader for the respondents has argued that any amendment made in the language of any legal enactment must be taken to import a change in the law.

24. We do not think that in the present case these arguments can be accepted as sound nor do we think that a change in the language of a statute can only be taken to indicate a change in the law. In the old section the expression 'a large proportion of the landlords' appears to have been considered to be ambiguous. Certainly it appears to us to be capable of meaning 'the landlords, holding a large proportion of the interests in the estate.' This indeed appears to have been accepted by the learned Judge of the lower Court as what must be taken to have been the intention of the Legislature, for in dealing with the question, he points out that if the other view be approved it follows that the words used in the section would lead to an absurdity. But because he is of opinion that the words used are capable of one meaning only, he considers that he has no option but to enforce them even though the meaning be absurd and mischievous.

25. We are unable to agree with the Subordinate Judge that the words 'a large proportion of the landlords' are capable of meaning only u a large numerical proportion of the individuals constituting the body of landlords and not a large proportion of them as regarded from the interest, held by them in the estate.' Also we are unable to accept the contention of the learned pleader for the respondent that a change in the wording of a section of an enactment necessarily involves a change in the law. Amendments are often made to clear up ambiguities and such amendments which are intended to prevent misinterpretation do not in themselves alter the law in any way.

26. Section 101 of the Bengal Tenancy Act has clearly been framed to empower the Local Government to take certain action on certain conditions, and primarily the interpretation of those conditions would rest with the Local Government and the amendment made by Act 1 of 1907 had for its object to clear away any difficulty which might be felt in applying the section. It has not been suggested to us that it has ever been held either by the Local Government or any other authority that the words 'a large proportion of landlords' could only mean 'a large numerical proportion.' In the present instance, the Local Government clearly interpreted them to mean 'a large proportion of the landlords as determined by the interests they held in the estate.' That appears to us to be an eminently reasonable interpretation of the meaning of the words, and neither the reasons given by the learned Judge in his judgment nor the argument advanced by the learned pleader for the respondents have satisfied us that we are bound to adopt a meaning which would lead us in an absurdity.

27. We hold, therefore, that the application in this instance was made to the Local Government by a large proportion of the landlords of the estate, and that the order passed under Section 101 Clause 2 (a) was not ultra vires.

28. The second question raised is whether the first Court had power after the issue of the notification to question the validity of the order, having regard to the provisions of Section 101, Clause 3 of the Tenancy Act. After the conclusion we have arrived at on the first point its decision is not of serious importance.

29. For the respondent it has been argued that the Civil Court had power to question the legality of the order passed by the Local Government under Section 101, Clause 2 (a) in spite of the fact that the order had been duly notified in the official Gazette and in support of this contention reliance is placed on the decision of their Lordships of the Privy Council in the case of Damodar Gordhan v. Deoram Kanji (1876) I.L.R. 1 Bom. 367, 461. That case cannot however be taken to be on all fours with the present case or to afford us any real assistance in deciding the question before us One of the points raised in that case was whether the Governor-General in Council could, by a Legislative Act purporting to make a notification in the Government Gazette conclusive evidence of a cession of territory, exclude enquiry as to the nature and lawfulness of that cession, the Governor-General in Council being expressly precluded by Act 24 and 25 Vic. Clause 67 Section 22 from legislating directly as to the sovereignty or dominion of the Crown over any part of its territories in. India or as to the allegiance of British subjects; and their Lordships held that this Court not be done. In that case the authority was expressly precluded, and it was held that authority could not be given and an inquiry as to its propriety excluded by a legislative enactment which purported to make a notification in the official Gazette conclusive proof of its legality. In the case before us the authority is expressly given by the section to Government to pass the order, and the section then goes on to provide that after the order has been notified in the Gazette that notification shall be conclusive evidence that the order has been duly made.

30. In the present case the provisions of Section 101 Clause 2 (a) of the Bengal Tenancy Act appear to have been complied with before the order was passed. Notice was served on the respondents and their objection was beard. The order was then passed and subset quently notified in the official Gazette. We hold that the discretion rested with the Local Government to determine whether the application was in due form under the provisions of Section 101 Clause 2 (a) and alter the Local Government had decided that point and had issued the notification the jurisdiction of any Civil Court to interfere with the order was barred by Clause o of the same section.

31. We may notice that the objection taken before us does not appear to have been raised before the Collector; that after the notification, had issued the respondents appeared and attended at the proceedings before the Revenue Officer for the settlement and record-of-rights, and in fact fought out disputes in those proceedings with the tenants under Section 106 and other Sections of the Act. It was only when the proceedings were completed and the respondents were called on to pay their share of the costs that they instituted the suit and raised the question as to legality of the order of Government passed under Section 101 Clause 2 (a) of the Tenancy Act. In these circumstances, even if we had not found against them for other reason, we consider that they would not be entitled to succeed in the present suit.

32. Disagreeing, therefore, with the Subordinate Judge we hold that the order of the Local Government under Section 101 Clause 2 (a) of the Bengal Tenancy Act was passed by it under the powers expressly given to it by the law, that it was intra vires and was legal and binding on the parties and that the order for apportionment passed by the Local Government under Section 114 of the Act against the plaintiffs respondents was also legal and binding as against them.

33. The second main question on which the lower Court decided the case in favour of the plaintiffs must in our opinion also be decided against them. The passage in the notice of the 25th September 1904 issued by the Assistant Settlement Officer to the plaintiffs, on which the plaintiffs relied, must be read with its context and considered as a part of the proceedings in the course of which it in fact issued---Reading from the words 'Whereas the record-of-right of one estate cannot be completed without preparing the record of the other estate' etc. and following on we come to the passage relied on which is---'and though the Nawab Bahadur is alone responsible for the costs and you not only bear no cost but get the benefit of a record-of-right' etc. 'he applies that Notification for the survey and record-of-rights of estate No. 254 be given in the official Gazette.' The learned Judge has held that by these words the Settlement Officer distinctly gave the plaintiffs to understand that 'they would have to bear no cost......all costs having been deposited by the Nawab of Murshidabad.' We are entirely unable to agree with that conclusion. The notice, though somewhat clumsily worded, embodied the application of the Nawab. That was to the effect that in order to make the proceedings valid and compel the plaintiffs to pay their share of the costs for the benefits they were to receive under the record-of-rights, it was necessary to include their half share as proprietors of estate No. 254 in certain villages in the settlement proceedings which already covered the half share of the Nawab as proprietor of estate 253 in the same villages. The object of the notice was not to save the plaintiffs from costs but to make them liable for them, and this in fact they recognised in their petitions of objection. Even if the Assistant Settlement Officer had attempted to give any such, undertaking, he would not have had power to do so under the provisions of the law. We find, therefore, that this second point must be decided against the plaintiff respondent.

34. The result, therefore, is that we decree the appeal, we set aside the findings and judgment and decree of the lower Court, and in lieu thereof direct that the suit of the plaintiffs be dismissed. The defendant appellant will recover his costs from the plaintiffs respondents in this Court and in the Court of first instance.


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