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Maksud Mahi Vs. Secretary of State for India in Council and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.90
AppellantMaksud Mahi
RespondentSecretary of State for India in Council and anr.
Cases ReferredPatan Maria v. Bhabiram Dutt
Excerpt:
assam land and revenue regulation, (i of 1886) section 6 - rule 80 clause (i) framed by chief commissioner--first application for settlement--if not granted, reasons to be recorded--not recording reasons when they exist in fact, effect of. - .....by the chief commissioner, which lays down that, 'should more than one person apply for the same land, the application which has been first received shall ordinarily be granted, but the settlement officer may, if he thinks fit, for special reasons (to be recorded in the order), grant any subsequent application and reject the first.' and it has been contended that that confers a right upon any person who is the first to apply for a settlement, if no reasons are recorded against the grant of his application; and reference has been made to two decisions reported in madhub nath surma v. myarani medhi 17 c. 819, patan maria v. bhabiram dutt 24 c. 239 : 1 c.w.n. 94, in support of this contention. but in the first of these cases, it appears to have been held that a right had been shown such.....
Judgment:

Woodroffe, J.

1. Section 6 of Regulation I of 1886 of the Assam Land and Revenue Regulations, Chapter II, provides that no right of any description shall be deemed to have been, or shall be, acquired by any person over any land to which this Chapter applies, except the rights that are mentioned in Clauses (a), (b), (c) and (d). In the lower appellate Court the argument appears to have been that Clauses (a), (b) and (c) did not apply, but that Clause (d) did. The learned District Judge held that, Clause (d) did not apply, as is, in fact, the case. Here, however, it has been contended that the portion of the section which applies is the last portion of Section 6(a), namely, the words 'other rights acquired in manner provided by this Regulation.' Then, it is said that the right which has been acquired in the manner provided 'by this Regulation' is a right which is conferred on the public by virtue of Rule 80, Clause (i) framed by the Chief Commissioner, which lays down that, 'should more than one person apply for the same land, the application which has been first received shall ordinarily be granted, but the Settlement Officer may, if he thinks fit, for special reasons (to be recorded in the order), grant any subsequent application and reject the first.' And it has been contended that that confers a right upon any person who is the first to apply for a settlement, if no reasons are recorded against the grant of his application; and reference has been made to two decisions reported in Madhub Nath Surma v. Myarani Medhi 17 C. 819, Patan Maria v. Bhabiram Dutt 24 C. 239 : 1 C.W.N. 94, in support of this contention. But in the first of these cases, it appears to have been held that a right had been shown such as is specified in Section 6, namely, a right to have excess land settled in favour of the holder of the lands from which it had been taken as excess. In the second case, which was one in second appeal, the judgment accepted the facts as found in the first Court. It was there decided that the suit was not excluded from the jurisdiction of the Civil Court. What the right was there is not quite clear from the report; but this is clear that the facts are totally different from those now before us.

2. In my opinion, the Rule is one which has been laid down for the guidance of Settlement Officers in making their settlements. The Legislature has given directions to them. It was, however, said that in exercising this discretion in a particular case, the officer should record his reasons in writing. It does not follow from this that if the reasons are not recorded, the plaintiff is entitled to a settlement, although such reasons exist in fact, and although the Government does not wish to give the land to him. In the present case it has been found, as a matter of fact, that reasons do exist as to why the land should not be settled with the appellant, although those reasons were not recorded. What has happened is this, that there has been an informality in this respect. In my opinion, this Rule, being for the guidance of Settlement Officers, did not confer upon the applicant any right by reason of his merely having been the first to make an application for settlement, which would bring him within the purview of Section 6 (a) of the Regulation.

3. In these circumstances this appeal must be dismissed with costs.

4. In appeal No. 1922 of 1908 the facts are similar to those of the appeal just decided, except that it does not appear in this particular case what the reasons were which were the cause of the rejection of the appellant's application for settlement. For the same reasons as those stated in the judgment in appeal No. 1966 of 1908, I think that this appeal fails and should be dismissed with costs.

5. In the first of these cases, the Government undertakes to refund to the appellant the costs which he states he has paid for the survey proceedings which are alleged to have been carried out at his instance. A similar undertaking is given by the Government in the second case.

6. Two sets of costs should be allowed in each of these appeals one for the Government and the other to the lessees.

Richardson, J.

7. I agree.


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