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Radha Kant Aich and anr. Vs. the Sectery of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal281,50Ind.Cas.94
AppellantRadha Kant Aich and anr.
RespondentThe Sectery of State for India in Council
Cases ReferredBrindaban Chandra Jiew v. Karuna Nidhan Singha
Excerpt:
bengal regulation vii of 1822, section 3, applicability of - chur land--accretion to permanently settled estate--government notification under section 3, when ultra vires--bengal tenancy act (viii b.c. of 1885), ch. x, proceedings under, whether can be taken in respect of alluvial lands--correctness of decision of revenue courts, whether can be questioned by civil court--bengal regulation ix of 1825. - .....1822 apply to such an estate.12. the earliest provision for assessment of revenue with regard to chur lands is contained in section 3 (clause 2) of regulation ii of 1819, which says that the principle that lands not included in the decennial settlement are liable to assessment (except lands held free of assessment under valid title), is applicable to 'all churs and islands formed since the period of the deoennial settlement, and generally to all lands gained by alluvion or dereliction since that period, whether from an intro-cession of the sea, an alteration in the course of rivers or the gradual accession of soil on their banks.'13. regulation vii of 1822 (the provisions of which will be considered) does not in specific terms refer to accretions. the regulation was passed for.....
Judgment:

1. This appeal arises out of a suit for recovery of possession of a Chur called Chur Khondkar. The Chur is an accretion to a permanently settled estate (Jugdia), No. 11 of the Noakhali Colleotorate, which is owned by a large body of proprietors.

2. The Jugdia estate has for a long time past been managed by one or two Sadar Malguzars appointed under Section 10 (Clause 3) of Regulation VII of 1822, who are also part proprietors of the estate. The Sadar Malguzars represent the entire body of proprietors and their names are registered in the Collectorate in that capacity.

3. Chur Khondkar first formed in the year 1842, and remained unassessed from 1843 to 1847 as the proprietors refused to take settlement. In 1848 the proprietors took a settlement of the Chur. Since then up to 1865 through some mistake the Chur was included in three other Mouzas belonging to the proprietors and was apparently lost sight of by the authorities. From 1866 to 1881 the Government granted farming settlement of the Chur and for some years it remained in khas management of the Government.

4. On the 1st August 1882 the Chur was settled in ijara for a term of 10 years (1882-1892) by Government with one Kali Mohan Mukherjee and Ishan Chandra Chowdhuri, who were then Sadar Malguzars, but settlement was made with them not in that capacity but as part proprietors, as the other share-holders of the estate had not authorized them to take settlement on their behalf. During the subsistence of the ijara both these persons died (in 1886-1887) and their interest devolved upon their heirs Gyanendra and Bhairab. These two persons as successors-in-interest of the ijaradars created a Jote ('Jote No. 63') in respect of 1,550 bighas of land within the Chur, in favour of five persons who were their relations and servants.

5. The ijara expired in 1892, and in 1893-94 summary settlements were made in respect of the Chur with Gyanendra and Bhairab on the basis of the collection papers submitted by them. About 1893-94 fresh settlement proceedings were commenced under Regulation VII of 1822, and the final report was submitted on the 13th February 1895. In 1897 one Hem Chandra Das was appointed the Sadar Malguzar and a lease was executed on the 6th September 1899 in respect of the Chur in favour of Hem Chandra Das, Sadar Malguzar, on behalf of the proprietors of the Jugdia estate, for a term of 10 years, from 1305 to 1315 B. Section In the 4th Clause of the lease it was provided: 'At the end of the aforesaid period of settlement, you, the Sadar Malguzar of Jugdia, will or your legal representative or representatives will have the right to a renewal of the settlement on the revenue that may be then fixed. If you do not take settlement on the revenue that may then be fixed,, you will be entitled to Malikana at the usual rates.'

6. Further lands having accreted subsequently, a lease was granted on the 26th January 1903 of the additional lands to Hem Chandra Das, Sadar Malguzar, on the same conditions as mentioned in the kabuliyat executed in the case of the settlement of the parent estate, Chur Khondkar.

7. The present settlement proceedings were commenced under Chapter X of the Bengal Tenancy Act towards the end of 1907, and in course of the proceedings the Director of Land Records and the Board of Revenue made certain recommendations to the Government, in consequence of which the Notification dated the 5th September 1911 was issued by the Government of astern Bengal and Assam, to the effect that as the Revenue authorities had reported that the continuance of the Sadar Malguzar of Pergana Jugdia in the management of Mahal Chur Khondkar 'would endanger the public tranquillity and otherwise be seriously detrimental, the Local Government in exercise of the powers conferred by Section 3 of Regulation VII of 1822 is now pleased to direct that the said Mahal be held khas for a term of 12 years.'

8. Hem Chandra Das resigned his office as Sadar Malguzar, and the present plaintiffs were appointed Sadar Malguzars in April 1912. They served a notice upon the Collector on the 22nd January 1913, and the present suit was brought on the 19th May 1913 against the Secretary of State for India in Council.

9. The suit was dismissed by the Court below, and the plaintiffs have appealed to this Court.

10. The main contentions raised on behalf of the appellant are, first, that the provisions of Section 3 of Regulation VII of 1822 are not applicable to the Chur in question which is an accretion to the estate of Jugdia, in which the owners have a permanent proprietary interest; secondly, that the order of the Government under Section 3 of the Regulation is ultra vires; thirdly, that the suit is not barred by limitation.

11. The first contention raises a question of importance. The Chur, as we have stated, is an accretion to a permanently settled estate. That the proprietors of Chur Khondkar are entitled to a settlement is recognised in the order of Mr. Beatson Bell, then Director of Land Records, dated the 15th April 1910; and in the order of the Board of Revenue, dated the 2nd May 1911, it is stated: 'it is now definitely settled that the estate is private property, that the proprietors of the main land estate Jugdia are entitled to settlement through their representatives, the Sadar Malguzars subject to the conditions of Regulation VII of 1822, and that Government is in no way proprietor of the estate.' The question, therefore, is whether the provisions of Regulation VII of 1822 apply to such an estate.

12. The earliest provision for assessment of revenue with regard to Chur lands is contained in Section 3 (Clause 2) of Regulation II of 1819, which says that the principle that lands not included in the Decennial Settlement are liable to assessment (except lands held free of assessment under valid title), is applicable to 'all Churs and islands formed since the period of the Deoennial Settlement, and generally to all lands gained by alluvion or dereliction since that period, whether from an intro-cession of the sea, an alteration in the course of rivers or the gradual accession of soil on their banks.'

13. Regulation VII of 1822 (the provisions of which will be considered) does not in specific terms refer to accretions. The Regulation was passed for declaring the principles according to which the settlement of land revenue in 'the ceded and conquered provinces including Cuttuk, Pataspore and its dependencies' are hereafter to be made, and the powers and duties belonging to Collectors or other officers employed in making settlements, etc. Section 3 of the Regulation lays down: With respect to estates which are at present let to farm, a settlement thereof shall be made on the expiration of the existing leases for such a period as the Local Government may direct:

A preference shall be given to the Zemindars or other persons possessing a permanent property in the Mahals if willing to engage for the payment of the public revenue on reasonable terms:

Provided also that in cases wherein such Mahals may be let in farm, the term of the lease granted to the farmers shall not exceed twelve years.

The above rules shall likewise be applicable to estates now held khas. So in any case wherein the Zemindars and other proprietors may refuse to continue their existing arrangements, or to enter into new engagements on equitable terms, it shall be competent to the Revenue Authorities to let the lands in farm for such period, not exceeding twelve years, as the Local Government shall appoint, or to assume the direct management of them, and to retain them under khas management during the period aforesaid or such shorter period as may be judged proper:

Provided further, that if in any case, it shall appear to the Revenue Authorities that the continuance or admission of any Raja, Zemindar, Talukdar or other person who may have engaged, or may claim to engage, for any Mahal or Mahals, in or to the management of such Mahal or Mahals, would endanger the public tranquillity or otherwise be seriously detrimental, it shall be their duty to report the circumstances to Government and it shall be competent to the Local Government by notification in the local official Gazette to cause such Mahal or Mahals to be held khas or let in farm for such term as may appear expedient and proper, not exceeding the period above specified.' Regulation VII of 1822 was by Regulation IX of 1825 extended to the Bengal Presidency.

The law relating to the rights to land gained by accretion is contained in Regulation XI of 1825. Section 4 of the Regulation provides: 'When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed....'

14. The next Act relating to alluvia lands is Act IX of 1847, Section 1 of which provides as follows: 'it is hereby enacted that such parts of the Regulation of the Bengal Code as establish tribunals and prescribe rules of procedure for investigations regarding the liability to assessment of lands gained from the sea or from rivers by alluvion or dereliction or regarding the right of Government to the ownership thereof, shall, from the date of passing of this Act, cease to have effect within the Provinces of Bengal and...that no measures shall hereafter be taken for the assessment of such lands or for the assertion of the right of Government to the ownership thereof except under the provisions of this Act.' The Act gives power to the Government to direct new surveys of riparian lands, and provides for deduction of jama of estates from which lands have been washed away, and for assessment of increments to revenue paying estates. No other rules are, however, laid down as to how the settlement is to be made.

15. Act XXXI of 1858 was passed to make further provision for the settlement of land gained by alluvion. The preamble states, 'Whereas for the removal of doubts respecting the course proper to be followed in the settlement of land added by alluvial accession to estates paying revenue to Government, it is expedient to lay down certain rules to be observed in the settlement of such land.' Section 2 of the Act lays down: 'It shall be the duty of all officers making settlements of such land, whether the land be settled separately or incorporated with the original estate, to ascertain and record all such rights according to the rules prescribed in Regulation VII of 1822; and to determine any and what additional rent shall be payable in respect of the alluvial land by the person or persons entitled to any under-tenure in the original estate. The provisions of the Regulation, so far as the same may be applicable, are hereby declared to extend to all settlements made under this Act.' It is to be observed that although the liability of lands gained by accretion to assessment of revenue is laid down by Regulation II of 1819, Regulation XI of 1825 and Act IX of 1847, the procedure to be followed, in so far as it relates to the temporary settlement of such land, is not laid down in the said Regulations.

16. The procedure relating to temporary settlements of lands is laid down in Regulation VII of 1822. That Regulation lays down rules not only for ascertaining and recording rights and for determining the rents payable but also various rules as to how the settlement is to be made, and Act XXXI of 1858 says that the provisions of the said Regulation, 'so far as the same may be applicable', shall extend to all settlements made under the Act. It is contended on behalf of the appellant that Regulation VII of 1822 was passed for making settlement of lands in the ceded and conquered provinces, in respect of which there were no permanent proprietary rights, that the provisions of Section 3 of the Regulation refer to estates then let in farm or held khas, and cannot, therefore, apply to lands which are accretions to permanently settled estates, that the provisions of that Regulation apply only in so far as they relate to the ascertainment and recording of 'all such rights' and the determination of additional rent referred to in the section and that all the provisions of that Regulation do not apply to such lands.

17. But Section 3, paragraph 2, of the Regulation expressly refers to Zemindars or other persons possessing a permanent property in the Mahals. No doubt the Regulation was originally passed with reference to the ceded and conquered provinces, and Section 3 had reference to estates let in farm or held khas at that time, but the Regulation was extended to the Bengal Presidency by Regulation IX of 1825 and there does not appear to be any object in extending Section 2, Clause (6), and the thirty-three 'following sections of the Regulation (Section 3 was not excepted) to this Presidency, if it was intended that Section 3 should apply only to lands which were let in farm or held khas in the ceded and conquered provinces at the time when Regulation VII of 1822 was passed.

18. It is to be observed that Act XXXI of 1858, which provides for settlement of alluvial lands as a separate estate with a separate jama (in cases where the proprietor objects to the addition of the revenue upon (he alluvial land to the jama of the original estate), lays down in Section 1 (last paragraph) that the separate settlement may be permanent if the settlement of the original estate is permanent. That shows that the settlement may be either permanent or temporary. Where the settlement is a permanent one, the land can be let in farm or held khas only in the event of the proprietor declining to engage at the jama offered to him. See Section 43 of Regulation VIII of 1793. But that Regulation contains rules for permanent settlement of estates. The rules for temporary settlement are contained in Regulation VII of 1822, It is true that the second paragraph of Section 2 of Act XXXI of 158 lays down that the Settlement Officers making settlements shall ascertain and record all rights according to the rules prescribed in Regulation VII and determine whether any and what additional rent shall be payable in respect of the alluvial land, but we do not think that the provisions of the last paragraph, viz. 'The provisions of the said Regulation, so far as the same may be applicable are hereby declared to extend to all settlements made under the Act,' are controlled by the provisions of the 2nd paragraph. The second paragraph merely lays down certain duties to be performed by the Settlement Officers in making settlements; it does not prescribe the procedure to be followed in making the settlement. The third paragraph in extending the provisions of Regulation VII (so far its the same may be applicable) prescribes the procedure to be followed in making settlements of such lands, and we do not think that such procedure is confined only to matters dealt with in the 2nd paragraph. Besides, having regard to the fact that the procedure to be followed in making settlement of alluvial lands (so far as regards the persons with whom lands are to be settled and the term of settlement and such other matters) is not provided for in any other portion of Act XXXI of 1858 or elsewhere, we think that the provisions of Section 3 of Regulation VII of 1822 apply to alluvial lands, and if the provisions of Section 3 of Regulation VII of 1822, relating to the letting in farm for a term of years or holding the land in khas, be held applicable to settlement of land added by alluvial accretion, there is no reason why the last proviso to that section should not apply. Unless, therefore, it can be held that there must a permanent settlement of all lands gained by accretion to permanently settled estates (and such a proposition cannot be maintained having regard to the last paragraph of Section 1 of Act XXXI of 1858), the provisions of Regulation VII of 1822, which lays down the procedure to le adopted in making temporary settlements, could be held to apply and we are of opinion, as already stated, that the applicability of the provisions of the Regulation is not restricted to the matters referred to in the second paragraph of Section 2 of Act XXXI of 1858. In respect of estates which are permanently settled, the Legislature made provision (in Regulations I and VIII of 1793) for the protection of tenants and reserved certain rights to itself for that purpose, and it appears that certain powers were reserved to Government in making temporary settlement of estates by Section 3 of Regulation VII of 1822, so that the settlement might not be detrimental to the revenue, or the interests of tenants and the public. For all these reasons we are of opinion that the provisions of Section 3 of Regulation VII of 1822 apply to the disputed lands.

19. The next question is whether the order of the Government under the proviso to Section 3 of Regulation VII of 1822 is ultra vires. It appears that in the course of the last settlement proceedings Jote No. 63' and the subsequently accreted lands came up for consideration on certain applications of the jotedars, Rajani Kanta Mookherjee and others. The matter was brought up on appeal before the Director of Land Records and Mr. Beateon Bell (then Director of Land Records) in his order, dated the 15th April 1910, observed as follows: 'The Sadar Malguzar is unfortunately synonymous with the Das Mukherjee combination. By creating Jote No. 63', by refusing to accept the limitations imposed by the Collector, and by oppressive conduct towards the cultivators both within and without that Jote, the conduct of the Das Mukherjee combination has been seriously detrimental to the interests of Government, the interests of the co-proprietors and the interests of the peasantry. I have no hesitation in recommending that Government should make use of the special powers contained in the last proviso to Section 3 of the Regulation VII of 1822 and should take the estate under khas management for a period of 12 years.' The Board of Revenue (Mr. Le Mesurier) in its judgment, dated the 2nd May 1911 on appeal from the above order of the Director of Land Records, said as follows: 'Having regard to the long history of fraud and attempts to obtain advantages to which they were not entitled, to mislead officers of Government, to set up Jotes and holdings to the detriment of the superior landlords and to the constant obstruction of the Settlement Officer's proceedings and the revival again and again of claims which have been rejected and found to be baseless by competent officers, it appears that to permit the Sadar Malguzars on behalf of the proprietors to engage for the settlement of the accretion would endanger public tranquillity inasmuch as the continuance in a policy of systematic eviction is likely to produce agrarian riots and would otherwise be seriously detrimental alike to the interests of their co-proprietors and to those of the tenants and to those of Government whose land revenue would be seriously endangered by these dissensions. The Board will, therefore, advise Government with a view to the estate being held khas for a period not exceeding 12 years as provided in the last proviso of Section 3 of the above Regulation.' Then followed the Notification of the Government of Eastern Bengal and Assam, dated the 5th September 1911, which runs as follows: Whereas the Revenue Authorities have reported that the continuance of the Sadar Malguzar or Malguzars of Pergana Jngdia in the District of Noakhali in the management of Mahal Chur Khondkar situated within the said Pergana and bearing Touzi No. 1560 in the Revenue Roll of Noakhali would endangar the public tranquillity and otherwise he seriously detrimental, the Local Government in exercise of the powers conferred by Section 3 of Regulation VII of 1822 is now pleased to direct that the said Mahal be held khas for a term of twelve years.

20. It is true the reports actually submitted by the Revenue Authorities to the Government are not on the record, but having regard to what was stated in the judgments of the Director of Land Records and the Board of Revenue quoted above, and to what is stated in the Government Notification, there can be no doubt as to the report submitted by the Revenue Authorities to the Government, and it is to be noted that no objection was taken in the lower Court based on the absence of the reports actually submitted.

21. It is contended that there was really no justification for the charges made against Hem Chandra, that settlement proceedings were held under Chapter X of the Bengal Tenancy Act, and not under Regulation VII of 1822 and that, therefore, the Government could not Act under the proviso to Section 3 of that Regulation.

22. It is urged that the 'Jote No. 63' was created by Bhairab and Gyanendra not as Malguzars but as ijaradars, that in any case it was created in 1888, 9 years before Hem Chandra was appointed Malguzar, that the rent which was assessed on the Jote by the ijaradars was in accordance with the rates accepted by the Government itself, who subsequently settled not only the lands originally covered by the Jote, but also the lands which accreted to the Jote. The learned Pleader for the appellants has also referred to the litigation with the tenants and endeavoured to show that there was nothing wrong on the part of Hem Chandra in the matter. On the other hand the learned Senior Government Pleader has contended that although Hem Chandra Das did pot create the Jote, he came into office in 1897, when 12 years had not passed since the creation of the Jote and when no rights of occupancy had been acquired in the land (the land being Chur) but as he had a 3|-annas share in the Jote, he allowed the Jotedars to continue to hold the land at a rent of Rs. 21-2-0 although they were making a profit of about Rs. 2,000 a year, which was thus highly detrimental to the interests of the proprietors and the Government revenue. The learned Pleader also contended that the Revenue Authorities were justified in what they said about the litigation with tenants and about the conduct of Hem Chandra. It is unnecessary to go into details, because we think that if there were materials, for the Revenue Authorities, to go upon, it is not open to the Civil Court to see whether they were sufficient to justify them in reporting to the Government under the proviso to section a of Regulation VII of 1822. That proviso says: 'If in any case it shall appear to the Revenue authorities'; and the Revenue authorities, we think, have exclusive jurisdiction in the matter. In the case of Attorney General v. Great Western Railway Co. (1877) 4 Ch. D James, L.J., in dealing with the provisions of Section 6 of 5 & 6 Vict. C. 55, observed as follows: 'It is very important no doubt that all these special jurisdictions and powers which are given to departments of the Government, and other similar bodies, should not be exceeded, and that such bodies should keep themselves within the jurisdiction which is given to them. But as it appears to me, it is no less important that we should set them the example of keeping ourselves within our proper jurisdiction and I am of opinion that we have no jurisdiction to sit as Judges on appeal from a finding of the Board of Trade on the facts properly brought before them in this matter, and that we ought not to try to find reasons for substituting our judgment and decision for theirs.'

23. What the Civil Court is to be satisfied with is that the requirements of the law have been complied with, and that the Board had materials upon which it made the recommendation to the Government. If the Revenue Authorities were satisfied upon the materials that it was a fit case to make a recommendation to the Government, it is not for the Civil Court to go into the question of the sufficiency of the grounds upon which they proceeded, or the correctness of their conclusions. It appears that there were materials before the Director of Land Records and the Board of Revenue and they came to the conclusion that in the interests of the share holders and tenants and those of Government it was desirable not to settle with Hem Chandra, the Malguzar.

24. The unreported decision in Regular Appeal No. 310 of 1915 Brindaban Chandra Jiew v. Karuna Nidhan Singha 50 Ind. Cas. 84 : 23 C.W.N. 261 is clearly distinguishable. In that case, there was no report nor even a finding by the Revenue Authorities that the settlement with the proprietor would endanger public tranquillity or otherwise be seriously detrimental,' and the Assistant Settlement Officer's report, upon which the Collector's recommendation was based, did not state any such ground, and it was accordingly held that there was no compliance with the provisions of Section 3 of Regulation VII of 1822.

25. It is contended that even if the charges against Hem Chandra were true, the whole body of proprietors should not suffer for the same. But at the time when the order of the Government was passed, Hem Chandra was still the Malguzar, and the Government determined under statutory powers that the state should not be in his bands. Then it is said that the settlement proceedings were taken under Chapter X of the Bengal Tenancy Act and that, therefore, the order under Section 3 of the Regulation could not be made. But proceedings under Chapter X of the Bengal Tenancy Act deal with the settlement of rent and questions between landlord and tenant. These proceedings are taken preliminary to the settlement of land revenue which cannot be done under the Tenancy Act, but must be done under the provisions of Regulation VII of 1822. The observations made by the Director of Land Records and the Board of Revenue were in connection with the settlement of the Chur under Regulation VII, though the proceedings commenced under Chapter X of the Bengal Tenancy Act which, as stated above, were taken preliminary to the settlement of the Chur. However that may be, there is nothing to show that steps cannot be taken under Section 3 of the Regulation unless the report of the Revenue Authorities is made in the course of the proceedings under Regulation VII.

26. The last contention is that although the Government may have the powers (conferred under Section 3 of Regulation VII) with respect to Chur lands, it is open to the Government to abrogate such powers and that the right of renewal contained in the fourth clause of the lease is binding upon the Government. But the contract mast be taken to have been made subject to the provisions of Section 3 of Regulation VII of 1822, and it cannot be held that Government agreed to renew the lease even if the settlement with the Malguzar would in its opinion endanger the public tranquillity or otherwise be detrimental.

27. The present Malguzwa, one of whom is a leading Pleader of the Noakhali Bar, we are told, are unobjectionable persons, and it is contended that the Government should have settled the Chur with them, but that is a matter for the consideration of the Government. All that we have to see is whether the order of the Government was ultra vires or not at the date it was made. In the view we have taken it is unnecessary to discuss the other question raised before us.

28. The appeal fails and is dismissed with costs.


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