1. This is an appeal arising out of resumption proceedings under Regulation II of 1819. Certain lands to which the appellants claim lakhiraj title, were assessed with revenue on the ground that they had originally formed the bed of a navigable river and had subsequently been included by the appellants within their lakhiraj land. As provided in the Regulation, the decision of the Board of Revenue was questioned in a suit in the Court of the Subordinate Judge of Mymensingh. He decreed that suit, holding that the land in suit could not be assessed with revenue, as the claim of Government was barred by limitation. On appeal to the District Judge that decision was reversed and the suit brought by the appellants was dismissed.
2. The finding of the lower appellate Court is attacked on three grounds: firstly, that the resumption proceedings were illegal on account of several irregularities; secondly, that the claim to resumption was barred by res judicata and thirdly, that the claim was barred by limitation. On the second and third of these grounds we hold against the appellants. The plea of res judicata cannot succeed when it has been found by the Court that the land which was the subject of the former proceedings in 1837 has not been proved to be identical with the land which is the subject-matter of the present suit. On the plea of limitation we are in agreement with the learned District Judge that the application by Government under Regulation II of 1819 was not a suit so as to make Article 149, of the First Schedule of the Limitation Act applicable.
3. But on the other point we hold that the appellants have established their case. Both sides rely on the decision of the Judicial Committee of the Privy Council in Secretary of State for India v. Jatindra Nath Chowdhury A.I.R. 1924 P.C. 175. Though in that case the final decision was in favour of Government and it was held that the proceedings of the Revenue authorities were to be upheld, their Lordships were careful to point out that the proceedings of the assessing authorities may be still subject to being quashed in the ordinary Courts of law if they have been tainted by fundamental irregularity. In the present case we must hold that it has been established that there was such essential and fundamental violation of statutory requirements as would give ground for quashing the proceedings in a Court of law. From the commencement the proceedings were marked by a disregard of the express provisions of the Regulation. In the first place, before the Collector can commence proceedings he must report the circumstances to the Board of Revenue or other authority exercising the powers of that Board, who, should they be of opinion that proper grounds exist for enquiry, shall direct the Collector or other officer exercising the power of the Collector to enter on an investigation of the case in the manner hereafter mentioned. Here the proceedings for resumption were instituted by the Assistant Settlement Officer without any previous report of the Board to Revenue or any direction by that Board that that officer should enter on an investigation of the case.
4. Where the Legislature provides that an officer shall not act of his own motion but only under the direction of a superior authority, if he acts in disobedience of this provision it is difficult to hold that he is acting within his jurisdiction. The second clause of Section 5 provides that:
the Collector, on receiving the authority of the Board of Revenue, shall call the party before Slim by a notice stating the demand of Government on the lands, and requiring him to attend either in person or by vakil, within the period of one month, and to produce all sanads or other writings in virtue of which he may possess the lands, or under which they have been, or may be, claimed to be held free of assessment.
5. In this case the Assistant Settlement Officer, without receiving the authority of the Board of Revenue called on the parties before him to file objections within the period of 15 days. This notice is objectionable for two reasons: firstly, the period was half of that required by the statute; and secondly, the parties were not called on to appear before him, but were directed to file objection for transmission to the Settlement Officer. It would appear that after the issue of these notices it was decided that the case should be investigated not by the Settlement Officer but by the Assistant Settlement Officer; but it does not appear that the parties were informed that the Assistant Settlement Officer would himself deal with the case. However that may be, the case was adjourned for two days only, and on none of the parties appearing, the Assistant Settlement Officer proceeded ex parte. Here again he overlooked the provisions of the Regulation. Section 6 provident hat:
if the party shall not appear the Collector shall proceed to investigate and decide upon the case in the same manner as if the party had appeared, answered and entered into proof
6. and the nature of the enquiry to be made by the Collector is set out in Section 7 which directs that the
Collector shall institute a full and particular enquiry into the circumstances and condition of the land in question at the period of the decennial settlement, and, in cases of alluvion land, into the period of its formation.
7. It does not appear that any enquiry was made by the Assistant Settlement Officer upon these two points.
8. It is contended on behalf of the Secretary of State that when the matter finally came before the Board of Revenue after the Assistant Settlement Officer's enquiry was concluded, the parties had full opportunity of representing their case to the Board, and that the Board having heard their objection, no substantial wrong has been done to the appellants. We are unable to hold that when a statute lays down a specific rule as to the manner in which an enquiry is to be held and jurisdiction to be exercised, the enquiry held by a superior authority can be held to be a proper substitute for the procedure laid down by law. The necessity of proper investigation by the Collector appears obvious if we consider the provisions of Regulation III of 1828 which was enacted in modification and in extension of the provisions contained in Sections 22, 23 and 24 of Regulation II of 1819. The third Clause of Section 10 of that Regulation provides the procedure to be followed in suits to contest the Board's decision, and under that section the parties are prohibited from producing before the Court any evidence that has not been produced or tendered before the Collector or the Board, except under special circumstances. We, therefore, hold that the resumption proceedings were vitiated by fundamental irregularities and that the plaintiffs' suit should have been decreed.
9. We accordingly decree this appeal. We set aside the judgment and decree of the lower appellate Court. The plaintiff's suit is decreed and it is ordered that the order of the Board of Revenue declaring the land in suit liable to assessment of revenue be set aside.
10. The plaintiffs will get their costs in all Courts.