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HIGH COURT OF ORISSA
PANIGRAHI,MOHAPATRA, JJ.
Mohan Prasad Singh Deo
Versus
State of Orissa
O.J.C. No. 64 of 1952
Decided On : 06-10-1953
MADRAS SURVEY AND BOUNDARIES ACT, 1923 - S. 17(B)(II) - MADRAS ESTATES LAND ACT, 1908 - S. 164(3) - SURVEY CHARGES - APPORTIONMENT - SURVEY NOT CONDUCTED IN ACCORDANCE WITH LAW - PROPRIETOR NOT LIABLE FOR CHARGES - DISTRRAINT WARRANT ISSUED FOR RECOVERY OF CHARGES - ILLEGAL - ATTACHMENT OF MOVABLES - ILLEGAL.
Fact of the Case:
The petitioner, the proprietor of Bodogodo Estate in Ganjam district, challenged a distraint order issued by the Collector of Ganjam for the recovery of survey and record-of-rights preparation costs. The survey was directed by the Government under S. 17(b)(ii) of the Madras Survey and Boundaries Act, 1923, and the record-of-rights was prepared under S. 164(1)(b) and S. 182 of the Madras Estates Land Act, 1908. The petitioner contended that he was not liable for the charges as the survey and record-of-rights preparation were undertaken suo motu by the Government, that the survey was not conducted in accordance with the Madras Survey and Boundaries Act, and that the apportionment of expenses between him and his raiyats was unjust and inequitable.
Finding of the Court:
The Court held that the survey was not justified by law and was done without jurisdiction. The distraint was levied for an amount that did not represent survey charges alone. The Local Government did not apply its mind and take into consideration all the circumstances in apportioning the charges in strict compliance with S. 180 of the Madras Estates Land Act. Therefore, the State was not entitled to recover the demand made on the petitioner.
Issues: 1. Whether the petitioner was liable for the survey and record-of-rights preparation charges undertaken suo motu by the Government? 2. Whether the survey was conducted in accordance with the Madras Survey and Boundaries Act? 3. Whether the apportionment of expenses between the petitioner and his raiyats was just and equitable?
Ratio Decidendi: 1. The survey was directed by the Government under S. 17(b)(ii) of the Madras Survey and Boundaries Act, 1923, which empowers the Government to direct a survey without the application of the proprietor whenever it is necessary for the better and more convenient assessment or levy of irrigation cess or for any other reason recorded prior to the issue of the notification. 2. The survey was not conducted in accordance with the Madras Survey and Boundaries Act as the Collector, who was appointed as the Settlement Officer under the Madras Estates Land Act, issued a combined notification under S. 6(1) of the Survey and Boundaries Act and R. 6 of the Statutory Rules under Chapter XI of the Madras Estates Land Act, which was not in accordance with either. The Collector was not appointed as a Survey Officer under S. 4 of the Survey and Boundaries Act, and the survey was not made by a Survey Officer appointed under the Act. 3. The apportionment of expenses between the petitioner and his raiyats was not just and equitable as it was not determined having regard to all the circumstances as required by S. 180 of the Madras Estates Land Act.
Final Decision: The Court allowed the petitioner's application, directed the State Government to withdraw the demand, and release the petitioner's properties from attachment. The petitioner was awarded costs of Rs. 250.
Judgement
PANIGRAHI, C. J. :- This is an application by the proprietor of Bodogodo Estate in Ganjam district, under Art. 226 of the Constitution, praying for the issue of a direction in the nature of mandamus against the State of Orissa and the Taluk Officer, Surada, restraining them from executing a distraint order issued by the Collector of Ganjam for the recovery of the costs of survey and preparation of the record-of-rights of the petitioners estate. The said distraint order was issued for the recovery of a sum of Rs. 48,044/- and odd and was served on the petitioner on 16-3-1951.
The distraint order purports to have been issued under S. 8, Madras Revenue Recovery Act 1864 (Act 2 of 1864) against the proprietor who became a defaulter on failure to pay up the amount. A number of cars belonging to the petitioner, one silver Tamjan, one silver Haucta and some other movables were attached and notified for sale at a public auction.
2. The petitioner contends, in the first place, that he is not liable to pay the charges incurred either for the survey or for the preparation of the record-of-rights, as both these operations were undertaken suo motu by Government.
Secondly, he contends that the said survey was not conducted in accordance with the provisions of the Madras Survey and Boundaries Act, 1923 (Act 8 of 1923) and, as such, it was not a survey authorised by law.
Thirdly, he contends that the apportionment of the expenses between the petitioner and his raiyats in the ratio of half and half was done without notice to the petitioner and is unjust and inequitable as the petitioner has been divested of his estate under the Orissa Estates Abolition Act.
3. The survey of the petitioners estate was directed by Government in Notification No. 3729-S. 52/38-R, dated 10-3-1938 of the Revenue Department. The notification reads as follows :
GOVERNMENT OF ORISSA, REVENUE DEPARTMENT.
Dated Cuttack, the 10th Sept., 1938, No. 3729-S. 52/38-R : Whereas in the opinion of the Government of Orissa, a survey and preparation of the record-of-rights are required to secure the raiyats generally and the land-holders of the estates named in the schedule annexed hereto in the district of Ganjam in the enjoyment as such of their legal rights, the Governor of Orissa, in exercise of the powers conferred by S. 17 (b) (ii), Madras Survey and Boundaries Act, 1923 (Act 8 of 1923) and by Ss. 164 (1)(b) and 182, Madras Estates Land Act, 1908 (Act 1 of 1908) as amended by Madras Act 8 of 1934. hereby directs that the survey of unsurveyed estates and raiyati villages in the resurvey of such unsurveyed estates and of which no record-of-rights has been prepared be made under the provisions of the said Act 8 of 1923 and a record-of-rights be prepared for these villages situate in the estates named in the schedule under the provisions of the said Act 1 of 1908 by the Settlement Officer Ganjam-Koraput who has been appointed Collector under the said Act 1 of 1908 for this purpose.
The record-of-rights shall contain the following particulars :
(a) the name of each raiyats land-holder and of each land-holder in the estate or a portion thereof;
(b) the name of the raiyat and, where there is no raiyat, the name of the occupant;
(c) the situation and extent of the land held by the raiyat as shown in the survey map of the village;
(d) the description of the land whether it is Irrigated, rainfed or dry; and, if irrigated, whether double or single crop;
(e) the rent lawfully payable at the time the record is being prepared and whether the raiyat is entitled to the benefit of proviso (a) to Clause (D of S. 30);
(f) how the rent has been fixed; whether by decree or under the provisions of the Madras Estates Land Act or otherwise;
(g) any rights lawfully incident to the holding;
(h) if the rent is a gradually increasing rent, the times at which and the steps by which it increases;
(i) if the land is claimed to be held rent-free whether or not the occupant is entitled to hold the land without pay
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