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IN THE HIGH COURT OF ORISSA
Panigrahi, Mohapatra, JJ.
MOHAN PRASAD SINGH DEO - APPELLANT
Versus
THE STATE OF ORISSA AND ANOTHER - RESPONDENT
O.J.C. No. 64 of 1952
Decided On : 06-10-1953
MADRAS SURVEY AND BOUNDARIES ACT, 1923 - MADRAS ESTATES LAND ACT, 1908 - SURVEY AND PREPARATION OF RECORD-OF-RIGHTS - LIABILITY OF PROPRIETOR FOR COSTS - APPORTIONMENT OF COSTS - SURVEY NOT CONDUCTED IN ACCORDANCE WITH LAW - PROPRIETOR NOT LIABLE FOR COSTS - DISTRRAINT WARRANT ISSUED FOR RECOVERY OF COSTS - ILLEGAL - ATTACHMENT OF MOVABLES - ILLEGAL.
Fact of the Case:
The petitioner, the proprietor of Bodogodo Estate in Ganjam district, filed an application under Art. 226 of the Constitution, challenging a distraint order issued by the Collector of Ganjam for the recovery of costs incurred in the survey and preparation of the record-of-rights of his estate. The distraint order was issued for a sum of Rs. 48,044/- and odd and was served on the petitioner on 16-3-1951. The petitioner contended that he was not liable to pay the charges incurred for the survey or for the preparation of the record-of-rights, as both these operations were undertaken 'suo motu' by Government. He also contended that the 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. Lastly, he contended that the apportionment of the expenses between him and his raiyats in the ratio of half and half was done without notice to him and is unjust and inequitable as he has been divested of his estate under the Orissa Estates Abolition Act.
Finding of the Court:
The court held that the survey of the petitioner's estate was not justified by law and was done without jurisdiction. The distraint was also levied for an amount which admittedly does not represent 'survey charges' alone. Further, the Local Government did not apply its mind and take into consideration all the circumstances in apportioning the charges in strict compliance with Section 130, Madras Estates Land Act. Therefore, the State is not entitled to recover the demand made on the petitioner.
Issues: 1. Whether the petitioner is liable to pay the charges incurred for the survey and preparation of the record-of-rights undertaken 'suo motu' by Government? 2. Whether the survey was conducted in accordance with the provisions of the Madras Survey and Boundaries Act, 1923? 3. Whether the apportionment of the expenses between the petitioner and his raiyats in the ratio of half and half was done in accordance with law?
Ratio Decidendi: 1. The survey was directed by Government 'suo motu' in exercise of the powers conferred by Section 17 (b) (ii), Madras Survey and Boundaries Act, 1923. The proviso to the Section says that any person making an application under Clause (a) shall forward with his application a statement in writing signed by him to the effect that he will pay the whole cost of the survey and, if required, will deposit the amount in a Government treasury before the survey is commenced. The Government notification clearly says that the powers conferred on Government u/s 17 (b) (ii), Madras Survey and Boundaries Act, 1923 were exercised by Government "to secure the raiyats generally and the landholders of the estates..........in the enjoyment as such of their legal rights." 2. The survey was not conducted in accordance with the provisions of the Madras Survey and Boundaries Act, 1923. The Collector was not appointed as a Survey Officer under Section 4 of the Act and the notification issued by him was not in accordance with the prescribed form. 3. The apportionment of the expenses between the petitioner and his raiyats in the ratio of half and half was not done in accordance with law. The Local Government did not apply its mind and take into consideration all the circumstances in apportioning the charges in strict compliance with Section 130, Madras Estates Land Act.
Final Decision: The court allowed the petition and directed the State Government to withdraw the demand and release the properties of the petitioners from attachment.
JUDGMENT :
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 petitioner's 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 u/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 Hauda 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 petitioner's estate was directed by Government in Notification No. 3729-S. S2/38-R, dated 10-9-1938 of the Revenue Department. The notification reads as follows:
"GOVERNMENT OF ORISSA, REVENUE DEPARTMENT.
Dated Cuttack, the 10th Sept., 1938. No. 3729-8. 52/33-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 Section 17 (b) (ii), Madras Survey and Boundaries Act, 1923 (Act 8 of 1923) and by Sections 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 & raiyati villages & 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 1808 for this purpose.
The record-of-rights shall contain the following particulars:
(a) the name of each raiyat's 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, rained 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 (i) of Section 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 with
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