Nibaran Chandra Bag Etc. v. Mahendra Nath Ghughu

Judgment

NIBARAN CHANDRA BAG ETC. MAHENDRA NATH GHUGHU (S . .J. IMAM, N. RA.uonPALA AvvANOAR ancl ]. R. MnnnnJ,KAR, .JJ.) Jlif!h C'Mtl'l-I'rnom· of 811.pen•i.•ion-Interfereiice with concurrent .finding" of Revenue Tribunal.•-Correcti011 of draft rerord of righf,,-Srttlement O,Oice if should maintai11 recorrl of oral evidcnce-lVrst Bengal, E.•tate Acquisition Art, 1%3 (IV.R.l of 1.954), "· 44--Uon.•litution of India Art. 227. Jn the draft record of rights prepared under s. 44, West Reng-al Estates Acquisition Act, 1953, the appellant was recorded as a "raiyat.-'' in respect of 1500 bighas of land. The respondent filed objections praying that the appellant be recorded as a tenure holder and the respondent as a lessee under him. The Settlement Officer held that the appellant was a permanent tenure holder and that the respondent was a temporary le~•ce for two years. On appeal the District Judge affirmed these findings. Thereupon the appellant filed a petition under Art. 227 of the Constitution before the High Court and the High Court upheld the order of the Settlement Officer relating to the status of the appellant but reversed the portion in favour of the respondent.

The appellant c.:intended that the only party interested in challenging the status of the appellant was the Government and it not having done so the entry in the draft record of rights should not have been interfered with. The respondrnt contended that the High Court had no jurisdiction in a petition under Art. 227 to interfere with the concurrent findings of the Settlement Officer and of the District.Judge that the respondent was a temporary lessee. n,1,z, that the respondent had raised an objection to the description of the status of the appellant in the record of rights and the Settlement Officer had jurisdiction to decide the question of the status of the 1'ppellant. Held, further, that the High Court was not justified in interfering with the findings of the Revenue authorities that the appellant was a tempora•y lessee. In a petition under Art. 227 the High Court wa• not sitting as a court of appeal; it could only consider whether the tribunals had overstepped the limits of their jurisdiction and whether the findings were based on n'> material or were otherwise perverse.

The orders of the revenue authorities did not suffer from any of these defects. Kagenara Nath Rora v. Commissioner, Hi/l.• Division, ..i,,,,am, [1958] S.C.R. 1240, relied on. The Settlement Officer was wrong in not maintaining any record of the oral evidence adduced before him. Thongh tl•c Rn1es did not require the maintenance of record of the oral evictence, it "·a• implicit in the provision granting an app<"al from the order of tlie Settlement Ofncer, that he should maintain so1ne record of the oral evidence so that the right of appeal \Vas not nullified. Crvu, APPRLLA'l'E jFRrnnrn'l'ION : Civil Appeals Nos. lO!i & 106 of 1960. Appeals by special leave from the judgment and order dated February 20, 1957 of the Calcutta High Court. in Civil Revision Case No. 1851 of f!l:ili. N. C. Chatteijee and D. N .. MuH1e1jre, for the Appellant (In C. A. No. lOiJ of HWO) am! Respondent (In C. A. No. 106of1960). K. B. Bagchi, S. N. Mukherjee and Sul:mnar Ghose for the Respondent (In C. A. No. 105of1960) and Appellant (In C. A. No. 11)6 of 1960).

1962. November 28. The Judgment of the Court was delivered by AYYANGAR, J.-These two appeals by special leave arise out of a single judgment of the High Court at Calcutta. That judgment was rendered in a petition under Art. 227 filed by the appellant in Civil Appeal No. 105of1960. The proceeding out of which the appeals arise was an application made by Mahenclra Nath Ghu;?;hu (whom we shall refer to as the respondent) before the Assistant Settlement Officer, parganas, Nihllran Chandra Bag Maliendra Nath G'h11gll'I Ay;·angar, J. 19(;2 .1~'ibarrm (,'!imull'a Bag .\fuhendra Nath Uhug!tu objecting to certain entries in a draft Rccor<l-ofrights prepared and puulishcd under the West lkngal Estates Acquisition Act, Hl!i:3 (W. B. I of l!J54) relating to Nibaran Chandra Bag (to be refrned to as the appellant). Section 44 ( l) of that Act cnacts:--- (I)

When a record-of-rights has been prepared or revised, the Revenue Officer shall publish a drafr of the record so prepared or revised in the prescribed manner and for the prescribed period and shall receive and '"msider any objections which rnay he made to any cutry therein or to any omission therefrom during the period of s11ch publication. (:l) When all such objections have been considered and disposed of according to such rules as the State Government mav make in thi~ behalf, the Revenue Officet: shall finally frame the record and cause s11ch record to be finally published in the prescribed manner and make a certificate stating the fact of such final publication and the date thereof and shall date and subscribe the same under his name and official designation. (:l)

Any person aggrieved by an order passed by a Revenue Officer on any objection made under Sub-Setion (l) may appeal in the prescribed manner to a Tribunal appointed for the purpose of this section, ~rnd within such period and on paynwnt of such court fees as may be prescribed. A draft record-of-rights had been prepared in n·spcct of lands in the village of Howramari and it w;is left for public insprction as prcscrihrd by tlir rnlcs SUPREMECOlJRTREPORTS he application of the respondent was concerned with the entries in relation to Khatian No. ()2. Jn the draft as published the name of the appellant had been recorded as "a raiyat" in respect of approximately 1500 bighas of land most of which consisted of a fishery.

On August 2!1, l'l;)5, \vithiu the time limited for receiving o]Jjcction~ under s. +4 ( 1) of the Act, the respondent filed an objection by which he prayed that in place of the appellant his own name may be entered as the "raiyat" on the ground that he himself had been iu cnjoymrnl and possrssio11 of 1200 bighas of this lai1d as a fohcry and the rest of the ;{()\) bighas by cultivating it with paddy etc. This objection was registered uy the Assistant Settlement Officer. Subsequent thereto and before the petition of objection was disposed of, the respondent filed an amendment to the petition and in this he prayed for a modified relief that the name of the appellant should be recorded as a tenure holder and his own as a lessee under him. The appellant raised no objections to this amendment hcing allowed and the enquiry in regard to the respondent's petition proceeded before the Assistant Settlement Ol!icer.

We shall have occasion to refer to the cktails of the enquiry before this Ofiiccr as wc)J as of the order that he passed UUt to this WC ~hall lllrn after narrating the history of the proceedings which have led to the appeals before us. On the material placed before him, the A&~is­ taut Settlement Officer recorded two findings:- (I) That the status of the appellant was not that of a raiyat but or a permanent l\fokarari tenure holder and an:.ordingly directed such an entry in Khat ian No. !,:l being recorclcd. He fi•tll!d th;it 1!1<' respP11cknt \\'.ts a tcmpor:1ry les~cc under the aptiellant and accnnlinr:;ly directed a subordiuatt' Kh<1lian tu hl' opened ill .. ~.-iharan Chandra Bag Ala!tendra .i\'11/h G1mghu }/ibaran Chandf<i Bag .11flhr:wlra JYath Ulwgku A_yyangar, J. which it would be recorded that the respondent was a temporary lessee for a period of two years during the period January 1954 to January 1956 at a rental of Rs. 25,000/- per year. Under the powers contained in s.

44(3) the District Judge having jurisdiction of the area was the authority to whom appeals could be preferred. The appellant availed himself of this remedy. The learned District Judge dismissed the appeal affirming both the above findings of the Assistant Settlement Officer. The appellant thereafter invoked the jurisdiction of the High Court under Art. 227 of the Constitution. The learned Judges by their judgment now under appeal upheld the order of the Assistant Settlement Officer in so far as it altered the entry relating to the status of the appellant from a raiyat to that of a tenure holder, but they reversed the order of the Assistant Settlement Officer in so far as he directed the opening of a sub·khatian and the entry therein of the name of the respondent as a temporary lessee. The learned Judges held that there was no material on the b;Lsis of which it could be held that the respondent was a temporary lessee.

Appeal 105 of HJ()() is by the appellant and it seeks to question the correctness of the judgment of the High Court affirming the direction to record the name of the appellant as a tenure holder, while appeal 106 of 1960 is by the respondent and calls in question the jurisdiction and propriety of the High Court's interference with the concurrent findings of the Revenue Tribunals, which had held that the respondent was a temporary Jessee for a period of two years on the rent stated earlier. Mr. Chatterjee, learned Counsel for the appellant, submitted that the learned Judges of the High Court should have set aside the entry recording the appel laul as a tenure hokier, and dismissed in its entirety the objections filed by the respondent. The status of the appellant as a raiyat, he urged, lost all meaning and significance after the amendment of the objection petition filed by the respondent.

The objection originally filed by the respondent sought the entry of respondent's name in place of the appellant The appellant's name had been entered as a raiyat under one Bhudeb Sarkar, a· tenure holder since he . was. in possession under a registered pat ta dated February 2, 19!4, and his name had continued as a raiyat from that date and this was repeated in the published· draft record of rights. By the amendment filed in September Hl55, the respondent abandoned the original objection and was content to have hi5 name recorded as a lessee. The argument was that the only party who was ·interested in challenging the status of the appellant. was the Government· of \Vest Bengal, since if the appellant was an· intermediary as a tenure holder, his interest would vest in them under the Abolition of Estates Act, but the Government' not having evinced any· interest in disturbing his title the entry should not have been interefercd with.

He further submitted that the orders passed by the High Court allowing the appellant's petition in part was not logical and that the High Court having held that the respondent had not established his claim as a lessee, not therefore deriving any benefit of the objections that he filed, should have set aside the order entering the appellant's name as a tenure holder. We arc not disposed to agree with these subm1Ss1ons. In the petition of amendment which he filed on September 17, Hl55, the respondent had pleaded : "The status of the opposite party should have been recorded as that of a tennre holder in . accordance with the documents on which the opposite party relies and in accordance with the Khatian of the last district settlement survey. "This objector, having been fully aware of the aforesaid matter during the hearing of the case on the Nibaran Chandra Bag lvlahendra Nath Ghughu Ayyangar, J. previous date, raised objection ·to the status of the Niba'"''

Chandra Bag opposite party and the same is indeed a legal obicction." ,,fahr111lrn .\"ath J ,J_lJ'tJll.'.;UI, J. In his order dated November 25, 1U55, allowing this ameudmcut, the Assistant Settlement Officer specifically nolcd that "the opposite party (the appellant) also gives his consent, i. e., to the amendment being allowed. It would therefore be seen 1hat one of the items of objection to the record of rights raised by the respondent related to an error in the description of the status of the appellant as a raiyat. It would further appear that the appellant then raised no objeclion to the examination by the officer to the correctness of that entry. This apart, the Assistant Settlement Officer, the District Judge and the learned judges in the High Court have adduced several cogent and convincing reasons for the finding that the appellant was a tenure holder and not a raiyat. Mr. Chatterjee made no attempt to attack this conclusion or the reasoning on which it was based.

His only submission was that the order of the learned Judges in the High Court in this respect was illogical since their order in regard to the status of tbe respondent as a lessee they had deprived him of all benefit arising from his objections under s. 44(1) of the Act. This last argument about the illogicality in the order of the High Court has little merit and such as it has, would depend on the respondent's appeal (C.A.106/60) being dismissed. In view however ·of the order we propose lo pass in that appeal, the submission would have no force. W c arc satisfied that the Assistant Settlement Otlicer had jurisdiction t > decide the objections raised by the respondent to the draft rcconl-of-ri3hts in so far as it related to the status of the appellant. In these eircmnslauce, we du nut consider that there is any substance in the appeal of lO:J/UO questioning the correctness uf the entry by which the appellant was shown as a tenure hokier instead of as a raiyat.

What remains to be dealt with is Appeal !Oil of HlGO which raises for consideration the propriety and correctness of tile interference by the learned Judges with the concurrent findings of the Assistant Settlement Officer and the District Judge that the respondent Ghughu was a temporary ksscc for two years at a rental of 2G.t100 rupees a year. Before proceeding further it is necessary to notice that the matter was brought up before the High Court by Petition under Art. 227 of the Con· stitution. The jurisdiction conferred by that Article is not by any means appellate in its nature for correcting errors in the <lccisions of Subordinate Courts or Tribunals bnt is merely a power of super· intendcnce to be ·nsed to keep them within the bounds of their authority, vide Nrtgendm Nu.th lJora 1J. Oominissioner. llill8 Division, A.•.•11.m ('). It was the submission of the learned counsel for the respondent (Appellant in C.A. 105/60) that the High Court exceeded its jurisdiction in interfering what at the worst was a mere error in the appreciation of evidence and that in fact there was enough material for the finding which the Revenue Tri bu - nals had reached, as regards the lease.

The case of the respondent was that he was a lessee under the appellant. in respect of the em ire I 500 bighas of land from] anuary l!l54. He alleged that he had paid Rs. 95,000/. as Salami and that the rent had been fixed at Rs.18 .. 500/· per year. He further alleged that after he obtained possession under tlie lease, he had been using 1200 bighas of land as a fishery and the rest of the 300 bighas for growing paddy and it was on the basis of these facts that he claimed the status of a raiyat. That the respondent was in possession of this area from January l!Jii4 was not disputed by the appellant but his case was that the respondent was his · manager on a monthly salary of Rs. 100/-. Thus, the point of differcnc" !:-P•ween (I) (1958] S.C.R. mo. Niboran Chandra Bfl.~ Mahndra Nath Ghuth• A1J0ngar, J, Nib•rari Chandra Rag At .. fundrll J\'ath f,'/mt!tu Ayy•nzr.r, J. the appellant and the respondent was only as regards thr title under which the respondent was in possession.

T n >11pport of the respondent's ca.~e he examined tlul'rrsirknt awl ilw Vice-President of Saranga· had, U. P. to prove payment of tax in his name, and he produced the records of certain criminal proceedings between him and third parties in which he had been described as a lessee both by the other parties as well as in the reports submitted by police officers. Besides, he produced copies of proceedings under s. 144 Criminal Procedure Code, between himself and the appellant in which there had been a compromise which according to him resulted in or confirmed his possession as a lessee. It also appears that both the appellant and the respondent examined themselves before the Settlement Officer. The reasoning upon which the Settlement Officer proceeded to arrive at was shortly this : Assistant his rinding'

That possession of the land with the respondent from l!J;j4 being admitted the only question for consideration was whether he was a lessee as was sought to be proved b)' him or whether he was mere! y a manager and caretaker in the employ of the appellant in receipt of a monthly salary. The appellant produced his accounts for a period anterior to I !)54 disclosing payments of salary to one ])hirandra Nath Pramanik his then Manager but he produced no accounts covering the period when the respondent was in possession, which would establish, it' the appellant's case was true, that the respondent was his manager. From the non·production of thcs1~ accounts, the Assistant Settlement Officer drew an inference adverse to the appellant. This conduct of the appellant was certainly a relevant material which the offic~r could bave taken into account. Secondly, in a criminal case between these very parties under s. l44 Code of Criminal Procedure (Case No. P. T. 1925), a joint statement was made that the respondent had some time anterior thereto paid the appellant a sum of Rs. 3000/- "as advance".

The receipt of this sum was admitted. It was the case of the respondent that this was a payment towards rent under a lease, but this was denied by the appellant, who urged that this was in part the damages or means profitS due to him. The produrtion of the appellant's accounts which recited t11e receipt of this sum might have cleared the matter, but he chose not to produce them. From this again the Officer drew an inference adverse to the appellant. Besides these pieces of evidence theFe were descriptions of the respondent as lessee in several criminal proceedings between the respondent and third parties. Lastly, there were criminal proceedings between the appellant and the respondent in regard to the possession of these very lands and this dispute was agreed to be referred to the arbitration of the Sub-Divisional Officer.

We do not have the award, but the two parties agreed to it and embodied the terms thereof in a signed memorandum of compromise and this provided inter alia, "that the respondent would pay the appellant Rs. 50,000/- in four instalments ending with ] anuary 1956" specifying the dates on which these instalments had to be paid, and it added : "The men of the first party (Appellant) will be entitled to inspect the two granaries containing paddy belonging to the first party standing on the said Bhori for the purpose of looking after them," and finally wound up saying : "the second party (Respondent) will no longer have title and concern of any sort in respect of the said Bhori." The Assistant Settlement Officer construed this compromise as meaning that the respondent was to be in possession for two . years as lessee, i. e., during the period during which the four instalment~ were to he paid and to relinquish possessio!l Niboran Chandra flt1g Mahindra Nath Glw1hu .Nila1an Chandra B•z M,/wu/,.

Nath Ghughu A1yanzar, J. after January 1956 when the last instalment. would have been due and paid, and .it was on this basis that he held that the tramaction amounted to a temporary lease for 2 years on an annual rental of Rs. 25,000/.. The learned Diltrict Judge upheld these findings and considered that all the above pieces of evidence justified the .onclusion reached by the Assistant Settlement Officer. When the matter was before the High Court, the learned Judges analysed the evidence and held that the statements in the criminal proceedings in which the respondent had been described by third parties as lessee were inadmissible in evidence and irrclevcnt for the purpose of proving his status and also that the Assistant Sctt'lement Officer and the District.Judge had misconstrued the l'ompromis<'. The lcarn<'d Judge further pointed out : (I.} that the respondent had set up a case of a lease on a rental of Rs. 18,500/-per year and that the temporary lease for two years found by the officer was inconsistent with such a pleading, and (2) that the compromise on it~ proper construction did not constitute the respondent a lessee temporary or other· wise and the courts below had misinterpreted the terms of that document.

On reaching these conclusions the learned Judges set aside the entry of the respondent's name in the sub·Khatian as a temporary lrssee. We consider that the learned Judges were not justified in the course they took in interfering with findings of the Rcvc1rne authorities. They were not sitting as a court of appeal and had merely to consider, firstly, whether the tribunals had out-stepped the limits or their jurisdiction, or secondly, whether the findings recorded were based on no material, or were otherwise perverse. \Ve are clearly of the opinion that the orders of the Revenue authorities did not suffer from any of these infirmities. In the first place no significance can be attached to the fact that the finding recorded is not in li11e with the pleading or 2 S.C.R. SUPRE1-fE COURT REPORTS the case set up by the respondent.

It is true that the respondent had prayed for a more favourable relief, namely, a longer tenure and on a lesser rental but if the evidence placed before the tribunal justified the granting of a lesser relief, there was no reason why such relief should be denied. Nothing therefore turns on the fact than the relief granted was different from that claimed by the respondent. The more substantial point is whether the learned Judges were right in holding that there was no material on which the authorities could find that the respondent was a temporary lessee. The respondent having admittedly been in actual possession of the property, the only controversy related the character in which he was in possession.

Even if the description of the respondent as lessee by third parties in the several criminal proceedings be discarded as res inter alios acta, it was certainly within the jurisdiction of a Settlement Officer to appraise the truth of the story of the appellant who claimed that the respondent was his Manager on a salary of Rs. 100/- a month. No just exception would be taken to the action of the Olficcr in drawing an inference adverse to the appellant from the non·production of his accounts to prove the payment of salary to the rcspoudcnt, or that relating to the receipt of Rs. 3000/- referred to as "an advance''. If so, the Officer could leglilly accept the respondent's case that he was a lessee and not a Paid Manager and that his possession was attributable to that character. The next question would be as to the terms of that lease-as rcg;\rds the duration and rent.

The evidence disclosed by the compromise and the <:riminal procccrlings bcLwccn :the parties militated ag;iinsl the complete acccplancc or the respondent's rnse. The cri1ninal procccdiugs arose bcc<u1sc ol' the dispute raised by the respondent that he was a lessee, but under the compromise following the award by the S.D.O. he agreed to give up possession at the end JViharan Cliaidra Bag Mah~t1d1a .Vath Ghu1hu .4yy11ng•r, J, Nibaran Chandra Bai of 2 years and to have nothing more to do with the property after that date. From these circumstances, the Settlement Officer inferred that the title as lessee which was put forward by the respondent had been conceded to a limited extent, namely, that he was to remain in possession only till January 1956. Taken in conjunction with the antecedent history, it would not be an unreasonable inference to draw that the character in which the respondent was lo remain in possession till he undertook to quit was as a lessee.

It would therefore be not correct tu say that there was no material to support the finding. If the order could be sustained to that extent, the fixation of the rent at Rs. 25,000 a year is not of much significance, because that was arrived at merely on the basis of the figure mentioned in the memo of compromise. MiW.dra Nath Ghughu A.11a11gar, J. Even assuming that the Revenue Tribunals erred in their interpretation of the compromise, it could not be a ground on which their finding could be set aside under Art. 227, in view of the fact that the compromise was but one of the several items of evidence on which the finding was based. If thus their was material, the order could not be characterised as perverse to permit of interference. We, therefore, consider that there was no justification to interfere with this concurrent finding of the revenue Tribunal. Before concluding it is necessary to deal with one matter which has also been adverted to by the learned Judges of the High Court.

It concerns the method adopted by the. Assista.11t Settleme~t Offi~r in the conduct of th!S enquiry. From hlS order it would appear that the two parties before him adduced oral evidence by examining witnesses. He however made no record of this evidence, so that one is nol iu a position to ascertain ~ith exactness what each witness deposed-except m so far as any reference is made to· it in the order. The learned 2 s.c.R. SUPR£ME COURT REPORTS Judges an inadverted on this feature and we concur with them that this is far from satisfactory. Learned Counsel for the respondent drew to our attention the rules which have been framed under s.

5!! of the Act which lay down the procedure· to I.Jc followed by Revenue Officers conducting these inquiries, (Rule 30 (2) read with Rule 17 (2)) and pointed out that these rules did not require any record being kept of the evidence adduced and that in the absence of any such statutory provision there was no need for these tribunals to follow the procedure adopted by regular courts and that it could not be said that any principle of natural justice wa& violated by such a record not being kept. We agree that the maintenance of a record of the oral evidence adduced is not the requirement of any specific rule. It should · not however be forgotton that the order passed in an enquiry into an objection filed under s. 44 (1) of the Act is subject to an appeal under s. 44 (3) to a prescribed Tribunal as authority. That appeal lies both on the facts as well as on any legal question> which might arise and be decided and is not confined to any particular grounds.

It is therefore, manifest that the appeal is intended to be a real remedy, affording full relief to the party aggrieved. For such an appeal to be effective, the party aggrieved must be in a position to canvass the P.ropriety and correctness of the reasoning of the tnbunal of first instance before the appellate authority and it would be obvious that it could not be done satisfactorily unless the party is in possession of the materials on which the conclusions of the first tribunal are based and reasons are recorded for the order. In fact the order of the tribunal cannot normally be successfully impugned unless the materials on whicl1 that order is based is placed ucfore the appellate authority. It is therefore apparent that a record of the evidence would be as necessary as a reasoned order-for a statutory right of appeal to be of any real value. We therefore consider that it is implicit .Nibarafl Chandra B•1 M(1htt1dro .. \".th Glmgh"

Ayyangari J, Nibaran Chandra Bag Mahmdra Ji/ath Ghu:hu Ay,..gar, I. 58-1 in the provision granting an appeal from the order of the revenue officer that even if the rules do not so provide, he should so conduct it that the right of appeal granted by the statute is not nullified. In saying this we should not be understood to mean that he is bound to follow the procedure prescribed for civil courts for the recording. of evidence. Only he should · maintain some rrcord from which the appellate authority would be able to gather the materials which the officer had before him in arriving at the decision which is the subject of the appeal. The result is that Civil Appeal 105/UO fails and is dismissed, while Civil Appeal 106/60 succeeds and is allowed. As a result of the orders passed in these two appca ls the revision under Art. 2::!7 preferred by the appellant to the High Court will stand dismii,scd. The respondent will lie entitled to his costs in this Court (one hearing fee). C.A. No./fl:j 1:( l!JliO dismissed.

C.A. No. JOG of 1!160 allowed.