A.A. Nachimuthu Mudaliar vs Sreeranga Goundar and Another

Srinivasan, J.—The Petitioner had occupied two cents of Nattam Poromboke in Andoiyur village ever since 1943. No objection had been taken to his occupation. In 1955, he applied for assignment of the plot in his favour. It is said that the local Panchayat Board recommended the grant. The Deputy Tahsildar, however, rejected it on the ground that the site was required for public purposes. On appeal, the Revenue Divisional Officer declined to interfere. A further petition was preferred to the Collector, who by his orders directed the assignment of the site in the Petitioner�s favour. An objection petition by one Sriranga Goundar, first Respondent herein was considered by the Collector, who found the objections untenable. In due course, a patta was issued in favour of the Petitioner in February 1959.

This Sriranga Gounder pursued his objection and presented a, petition to Government. A report was called for from the Collector. It is stated that both the Collector and the Board of Revenue found no objections at all to the assignment, and a report was made accordingly to the Government. The Government nevertheless were not satisfied and called for a fresh report. By then, there was a change of Collector and this officer made a further report. Apparently, he took the view that the occupation by the Petitioner was objectionable. The Government issued a memorandum to the Petitioner to show cause why the assignment in his favour should not be cancelled. He made his representations in writing, but the Government proceeded to pass orders cancelling the assignment.

The Petitioner attacks the order of the Government as one made without jurisdiction. It is claimed that the order making the assignment in the Petitioner�s favour was passed by the Collector on 28th December 1957, and that on that relevant date there were no powers of revision in the Government. It is pointed out that at no stage during the protracted proceedings was the occupation found to be objectionable. It is also urged that even assuming that the Government have the revisional jurisdiction in the circumstances of the case, the assignment was not affected by any of the features the existence of which alone could justify the order of cancellation. It is also urged that the Petitioner was not given an opportunity of being heard.

On behalf of the State of Madras, the proceedings leading up to the grant of the patta are not denied. It is also not denied that when the Government called for a report from the Collector of Coimbatore, the report was in favour of the assignment. The Government, however, considered the matter further and again called for a fresh report with all details. Thereafter, the Collector caused a personal inspection to be made, and in the report which he submitted, stated that the assignment is objectionable, as the site is required as a communal land for public purposes. In pursuance of this report, the Government issued a show-cause notice, and after considering the reply of the Petitioner, cancelled the assignment.

It is claimed that there is no error of jurisdiction and that the impugned order is neither a judicial nor a quasi-judicial determination of any rights of any parties and is, therefore, not liable to be quashed. It is urged that under Board''s Standing Order 15, paragraph 18, Government have the power to cancel or in any way modify a decision of any authorities subordinate to them within three years. Such powers can be exercised without limit of time if the decision is found to be impugned for certain specified reasons. It is urged, therefore, that the power has been properly exercised.

The first question argued by Mr. S. Thyagaraja Iyer is that the powers of revision were conferred upon Government only in February 1958, and that such powers could not validly be exercised in relation to an order which was made anterior to that date. Paragraph 18 of Board''s Standing Order 15 deals with powers of revision. Broadly stated, the order of the authority making the assignment is final if no appeal is presented. If an appeal is presented, the order of the appellate authority is final. No second appeal shall be admitted. But, if at any time within three years of the original or appellate decision, the Collector is satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it, or that it was passed under a mistake of fact or owing to fraud or misrepresentation, he may set aside, cancel or in any way modify the decision. Prior to the amendment of this rule in February 1958, the Board alone had a further power of revision. It could set aside, cancel or in any way modify the decision of an officer subordinate to it within three years if it is satisfied that the decision was grossly inequitable. Such powers could be exercised without any limit of time where there has been a material irregularity in the procedure or where the decision exceeded the powers of the officer who passed it, or where it was passed under a mistake of fact or owing to fraud or misrepresentation. By the amendment in 1958, such powers were also conferred upon the Government, that is to say, the Board of Revenue or the Government could exercise those powers. The two authorities had thus concurrent powers of revision. The question is whether because the revisional power was conferred upon the Government only in 1958, such powers could be exercised in relation to an order which was made previous to that date.

It seems to me that this contention cannot be accepted. It is true that an order of assignment normally becomes final after the appellate authority has dealt with the matter. But the order of such appellate authority, that is to say, the Collector, was even at the material point of time subject to the revisional jurisdiction of the Board of Revenue. The Board, if it found the decision of the appellate authority to be grossly inequitable, could set it aside within three years. The Board could also set it aside without the limit of time in certain other circumstances. The amendment of the rule in 1958 only introduced another revisional authority with equal powers as the Board of Revenue. The conferment of such powers on the Government cannot be questioned on any ground. Whatever powers the Board could have exercised in relation to the proceeding, the Government also could exercise by virtue of the rule. Since the order of the Collector granting the assignment in favour of the Petitioner was subject to revision by the Board of Revenue, if within the period of limitation within which the Board could have exercised its powers of revision, the Government had also been conferred with that power, the Government also could exercise those powers in relation to that very order. It is not as if the power was conferred upon the Government beyond the period of three years or that they purported to exercise it beyond the period of three years. (I am confining the matter to the period of limitation of three years, for even the counter-affidavit of the State of Madras does not purport to claim that such circumstances exist in the present case that the power of revision was exercisable without limit of time). I am, therefore, unwilling to accede to the proposition of the learned Counsel that the exercise of the revisional power by the Government is in any way invalid.

The Government issued a notice, dated the 2nd of December 1960, to the Petitioner. The only ground upon which they purported to invoke their powers of revision was that the Government considered the assignment made in the Petitioner�s favour to be

definitely objectionable as the site is required as a communal land for public purposes and as the tailoring shop put up by you is highly objectionable from the public point of view

The Petitioner put forward his representations and finally on the 20th of April 1961, the Government merely stated that the Petitioner had not advanced any new facts or legal grounds against the proposed cancellation and accordingly they cancelled the assignment.

It is settled position in law that where an authority conferred with certain jurisdiction purports to exercise those powers, the facts that would invoke the exercise of that jurisdiction must be clearly found. If a statute confers such powers circumscribed by certain conditions for the exercise of that power there is no doubt that these conditions must be fulfilled before the power can be exercised. The position is not different in the case of a rule of a non-statutory kind. The powers of revision conferred upon the Government can be exercised only if those circumstances set out in the rule are shown to exist. Looking at the rule, the revisional power can be exercised and the order of assignment can be set aside within three years if the decision of the assigning authority was grossly inequitable. The limit of time is taken away when there is a material irregularity in the procedure or where the decision of the subordinate authority exceeded the powers of that authority or any mistake of fact, fraud or misrepresentation is alleged. Reading the memorandum issued to the Petitioner the notice to show cause against the cancellation of the assignment, the final orders of the Government, as well as the averments in the counter-affidavit, it is clear that none of the features which would attract the powers of revision without limit of time exist or are claimed to exist. The only ground, therefore, upon which the exercise of the power can be supported is that the decision of the collector directing the grant of patta to the Petitioner was grossly inequitable. In the orders passed, except for stating that the occupation is objectionable and the site is required as communal land for public purposes, in what manner the decision of the Collector can be said to be grossly inequitable is not brought out at all in the order impugned or even in the counter-affidavit. As far as I can understand, the expression inequitable signifies that as between two persons who put forward a claim to assignment of land, the better claims of one of the two has not been considered and inequity has been caused by such absence of consideration. That is not the case here. Even with regard to the objectionable nature of the occupation, enough facts have been set out in the petition which have not been controverted to show that several authorities did not find the occupation objectionable. Assuming that the Government found it to be objectionable from their point of view, does it make the decision of the Collector granting patta grossly inequitable within the meaning of the rule? To equate objectionable to grossly inequitable seems to be wholly unwarranted. It would be remembered that appropriate authorities have been appointed for the purpose of dealing with assignments and normally their orders are final and even second appeal is not permitted. The extraordinary powers of revision which enable the cancellation of an assignment within three years or without limit of time must therefore, be construed strictly. Considering the matter in this light, I am satisfied that the foundation for the exercise of the powers of revision has not been established.

The argument advanced in the counter-affidavit that this is neither judicial nor a quasi-judicial proceeding is one that I am unable to appreciate. By the order of the Collector, patta was directed to be issued in 1957. It was in fact issued in 1959. During the interregnum, the first Respondent, the objector, had put forward his objections to the Collector, but the Collector declined to accept the objection. When once a patta had been granted, certain rights accrue to the grantee and to say that in setting aside the grant of the patta in the exercise of the powers of revision, no judicial or quasi-judicial function is involved strikes me as unsupportable.

I am accordingly satisfied that the exercise of the powers of revision in the present case is opposed to the requirements of the rule upon which the State of Madras rests its case. The order is accordingly quashed. The rule is made absolute. There will be no order as to costs.