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Judgment
Reilly, J.—The questions referred to us are
(1) whether the High Court has power to interfere with a decision of the Board of Revenue under Chapter XI of the Madras Estates Land Act,
(2) whether the Board of Revenue has in this particular case exceeded the jurisdiction conferred upon it, and
(3) what should be ""the final order to be passed in this case,"" i.e., on this revision petition.
It appears that u/s 164 of the Estates Land Act the Local Government ordered that a survey should be made and a record-of-rights should be
prepared for 21 villages in the Mandasa Zamindari in the Ganjam district, which was done. On an application made by the ryots of the villages the
Local Government afterwards ordered u/s 168 of the Act that a settlement of rent should be made for the villages. The Revenue Officer appointed
for the purpose settled the rents for the villages. The ryots being dissatisfied, appealed against his orders to the Board of Revenue, which had been
appointed by the Local Government to be the appellate authority for the purpose u/s 171 of the Act. Their appeal was dismissed as time-barred.
Later on however the Board of Revenue in consequence of representations made on behalf of the ryots to His Excellency the Governor took the
matter up in revision, purporting to proceed u/s 172 of the Act, and ordered a general reduction of the rents settled by approximately 3 annas in
the rupee. The Zamindar has presented this petition to this Court for the exercise of revisional powers u/s 115 of the CPC or Section 107 of the
Government of India Act in respect of that order of the Board of Revenue.
The petition came on before Wallace and Tiruveukata Achariyar, JJ., and it was contended before them for the ryots that this Court has no
power to revise such an order of the Board of Revenue either under the CPC or under the Government of India Act. It was not necessary for the
ryots to contend that this Court had no power to revise any order made by the Board of Revenue under the Estates Land Act. Their contention
was, I understand, that an order made by the Board of Revenue u/s 172 of the Estates Land Act, which is part of Chapter XI of the Act, was not
subject to revision by this Court. In Appanna v. Latchayya ILR (1923) 47 M. 250 : 45 M.L.J. 735 Spencer, J., was of opinion that the Board of
Revenue, when acting u/s 171 or 172 of the Estates Land Act, was not a Court subject to the revisional jurisdiction of this Court. Devadoss, J., in
that case appears to have been of opinion that the Board of Revenue when making an order u/s 171 or 172 of the Estates Land Act was a Court
and that its proceedings were subject to revision by this Court. But the learned Judges agreed in disposing of the case before them on another
point. In Valluri Narasimha Rao v. The Ryots of Peddamamidipalli ILR (1925) 49 M. 49 Devadoss and Waller, JJ., decided that the High Court
had power to revise an order made by the Board of Revenue on appeal u/s 171 of the Estates Land Act, and Devadoss, J., expressed the opinion
that the High Court had also power to revise an order made by the Board u/s 172 of the Act. In Ippili Raghunadha Patro and Others Vs. Govinda
Patro (dead) and Others, the following question was referred to a Full Bench, viz.:
Has the High Court in the exercise of its revisional jurisdiction either u/s 115 of the CPC or Section 107 of the Government of India Act of 1919
power to revise orders passed by the Board of Revenue under Chapter XI or Section 205 of the Estates Land Act?
Phillips and Odgers, JJ., answered the whole question in the negative and so declared that the decision in Valluri Narasimha Rao v. The Ryots
of Peddamamidipalli ILR (1925) 49 M. 499 was wrong. But the remaining member of the Bench, Venkatasubba Rao, J., declined to answer the
question so far as it referred to Chapter XI of the Act, because, as all the learned Judges agreed, that part of the question did not arise in the case
in connection with which the reference to the Full Bench had been made. He was of opinion that the Board of Revenue when proceeding u/s 205
of the Estates Land Act was subject to the revisional jurisdiction of this Court. It will be seen that the majority of the Full Bench answered the first
question which has been referred to us. But Wallace and Tiruvenkata Achariyar, JJ., refused to be bound by that answer partly because they
regarded it as obiter dictum and partly because they doubted its correctness. With great respect I do not think the learned Judges were justified in
treating the answer given by Phillips and Odgers, JJ., in respect of Chapter XI of the Act as obiter dictum. No doubt the members of a Full Bench
may in the course of their opinions express obiter dicta. And no doubt they may decline to answer part of a question referred to them or one or
more of a series of questions, if they think it unnecessary for the purpose of the case out of which the reference has arisen. But, when a question of
law has been referred to a Full Bench and the Chief Justice has constituted a Full Bench to answer that question and the -Bench or the majority of
the Bench has answered the question, in my opinion no Judge sitting alone and no Bench of two Judges is at liberty to disregard that answer or to
treat it as not binding on them as if it was an opinion expressed obiter in disposing of an ordinary case and unnecessary for the disposal of that
case. And perhaps I may also venture to say that the very unusual procedure adopted in this case, by which a Bench of two Judges has referred a
question already decided by a Full Bench to ""a larger Bench"" than the previous Full Bench because they do not agree with the decision, does not
appear to me to be correct. I have no doubt that the Chief Justice of his own motion or on the suggestion of another Judge has power to constitute
a larger Full Bench to answer a question already answered by a Full Bench. But it is obvious that there will be something more than inconvenience
if a Bench of two Judges can refer a question already decided by a Full Bench to larger and larger Full Benches because they do not agree with the
answer or answers already given. However, this perhaps is a matter which would be more properly dealt with by my Lord the Chief Justice.
The first question referred to us is ""whether the High Court has power to interfere with a decision of the Board of Revenue under Chapter XI of
the Estates Land Act"" Interference in that question obviously means interference in revision u/s 115 of the CPC or u/s 107 of the Government of
India Act, and it is in that sense that the question has been argued before us. Under either of those provisions the High Court can interfere in
revision only with the proceedings of a Court. If the Board of Revenue in proceeding under any provision of Chapter XI of the Estates Land Act is
not acting as a Court of law, then the High Court cannot revise its orders under that chapter of the Act. That is not disputed. We have therefore to
decide whether the Board of Revenue when acting under that chapter is a Court of law. We are not concerned with the question whether the
Board of Revenue acts as a Court under other provisions of the Act. The only section of Chapter XI which refers explicitly to the Board of
Revenue is Section 172, though it appears that the Local Government has appointed the Board of Revenue also to be the appellate authority u/s
171 in some cases, including the ""settlement"" out of which this reference has arisen. We need not on this occasion trouble ourselves with the
distinction between Revenue Courts and other Civil Courts, and in speaking of Civil ""Courts I shall include Revenue Courts. Chapter XI of the Act
deals with the making of a survey or record-of-rights and a settlement of rents. These functions are to be performed by a Revenue Officer. The
Board of Revenue acts under the chapter only as the authority which can give orders for the revision of the Revenue Officer''s work u/s 172 of the
Act or, if so appointed by the Local Government, as the authority to dispose u/s 171 of appeals against the Revenue Officer''s orders made u/s
169 of the chapter. It has been admitted before us--and indeed it cannot be disputed - that the Board of Revenue in exercising these revisional or
appellate powers will only be a Court of law, if the Revenue Officer in making the orders so dealt with by the Board is himself a Court of law. If
the Revenue Officer acts as a Court, then the Board of Revenue in disposing of appeals from his orders or revising those orders must have been
intended by the Legislature to act as a Court. If, on the other hand, the Revenue Officer performs under the chapter only executive or
administrative functions, then the authority to dispose of appeals from his orders or to revise them will also perform executive or administrative
functions and so will be exempt from the revisional authority of this Court either u/s 115 of the CPC or u/s 107 of the Government of India Act.
The proper way therefore to approach the question before us appears to me to be to examine the functions of the Revenue Officer under the
chapter and in particular his functions in the settlement of rent in order to ascertain whether the Legislature intended him in discharging those
functions to do so as an executive officer or as a Court. I venture to think that in the cases I have mentioned and in the orders of the referring
Judges in this case too little attention has been paid to this aspect of the matter.
In many of his functions under the Act a Revenue Officer acts as a Civil Court. Section 189 provides that he shall hear and determine as a
Revenue Court suits and applications of the nature specified in Parts A and B of the Schedule and shuts out the jurisdiction of other Civil Courts in
those matters. They include suits to obtain pattas, suits to enforce acceptance of pattas, suits for the recovery of arrears of rent, suits for the
enhancement or reduction of money rent or for the commutation of rent in kind and for a variety of other reliefs. It is to be noticed that none of the
functions of Revenue Officer under Chapter XI of the Act is included in Part A or Part B of the Schedule or is referred to in Section 189. The
reason becomes apparent when we examine the provisions of Chapter XI. The first section of that chapter provides that the Local Government
may order a survey and record-of-rights to be made by a Revenue Officer in respect of an estate or portion of an estate (a) where the landholder
or ryots or not less than half of the total number of landholders or not less than a fourth of the total number of ryots apply for it, or (b) where ""in the
opinion of the Local Government the preparation of such a record is required to secure either the ryots generally or the landholder of an estate or
portion of an estate in enjoyment as such of their or his legal rights or is calculated to settle or avoid a serious dispute existing or likely to arise
between the ryots generally and their landholder,"" or (c) where the estate is managed by the Government or is under the superintendence of the
Court of Wards. It will be seen that the making of a survey and a record-of-rights for the whole area may be ordered when only a quarter of the
ryots apply for it or when no one applies for it but the Government thinks it desirable. The making of this order by the Government is clearly an
executive matter. Section 165 sets out the particulars, some or all of which must be included in the record-of-rights, the selection of the particulars
being left to the Government. Among these particulars are the name of the landholder, the name of the ryot and whether he has occupancy right,
the situation, extent and at least one boundary of the land held by the ryot as shown in the survey map, whether the land is irrigated, unirrigated or
garden, the rent lawfully payable at the time the record is being prepared and whether it has been permanently fixed, and how the rent has been
fixed, whether by decree or under the provisions of the Act or otherwise. The particulars I have mentioned will probably be prescribed for every
record-of-rights, as such a record would be of little use without them. Section 166 provides that the Revenue Officer shall prepare a draft record
showing the particulars prescribed ""after making such inquiry as he sees fit,"" shall publish the draft, receive and consider any objection to it and
after disposing of the objections according to such rules as the Government may prescribe ""shall finally frame the record and cause it to be locally
published"". Section 167(3) provides that ""every entry in a record of rights so published shall be evidence of the matter referred to in such entry and
shall be presumed to be correct until the contrary is proved"". Now in all this the Revenue Officer is not only carrying out the executive orders of the
Government but is himself acting as an executive officer. That has not been disputed before us. When the Government has ordered him to make
the record-of-rights, he must make it and must include in it the prescribed particulars even if neither the landholder nor any ryot appears before him
or takes any interest in the proceedings. That concludes the first part of the chapter.
We next come to Sections 168 - 171, which deal with the settlement of rent. Here Mr. Varadachariar for the petitioner contends a sudden
change comes over the scene: the Revenue Officer, who so far has been no more than an executive official, becomes a Civil Court. Section 168
provides that, if within two months of the final publication of the record-of-rights the landholder or ryots holding not less than a quarter of the extent
of the village concerned apply for a settlement of rent and the Local Government so directs, the Revenue Officer ""shall settle a fair and equitable
rent in respect of the land"". Sub-section (2) provides that in settling rents he shall presume until the contrary is proved that the existing rent or rate
of rent is fair and equitable and shall have regard to the provisions of the Act for determining the rates of rent payable by a ryot. That is the only
explicit indication in the Act on what principles he is to make his settlement. There is no definition of ""settlement of rent"". Wallace, J., in his referring
order says that the settlement of a fair and equitable rent is ""a matter which would obviously be ordinarily within the jurisdiction of the ordinary Civil
Court if it were not taken away by enactment""; and he refers to the remark of their Lordships of the Priviy Council in (1882) L.R. 9 I.A. 174
(Privy Council) that a Rent Court may be a ""Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil
rights"". And Tiruvenkata Achariyar, J., has expressed the same opinion. But with respect this appears to me to rest on an entire misconception of
what it is which the Revenue Officer does in settling rents. The lawful rent payable by each ryot for his holding and the way in which it has been
fixed, by decree or otherwise, he has already entered in the record-of-rights. There would be no object in either the landholder or the ryot asking
that he should fix that rent over again. And yet, if either the landholder or the ryot went to a Civil Court in the absence of fair rent legislation or
some special provision in this Act, no Court could make a decree for the recovery of more than the lawful rent or a declaration for the ryot that
less than the lawful rent was due from him. Obviously by the intention and provisions of this section the Revenue Officer is not tied to the lawful
rent already established and recorded but has a duty to fix a fair and equitable rent for each holding. In some cases he may find that the lawful rent
already recorded is fair and equitable, and under the section he must presume that it is so; but it is open to him to find that either a higher or a lower
rent is fair and equitable and to ""settle"" that. No Court without special legislation - and there is none outside this Act in force in this Presidency -
could give that relief to a landholder or a ryot; and in asking for it neither the landholder nor the ryot would be seeking his civil rights within the
words used by their Lordships of the Privy Council in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 91 A. 174 : ILR 9 C. 295 (P.C.) in
describing some of the characteristics of a Civil Court. In the Estates Land Act nowhere else is there any provision for such enhancement or
reduction or moderation of rents. u/s 40, when an occupancy ryot pays rent in kind or on the estimated value of part of his crop, either the ryot or
the landholder may sue to have the rent commuted to a money rent. In such a suit no question whether the lawful rent which is to be commuted is
fair or equitable can arise. u/s 30 a landholder may sue any ryot for the enhancement of money rent within certain limits on the ground of a rise of
prices or on the ground of an improvement made by the landholder or by the Government or on account of the productive powers of the land
having been increased by fluvial action. But he has no cause of action in such a suit on the ground that the lawful rent or share of produce
represented by the money rent when that was last fixed was not fair or equitable. u/s 38 an occupancy ryot who pays a money rent may sue for
reduction of rent on the ground of a fall of prices or a permanent deterioration of the land or a permanent failure of water for irrigation. But again
no question whether the lawful rent was fair and equitable when its money equivalent was fixed or last fixed can arise. u/s 42 either the landholder
or the ryot may apply to raise or reduce the rent because it is proved that the ryot is in possession of a larger area or a smaller area than that for
which he has been paying rent. But again no question whether the lawful rent for the area the ryot was supposed to hold is fair pr equitable can
arise. Except in Chapter XI there is no provision in the Act for enhancing or reducing the lawful rent on any land other than a money rent, and apart
from special circumstances a money rent can only be altered u/s 30 or 38 on the ground of a change in prices which has made the money rent for
the time being cease to represent the lawful share of the produce due to the landholder. If the lawful rent in kind or the lawful share of the produce
which the money rent is supposed to represent is to be changed upwards or downwards on the ground that it is not fair and equitable, that can be
done only by a settlement under Chapter XI. And in doing that we are certainly not in the sphere of ordinary civil rights which can be pursued in
the absence of special legislation in a Civil Court.
""Settlement,"" as I have mentioned, is not defined in the Act - perhaps because it is a word well understood in this country. In interpreting the Act
I think it is legitimate to remember that it was made by the Legislative Council when that body, then very small in numbers, was dominated and
controlled by the Executive Government acting under the orders of the Government of India and the Secretary of State. And there is no doubt that
the theory of revenue administration held by the Government was that what the Zamindar in a permanently settled estate had a right to collect from
the ryot was the rajabhagam or Government''s share of the produce of his land. By the permanent settlement of 1802 the Government had left to
the Zamindar on condition that he paid his fixed peshcash the right to collect the rajabhagam ''from the ryot. The right of the Government, which is
recognized in the Act, to interfere and ""settle"" the amount of the rajabhagam when the lawful rate of rent fixed by contract, decree or otherwise is
not fair or equitable depends ultimately on the theory that it is proper for the Government to see that the Zamindar gets from the ryot the fair and
equitable rajabhagam, no more and no less. I have no doubt that it was on that well-understood theory that the Government took power by this
legislation to ""settle"" rents at something which might - and often would if there was to be any object in these provisions - vary from what had come
to be the lawful rent recoverable in a Court of law. u/s 215 of the Act the Local Government has power to make rules for the preparation of a
settlement record of rent, and not long after the Act came into force such rules were made. I do not suggest that these rules can be used for the
interpretation of the Act, and they do not become under the Act of the same force as if they had been part of the Act. But I think it is of some
interest to notice how the Local Government, which by its dominating and controlling voice had made this Act in the Legislative Council, itself
interpreted the provisions of the Act. The rules give power to the Revenue Officer ""to cut and thresh crops on any land and to weigh or measure
produce with a view to estimating the capabilities of the soil"" - obviously to assist him in ascertaining how far the fair and equitable rent differs from
the lawful rent already recorded. One rule directs that in preparing the rent roll attention should be paid to the condition of the land, the nature of
the soil and the prevailing rates of rent both in the village under settlement and in the adjoining villages as well as to the provisions of Chapter III of
the Act. The rules also provide for what is to be done when the fair and equitable rent settled is more than 25 per cent, above the lawful rent
already recorded, a percentage of increase impossible in a suit for the enhancement of money rent. These rules have been in force for more than 20
years, and I do not think that their validity has ever been questioned. There are several other ways in which the settling officer may find it necessary
to vary the lawful rent. In some cases, where rent has been collected in a lump sum for a whole village, settlement involves the distribution of the
rent among the individual holdings. In some cases it may involve equalization or levelling of rents, in others, where there has been rack renting,
reduction. At one time rents may have been low in particular villages in consideration of their unhealthiness or lack of communications or exposure
to the ravages of wild animals. At a later stage, if those drawbacks have been removed, it may be just and equitable to raise the rents, which were
low in consideration of them. Where the settling officer has to deal only with such questions as would arise in a suit for commutation or for
enhancement or reduction of money rent, u/s 168(2) he must be guided by the appropriate principles as set out in the Act. But there is no doubt
that his settlement may embrace a much wider field of questions, and, whenever he has not merely to adjust the lawful rent but to fix what is fair
and equitable in variation from the lawful rent, which could be exacted in a suit, his settlement is clearly something which no Civil Court could do
unless specially empowered.
Next it must be noticed that, apart from the fact that by applying for a settlement of rent the landholder or ryot is often asking for something
which no Civil Court could give him. Section 168 provides that the settlement of rent shall be made only ""if the Local Government so direct"". This
does not mean, as was suggested at one stage by Mr. Varadachariar, that the Government is to set up a special temporary Court when required
for the disposal of such matters, but that the Executive Government may refuse to have a settlement made at all. The relief which the landholder or
the ryots hope to get by such a settlement can be refused by the Executive Government. That being so, how is it possible to regard the relief to be
given by this section as a civil right to be sought in a Civil Court?
More important still is it to notice that, if the Government consents and gives the necessary order, the settlement of rents can be made for a
whole village, though neither the landholder nor more than a quarter of the ryots have applied for it. In that case as between the remaining three-
quarters of the ryots and the landholder the Revenue Officer will have to settle fair and equitable rents at the suit of neither. Here we are far
removed from any possible conception of a Civil Court. Not only are those who apply for the settlement seeking something other than their civil
rights but the supposed Court is deciding questions between parties neither of whom has sought its aid.
It might perhaps be thought hardly worth while to look further for this supposed Civil Court represented by the settling officer in these
provisions. But I may mention several indications in the procedure to be followed which are incompatible with that of a Civil Court. The Revenue
Officer has the duty of making the settlement whether any parties appear before him or not, and whether they produce before him any evidence or
not. If nobody in the village moves a finger in the matter after the Government has directed that the settlement be made, he must investigate the
matter himself. He can use the presumption that the existing rent is fair and equitable; but, if something comes to his notice or is disclosed by his
experiments which proves that it is not so, he must proceed on such material as he may find available. If some ryots prove that their rents are
inequitable, he cannot refuse to apply the result to other similar cases merely because the ryots concerned take no part in the proceedings. And, as
the settlement is between each individual ryot and the landholder, it must be remembered that one ryot cannot represent another unless authorized
to do so. u/s 169, when the Revenue Officer has made up his mind what are the fair and equitable rents to be fixed, he must publish a record of his
results and wait for objections to be preferred. That is the supposed Civil Judge, as Mr. Varadachariar represents him to be, is to publish a draft
judgment and invite objections. If objections are received, he must consider them and modify his judgment in accordance with the results. And u/s
169(2) he may revise his draft judgment without being moved to do so by any one else. More remarkable still the draft judgment cannot be finally
pronounced until it has been submitted u/s 170 to a sanctioning authority. Could anything be more repugnant to ideas of propriety in Civil Courts
than that the Judge should have to get the sanction of a confirming authority before pronouncing his own judgment? And u/s 170(2) the confirming
authority may sanction the judgment, which has to be submitted to him with a summary of the objections received, without hearing any of the
objectors. The confirming authority, whose sanction gives the judgment validity and who thereby is in a sense himself the Judge, may sit in his office
hundreds of miles away and confirm the judgment without giving any of the objectors of whom he is informed any opportunity of being heard.
When all this procedure, so foreign to that of any Civil Court, has been completed, the Revenue Officer is finally to pronounce his judgment by
incorporating it in the record-of-rights already published, and ""the record-of-rights so amended shall be finally re-published."" So the end of the
work of the supposed Court is that its judgment or decree is incorporated in the record-of-rights, a document admittedly prepared by an executive
officer under executive orders. Section 171 provides for an appeal to such authority as the Government may appoint - in this case it happens to be
the Board of Revenue - against any order passed by the Revenue Officer on an objection received by him u/s 169. Then we come to Section 172,
under which the Board of Revenue may direct the revision of any record-of-rights or any part of a record-of-rights, including the settlement of
rents. That section is interesting for our present purpose, because it makes no distinction between the power or method of the Board in directing
the revision of a settlement of rents, which the petitioner represents to be the decree of a Civil Court, and the revision of any other part of the
record-of-rights, which is admittedly nothing more than the work of an executive officer. By one stroke of his pen the member of the Board of
Revenue in charge can set aside or refuse to set aside the settlement of rents and the rest of the record-of-rights, acting at the same moment
according to the contention of the petitioner as a Civil Court of revision and as an executive authority. Is it at all likely that the Legislature intended
such an unheard of combination of functions? u/s 175 any Revenue Officer specially empowered by the Local Government may correct bona fide
mistakes in the settlement record made by the settlement officer, an astonishing way of dealing with the record of a Court. And finally at the end of
the chapter we find Section 180, which provides for the costs of the proceedings. There is no provision for the payment of costs by a party to his
opponent. But there are provisions for the recovery of the cost to the Government corresponding in a way with the Court-fee collected by the
Government in a civil suit. But it will be noticed that the Judge of this supposed Civil Court has no voice whatever in deciding who is to pay those
costs. It is the Executive Government which decides who is to pay the costs and in what proportions. And the Government may decide that ryots
who have taken no part in the proceedings, who have never asked for relief and against whom no relief has been asked, must contribute to the
costs. And all costs so imposed by the Government can be recovered as if they were arrears of land revenue. Was ever a Civil Court so treated
by the Executive Government?
This examination of the provisions of Chapter XI of the Act shows, I think, that neither in the preparation of the record-of-rights nor in the
settlement of rents is the Revenue Officer acting as a Civil Court. The reliefs which can be sought and given in a settlement of rents include reliefs
which no Civil Court could grant; they can be refused by order of the Executive Government; they can be imposed between parties neither of
whom has moved the supposed Court for any relief; the procedure prescribed is wholly inappropriate to, and in some particulars would be nothing
less than scandalous in, a Civil Court. I find it impossible to believe that by these provisions the Legislature intended to create a Civil Court of any
kind. Such a creation would have been a unique monstrosity - not a kind of Civil Court, but a travesty of a Court. On the other hand, if the work
of the settlement officer is done as an executive officer, there is nothing really surprising or unnatural or unreasonable in the procedure prescribed,
which provides many safeguards against arbitrary orders.
However it has been urged before us that the settlement of rents involves decisions of great importance between the landholder and the ryots,
which undoubtedly affect their civil rights; and it is pointed out that u/s 176 of the Act the rents finally settled ""shall be deemed to have been
correctly settled and to be fair and equitable rent within the meaning of this Act"" and so are binding on the parties. It is argued for the petitioner that
the rents so settled cannot be contested thereafter in any Civil Court and that it can hardly be supposed that decisions so important, affecting civil
rights, should have been entirely excluded at every stage from the jurisdiction of Civil Courts. We are asked to say therefore that, however
extraordinarily different from a Civil Court, as we know such Courts, the Revenue Officer may appear in his jurisdiction, duties and procedure
when making a settlement of rents, we must treat him as a Civil Court because otherwise these important questions decided by him will never come
before a Civil Court at all, a result which it is represented is unthinkable. The contention that the rents finally settled by the Revenue Officer cannot
be questioned afterwards by suit in any Civil Court rests on this - Section 176 provides that subject to the provisions of Section 173 the rents so
settled shall be deemed to have been correctly settled: Section 173 provides that any person aggrieved by an entry in a settlement record prepared
under Sections 168 - 171 and incorporated in a record-of-rights finally published may institute a suit in an ordinary Civil Court on certain specified
grounds and on no others: that the rent settled has not been correctly settled or is not fair and equitable or has not been correctly entered is not one
of those grounds: therefore it is contended that no remedy by suit in a Civil Court is open to a landholder or ryot aggrieved by the rent settled by
the Revenue Officer. Personally I am not satisfied that this chain of argument is sound, though I may remark that it happened that both parties
before us took up the position that no suit is available u/s 173 to contest the correctness of any rent settled by the Revenue Officer, and therefore
this question was not fully argued before us. But it is worth while to examine the question shortly, as, if the chain of argument is unsound, the
petitioner''s supposed grievance in being shut out from a Civil Court, if we find, as I have no doubt we must, that the settlement of rents is not the
work of a Civil Court, will evaporate. One of the grounds on which a suit u/s 173 may be brought is that an entry made under Clause (e) of
Section 165 is incorrect. There is no other ground mentioned in Section 173 on which the recorded or settled rent of an ordinary ryot''s holding
can be questioned. Section 165 deals with the particulars to be included in the record-of-rights, which is to be made before any question of
settlement of rents arises. Clause (e) of Section 165 is ""the rent lawfully payable at the time the record is being prepared and whether the ryot is
entitled to the benefit of proviso (a) to Clause (1) of Section 30"" (i.e., pays a permanently fixed rent). It is contended that the result of these
provisions is that the record of rent lawfully payable, which is made in the record-of-rights before the settlement of rents is begun, can be
questioned by a suit u/s 173, but that the entry of rent finally settled by the Revenue Officer can never be so questioned. That is a very curious
result, and it cannot be suggested that any very useful purpose can be served by questioning the lawfully payable rent entered in the record-of-
rights after that rent has been superseded by the settled rent, which must thereafter be treated as correct. And it must be remembered that there is
no right of suit at all u/s 173, if only a record-of-rights is made but no settlement of rents: it is only after a settlement of rents has been completed
that the right of suit u/s 173 arises. Moreover it is only a person who is ""aggrieved by an entry in a settlement record prepared under Sections 168
to 171"" who can bring such a suit, and those are the sections which relate to the settlement of rent. And what could aggrieve either a landholder or
a ryot more in respect of such a settlement than the settling of a rent which he feels sure he can prove is not fair and equitable? But it is suggested
that we are tied to the letter of Section 173, which gives a right of suit in respect of an entry of rent lawfully payable in the record-of-rights but not
in respect of the rent finally settled. It appears to me not improbable that there is a misconception here about the meaning of Section 173. Section
170 provides that, when the settlement of rent has been sanctioned by the confirming authority, the settled rent shall be incorporated in the record-
of-rights prepared under the earlier part of the chapter ""and the record-of-rights as so amended shall be finally re-published"". Does not ""so
amended"" imply that the rent entered as lawfully payable in the record-of-rights as already prepared is struck out and the rent finally settled is
substituted for it? If that is the right interpretation, then a suit u/s 173 can be brought on the ground that the entry of the substituted rent is not
correct. That interpretation not only gives a reasonable and natural meaning to the opening words of Section 173, but it is supported, I think, by a
good many other indications in the Act. In Section 192(d)(ii) it is provided that, when a suit is brought for the recovery of rent for any land within
an area for which a record-of-rights has been published, the plaint shall contain a statement of the rent of the holding according to the record-of-
rights. Now it would be useless for such a suit to show in the plaint the lawful rent entered in the record-of-rights before the settlement of rent but
not the settled rent, when rent has been settled, as it is the settled rent which must be taken to be correct and which alone the landlord is entitled to
recover. And it will be noticed that there is no suggestion in Section 192(d)(ii) that two different rents will be found in the record-of-rights, viz., the
lawful rent first entered and the settled rent afterwards entered. The implication is, I think, that there will be only one entry of rent in respect of the
holding in the record-of-rights, viz., the lawful rent entered before there is a settlement or, if there has been a settlement, the settled rent which has
been substituted for the lawful rent as it previously stood. u/s 175 the officer empowered to correct mistakes in the settlement officer''s orders or
decisions under Sections 168 and 169, that is in settling rents, cannot make a correction so as to affect any decree made u/s 173, which implies
that a decree in a suit u/s 173 can affect an order settling rent. And the proviso to Section 175 lays down that no order or decision of the
settlement officer shall be so corrected if ""an appeal from it"" is pending or has been disposed of u/s 173. ""Appeal"" is apparently used loosely there
in the sense in which a claim suit under Order 21, Rule 63 of the Code of Civil Procedure, is sometimes spoken of as in effect an appeal against an
order on a claim preferred under Order 21, Rule 58. But the important point is that this proviso to Section 175 clearly implies that a suit may be
brought to dispute the settlement officer''s decision regarding rent made tinder Section 168 or Section 169. Then Section 176 makes the rent
settled final ""subject to the provisions of Section 173"". And Section 179 provides that no suit shall be brought in any Civil Court ""save as provided
in Section 173 for the alteration of any entry in such a record of a rent settled under Sections 168 to 172"". If only the entry made under Clause (e)
of Section 165, which is mentioned in Section 173, is understood as the entry amended by the substitution of the settled rent, then all these
references to Section 173 become consistent and intelligible, and under Sub-section (4) of Section 173 the decision what the entry shall be will
serve some practical purpose. It cannot be suggested that the words ""the rent lawfully payable at the time the record is being prepared,"" which
describe what can be disputed in a suit u/s 173, necessarily exclude the settled rent, because when once settled the settled rent becomes the lawful
rent, and, if there is a settlement, ""the time the record is being prepared"" goes on until the record-of-rights is finally re-published after amendment
u/s 170. All this appears to me to make it probable that, with whatever intention the Act was originally drafted, as finally framed it does give both
the landholder and the ryot a right to question by a suit u/s 173 in an ordinary Civil Court the correctness of the rent settled by the settlement
officer as fair and equitable. However I do not wish to express a definite opinion on this question on the present occasion, as that is unnecessary
for this reference and as the question was not fully argued before us. But I am not yet satisfied that, assuming, as Mr. Varadachariar for the
petitioner would have us assume, that the Legislature must have intended to make it possible that the important question what rent is due on a
particular holding should come before a Civil Court at some stage or other, there is any need for us to twist and torture our ideas of a Civil Court in
order to bring within them the Revenue Officer when settling rent under Sections 168 - 170 of the Act.
But are we justified in making the assumption I have just mentioned? Why must we assume that the Legislature of the day could not have
intended that the settlement of rents under Chapter XI of the Act should be kept entirely outside the jurisdiction of Civil Courts of any kind,
Revenue or otherwise? When we are asked to make assumptions about what the Legislature must or cannot have intended, it is not unprofitable to
remember that the Legislature of the day was in effect only the Executive Government in another guise, a Government which, it cannot be denied,
reflected the ideas of revenue history and policy which had been traditional in this Presidency. According to those ideas the rajabhagam which the
Zamindar of a permanently settled estate has the right to collect from the ryots represents the traditional Government''s share of the produce of the
land, which, if there were no Zamindar, would be collected by the Government direct. The Government by the permanent settlement had left the
right to collect this rajabhagam to the Zamindar but had not thereby divested itself of the moral obligation to protect the ryot from undue exactions.
It was ultimately this theory which underlay that most important feature of the Estates Land Act, the recognition that every ryot in possession of
ryot land other than old waste when the Act came into force had a permanent right of occupancy in his holding as complete as the right of a ryot in
a Government ryotwari tract. But occupancy right is of no use to any tenant if there is no limit to the rent which can be exacted from him. The
Government was morally bound to protect the ryot in a Zamindari from exaction by the Zamindar or his officials, as it was to protect the ryot in a
ryotwari tract from its own subordinate officials. And in regulating the amount of the rajabhagam to be collected the Government might well take
power to settle rents in a Zamindari in something the same way in which land revenue is settled in a ryotwari tract and in each case assert its right to
make the settlement as something entirely outside the jurisdiction of any Civil Court. We are not concerned on this occasion to discuss the legal
basis of that theory, still less its justice or political wisdom. But, if it is asserted that the Government represented by the Legislature of the day,
could not have intended to keep the settlement of rents made under Chapter XI of the Act entirely outside the jurisdiction of Civil Courts, that
appears to me an entirely unwarranted assumption. To proceed from that assumption to the conclusion that the Legislature therefore must have
intended in these provisions for the settlement of rent to create a travesty of a Civil Court with jurisdiction and procedure, not only unlike those of
any Civil Court ever heard of, but foreign to the very conception of a Civil Court, is to my mind with all respect fantastic aud unjustifiable.
A subsidiary argument urged by Mr. Varadachariar is that u/s 178 of the Act, when a settlement of rents is proceeding, no suit for
enhancement of money rent u/s 30 or reduction of money rent u/s 38 or for commutation of rent u/s 40 shall be commenced or continued with the
result that, if the settlement of rents is not the work of a Civil Court, we find suits legitimately instituted held up by executive proceedings and the
questions of rent raised in them eventually to be determined in accordance with the decisions of an executive officer as to what is the fair and
equitable rent. That may seem at first sight a little strange. But there is nothing really unnatural in the Legislature taking the view that such questions
will be better settled by the Revenue Officer, who will have already gained experience when making the record-of-rights and whose decisions are
subject to the control of so many other officers of experience by way of confirmation, appeal, revision and correction. In my opinion the fact that
u/s 178 suits of the natures mentioned are to be stayed or prohibited while a settlement of rents is in progress is no sufficient reason for inferring in
the face of what appear to me to be insuperable difficulties that the settlement must be the work of a Civil Court.
My conclusion therefore is that the Revenue Officer when making a settlement of rents under Chapter XI of the Act is not a Civil Court. From
this it follows, as is not disputed, that the Board of Revenue when directing the revision of his proceedings u/s 172 is also not a Civil Court, and
therefore that this Court cannot either u/s 115 of the CPC or u/s 107 of the Government of India Act revise an order made, or purporting to be
made, by the Board of Revenue u/s 172 of the Estates Land Act. My answer to the first question referred to us is in the negative. That being so,
the second question in my opinion requires no answer. On the third question my opinion is that C.R.P. No. 192 of 1926 should be dismissed with
costs.
Anantakrishna Aiyar, J.
The question that has been referred to the decision of the Full Bench is whether the High Court has power to interfere with a decision of the
Board of Revenue under Chapter XI of the Estates Land Act; but in fact, the learned referring Judges have referred for the final decision of the Full
Bench the entire consideration of the final order to be passed in the Civil Revision Petition.
u/s 168 of the Madras Estates Land Act, the Local Government directed a settlement of the rents of Sarangapuram and 20 other villages of the
Mandasa Estate, Ganjam District. The Special Revenue Officer in due course settled the rents under the provisions of Chapter XI of the Act.
Appeals were preferred by the ryots u/s 171 of the Act to the Board of Revenue which was constituted by the Local Government as the superior
revenue authority to which appeals would lie under that section. As the appeals were however not presented within two months from the date of
the order appealed against as provided by that section, they were dismissed as being out of time. Subsequently, the ryots of the villages in question
went on deputation to His Excellency the Governor of Madras during his tour in the Ganjam District, and represented that the Special Revenue
Officer''s order should be revised. The request of the ryots was forwarded to the Board of Revenue, and the Board proposed to exercise its
revisional powers suo motu u/s 172 of the Act, as two years had not expired from the date of the re-publication under Sub-section (3) of Section
170 of the Act. The result of the Board''s order is an all round reduction of approximately three annas in the rupee in the Revenue Officer''s rates.
The landholder has preferred the revision petition to the High Court against the orders passed by the Board of Revenue. The two learned
Judges before whom the revision petition came on for hearing, after going into the relevant provisions of the Estates Land Act, found that the
decisions of this Court about the High Court''s power to revise orders passed by the Board of Revenue under the provisions of the Estates Land
Act were not uniform. They were of opinion that the High Court has revisional jurisdiction over orders passed by the Board of Revenue u/s 205 of
the Act and also over orders passed by the Board under Chapter XI of the Act. As however the opinion of the majority of the Judges who took
part in an earlier Full Bench decision reported in Ippili Raghunadha Patro and Others Vs. Govinda Patro (dead) and Others, was against the
existence of any such power of revision in the High Court, the learned Judges before whom the present revision petition came on for hearing, for
reasons mentioned in their order of reference to the Full Bench, dated 21st of September, 1928, were of opinion that the whole question should be
considered by a larger Bench, and the case has now come before the present Bench.
The High Court''s powers of revision have been invoked in the present case both u/s 115 of the CPC and Section 107 of the Government of
India Act. u/s 115 of the Code of Civil Procedure, the High Court may call for the record of any case which has been decided by any Court
subordinate to such High Court and in which no appeal lies thereto, and make such order as it thinks fit, if any of the conditions (a), (b) and (c)
mentioned in the section should exist. It is therefore clear that before Section 115 could be invoked, it must be shown that the orders sought to be
revised are decisions of (a) a Court, and (b) that the Court is subordinate to the High Court.
Section 107 of the Government of India Act gives this High Court ""superintendence over all Courts for the time being subject to its appellate
jurisdiction"". See also Section 16 of the Letters Patent. The provisions of Section 107 of the Government of India Act are thus wider than the
provisions of Section 115 of the Code of Civil Procedure, though it may be noted that the power exists in both cases only with reference to orders
passed by ""Courts"".
u/s 5 of the Code of Civil Procedure, ""Revenue Court"" mean
a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for
agricultural purposes, but does not include a Civil Court having original jurisdiction under the Code to try such suits or proceedings as being suits
or proceedings of a civil nature.
In (1882) L.R. 9 I.A. 174 (Privy Council) the Privy Council observed that
there is a certain distinction between the Civil Courts there spoken of and the Rent Courts established by the Act, and that the Civil Courts
referred to in Section 77 (of Act X of 1859) and the kindred sections mean Civil Courts exercising all the powers of Civil Courts, as distinguished
from the Rent Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely
another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons
seeking their civil rights, and whether being a Civil Court in that sense, it does not fall within the provisions of Act VIII of 1859. It is hardly
necessary to refer to those provisions in detail, because there is no dispute but that, if the Rent Court is a Civil Court within Act VIII of 1859, the
Collector has, u/s 284, the powers of transferring his decrees for execution into another district.
Their Lordships accordingly held that a decree for rent, under Act X of 1859, made in one district could be transferred to another for
execution; and that such a question could be decided by the High Court in the exercise of its ""superintendence over all Courts subject to its
appellate jurisdiction"".
In the Schedule attached to the Estates Land Act, Part A speaks of ""Suits triable by a Collector""; and Part B of ""Applications to be disposed
of by a District Collector, Collector, or other Revenue Officer"". Column 6 specifies ""the Court, if any, to which an appeal lies"". It will be seen that
an appeal lies to the District Court in several cases under Part A; and even when an appeal does not lie under Part B to the District Court, but to
the District Collector, the latter officer (District Collector) is designated ""Court"" to which an appeal lies. It was held by the Privy Council in AIR
1914 87 (Privy Council) that ""when an appeal lies to the District Court, a second appeal lies to the High Court from the decree passed by the
District Court"". That was the view held by this High Court in cases arising under the prior Rent Recovery Act VIII of 1865; and that view was
upheld by the Privy Council in AIR 1914 87 (Privy Council) . The Estates Land Act has not made any difference in this respect.
Having regard to the preamble to the CPC and to Section 3 which enumerates the Courts which are subordinate to the High Court, Section
192 of the Estates Land Act has expressly made Section 115 of the CPC applicable to proceedings in Revenue Courts. Several learned Judges of
this Court have accordingly held that the High Court is competent to revise u/s 115 of the CPC orders of the Revenue Court in cases falling under
Parts A and B of the Schedule attached to the Estates Land'' Act. See Paramaswamy Aiyangar v. Alamelu Natchiar Animal ILR (1918) 42 M. 76
: 35 M.L.J. 632 (Ayling and Krishnan, JJ.); Ramasami Goundan v. Kali Goundan ILR (1918) 42 M. 310 : 36 M.L.J. 571 (Ayling and Krishnan,
JJ.); The Maharajah of Jeypore Vs. Sobha Sundar Dalai and Another, (Ramesam, J.); Appanna v. Latchayya ILR (1923) 47 M. 250 : 45 M.L.J.
735 (Spencer, J.) and at page 260 (Devadoss, J.).
The question of the High Court''s power of revision over orders passed by the Board of Revenue in proceedings under the Estates Land Act
other than proceedings under Chapters XI and XII of the Act has been discussed in detail by Venkatasubba Rao, J. in Ippili Raghunadha Patro
and Others Vs. Govinda Patro (dead) and Others, and by the learned referring Judges in the present order of reference, and I do not think it
therefore necessary to go into that question elaborately here, as I agree generally with the views expressed by those learned Judges with reference
to this matter.
The extreme view that the High Court has no power of revision, either u/s 115 of the CPC or u/s 107 of the Government of India Act, over
any orders passed by the Board of Revenue under the Madras Estates Land Act is, in my opinion, unsustainable. I very respectfully differ from the
opinions of the learned Judges, Phillips and Odgers, JJ., in Raghunadha Patro v. Govinda Patro (1958) 55 M.L.J. 798.
We have accordingly to consider the further question whether such powers of revision exist in respect of orders passed by the Board of
Revenue in proceedings under Chapter XI of the Act. As observed by Venkatasubba Rao, J., in Raghunadha Patro v. Govinda Patro (1928) 5
M.L.J. 798:
Whether the Board of Revenue is subordinate to the High Court is not a point to be dealt with in the abstract. The question in each case is, while
performing certain specific functions, is it so subordinate? It is for this reason that I wish to stress the point that the character of the Board of
Revenue must be separately considered under each of the sections of the Act.
I respectfully agree that that is the standpoint from which the question has to be approached.
I now proceed to consider briefly the provisions of Chapter XI of the Madras Estates Land Act. I may note that Chapter XI provides for two
distinct matters - (1) Record-of-rights, and (2) Settlement of rents. So far as record-of-rights is concerned, Sections 164 to 167 make it clear that
the proceeding is really a survey made under the provisions of the Madras Survey and Boundaries Act, though the Local Government is given
power to direct that a record be made of the rights and obligations of each ryot and landholder in respect of particular matters specified in the
sections. The proceedings consist only in recording the existing state of things including rent lawfully payable at the time, and u/s 167(3), every
entry in a record-of-rights duly published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until the
contrary is proved. The record is only a presumptive piece of evidence when the question arises for decision subsequently, and it is open to the
parties interested to show that the entry is incorrect. It was decided in Avasarala Venkata Hanumantha Rao Vs. Avasarala Achanna, that a
Revenue Officer preparing a record-of-rights under Sections 164 to 167 of the Madras Estates Land Act is only an executive officer discharging
the function of Government and is not a Court within the meaning of Section 476 of the Code of Criminal Procedure.
The question as to what is the exact legal nature of the proceedings relating to ""settlement of rents"" under Sections 168, etc., of Chapter XI, is
by no means an easy one to answer.
It would be convenient first to consider the main provisions relating to settlement of rents contained in that chapter.
Within two months from the date of the final publication of the record-of-rights u/s 166 either the landholder or a specified proportion of the
ryots may apply for a settlement of the rents; but it is only if the Local Government so direct that the Revenue Officer should settle the rents. The
Revenue Officer should settle ""a fair and equitable rent"" in respect of the land. He shall presume that the existing rent is fair and equitable and shall
have regard to the provisions of the Act for determining the rate of rent payable by a ryot. It is open to the Revenue Officer to propose to the
parties such rent or rate of rent as he considers fair and equitable, and if accepted by the parties the same may be recorded as the fair and
equitable rent and shall be deemed to have been duly settled under the Act. Even when parties agree among themselves by compromise or
otherwise as to the amount of the rent, the Revenue Officer should satisfy himself that the amount agreed upon is fair and equitable, and if so
satisfied - but not otherwise -, he should record the amount so agreed upon as the fair and equitable rent; otherwise he has himself to settle a fair
and equitable rent (Section 168).
Parties interested could file objections to any entry in the preliminary settlement record that may be prepared by the Revenue Officer. The
objections should be disposed of according to the rules which the Local Government may prescribe, and the Revenue Officer may of his own
motion, or on the application of any party aggrieved--at any time before the record is submitted to the confirming authority - revise any rent
entered therein, after giving reasonable notice to the parties concerned (Section 169).
The settlement record should be submitted by the Revenue Officer to the ""confirming authority"" appointed by the Local Government, with a full
statement of the grounds of his proposals and a summary of the objections, if any, which he has received. The ""confirming authority"" may sanction
the settlement with or without amendment, or may return it for revision, provided that no entry shall be amended or omission supplied until
reasonable notice has been given to the parties concerned to appear and be heard in the matter. After it has been sanctioned by the ""confirming
authority,"" the settlement record shall be incorporated in the record-of-rights published u/s 166, and the record-of-rights as so amended shall be
finally published (Section 170).
An appeal shall lie from every order passed by a Revenue Officer on any objection made u/s 169 to such superior revenue authority as the Local
Government may prescribe or to an officer specially empowered by the Local Government in this behalf (Section 171).
The Board of Revenue may, in any case, on application, or, of its own motion, direct the revision of any record-of-rights or any portion thereof
at any time within two years from the date of the final publication under Sub-section (2) of Section 166, and in case of settlement of rent, within
two years from the date of republication u/s 170, provided that no such direction shall be made until reasonable opportunity has been given to the
parties concerned to appear and be heard in the matter (Section 172).
u/s 173, a right of suit in the Civil Court is given with reference to specific matters. Such suit may be instituted on any of the grounds specified
in Clauses (a) to (f), and on no others. Sub-section (4) mentions the relief s which the Civil Courts could grant in such suits.
Section 174 directs that a note of all the decisions passed on appeal u/s 171, and of all the decrees passed by Civil Courts u/s 173, shall be
made in the amalgamated record-of-rights. Correction of bona fide mistakes, whether made by the Revenue Officer or by any other Revenue
Officer not superior in grade to himself, could be made within 12 months on application or of his own motion (Section 175).
Section 176 is important. It enacts ""subject to the provisions of Section 173, all rents settled under Sections 168 to 170 and entered in a
record-of-rights finally published u/s 166 or settled u/s 177 shall be deemed to have been correctly settled and to be fair and equitable rent within
the meaning of this Act."" Any rent settled under the chapter shall not thereafter be enhanced for a period of 20 years, except on grounds specified
in Section 177. When an application for settlement of rents has been made, no suit or proceeding shall be commenced or continued in any Civil or
Revenue Court under