Province of Assam v. Mohamed Raja — 1945 DIGILAW 188 (CAL)

JUDGMENT Mukherjea, J. - This appeal arises out of a suit commenced by the Plaintiffs-Respondents for recovery of possession of two plots of land described in the schedule to the plaint on the allegation that these are accretions to lands held by them under periodic pottas, and as such they have acquired title to the same under Bengal Regulation XI of 1825. The suit was brought as the Deputy Commissioner representing the Province of Assam refused to grant settlement of the disputed lands by including them in their periodic pottas. The Munsif who tried the suit decreed it in part. The Plaintiffs' claim was allowed with regard to one of the plots in suit,--namely, Dag No. 731 up to a certain line indicated in the judgment, while with regard to the other plot which is Dag No. 730, the suit was dismissed in its entirety. This decision was affirmed on appeal by the Subordinate Judge of Cachar. Against this appellate judgment, the Province of Assam who figured as Defendant No. 1 in the suit has come up on appeal to this Court. 2. In this appeal, we are concerned only with that portion of Dag No. 731 in respect to which the Plaintiffs' suit has been decreed by the Courts below. 3. It is not disputed by the Appellant that the land of Dag No. 731 is an accretion to the lands held by the Plaintiffs under periodic potta; and that the Plaintiffs would be entitled to succeed if the provisions of Bengal Regulation XI of 1825 were applicable in the District of Cachar where these lands are situated. The lower Appellate Court has held that the Alluvion and Diluvion Regulation of Bengal does apply in Cachar and even if it does not apply, the Plaintiffs are entitled to the accreted lands on the footing of a custom, or in any event on grounds of equity, justice and good conscience. It is the propriety of this decision that has been challenged before us in this second appeal. 4. The first and the most important question that requires consideration is whether the provisions of Bengal Regulation XI of 1825 apply in the District of Cachar. It is the propriety of this decision that has been challenged before us in this second appeal. 4. The first and the most important question that requires consideration is whether the provisions of Bengal Regulation XI of 1825 apply in the District of Cachar. The Bengal Alluvion and Diluvion Regulation came into force in Bengal on the 26th May, 1825, and it extends "throughout the whole of the Provinces subject to the Presidency of Fort William." The District of Cachar was not under British Government in 1825. It was at that time ruled by a Hindu King. It was annexed to the British Territory by a proclamation, dated the 14th August, 1832, and was then placed under a Superintendent, controlled by the Commissioner of Assam. In 1833, the District of Cachar was transferred to the Commissionership of Dacca, and by Act V of 1835, it was placed for revenue purposes under the control of the Board of Revenue, Lower Bengal. It remained all through a non-regulated District, and in February, 1874, when the Chief Commissionership of Assam was formed, it was one of the Districts included in the Chief Commissionership. In the very same year that the Chief Commissionership was formed, the Scheduled Districts Act was passed. 5. The preamble to the Scheduled Districts (XIV of 1874) states: Whereas various parts of British India have never been brought within, or have from time to time been removed from, the operation of the general Acts and Regulations and the jurisdiction of the ordinary Courts of judicature; And whereas doubts have arisen in some cases as to which Acts or Regulations are in force in such parts, and in other cases as to what are the bounderies of such parts; and whereas among such parts are territories specified in the first schedule hereto annexed and it is expedient to provide readier means than now exist for ascertaining the enactments in force in territories and the boundaries thereof, and for administering the law therein; .... It is hereby enacted as follows:-- Sec. 3 of the Act lays down: The Local Government may, from time to by notification in the Local Gazette, (a) declare what enactments are actually in force in any of the scheduled Districts, or in any part of any such District, (b) declare of any enactment that it is not actually in force in any of the said Districts or in any part of any such District. (c) correct any mistake of fact in any notification issued under this section: Provided that a declaration once made under clause (a) or clause (b) of this section shall not be altered by any subsequent declaration other than a declaration under clause (c) of this section. 6. Under sec. 4 of the Act, notifications issued under sec. 3 are declared to be binding on all Courts of Law. Sec. 5 of the Act provides: The Local Government may, from time to time, by notification in the Local Gazette, extend to any of the Scheduled Districts, or to any part of any such district, any enactment which is in force in any part of British India at the date of such extension. 7. In the list of Scheduled Districts appended to the Act, the Chief Commissionership of Assam is mentioned. 8. Now, by a notification of the Assam Government, dated the 1st April, 1897, (being Notification No, 1242 J.) issued under sec. 3 (a) of the Scheduled Districts Act, Bengal Regulation XI of 1825 was declared to be in force in all the territories under the Chief Commissionership of Assam with the exception of Sylhet where it had already been declared in force and the North Lushai Hills. 9. This state of things continued for nearly 32 years, and apparently during this period, the Courts of law did apply the provisions of Regulation XI of 1825 to all cases involving questions of alluvion and diluvion in the District of Cachar. 10. On the 6th July, 1929; another notification (being notification No. 2402R) purporting to be under sec. 3 (c) of the Scheduled Districts Act was issued by the Local Government and it runs as follows: By way of correcting a mistake of fact in Notification No. 1242J., dated the 1st April, 1897, issued under clause (a) of sec. 10. On the 6th July, 1929; another notification (being notification No. 2402R) purporting to be under sec. 3 (c) of the Scheduled Districts Act was issued by the Local Government and it runs as follows: By way of correcting a mistake of fact in Notification No. 1242J., dated the 1st April, 1897, issued under clause (a) of sec. 3 of the Scheduled Districts Act, 1874 (Act XIV of 1874) the Government of Assam, in exercise of the powers conferred by clause (c) of the said section, are hereby pleased to declare that the districts of Cachar, Kamrup, Durrang Nowgoing, Sibangar and Lakshimpur and Eastern Duars of the Goalpara District shall be excluded from the territories in which the Bengal Alluvion and Diluvion Regulation, 1825 (Regulation XI of 1825), was declared to be in force by the said notification. 11. The contention of the Province of Assam is that the effect of the later notification is that the Bengal Regulation XI of 1825 must be deemed not to be in force in the District of Cachar, and consequently the provisions of that Regulation could not be invoked by the Plaintiff for the purpose of establishing their title to the lands in suit. In our opinion, this contention is sound and ought to prevail. 12. It may be that prior to the introduction of the Assam Land and Revenue Regulation the District Officers of Cachar and other Districts in Assam administered the spirit of the enactments and Regulations in force in Bengal, but that was more or less a matter of convenience. It was extremely doubtful as to which of the general Acts and Regulations were in force in the District of Cachar at the time when it was included in the Chief Commissionership of Assam. The Local Government, therefore, was quite within its rights to declare under sec. 3 (a) of the Scheduled Districts Act which Acts and Regulations were in force in particular Districts, and if there was any mistake of fact involved in any such declaration, they were equally competent to rectify it under cl. (e) of sec. 3 of the Act. The Notification of the 6th July, 1929, was issued by the Local Government under sec. 3 (c) of the Scheduled Districts Act, and it purported to rectify a mistake of fact that occurred in the earlier Notification of 1897. (e) of sec. 3 of the Act. The Notification of the 6th July, 1929, was issued by the Local Government under sec. 3 (c) of the Scheduled Districts Act, and it purported to rectify a mistake of fact that occurred in the earlier Notification of 1897. Whether the subsequent notification could affect any title already acquired on the basis of the previous notification is a question that does not arise for our consideration in the present case. Here the cause of action admittedly accrued long after 1929, and under sec. 4 of the Scheduled Districts Act, the notification of 1929 shall be deemed to be binding on all Courts of law. 13. The Courts below seem to be of opinion that the mistake, it any committed in the present case was a mistake of law and not of fact, and, as such, sec. 3 (e) of the Scheduled Districts Act has no application. We have not been able to appreciate this reasoning at all. Whether a particular law was in force at a certain time in a certain District is certainly a question of fact and not of law, and any mistake committed by the Local Government in this respect can be corrected by exercise of the powers conferred under cl. (c) of sec. 3 of the Scheduled Districts Act. 14. The Courts below seem further to think that the notification of 1897 which purported to have been issued under sec. 3 (a) of the Scheduled Districts Act was in substance a declaration under sec. 5 of the Act, and consequently, it could not have been revoked except by legislation. We do not think that this view is right. It is nobody's case that the Alluvion and Diluvion Regulation of 1825 was introduced in the District of Cachar for the first time in 1897. On the other hand the Respondents definitely took up the position that this law was applied in the District of Cachar ever since it became a part of the British territory. The notification of 1897 was, therefore, neither in form nor in substance a declaration made under sec 5 of the Scheduled Districts Act. On the other hand the Respondents definitely took up the position that this law was applied in the District of Cachar ever since it became a part of the British territory. The notification of 1897 was, therefore, neither in form nor in substance a declaration made under sec 5 of the Scheduled Districts Act. It purported not to extend any law to the District of Cachar but only to declare the law that was in force in this District at a particular time, and the Local Government was quite within its rights to rectify any mistake in the notification under cl. (c) of sec. 3 of the Scheduled Districts Act. 15. Mr. Das appearing on behalf of the Plaintiffs-Respondents argued that although. Cachar was not part of the British territory when Bengal Regulation XI of 1825 came into force, yet as soon as it was annexed to the Presidency of Fort William, the Regulation propria vigore applied to it by virtue of its preamble, and that as a matter of law, it should be held that Regulation XI of 1825 was in operation in the District of Cachar in the year 1874. The notification of 1897 was, therefore, a correct notification and there being absolutely no mistake of fact, the Local Government was not competent to change it by the subsequent notification of 1929. We do not think that we can accept any of these propositions as sound. 16. In the first place, it seems to us that under sec. 3(c) of the Scheduled Districts Act, it is exclusively for the Local Government to decide as to whether or not a mistake of fact occurred in any declaration made under cl. (a), which required rectification under cl. (c). The Courts of Law are not competent to enquire into the question as to whether the decision of the Local Government on this point is correct or not. On the other hand, under sec. 4 of the Scheduled Districts Act, a declaration under sec. 3 is binding on all Courts of Law. 17. In the second place, we do not know that the District of Cachar really became a part of the Presidency of Fort William in the sense of its being brought within the operation of the Acts and Regulations which were in force in that Presidency. Cachar was all along treated as a non-regulated District. 17. In the second place, we do not know that the District of Cachar really became a part of the Presidency of Fort William in the sense of its being brought within the operation of the Acts and Regulations which were in force in that Presidency. Cachar was all along treated as a non-regulated District. It may have been tacked to one administration or another for revenue or administrative purposes, but strictly Speaking it remained outside the pale of the Acts Regulations in force in Bengal, and it was regulated by such laws as the District Officers chose to introduce. It cannot be said that Regulation XI of 1825, or for the matter of that any other law of Bengal proprio vigore applied to the District of Cachar. The District Officers undoubtedly for the purpose of convenience administered some of the laws which were in force in Bengal, but, as we have said already it is a matter of doubt as to which of the specific enactments were actually applied by them. It was because of this doubt that a declaration was necessary under sec. 3 of the Scheduled Districts Act. 18. The result is that we cannot agree with the Courts below in the view that they have regarding the applicability of the provision of Regulation XI of 1825 to the District of Cachar We are of the opinion that after the notification of 1929 was made under sec. 3 (c) of the Scheduled Districts Act, it is not possible for a Court of law to say that Regulation XI of 1825 is applicable. 19. The next question is whether apart form Regulation XI of 1825, the Plaintiffs are entitled to succeed on the basis of a customs or failing that, on any rule of equity, justice and good conscience. 20. It cannot be disputed that Regulation XI of 1825 is itself a declaratory law whereby the previously established rules and customs for deter mining claims to land gained by alluvion dereliction of a river or the sea were formally enacted in the written law. 20. It cannot be disputed that Regulation XI of 1825 is itself a declaratory law whereby the previously established rules and customs for deter mining claims to land gained by alluvion dereliction of a river or the sea were formally enacted in the written law. Although in terms the Regulation XI of 1825 is not applicable the Plaintiffs can certainly succeed if they can prove any custom or usage according to which the land gained by gradual accession of a river or the sea is considered an increment to the tenure of the person to whose land or estate it is annexed. In the present case, however, no case of custom was made in the plaint and no proper evidence was adduced on that point. 21. As we have said already, from the mere fact that, prior to the introduction of the Assam Land Revenue Regulation, the District Officers of Cachar, or for the matter of that, of other Districts in Assam, administered the general principles of some enactments in force in Bengal, no conclusion can be drawn that the provisions of any particular enactment were uniformly applied to decide cases of a particular description, and as a result of that, a custom or usage has come into existence. 22. The Subordinate Judge has referred in this connection to the explanation attached to sec. 3 (b) and the proviso (b) to sec. 34 of the Assam Land and Revenue Regulation. We do not think that the provisions by themselves would help the Plaintiffs very much in proving a custom. The explanation attached to sec. 3 (b) merely lays down that any land gained by alluvion or by dereliction of a river to any estate shall be deemed to be a part of the estate provided that it is considered to be an increment to the tenure under the laws in force. This therefore, does not lay down the law, but presupposes the existence of a law according to which such accretions are regarded as increments to the tenure. Proviso (b) to sec. 34 again lays down as to how increment in revenue is to be assessed or reduction granted by the Deputy Commissioner in case of gains by alluvion or loss by diluvion during the currency of any settlement. This also is of no direct assistance to the Plaintiffs. In our opinion, this question of custom requires fuller consideration. 23. 34 again lays down as to how increment in revenue is to be assessed or reduction granted by the Deputy Commissioner in case of gains by alluvion or loss by diluvion during the currency of any settlement. This also is of no direct assistance to the Plaintiffs. In our opinion, this question of custom requires fuller consideration. 23. We, therefore, allow the appeal and send the case back to the trial Court in order that the suit may be heard afresh. The Plaintiffs will be at liberty to amend their plaint and make a specific case of acquisition of title to the accreted lands on the footing of a custom, or failing that on principles of equity, justice and good conscience. The Defendants will be entitled, after the plaint is amended, to put in additional written statements. On the amended pleadings specific issues will be framed. Both parties will be at liberty to adduce such evidence as they choose to adduce. If on a consideration of the evidence the Court finds that the Plaintiffs have been able to establish a custom or usage in their favour the suit will be decreed. If, on the other hand, the usage is proved on the side of the Defendant according to which the riparian proprietor secures no right to the accreted lands, the suit will be dismissed. If there is no evidence of usage,--either one way or other,--the Court will decide according to the principles of equity, justice and good conscience. 24. This appeal is allowed. The order appealed against is set aside and the case sent back to the trial Court to be disposed of according to law in the manner indicated above. The parties will bear their own costs up to this stage. Further costs will abide the result. Blank, J. I agree.