Kedar Pandey v. Kedar Nath Singh — 1953 DIGILAW 70 (PAT)

Judgment 1. In these two appeals, a common question of law arises, namely, whether the settlements made with the plaintiff-appellant by the Manager appointed under the Chota Nagpur Encumbered Estates Act are invalid on the ground that the Commissioner has not accorded his sanction to the same. 2. The plaintiff brought the suits alleging that, on 14-1-1943, the Manager appointed under the Chota Nagpur Encumbered Estates Act made a permanent settlement of 25.24 acres of land in village Ursaugi of Palamau District after taking salami. The land belonged to one Kedar Nath Singh, defendant 1 in Title Suit No. 115 of 1944, In the other title suit, namely, Title Suit No. 116 of 1944, the plaintiff alleged that he took Settlement of 11.36 acres of land from the Manager appointed under the Chota Nagpur Encumbered Estates Act, The land belonged to defendants 1 to 8 of this title suit. It is the case of the plaintiff that parwana was issued, and possession was delivered to him by the Manager of the encumbered estate. 3. The defendant-proprietors contested the respective suits mainly on the ground that the Manager appointed under the Chota Nagpur Encumbered Estates Act had no authority to make permanent settlement of the lands in favour of the plaintiff. It -was said that the Commissioner did not accord his sanction before settlements were made, and there was a violation of Rule 16 of the rules made under the Chota Nagpur Encumbered Estates Act. 4. The learned Munsif accepted the case of the defendants, and held that the settlements were null and void. He further found that the settlements were not bona fide, and that Babu Lakshman Tripathi, who was pleader of the encumbered estate, had taken advantage of his position, and induced the Manager to make settlements in favour of the plaintiff to whom the pleader was closely related. 5. The plaintiff took appeals to the Subordinate Judge of Daltonganj; but the appeals were dismissed, and the findings of the learned Munsif were affirmed. 6. On behalf of the appellant, Mr. Harinandan Singh submitted, in the first place, that the provisions of Rule 16 were beyond the powers conferred on the Government by Sec.19, Chota Nagpur Encumbered Estates Act. 5. The plaintiff took appeals to the Subordinate Judge of Daltonganj; but the appeals were dismissed, and the findings of the learned Munsif were affirmed. 6. On behalf of the appellant, Mr. Harinandan Singh submitted, in the first place, that the provisions of Rule 16 were beyond the powers conferred on the Government by Sec.19, Chota Nagpur Encumbered Estates Act. Rule 16 states that "the power to lease under Sec.17 of the Act shall be subject to the following provision --no lease shall be given for any term exceeding three years without the sanction of the Deputy Commissioner or exceeding four years without the sanction of the Commissioner." This rule must be read in the context of Sec.17 of the Act. Sec.17 states that: "Subject to the rules made under Sec.19, the Manager shall have power to demise all or any part of the property under his management for any term of years or in perpetuity to take effect in possession, in consideration of any fine or fines, or without fine, and reserving such rents and under such conditions as may be agreed upon." The language of Sec.17 indicates that the power to lease granted to the Manager is not an absolute power but it is a power subject to the limitation imposed by the rules made under Sec.19 of the Act. It is necessary, therefore) to look at Sec.19 in order to find out what is the limitation upon the power of lease granted to the Manager under Sec.17 of the Act. Sec.19 grants rule-making power to the Provincial Government for regulating the matters enumerated in that Section. It is necessary, therefore) to look at Sec.19 in order to find out what is the limitation upon the power of lease granted to the Manager under Sec.17 of the Act. Sec.19 grants rule-making power to the Provincial Government for regulating the matters enumerated in that Section. Sec.19 states : "The Provincial Government may, from time to time, make rules consistent with this Act to regulate the following matters: (a) the security to be required from subordinate officers under this Act; (aa) the classes of cases which may be submitted by the Commissioner for the consent of the Provincial Government under Sec.2; (b) the notices to be given under this Act and the publication of such notices; (c) the procedure to be followed in deter- mining, under Section 8, the debts and liabilities due to creditors and other persons, and in performing the other duties imposed on any officer by this Act; (d) the allowance of interest on each of the principal debts and liabilities so determined, from the date on which it was incurred down to the date of the determination, and on the aggregate amount of such debts and liabilities from the date of the determination down to the date of payment; (e) the order of paying debts and liabilities so determined; and generally for the guidance of officers in all matters connected with the endorsement of this Act." The argument of Mr. Harinandan Singh is that Sec.19 specifically sets out the matters, which the Provincial Government may regulate, in Clauses (a), (aa), (b), (c), (d) and (e), and there was no mention in any of these clauses that the Provincial Government may regulate the power of the Manager to lease the property for any term of years or in perpetuity to take effect in possession. Counsel. therefore, argued that Rule 16 was ultra vires of the rule-making power conferred by Sec.19. Counsel. therefore, argued that Rule 16 was ultra vires of the rule-making power conferred by Sec.19. We are unable to accept this argument, for Sec.19 confers not merely specific authority to make rules or regulate the matters mentioned in Clauses (a) to (e) but confers general power by virtue of the latter part of the section which enacts that "the Provincial Government may make rules for the guidance of officers in all matters connected with the enforcement of this Act." The generality of this power is not controlled or restricted by specific enumeration of the matters under Clauses (a) to (e) of Sec.19. If this view of the construction of Sec.19 is right, it follows that Rule 16, which imposes restriction on the power of the Manager to lease under Sec.17, is not beyond the ambit of the rule-making power conferred by Sec.19 on the Provincial Government. In our opinion, Rule 16 is not ultra vires of the power conferred on the Provincial Government by Sec.19, and the argument of Mr. Harinandan Singh on this part of the case must fail. 7. The next point taken by Mr. Harinandan Singh is that Rule 16 would apply to a lease, and that the rule will not apply to a settlement of land made with the plaintiff in this case. Learned Counsel argued that the matter will be governed by the Court of Wards Act, and the contention was that, under the rules framed under the Court of Wards Act, the Manager has authority to make settlement in perpetuity of raiyati land without the sanction of the Commissioner or the Court of Wards. But there are difficulties in the way of our accepting the argument of learned counsel on this point. Sec.17, Chota Nagpur Encumbered Estates Act uses the word "lease", and the same expression is used in Rule 16 of the statutory rules framed by the Provincial Government under Sec.19. Mr. Harinandan Singh conceded that the transaction of settlement of raiyati land in perpetuity would be a transaction of lease. But counsel attempted to draw a distinction between a lease and a settlement, and the point taken was that a lease was for a temporary period, while a settlement would be permanent, and would relate to creation of a raiyati holding. Harinandan Singh conceded that the transaction of settlement of raiyati land in perpetuity would be a transaction of lease. But counsel attempted to draw a distinction between a lease and a settlement, and the point taken was that a lease was for a temporary period, while a settlement would be permanent, and would relate to creation of a raiyati holding. But this distinction is not recognised or warranted by any provision of the Chota Nagpur Encumbered Estates Act nor under the rules framed thereunder by the Provincial Government. It is obvious that the settlements in the present case are leases of land for agricultural purposes made in perpetuity with certain tenants. By merely calling these transactions, transactions of settlement, it cannot, possibly, be argued that Sec.17, Chota Nagpur Encumbered Estates Act or Rule 16 does not apply, and that the settlements made by the Manager with the plaintiff are valid. In this connection, Mr. Harinandan Singh referred to Rule 31 at page 404 of the Bihar Wards Manual, 1941, which states that "An encumbered estate should be administered in accordance with the general rules for Wards estates, as far as possible." But this rule is not a statutory rule promulgated by the Provincial Government under Sec.19, but it is merely an executive instruction approved by the Board of Revenue, and has not the force of law. 8. The next point argued was that the defendant-proprietors had filed an application before the Commissioner, asking that the settlements should be set aside; but the Commissioner rejected the application of the defendant-proprietors. The contention is that the action of the Commissioner in dismissing the application must be deemed to be an action approving of the settlements made by the Manager in favour of the plaintiff. There is no documentary evidence in the case to show when the Commissioner dismissed the application; on the contrary, Mr. Raghosaran Lall, on behalf of the respondents, pointed out that there is a document (Ex. B) which shows that the Commissioner refused to grant sanction to the settlements made by the Manager in this case. It does not appear that the appellant raised this question before the lower appellate Court, and the relevant facts necessary for the decision on the point have not been investigated. We cannot, therefore, permit Mr. Harinandan Singh to take this point for the first time in the High Court in second appeal. 9. It does not appear that the appellant raised this question before the lower appellate Court, and the relevant facts necessary for the decision on the point have not been investigated. We cannot, therefore, permit Mr. Harinandan Singh to take this point for the first time in the High Court in second appeal. 9. The next argument advanced by Mr. Harinandan Singh is that the violation of Rule 16 was a mere irregularity, and the jurisdiction of the Manager to make the settlements in favour of the plaintiff was not affected merely because the Commissioner had not granted his sanction. This argument proceeds upon a misconception. The authority granted to the Manager under Sec.17, Chota Nagpur Encumbered Estates Act is a limited authority which is subject to the rules made under Sec.19 of the Act. Rule 16 enacted by the Provincial Government under the authority vested by Sec.19 states that the power to lease under Sec.17 shall be subject to the sanction pf the Commissioner if the lease is granted for a term exceeding four years. That is, therefore, a preliminary condition to the exercise of the jurisdiction by the Manager to grant a lease under Sec.17, and, unless the preliminary condition imposed by Sec.16 is satisfied, any settlement made by the Manager in derogation of Rule 16 would be void and without jurisdiction. The question is not a question of mere irregularity, but the question is one going to the root of the jurisdiction of the Manager to grant the lease. It is, therefore, impossible to accept the argument advanced on behalf of the appellant, and it must be held that the settlements "made by the Manager in favour of the plaintiff in this case are null and void and without jurisdiction. 10. For these reasons, we hold that these appeals are without merit, and must be dismissed with costs.