MOHAN PRASAD SINGH DEO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application by the proprietor of Bodogodo Estate in Ganjam district, under Art. 226 of the Constitution, praying for the issue of a direction in the nature of mandamus against the State of Orissa and the Taluk Officer, Surada, restraining them from executing a distraint order issued by the Collector of Ganjam for the recovery of the costs of survey and preparation of the record -of -rights of the petitioner's estate. The said distraint order was issued for the recovery of a sum of Rs. 48,044/ - and odd and was served on the petitioner on 16 -3 -1951. The distraint order purports to have been issued under Section 8, Madras Revenue Recovery Act 1864 (Act 2 of 1864) against the proprietor who became a defaulter on failure to pay up the amount. A number of cars belonging to the petitioner, one silver Tamjan, one silver Hauda and some other movables were attached and notified for sale at a public auction.

(2.) THE petitioner contends, in the first place, that he is not liable to pay the charges incurred either for the survey or for the preparation of the record -of -rights, as both these operations were undertaken 'suo motu' by Government. Secondly, he contends that the said survey was not conducted in accordance with the provisions of the Madras Survey and Boundaries Act, 1923 (Act 8 of 1923) and, as such, it was not a survey authorised by law. Thirdly, he contends that the apportionment of the expenses between the petitioner and his raiyats in the ratio of half and half was done without notice to the petitioner and is unjust and inequitable as the petitioner has been divested of his estate under the Orissa Estates Abolition Act.

(3.) IT will be noticed that the survey was' directed by Government suo motu, in exercise of the powers conferred by Section 17 (b) (ii), Madras, Survey and Boundaries Act, 1923. Section 17 of the Act empowers Government to direct, by notification, the survey of any estate (a) on the application in writing of the proprietor of such estate, or (b) without such application whenever in the opinion of the Local Government such, survey is necessary (i) for the better and more convenient assessment or levy of irrigation cess; (ii) for any other reason to be recorded prior to the issue of such notification. The proviso to the Section says: 'Provided (1) that any person making an application under Clause (a) shall forward with his application a statement in writing signed by him to the effect that he will pay the whole cost of the survey and, if required, will deposit the amount in a Government treasury before the survey is commenced and (2) that any survey commenced under that clause may be stopped on the withdrawal of his application by the applicant unless the Local Government sees reason to direct the continuance of the survey in virtue of the power conferred on it by Clause (b).' The Government notification quoted above clearly says that the powers conferred on Government under Section 17 (b) (ii), Madras Survey and Boundaries Act, 1923 were exercised by Government 'to secure the raiyats generally and the landholders of the estates..........in the enjoyment as such of their legal rights.' This was the reason given by Government for directing a survey of the petitioner's estate under Section 17 (b) (ii) of the Act. The notification also directed the preparation of the record -of -rights under Section 164 (1) (b) and Section 182, Madras Estates Land Act. It would thus appear that while the survey was directed to be made under the provisions of the Madras Survey and Boundaries Act, 1923, the record -of -rights was directed to be prepared under the provisions of the Madras Estates Land Act. The officer appointed to prepare the record -of - rights was designated as the Settlement Officer, Ganjam -Koraput who was also appointed as 'Collector' under the Madras Estates Land Act for that purpose.