SAPPANI ASARI Vs. COLLECTOR OF COIMBATORE FOR THE SECRETARY OF STATE FOR INDIA IN COUNCIL AND KRISHNASAWMY ASARI

JUDGEMENT

(1.) When the first title deed granted to the first defendant for the land to which this suit relates was issued by the Tahsildar (Exhibit T dated 8 September 1893), the rules in force with respect to the grant of house-sites were those embodied in the Proceedings of the Board of Revenue, No. 470, of the 15 August 1898. Under paragraph 9 of the standing order then in force, it was directed that when applications were received for house-sites within Municipal limits, the Municipality concerned should invariably be consulted before the applications were considered. The land in the present case is situated within the Erode Municipal limits and the Municipality was not consulted. The grant by the Tahsildar was therefore, in my opinion, rightly set aside as having been granted in violation of the orders then in force.

(2.) It is urged that although the rules no doubt directed the Tahsildar to consult the Municipal Council before making the. grant, yet that it was open to him either to adopt or reject the opinion of the Council and that the grant made by him could not be held to be invalid, merely because he neglected to follow strictly the procedure laid down in the rules. In support of this contention the decision in Party a Royalu V/s. Royalu Reddi I.L.R. 18 M. 434, is relied on. It is no doubt the case that it was open to the Tahsildar to accept or reject the opinion given by the Municipal Council as to the advisability of making the grant, but this does not make the rule requiring him to consult the Municipal Council an idle formality. The object of the rule no doubt was to give the Municipal Council an opportunity, if it objected to the grant, of representing the matter to the Collector qt Divisional officer and staying the hands of the Tahsildar till the matter could be fully enquired into.

(3.) I am further of opinion that the decision reported at I.L.R., 18 Mad. 434, has no bearing on the question now under discussion. All that was there held was that it was not competent to the Civil Courts to set aside a grant made by a competent officer under the Darkhast rules merely because certain of the formalities prescribed by those rules have not been observed. Here there is no question of a Civil Court setting aside a grant because of irregularity in the procedure but of a Collector setting aside an order of his subordinate on the ground that he had committed a grave irregularity. No doubt as to the legality of such action seems to have been entertained by the learned Judges who passed this" decision, for they observe" Dharkhast rules are departmental and if they are infringed the remedy is also departmental." It is further urged that as under the terms of the standing order then in force no provision was made for an appeal from the order of the Tahsildar, the Collector acted ultra vires in setting that order aside. I should be inclined to hold that the general powers of supervision over all his subordinates in the Revenue Department given to a Collector by Section 9, Regulation VI of 1803 and Section 3, Regulation VII of 1828 empowered him to set aside the irregular order of the Tahsildar in the present case. Even, however, if it should be held that the provisions of these regulations" cannot be deemed to govern the present case, I am decidedly of opinion that the action of the Collector was not ultra vires. The power of granting lands in village sites has been delegated by the Governor in Council to the Tahsildar, but certain rules have been laid down in accordance with which he powers given to him are to be exercised. If he, in direct viola-ion of one of these rules, makes a grant, it must be held that he, in doing so, does not act within the scope of the authority given to him and that the grant irregularly made by him is therefore liable to be cancelled by the Collector his official superior, to whom he is lubordinate in every official act performed by him as Tahsildar. Such it may, I consider, safely be assumed must have been the intention of the Governor in Council when these rules were sanctioned, notwithstanding that there is no explicit provision in them for an appeal from the Tahsildar's order.