MAHABUNNESSA BIBI Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This is an appeal arising out of resumption proceedings under Regulation II of 1819. Certain lands to which the appellants claim lakhiraj title, were assessed with revenue on the ground that they had originally formed the bed of a navigable river and had subsequently been included by the appellants within their lakhiraj land. As provided in the Regulation, the decision of the Board of Revenue was questioned in a suit in the Court of the Subordinate Judge of Mymensingh. He decreed that suit, holding that the land in suit could not be assessed with revenue, as the claim of Government was barred by limitation. On appeal to the District Judge that decision was reversed and the suit brought by the appellants was dismissed.

(2.) The finding of the lower appellate Court is attacked on three grounds: firstly, that the resumption proceedings were illegal on account of several irregularities; secondly, that the claim to resumption was barred by res judicata and thirdly, that the claim was barred by limitation. On the second and third of these grounds we hold against the appellants. The plea of res judicata cannot succeed when it has been found by the Court that the land which was the subject of the former proceedings in 1837 has not been proved to be identical with the land which is the subject-matter of the present suit. On the plea of limitation we are in agreement with the learned District Judge that the application by Government under Regulation II of 1819 was not a suit so as to make Art. 149, of the First Schedule of the Limitation Act applicable.

(3.) But on the other point we hold that the appellants have established their case. Both sides rely on the decision of the Judicial Committee of the Privy Council in Secretary of State for India V/s. Jatindra Nath Chowdhury A.I.R. 1924 P.C. 175. Though in that case the final decision was in favour of Government and it was held that the proceedings of the Revenue authorities were to be upheld, their Lordships were careful to point out that the proceedings of the assessing authorities may be still subject to being quashed in the ordinary Courts of law if they have been tainted by fundamental irregularity. In the present case we must hold that it has been established that there was such essential and fundamental violation of statutory requirements as would give ground for quashing the proceedings in a Court of law. From the commencement the proceedings were marked by a disregard of the express provisions of the Regulation. In the first place, before the Collector can commence proceedings he must report the circumstances to the Board of Revenue or other authority exercising the powers of that Board, who, should they be of opinion that proper grounds exist for enquiry, shall direct the Collector or other officer exercising the power of the Collector to enter on an investigation of the case in the manner hereafter mentioned. Here the proceedings for resumption were instituted by the Assistant Settlement Officer without any previous report of the Board to Revenue or any direction by that Board that that officer should enter on an investigation of the case.