Nibaran Chandra Bag Etc vs Mahendra Nath Ghughu

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 105 and 106 of 1960

Decision Date: 28 November 1962

Coram: N. Rajagopala Ayyangar, Syed Jaffer Imam, J.R. Mudholkar

In this matter, the Supreme Court of India delivered a judgment on 28 November 1962. The case was styled Nibaran Chandra Bag Etc. versus Mahendra Nath Ghughu. The opinion was authored by Justice N. Rajagopala Ayyangar, who was joined on the bench by Justices Syed Jaffer Imam and J.R. Mudholkar. The parties before the Court were the petitioner, identified as Nibaran Chandra Bag Etc., and the respondent, Mahendra Nath Ghughu. The decision was recorded under the citation 1963 AIR 1895 and 1963 SCR Supl. (2) 570. The substantive legal context involved the High Court’s supervisory power under Article 227 of the Constitution of India, the power of the High Court to interfere with concurrent findings of revenue tribunals, the correction of a draft record of rights, and the obligations of a Settlement Officer to preserve a record of oral evidence. The statutory framework also included the West Bengal Estate Acquisition Act, 1953 (as amended in 1954), specifically section 44, which governs the preparation of draft records of rights.

The factual backdrop began with the preparation of a draft record of rights under section 44 of the West Bengal Estate Acquisition Act, in which the appellant was entered as a “raiyat” possessing rights over fifteen hundred bighas of land. The respondent filed objections, seeking to have the appellant recorded as a tenure holder while the respondent would be recorded as a lessee under the appellant. After hearing the submissions, the Settlement Officer concluded that the appellant was a permanent tenure holder and that the respondent held a temporary lessee interest for a period of two years. This determination was affirmed by the District Judge on appeal. Thereafter, the appellant instituted a petition under Article 227 of the Constitution before the High Court, challenging the status recorded. The High Court affirmed the Settlement Officer’s determination regarding the appellant’s status but reversed the finding concerning the respondent’s temporary lease. The appellant argued that only the Government possessed a sufficient interest to contest the appellant’s status and, because the Government had not done so, the draft record should not have been altered. The respondent contended that the High Court lacked jurisdiction in a petition under Article 227 to interfere with the concurrent findings of the Settlement Officer and the District Judge that the respondent was a temporary lessee. The Supreme Court held that the respondent’s objection to the description of the appellant’s status fell within the Settlement Officer’s jurisdiction, and therefore the Settlement Officer was competent to decide that question. Conversely, the Court held that the High Court was not justified in interfering with the revenue authorities’ finding that the respondent was a temporary lessee, because a petition under Article 227 does not confer appellate jurisdiction but merely permits examination of whether a tribunal has exceeded its jurisdiction or rendered perverse or material‑defective findings. The Court found no such defect in the revenue authorities’ orders, relying on the precedent set in Nagendra Nath Bora v. Commissioner, Hills Division, Assam [1958] SCR 1240. However, the Court observed that the Settlement Officer erred by failing to maintain a record of the oral evidence presented, noting that although the Rules did not expressly require such a record, the provision granting a right of appeal implicitly demanded the preservation of oral evidence to prevent nullification of the appeal right.

The Settlement Officer had issued an order directing that some record of the oral evidence be preserved so that the appellant’s right of appeal would not be lost. The matter then proceeded before the Civil Appellate Jurisdiction of the Supreme Court as Civil Appeals Nos. 105 and 106 of 1960, each taken on special leave from the judgment and order dated 20 February 1957 of the Calcutta High Court in Civil Revision Case No. 1851 of 1956. Counsel for the appellant in Civil Appeal No. 105 of 1960 and counsel for the respondent in Civil Appeal No. 106 of 1960 appeared, as did counsel for the respondent in Civil Appeal No. 105 of 1960 and counsel for the appellant in Civil Appeal No. 106 of 1960. The judgment was delivered on 28 November 1962 by Justice Ayangar. These two appeals arose from a single judgment of the Calcutta High Court rendered in a petition under Article 227 filed by the appellant in Civil Appeal No. 105 of 1960. The underlying proceeding involved an application made by Mahendra Nath Ghughu, here referred to as the respondent, before the Assistant Settlement Officer for twenty‑four parganas. The respondent objected to certain entries in a draft Record of Rights prepared and published under the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954), which related to Nibaran‑Chandra Bag, here referred to as the appellant. Section 44(1) of the Act provides that when a record of rights has been prepared or revised, the Revenue Officer shall publish a draft in the prescribed manner for a prescribed period and shall receive and consider any objections to any entry or omission during that period. Section 44(2) states that after all objections have been considered and disposed of according to rules made by the State Government, the Revenue Officer shall finally frame the record, cause it to be finally published, and make a certificate of such final publication signed and dated by him. Section 44(3) allows any person aggrieved by an order of the Revenue Officer on any objection made under Sub‑Section (1) to appeal, in the prescribed manner, to a Tribunal appointed for that purpose, within the prescribed period and upon payment of the prescribed court fees. A draft record of rights had been prepared for lands in the village of Howramari and was made available for public inspection as required. The respondent’s application concerned the entries relating to Khatian Nib, No. 52. In the published draft, the appellant’s name was recorded as “a raiyat” in respect of approximately 1,500 bighas of land, most of which comprised a fishery. On 29 August, the record continued.

In 1955, within the period prescribed for filing objections under section 44(1) of the Act, the respondent lodged an objection in which he requested that his own name be entered in place of the appellant as the “raiyat.” He based this request on the assertion that he had enjoyed and possessed 1,200 bighas of the land as a fishery and had cultivated the remaining 300 bighas with paddy and other crops. The Assistant Settlement Officer recorded this objection in the official register. After the objection had been entered but before it was finally disposed of, the respondent submitted a further amendment to the petition. In the amendment he sought a different relief, asking that the appellant’s name be recorded as a tenure holder and that his own name be entered as a lessee under the appellant. The appellant did not object to the allowance of this amendment, and the inquiry into the respondent’s petition continued before the Assistant Settlement Officer. The Court notes that it will later examine the details of the inquiry conducted by that Officer and the order he issued, but first it sets out the procedural history that led to the present appeals. Upon reviewing the material placed before him, the Assistant Settlement Officer made two specific findings. First, he concluded that the appellant did not hold the status of a raiyat but was instead a permanent Mokarari tenure holder, and he directed that the entry in Khatian No. 52 reflect this status. Second, he found that the respondent was a temporary lessee of the appellant and consequently ordered the opening of a subordinate Khatian in which it would be recorded that the respondent held a temporary lease for a period of two years, from January 1954 to January 1956, at an annual rental of Rs 25,000. Under the authority granted by section 44(3), the district judge having jurisdiction over the area was the proper forum for filing an appeal. The appellant exercised this right and appealed to the district judge, who dismissed the appeal and affirmed both findings of the Assistant Settlement Officer. Subsequently, the appellant invoked the jurisdiction of the High Court under Article 227 of the Constitution. The High Court, by the judgment now under appeal, upheld the Assistant Settlement Officer’s order insofar as it changed the appellant’s entry from “raiyat” to “tenure holder.” However, the High Court set aside the portion of the order that directed the creation of the sub‑khatian and the entry of the respondent as a temporary lessee, holding that there was no material evidence to support the conclusion that the respondent was a temporary lessee. Appeal 105 of 1960, filed by the appellant, challenges the correctness of the High Court’s judgment that affirmed the direction to record the appellant’s name as a tenure holder.

In this case, the appellant’s appeal, numbered 105 of 1960, contended that the High Court should have set aside the entry that recorded the appellant as a tenure holder and should have dismissed entirely the objections filed by the respondent. By contrast, appeal 106 of 1960, filed by the respondent, challenged the jurisdiction and propriety of the High Court’s interference with the concurrent findings of the Revenue Tribunals, which had determined that the respondent was a temporary lessee for a period of two years on the rent that had been previously stated. Counsel for the appellant argued that once the respondent amended his objection petition, the appellant’s status as a raiyat lost all meaning and significance. The original objection, filed by the respondent, had sought to have the respondent’s name entered in place of the appellant’s. The appellant’s name had initially been entered as a raiyat under Bhudeb Sarkar, who was a tenure holder possessing the land under a registered patta dated 2 February 1944, and this designation as raiyat had been repeated in the published draft record of rights. By the amendment filed in September 1955, the respondent abandoned the original objection and expressed satisfaction with his name being recorded merely as a lessee. The appellant’s counsel further advanced the argument that only the Government of West Bengal possessed an interest in challenging the appellant’s status, because if the appellant functioned merely as an intermediary tenure holder, his interest would vest in the Government under the Abolition of Estates Act; since the Government had not shown any intention to disturb the appellant’s title, the entry should not have been interfered with. Additionally, the counsel contended that the High Court’s orders, which had allowed the appellant’s petition in part, were illogical because the High Court had concluded that the respondent had not established a claim as a lessee and therefore should not have derived any benefit from the objections he filed; consequently, the High Court should have set aside the order that recorded the appellant as a tenure holder. The Court indicated that it was not persuaded by these submissions. The amendment petition filed on 17 September 1955 by the respondent pleaded that “the status of the opposite party should have been recorded as that of a tenure holder in accordance with the documents on which the opposite party relies and in accordance with the Khatian of the last district settlement survey. This objector, having been fully aware of the aforesaid matter during the hearing of the case on the previous date, raised objection to the status of the opposite party and the same is indeed a legal objection.” In the order dated 25 November 1955, which allowed the amendment, the Assistant Settlement Officer specifically noted that the opposite party, that is, the appellant, also gave his consent to the amendment being allowed. Thus, it was evident that one of the items of objection to the record of rights raised by the respondent concerned the status of the appellant.

It was observed that the objection raised by the respondent concerned an alleged error in the description of the appellant’s status, which had been entered as a raiyat. The record showed that after this description was entered, the appellant did not challenge the officer’s examination of its correctness. Apart from that, the Assistant Settlement Officer, the District Judge and the judges of the High Court each set out several clear and persuasive reasons supporting their conclusion that the appellant was in fact a tenure holder and not a raiyat. The counsel for the appellant, Mr Chatterjee, made no attempt to dispute that conclusion or the reasoning upon which it rested. His sole argument was that the order of the High Court judges was illogical because, in their decision on the respondent’s status as a lessee, they had, in his view, deprived the respondent of all benefits arising from his objections under section 44(1) of the Act. This argument concerning the alleged illogicality of the High Court’s order was found to have little merit, and even if it had merit it would depend on the dismissal of the respondent’s appeal numbered C.A. 106/60. In view of the order that is proposed to be passed in that appeal, the submission was judged to have no effect. The Court was satisfied that the Assistant Settlement Officer possessed the jurisdiction to adjudicate the objections raised by the respondent to the draft record of rights insofar as those objections related to the appellant’s status. Consequently, the Court saw no substance in appeal 105/60 which questioned the correctness of the entry showing the appellant as a tenure holder rather than as a raiyat. The remaining matter for consideration was appeal 106 of 1960, which called for an examination of the propriety and correctness of the High Court judges’ interference with the concurrent findings of the Assistant Settlement Officer and the District Judge that the respondent, Ghughu, was a temporary lessee for two years at a rental of twenty‑five thousand rupees per year. Before proceeding further, the Court noted that the issue had been taken to the High Court by a petition under Article 227 of the Constitution. The jurisdiction conferred by that article is not appellate in nature for correcting errors of Subordinate Courts or Tribunals; it is a supervisory power intended to keep those bodies within the limits of their authority, as indicated in Nagendra Nath Bora v. Commissioner, Hills Division, Assam. The counsel for the respondent (who was the appellant in C.A. 105/60) argued that the High Court had exceeded its jurisdiction by interfering, claiming that at most there was a mere error in the appreciation of evidence and that sufficient material existed for the Revenue Tribunals’ finding regarding the lease. The respondent’s case was that he held the land as a lessee under the appellant for the entire one‑thousand‑five‑hundred bighas from January 1954, alleging that he had paid ninety‑five thousand six hundred rupees as salami.

The respondent asserted that his rent had been fixed at Rs.18,500 per year and that, after taking possession under the lease, he cultivated 300 bighas for paddy and employed the remaining 1,200 bighas as a fishery. On the basis of these facts, he claimed the status of a raiyat. The appellant did not dispute that the respondent had been in possession of the land since January 1954, but contended that the respondent was merely a manager receiving a monthly salary of Rs.100. Consequently, the only point of disagreement between the parties concerned the nature of the title under which the respondent occupied the land. To support his claim, the respondent produced testimony from the President and Vice‑President of Sarangabad, Uttar Pradesh, showing that taxes had been paid in his name. He also introduced records of several criminal proceedings in which the respondent was described as a lessee by other parties and by police officers. Moreover, he submitted copies of proceedings under section 144 of the Criminal Procedure Code, involving himself and the appellant, which contained a compromise that, according to him, confirmed his possession as a lessee. Both the appellant and the respondent also gave evidence before the Settlement Officer.

The Assistant Settlement Officer based his finding on the fact that possession by the respondent since 1954 was admitted, and therefore the critical issue was whether the respondent was a lessee, as he claimed, or a salaried manager, as the appellant alleged. The appellant produced account books for the period before 1954, showing salary payments to a former manager named Dhirandra Nath Pramanik, but he failed to produce any accounts covering the period when the respondent occupied the land. The officer inferred from this omission that the appellant’s claim of a managerial relationship was unsubstantiated and weighed this against the respondent’s evidence. In a criminal case between the same parties, filed under section 144 of the Criminal Procedure Code (Case No. P.T. 1925), a joint statement recorded that the respondent had earlier paid the appellant a sum of Rs.3,000 as an advance, a receipt that was admitted. The respondent said the payment was rent under a lease, while the appellant argued that it represented damages or profits due to him. Because the appellant did not produce the relevant account entries that might have clarified the nature of the payment, the officer again drew an adverse inference. Additional evidence included several criminal proceedings in which third parties referred to the respondent as a lessee. Finally, there were criminal proceedings concerning the land’s possession that had been referred to arbitration before the Sub‑Divisional Officer; although the award was not on record, the parties had executed a memorandum of compromise stating that the respondent would pay the appellant Rs.50,000 in four instalments ending in January 1956, and that the appellant’s men would be entitled to inspect two granaries containing the appellant’s paddy on the premises.

In the proceedings, the appellant had the opportunity to produce his accounts that would have shown the receipt of the sum mentioned earlier, but he intentionally refrained from doing so. Because the appellant did not produce those accounts, the Assistant Settlement Officer inferred a conclusion that was adverse to the appellant’s case. In addition to this omission, there existed other pieces of evidence that described the respondent as a lessee in several criminal cases that involved the respondent and third parties. Moreover, there were criminal proceedings initiated by the appellant against the respondent concerning the possession of the same lands that were the subject of the present dispute. Both parties agreed that those criminal proceedings should be referred to arbitration before the Sub‑Divisional Officer. Although the award of the arbitration is not available, the parties executed a signed memorandum of compromise that embodied the terms of their settlement. The memorandum provided, inter alia, that the respondent would pay the appellant a total of Rs 50,000 in four instalments, the last instalment being due in January 1956, and it specified the exact dates on which each instalment had to be paid. The document also stated that the men of the first party, i.e., the appellant, would be entitled to inspect two granaries containing paddy belonging to the first party that stood on the Bhori, for the purpose of looking after them. Finally, the memorandum concluded that the second party, i.e., the respondent, would no longer have any title or concern whatsoever in respect of the said Bhori.

The Assistant Settlement Officer interpreted the memorandum of compromise to mean that the respondent would remain in possession of the Bhori for a period of two years as a lessee, namely, for the duration of the four instalments, and that the respondent would have to relinquish possession after the final instalment was paid in January 1956. On that basis, the officer held that the transaction amounted to a temporary lease of two years, calculated on an annual rental basis, and considered that all the foregoing pieces of evidence supported the conclusion he had reached. When the matter was reviewed by the High Court, the learned judges examined the evidence and held that the statements in the criminal proceedings in which third parties described the respondent as a lessee were inadmissible and irrelevant for establishing the respondent’s status. The judges also concluded that both the Assistant Settlement Officer and the District Judge had misinterpreted the memorandum of compromise. They pointed out, first, that the respondent had pleaded a lease at a rental of Rs 18,500 per year, and that the officer’s finding of a temporary two‑year lease was inconsistent with such a pleading; and second, that, when properly construed, the compromise document did not create a lessee status, either temporary or permanent, for the respondent, and that the lower courts had misread its terms. Accordingly, the High Court set aside the entry of the respondent’s name as a temporary lessee in the sub‑Khatian. The Supreme Court considered that the learned judges were not justified in interfering with the findings of the revenue authorities, noting that the judges were not acting as an appellate court but were limited to determining whether the tribunals had exceeded their jurisdiction or whether their findings were unsupported or perverse.

The Court considered whether the revenue officials had acted beyond the scope of their authority or whether the findings they recorded were unsupported by any material or were otherwise perverse. It concluded unequivocally that the orders issued by the revenue authorities were free from any of these defects. Firstly, the Court held that the mere fact that the recorded finding did not correspond exactly with the pleadings or the case presented by the respondent did not give it any significance. It acknowledged that the respondent had sought a more advantageous relief, specifically a longer tenancy and a lower rent, but observed that if the evidence before the tribunal justified granting a lesser relief, there was no justification for denying that relief. Consequently, the difference between the relief awarded and that claimed by the respondent was not determinative. The more important issue, the Court said, was whether the learned judges were correct in concluding that there was no material on which the authorities could base a finding that the respondent was a temporary lessee. The respondent had admittedly been in actual possession of the land, and the sole controversy concerned the character in which he occupied it. Even assuming that references by third parties to the respondent as a lessee in various criminal proceedings were to be excluded as matters between other parties, the Court observed that the Settlement Officer was fully empowered to assess the truth of the appellant’s claim that the respondent acted as his manager for a salary of Rs 100 per month. No valid objection could be raised to the Officer’s inference against the appellant arising from the appellant’s failure to produce accounts showing payment of the alleged salary, or from the receipt of Rs 3,000 described as “an advance.” On that basis, the Officer could lawfully accept the respondent’s contention that he was a lessee rather than a paid manager, and that his possession derived from that status. The next question concerned the terms of the alleged lease, namely its duration and rent. The Court noted that the evidence presented in the compromise agreement and the criminal proceedings between the parties worked against a complete acceptance of the respondent’s version. The criminal actions had arisen because the respondent disputed his status as a lessee, but under the compromise, following the award by the Settlement Officer, he agreed to surrender possession after two years and to have no further interest in the property thereafter. From these facts, the Settlement Officer inferred that the respondent’s claim to lessee title was conceded only to a limited extent, namely that he would remain in possession only until January 1956. Viewed together with the preceding history, the Court held that it was not unreasonable to infer that the respondent’s continued possession up to the date of surrender was to be regarded as that of a lessee. It would

The Court observed that it would be incorrect to state that there was no material to support the Tribunal’s finding. Even if the order were sustained on that narrow point, the fixation of rent at twenty‑five thousand rupees per year would matter little, because that amount had been derived solely from the figure mentioned in the memorandum of compromise. The Court further held that, even assuming that the Revenue Tribunals had erred in interpreting the compromise, such an error could not constitute a ground for setting aside their finding under Article 227, since the compromise formed only one of several pieces of evidence on which the finding was based. Consequently, if material did exist, the order could not be described as perverse, and therefore there was no justification for interfering with the concurrent finding of the Revenue Tribunal.

Before concluding, the Court addressed another issue that had been highlighted by the learned judges of the High Court, namely the method employed by the Assistant Settlement Officer in conducting the enquiry. From the Assistant Settlement Officer’s order, it appeared that both parties had adduced oral evidence by examining witnesses; however, the Officer had made no record of that evidence. As a result, the Court could not ascertain with precision what each witness had deposed, except for the limited references made to the testimony in the order itself. The Court concurred with the High Court that this omission was far from satisfactory.

The Court noted that counsel for the respondent had drawn its attention to the rules framed under section fifty‑nine of the Act, specifically Rule thirty paragraph two read with Rule seventeen paragraph two, which prescribe the procedure to be followed by Revenue Officers conducting such inquiries. Those rules, the Court observed, did not require the keeping of a record of the evidence adduced, and in the absence of any statutory provision to the contrary, the tribunals were not obligated to follow the evidentiary procedures of regular courts. Accordingly, the Court held that no principle of natural justice was violated by the failure to keep a detailed record.

While agreeing that the maintenance of a record of oral evidence is not mandated by any specific rule, the Court emphasized that an order passed in an enquiry into an objection filed under section forty‑four sub‑section one of the Act is subject to appeal under section forty‑four sub‑section three to a prescribed Tribunal. Such an appeal is available on the basis of facts as well as any legal question that may arise, and it is not limited to particular grounds. The Court therefore found it manifest that the provision of appeal is intended to provide a genuine remedy, granting full relief to the aggrieved party. For an appeal of this kind to be effective, the aggrieved party must be able to examine the propriety and correctness of the reasoning of the first tribunal, which requires access to the material on which the original order was based.

It was explained that a party seeking review of the tribunal before an appellate authority must possess the documents on which the tribunal’s conclusions rest and have access to the reasons recorded for the order. The tribunal’s order could not generally be effectively impugned unless the supporting materials were placed before the appellate authority. Consequently, a record of the evidence was held to be as necessary as a reasoned order for a statutory right of appeal to have real value. It was further considered that the provision granting an appeal from the revenue officer’s order implicitly requires the officer to conduct the proceedings in a manner that does not defeat the statutory right of appeal. This requirement applied even though the procedural rules did not expressly mandate such a procedure, because the purpose of the appeal provision was to ensure fairness. This observation was not intended to impose upon the officer the full procedural regime applicable to civil courts for evidence recording. Rather, the officer was required merely to maintain some record sufficient for the appellate authority to ascertain the materials the officer considered in reaching the decision that is the subject of the appeal. Applying these principles, the Court found that Civil Appeal 105 of 1960 failed and was dismissed, whereas Civil Appeal 106 of 1960 succeeded and was allowed. Accordingly, the revision petition under Article 227 filed by the appellant to the High Court was dismissed in its entirety. The respondent was ordered to be awarded costs in this Court, quantified as one hearing fee to cover the expenses incurred. The orders were recorded as: Civil Appeal No. 105 of 1960 dismissed; Civil Appeal No. 106 of 1960 allowed.