PANIGRAHI, J. -
(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'
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
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.
The survey of the petitioner's estate was directed by Government in Notification No. 3729 -S. S2/38 -R, dated 10 -9 -1938 of the Revenue Department. The notification reads as follows:
'GOVERNMENT OF ORISSA, REVENUE DEPARTMENT. Dated Cuttack, the 10th Sept., 1938. No. 3729 -8. 52/33 -R: Whereas in the opinion of the Government of Orissa, a survey and preparation of the record -of -rights are required to secure the raiyats generally and the land -holders of the estates named in the schedule annexed hereto in the district of Ganjam in the enjoyment as such of their legal rights, the Governor of Orissa, in exercise of the powers conferred by Section 17 (b) (ii), Madras Survey and Boundaries Act, 1923 (Act 8 of 1923) and by Sections 164(1) (b) and 182, Madras Estates Land Act, 1908 (Act 1 of 1908), as amended by Madras Act 8 of 1934, hereby directs that the survey of unsurveyed estates and raiyati villages and the resurvey of such unsurveyed estates and of which no record -of -rights has been prepared be made under the provisions of the said Act 8 of 1923 and a record -of -rights be prepared for these villages situate in the estates named in the schedule under the provisions of the said Act 1 of 1908 by the Settlement Officer Ganjam -Koraput who has been appointed Collector under the said Act 1 of 1808 for this purpose. The record -of -rights shall contain the following particulars: (a) the name of each raiyat's land -holder and of each land -holder in the estate or a portion thereof; (b) the name of the raiyat and, where there is no raiyat, the name of the occupant; (c) the situation and extent of the land held by the raiyat as shown in the survey map of the village; (d) the description of the land whether it is irrigated, rained or dry; and, if irrigated, whether double or single crop; (e) the rent lawfully payable at the time the record is being prepared and whether the raiyat is entitled to the benefit of proviso (a) to Clause (i) of Section 30; (f) how the rent has been fixed; whether by decree or under the provisions of the Madras Estates Land Act or otherwise; (g) any rights lawfully incident to the holding; (h) if the rent is a gradually increasing rent, the times at which and the steps by which it increases; (i) If the land is claimed to be held rent -free whether or not the occupant is entitled to hold the land without payment of rent, and if so entitled under what authority and if the land were liable for rent, the rent payable; (j) (i) the use by raiyats of water for agricultural purposes, whether obtained from a tank well or any other source of supply; and (ii) the repair and maintenance of works for securing a supply of water for the cultivation of the land held by each raiyat whether or not such works be situated within the boundaries of such lands; (k) a record of any special rights which, by law or by custom, the raiyats may have in the waste lands of the estate; and (l) any right of way or other easement attaching to the land for which a record -of -right in being prepared. SCHEDULE. Names of Estates. 1. ............ 2. ............ 3. ............ 4. ............ 5. ............ 6. ............ 7. ............ 8. ............ 9. ............ 10. ............ 11. ............ 12. ............ 13. ............ 14. ............ 15. ............ 16. ............ BY ORDER OF GOVERNOR, Sd/ - E. R. Wood, Chief Secretary to Government.'
(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
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.;