ORDER
P. Ramakrishnan, J.
1. The scope of this writ petition lies within a narrow compass and it will be sufficient to set out the facts briefly to the extent that is necessary for the disposal of the points in controversy. The petitioner Ramaswami Gounder relied on two pattas granted by the proprietor of the Rasipuram estate. Patta 726 was granted in respect of 10 acres situated in S. No. 172/9 of the former inam estate of Rasipuram village by an order of assignment by the proprietor in 1943, a date prior to 1st July, 1945, and Patta No. 730 was granted in respect of 4 acres 5 cents situated in the same S. No. 172/9, by an order of the proprietor on 4th September, 1945, subsequent to 1st July, 1945. The Rasipuram estate was notified and taken over by the Madras State under the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948) with effect on and from 3rd January, 1951. Pursuant to the above, the estate, was surveyed and S. No. 172/9 was found to be a tank-bed. Relying on the strength of the order of the former proprietor granting the aforesaid pattas, the petitioner applied to the Additional Assistant Settlement Officer for grant of ryotwari patta to him in respect of the said lands under Section 11 of the Abolition Act. The Additional Assistant Sattlement Officer dismissed the application on 3rd March, 1958. The appeal before the Settlement Officer was dismissed on 13th June, 1958, and a further appeal to the Director of Settlements was dismissed on 2 1st January, 1959. Finally the Board of Revenue in revision also dismissed the petitioner's application by an order elated 10th December, 1963. The petitioner contends that, by an order dated 25th March, 1948, passed by the Deputy Collector, Namakkal in an application under Section 20 (1) of the Estates Land Act, the above said land had been held to be not tank-bed land, falling within Section 3 (16) (a) of the Estates Land Act and that the petitioner was not liable to be evicted therefrom. Since no suit was filed to challenge this order of the Deputy Collector in the Civil Court, the above finding had become conclusive. The petitioner had carried out vast improvements on the said lands spending large sums of money. He had built a tiled shed and a terraced building; he had also dug three wells. In the above circumstances, it Was contended that the petitioner was entitled to a ryotwari patta. to the aforesaid lands under Section 11 of the Abolition Act and consequently the Board's order was liable to be quashed. It is urged that the Board of Revenue as well as the Settlement Authorities when called upon to exercise their powers under Section 11 of the Abolition Act had failed to take into account the relevant data and that if they had done so, they would have determined that the lands in question were not tank-bed lands but ryotwari lands in the occupation of the petitioner on the date of the notification and therefore he should have been granted a ryotwari patta. The prayer in this petition is therefore to quash the order of the Board of Revenue by a writ of certiorari under Article 226 of the Constitution and for consequential reliefs.
2. In the counter affidavit filed by the respondent, the Board of Revenue, it is urged that the Board of Revenue as well as the Settlement Authorities had taken into account all the relevant data for their conclusion, as well as the relevant tests which the decisions of Court have laid down for dealing with a similar matter. It is also urged that no finality is attached to the order of the Deputy Collector in the proceedings under Section 20 (1) of the Estates Land Act referred to by the petitioner both by reason of the actual finding of the Deputy Collector and by reason of the fact that the Government was not a party to that proceeding. The Board also averred that the petitioner had applied to the Board of Revenue as an alternative prayer that in View of the fact that he had put up substantial structures on the land, his position might be examined under the provisions of Section 19-A of the Abolition Act and appropriate directions passed thereunder to ensure his continuance in possession.
3. The Board of Revenue had borne this provision in mind and had directed a preliminary enquiry to be made for that purpose.
4. The first point for consideration is the effect of the order of the Deputy Collector in Section 20 proceedings under the Estates Land Act passed in 1948 in M.P. No. 2 of 1945. Section 20 reads thus:
(1) The Collector may, on the application of the landholder or other person interested decide any question as to whether any land is or is not of the description mentioned in Sub-clause (a), (b) or (c) of Clause (16) of Section 3, or as to the customary rights in the user of any land which is of any such description, as existing at the commencement of this Act.
(2) Any person aggrieved by such decision may within a period of one year from the date thereof institute a suit in the civil Court to establish the right claimed by him in respect of such land but subject to the result of such suit, if any, the Collector's decisions shall be final.
I have perused the order of the Deputy Collector dated 25th March, 1948. That application was filed by some persons who claimed to be the ayacutdars under the Rasipuram Eri for a declaration that the land in question was of the description mentioned in Section 3 (16) (a) of the Estates Land Act forming the tank-bed of Rasipuram Eri and as a consequence of such a declaration, the respondents, namely Varadappa Goundan and others (including the petitioner who was the nth respondent there) might be evicted from the lands in their occupation. Issue 1 reads. thus : 'Whether the respondents are in enjoyment of portions of tank-bed of Rasipuram tank under patta issued by the Respondent--Mittadar?'. The Deputy Collector found under this issue that there was no documentary evidence to show that the portions in the occupation of the respondents formed part of the Rasipuram tank-bed and that issue was therefore found against the petitioners. While giving the reasons which led up to this finding, the Deputy Collector observed that there was no evidence to show the actual extent of the tank-bed land of the Rasipuram Eri and that in the absence of the information it was not possible to locate the tank-bed. land of the said Eri. Issue 2 reads thus : 'Whether the mittadars have any right to issue patta to respondent-ryots over tank-bed lands for cultivation? The Deputy Collector answered this issue by saying that ' the mittadars have right to issue pattas even for tank-bed lands for cultivation, subject to the condition that the customary right of storage is not affected '. This issue was decided m favour of the respondents subject to the above condition. Issue 6 was to the following effect : ' Whether the grant of pattas to respondents Nos. 7 to 13 does not affect the rights of the petitioners as ayacutdars?'. The Deputy Collector answered this issue by finding that ' the bed of the tank in an Estate belongs to the landholder and he has the proprietary right over it and hence he has got right over it and hence he has got right to issue pattas for cultivation when the water recedes and so long as the cultivation does not prevent the storage of water when the rain comes; the petitioners have not let in evidence to show that the right as ayacutdars has been affected by this grant of the patta.' Hence this issue was also found against the petitioners. It appears to me that the above findings given by the Deputy Collector were really in the nature of alternative findings. So far as the question about declaration of the lands in question as tank-bed lands, which was one of the prayers of the petitioners there, was concerned, the Deputy Collector declined to grant that prayer, because according to him there was no sufficient evidence to enable the actual limits of the tank-bed to the localised. The alternative finding was that even if the lands in question were found to fall within the description of tank-bed under the provisions of the Estates Land Act, the tank-bed vested in the mittadar, and he had a right to issue pattas even in regard to such tank-bed lands for cultivation when the water receded subject to the condition that the right of storage was not affected and the ayacutdars under the tank were not prejudiced. Learned Counsel for the petitioner has referred to the order of the Board of Revenue in this case and in particular portions of the Order of the Board of Revenue where the Commissioner has stated that the decision of the Deputy Collector affirmed that the lands in question constituted part of Rasipuram tank-bed. Mr. V. Vedantachari, learned Counsel for the petitioner urges that the Deputy Collector did not give any such finding. Or the other handle stand taken by the learned Counsel is that the Deputy Collector's finding amounts to a declaration that the lands in question are not tank-bed lands and that in the absence of a suit to set aside that finding within one year the time limit prescribed under Section 20 (2) of the Estates Land Act, this will amount to a conclusive determination that the petitioners' lands are not tank-bed lands that therefore no impediment should be placed in the way of the petitioner getting a patta under Section 11 of the Abolition Act. While it may be that the Board's observation that the Deputy Collector found that the lands in question constituted part of Rasipuram tank-bed, actually goes beyond the findings of the Deputy Collector under issues, 1, 2 and 6 extracted above equally it may be held that the Deputy Collector has not given a conclusive and final decision that the that the Deputy collector further observations in his judgment that if the lands were tank-bed lands, it was open to the mittadar to grant portions that if the lands were the irrigation rights of the ayacutdars under the tank were of it on patta provided the me that what Collector decided was that not affected. It appears before him to show the extent of the tank-bed land and data to show in question formed part of the Rasipuram tank-bed Nevertheless the petitioners before him, could not be granted the relief of grant of patta in that case had prejudiced the irrigation rights of the ayacutdars.
5. Apart from this, one other circumstance to be noticed is that the petition under Section 20 (1) the Estates Land Act filed before the Deputy Collector was not a representative one, that is, on behalf of all the ayacutdars of the tank, and the Government was also not a party to that petition. Therefore, the Government in whom the estate has come to Vest, and who have an obligation to ensure to all the ayacutdars of the tank the customary supply of water to their lands from the tank are entitled to contend that the ayacutdars as a body, as well as Government, are not affected by the above decision, and it will be still open to the Settlement Officer in an application under Section 11 of the Abolition Act, to decide whether the land is a tank-bed land or communal land Vesting in the Government under Section 3 of the Estates Land Act, and whether patta can be given to the petitioner in such circumstances under Section 11.
6. The next point for consideration is whether there were sufficient data before the Settlement Authorities for the conclusion which they reached that the lands in question were tank-bed lands, and that therefore no patta could be granted to the petitioner under Section 11 of the Abolition Act. Mr. Vedanthachari learned Counsel for the petitioner urges strenuously that while discussing the evidence, the Settlement Authorities have not kept in View the relevant principles laid down in State of Madras v. Estates Abolition Tribunal : (1958)2MLJ585 . Before the application of the principles laid down in that decision can be considered, it is important to find out what are the facts that are made out in the case, and on which the Settlement Authorities rely. On behalf of the petitioner there was evidence of grant of patta to him by the mittadar in 1943 for some of the lands and in September, 1945 for other lands, the former grant falling before and the latter after the crucial date 1st July, 1945, mentioned in the Proviso to Section 11 of the Estates Abolition Act. The petitioners pleaded that they had put up substantial structures on the land and dug wells at a considerable cost and that for more than 25 years, they had been cultivating the lands and raising wet and dry crops. On the other hand, on behalf of the Government main reliance was placed upon the real situation of the land in question with reference to the tank-bed. The Minor Irrigation Overseer prepared a sketch and took levels including F. T. L. (Full Tank Level) and M. W. L. (Maximum Water Level) of the tank. The sketch was filed as Exhibit B-2. The Minor Irrigation Overseer deposed that the entire plot shown as S. No. 172/9 was liable to submersion for more than five months in a year if the tank got full supply. The Settlement Officer has considered this situation in greater detail and the following portions of the order can be extracted:
A look at Exhibit B-2 the sketch prepared by the Minor Irrigation Overseer will show that the lands under revision are the nearest lands to the bund of the tank. Therefore if there is a tank at all in S. No. 172 these lands will be liable to submersion first and foremost. The Minor Irrigation Overseer has stated in his evidence that with reference to the capacity of the three sluices in the tank the tank will contain water for 6 months at Full Tank Level. The Minor Irrigation Overseer has also stated that all the lands bounded by blue line in the sketch Exhibit B-2 will be liable to submersion for over 21 days. Considering the fact that the lands under revision are very close to the bund of the tank and situated in the heart of the tank, I have no hesitation in accepting the evidence of the Minor Irrigation Overseer that all these lands will be liable to submersion for well over 21 days in an year. In fact as stated by the Minor Irrigation Overseer the submersion of these lands will be a matter of months and not of days. The submersion in the course of a normal year has to be considered with reference to the Full Tank Level of the tank and that the fact that due to drought condition for the last several years the tank has not received full supply is not relevant to this consideration. Therefore considering the situation of the lands in the heart of the tank-bed close to the bund of the tank and on the evidence of the Minor Irrigation Overseer and considering the size and capacity of the tank, I have no hesitation in agreeing with the Assistant Settlement Officer that all the lands under revision are liable to submersion for well over 21 days in a normal year and are therefore part of the bed of the tank only.
A certain amount of attack was made against the evidence of the Minor Irrigation Overseer, laying stress on the infirmities in his evidence. The Director of Settlements in commenting on this aspect of the Minor Irrigation Overseer's evidence, has remarked that ' It would indeed have been satisfying if the Minor Irrigation Overseer has not only set forth his conclusions but also the data on which those conclusions are based in full in his report of inspection'. But the Director of Settlements also stated that Want of such data would not in itself militate against the credibility of the Minor Irrigation Overseer's evidence or the tenability of his conclusion when his interestedness had not been proved or rather his disinterestedness was not challenged and when his conclusions were borne out by the observations made by the Settlement Officer.
7. The sketch which was prepared by the Minor Irrigation Overseer and which was shown to me at the time of the hearing of the writ petition shows that these lands are not strictly foreshore lands in the sense of their being near the upper reaches of the tank bed proper but they are situated in the heart of the tank itself, very close to the bund, and Very near to the sluices. It is this situation of the lands in the heart of the tank and close to the bund of the tank, which has weighed considerably with the Settlement Authorities for holding that these are not really lands which are liable to occasional submersion, but must be considered to be lands situated in the tank-bed proper.
8. In the light of these facts in the case, it is necessary to apply the principles which the decision of this Court has laid down, in State of Madras v. Estates Abolition Tribunal : (1958)2MLJ585 , The learned Judges have observed that in respect of lands near a tank-bed that are liable to submersion when the tank is at full level the initial presumption, which is however rebuttable, is that the lands form part of the tank-bed, that in many cases it may not be so, that even lands that are liable to submersion could be privately owned as patta lands in ryotwari areas and that the position in this respect in Zamindari village can in no Way be different. Stress has to be laid on the words ' near a tank-bed,' on the above observation. Therefore the Bench observed:
Factors like registration of such lands as ryoti lands and dealing with the lands as such for a long number of years or cultivating the lands continuously for a long period will all be Valuable pieces of evidence to decide whether patta could be issued in respect of such lands. But fugitive cultivation of pieces of land in tank-beds during dry season cannot be treated as evidence that the land is patta land.
Later on, in the judgment, the learned Judges observed:
The initial presumption that lands liable to submersion are tank-bed lands would lose much of its strength whenever it appears that the despatch of the water likely to stand on the land would be very little, or that the period of submersion would be very short....
General statements of Villagers or of the karnam or even reports made by higher officers based on a single Visit to the Village made for the purpose will not have the same usefulness as accurate figures obtained after taking levels. In such cases if would be very desirable to have a plan prepared showing the levels and the other necessary details. The period during which water is likely to stand on the lands must no doubt to a large extent be the subject-matter of oral testimony, but a measure of check on the truthfulness or accuracy of those statements can be effected by taking into account the area of the tank, the area of the ayacut under it, the source or sources from which the tank derives its supplies, the contour of the Villages and other facts an officer of the Land Revenue Department, the Minor Irrigation Department or the Public Works Department is expected to be familiar with. As we said, a map showing all these details should be of considerable help.
It is necessary to determine in such cases whether the lands are liable to submersion when the tank is full, whether the depth of the water likely to stand on the land would be very little and whether the period of submersion would be very short. It appears that the criterion of a minimum of 21 days' submersion has been adopted by the Settlement Authorities as a principle for their guidance based on practical experience. Even assuming for the sake of argument that this limit of 21 day's submersion has no statutory basis behind it, the present case is not a case of lands near a tank bed subject to partial submersion but it is a case of lands which lie in the heart of the tank itself and which when the tank gets full supply are likely to be submerged in water for five months, as found by the Assistant Settlement Officer. In my opinion there were sufficient data before the Settlement Authorities for coming to that conclusion, when it is found that the lands which even though they may have been cultivated for a number of years and for which the Zamindar might have granted pattas, are so situated that they are in the heart of the tank itself and liable to submersion for long periods when the tank is full, there will be no doubt about their being in the nature of tank-bed lands. Consequently the Settlement Authorities could not grant pattas to such lands because such tank-beds lands vest in the Government under Section 3 of the Estates Land Act. Learned Counsel for the petitioner has drawn my attention to a portion of the order of the Board of Revenue which has reference to the claim for relief under Section 19-A of the Abolition Act, and wherein the Board ordered the Director of Settlements to consider the claim of the petitioner and to pass appropriate orders after necessary enquiry. It appears to me that if it is made out in that enquiry that the petitioner has spent substantial sums of money by digging up wells and putting up structures, it will be just and proper that he is given appropriate relief under Section 19-A. Any relief that may be so given will be subject to the preservation of the tank as such and the ensuring of proper irrigation facilities to the ayacutdars.
9. The petition is therefore dismissed. No order as to costs.