Panduranga Chetti and another vs The Govt. of Tamil Nadu and another

Kailasam, C.J.—These two appeals are filed by the unsuccessful claimants against the order of the Minor Inams Abolition Tribunal, North

Arcot at Vellore. One, Panduranga Chetty and Pradarami Vaisiya''s Bajanai Koil, represented by its trustees are the claimants-appellants. In the

enquiry acting, on the evidence of the Karnam (C.W.1,) and the technical opinion report of the Minor Irrigation Overseer, Chingleput, (Ex. C-1),

the Settlement Tahsildar held that the two survey numbers with which we are now concerned in the appeals, viz., Survey Nos. 132 of an extent of

92 cents and Survey No. 133/5 of an extent of 50 cents, would be submerged as part of Rajamanickeni Cheruvu (tank) and that therefore no one

would be entitled to ryotwari patta in respect of those survey numbers. The enquiry before the Settlement Tahsildar was suo motu as no one

applied for patta for lands. The Karnam (C.W.1,) stated that survey No. 132 would be liable for submersion for over a month. He did not mention

anything about survey No. 133/5. But, according to the technical opinion report of the Minor Irrigation Overseer, Ex.C-1, survey Nos. 132 and

33/5, which was provisionally sub-divided, were liable for submersion for more than three weeks, though the whole of survey No. 135 was not

liable for submersion. The Settlement Tahsildar found that survey Nos. 132 and 133/5 should be deemed to be part of the water spread of the

tank and that no one would be entitled to ryotwari patta. Against that decision appeals were filed to the Minor Inams Abolition Tribunal, North

Arcot at Vellore. The Tribunal, dismissed the appeals on the ground (i) that they were barred by time, and (ii) that the area concerned was the

water spread area of the tank and that as such the appellants were not entitled to patta.

The Tribunal found that under S. 11(3) of the Minor Inams (Abolition and Conversion into Ryotwari) Act 30 of 1963, the appeal ought to have

been filed within three months from the date of the order of the Assistant Settlement Officer and, if the Tribunal extended the period, within five

months from the date of the order and that as the appeals were filed on 27th November, 1971, seven months after the date of order, viz., 13th

April 1971, the appeals were clearly barred by time. S. 11 (3) provides that against the decision of the Assistant Settlement Officer the person

aggrieved may, within three months of the date of the decision, appeal to the Tribunal. The proviso to the Section enables the Tribunal to grant

further time not exceeding two months for the filing of such appeal. Thus, the appeal could be filed within five months from the date of the order of

the Assistant Settlement Officer. S. 45 of the Act requires that a copy of every decision or order in any proceeding against which an appeal or

revision is provided for under the Act shall be communicated in such manner as may be prescribed. For the purpose of computing the period of

limitation in respect of any appeal, the date of communication of the copy of the decision shall be deemed to be the date of the decision or order.

The manner prescribed is found in rule 9(1) of the Minor Inams (Abolition and Conversion into Ryotwari) Rules, 1965, which requires that the

decision of the Assistant Settlement Officer shall be published in Form No.8 and that a copy of the decision shall be given to the party concerned

in person or sent to him by registered post. Along with the appeal the appellants submitted before the Tribunal a petition stating that a copy of the

order of the Settlement Tahsildar was not communicated to them either in person or by registered post as required under S. 45 of the Act and Rule

9 (10) of the rules. we find from the records that an affidavit had been filed when the appeal was preferred, to the effect that the appellants came to

know of the order of the Settlement Tahsildar on 1st September 1971, that immediately they filed the copy application through counsel, that the

copy of the order was received by counsel on 17th November 1971, and that immediately thereafter the appeal was filed on 27th November,

1971. This plea was taken when the appeal was filed and the learned counsel for the appellants has also made endorsements raising the plea in the

returns of the appeal. Unfortunately, this point was not considered by the Tribunal, though the order in the docket says that the point would be

considered at the time of the hearing of the appeal. The Tribunal was in error in dismissing the appeal as being barred by limitation, as time would

start running from the date of the communication of the order, which communication, according to the appellants, was made only on 1st September

1971. This position has not been controverted. The result is that the appeals before the Tribunal should be found to have been in time. On the

merits, we find that there is hardly any evidence to prove that the two survey numbers in question 132 and 133/5 (of an extent of 92 cents and 50

cents respectively) are submersible or form part of the tank bed. Under S. 10(b) of the Act no ryotwari patta shall be granted in respect of beds

and bunds of tanks and supply, drainage, surplus or irrigation channels. As already pointed out, the Karnam does not refer to survey No. 133/5 at

all. According to him, survey No. 132 is submersible. According to the report of the Minor Irrigation Overseer, Survey Nos. 132 and 133/5

(provisionally sub divided) are liable for submersion for more than three weeks, though according to the report the whole of survey No. 135 was

not liable to submersion. We have looked into the plan appended to the certificate, Ex. C-1. We find that the lands are north of the tank and the

plan does not show that the two survey numbers form part of the tank. Even the Karnam says at one place that these two survey numbers are

opposite the lake ( ) and that part of survey No. 132 and part of 133/5 would be submerged for more than a month. He is definite that the other

lands will not get submerged. Ex. C-1 also does not establish the case of the respondents. According to Ex-C-1, Survey No. 132 and the northern

portion of 133 are below the tank level and the entire field in Survey No. 132 and the southern portion of survey No. 133 are liable for submersion

for more than three weeks. The report does not say that the lands form part of the tank bed. The evidence on behalf of the respondents is most

unsatisfactory, and there is nothing to rebut the claim of the appellants that the lands do not form part of the tank bed. In these circumstances, we

set aside the order of the Tribunal and direct that patta be granted to the two appellants for the respective survey numbers claimed by them. The

appeals are allowed. There will be no order as to costs.