John Beaumont, Kt., C.J.
1. This is a reference made to a full bench by Mr. Justice Broomfield and Mr. Justice Wassoodew by a referring judgment delivered by Mr. Justice Broomfield.
2. The facts are not in dispute. The appellant claims to be entitled to a lease from Government granted by the Collector of Ahmedabad in 1918. In 1933 the then Collector of Ahmedabad, considering that the grant of the lease of 1918 by his predecessor was invalid, purported to terminate it. Against his order an appeal was made to the Commissioner, Northern Division. The Commissioner held that the lease of 1918 was ultra vires of the Collector, but that the Collector in 1933 had no power to review his predecessor's order. The commissioner, however, acting as a revising authority under Section 211 of the Bombay Land Revenue Code, purported to terminate the lease of 1918, and directed that the tenancy should be treated as an annual one. Notice of that order was in due course served upon the appellant, and he filed this suit in which he asked for a declaration that the lease of 1918 was binding on Government and for an injunction restraining Government from obstructing the plaintiff's enjoyment and possession of the property. By way of defence, Government relied on the bar constituted by Section 11 of the Bombay Revenue Jurisdiction Act. That section provides:
No Civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue-officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.
3. So that what has to be proved is that there was an act or omission of a revenue officer from which an appeal was possible, and that such appeal was not presented within due time. Admittedly no appeal was brought in this case from the order of the Commissioner, and I will assume that an appeal lay to the Governor-in-Council.
4. In his referring judgment Mr. Justice Broomfield has referred to a decision of this Court in Anant Krishnaji v. The Secretary of State for India (1930) I.L.R. 55 Bom. 165 . That was an appeal heard by myself and Mr. Justice Baker in which we differed as to whether the Commissioner had power in that case to make a particular order, and the question was referred to Mr. Justice Blackwell, as a third Judge, and ultimately went up to the Privy Council. In the course of my judgment I stated in a passage which is set out in Mr. Justice Broomfield's judgment (p. 171) :-
If, however, the order of the Commissioner and the order of forfeiture founded upon it were invalid, then the appellant was not bound to appeal from them but was entitled to wait until he was attacked. This has been laid down in many cases the last of which is Laxmanrao Madhavrao v. Shriniwas Lingo
Mr. Justice Baker said (p. 176) :-
The real question in this appeal is whether the order made by the Commissioner was one which he had power to make under section 211 of the Land Revenue Code. As has been pointed out by the learned Chief Justice, whose judgment I have had the advantage of perusing, it is settled law that when an order is invalid, it need not be set aside....
5. He also referred to Laxmanrao's case. Before Mr. Justice Blackwell the Government Pleader of the day admitted that that principle was correct, and Mr. Justice Blackwell acted on that admission. So that the view has been taken by three Judges of this Court that an order which is ultra vires does not invoke the bar of Section 11 of the Bombay Revenue Jurisdiction Act. This reference has been made because the referring Judges doubted the correctness of the proposition.
6. Laxmanrao's case, so far as material, turned on the construction of Article 14 of the Indian Limitation Act, which, read along with Section 3of that Act, provides as Mr. Justice Broomfield points out, that no Court shall entertain a suit to set aside any act or order of an officer of Government which is brought more than one year from the date of the act or order. As Mr. Justice Broomfield also points out, the analogy with Section 11 is very close. Apparently no other cases on the subject were cited to the referring Court, because Mr. Justice Broomfield suggests that the material passage in the judgment of the Privy Council is the only authority on the point. But we have been referred to a large number of decisions of this Court's including Surannanna v. Secretary of State for India (1900) I.L.R. 24 Bom. 435 Malkajeppa v. Secretary of State for India (1911) I.L.R. 36 Bom. 325 Rasulkhan Hamadkhan v. Secretary of State for India (1915) I.L.R. 39 Bom. 494 Dhanji v. The Secretary of State (1920) I.L.R. 45 Bom. 920 Patdaya v. Secretary of State : AIR1924Bom273 , Sulleman v. Secretary] of State (1927) 30 Bom. L.R. 431 and Manibhai v. Nadiad City Municipality : (1926)28BOMLR1465 . Those cases have established the principle that where an authority which purports to pass an order is acting without jurisdiction, the purported order is a mere nullity, as Sir Lawrence Jenkins puts it, it is mere waste paper ; and it is not necessary for anybody, who objects to that order, to apply to set it aside. He can rely on its invalidity when it is set up against him, although he has not taken steps to set it aside. The Advocate General does not dispute the proposition established by those cases, but he says that the principle does not apply to Section 11 of the Bombay Revenue Jurisdiction Act, which operates when an appeal is possible, and not merely when it is obligatory. I find it difficult to see why the principle should not apply. If the true principle be, as those cases decided, that an order, or what purports to be an order, passed without jurisdiction, is a nullity, it cannot give rise to any right whatever, not even to a right of appeal. No. doubt in appeal one ground of attack against the order of the lower Court often is that it was passed without jurisdiction. When that question is determined in favour of the appellant, the order of the Court of appeal, if properly framed, declares that the order appealed from was passed without jurisdiction, and determines the rights on that basis, and does not purport to set aside the order. Such a practice does not postulate the existence of any right under an order which is a nullity. In my view the principle decided in the cases under Article 14 of the Indian Limitation Act applies to Section 11 of the Bombay Revenue Jurisdiction Act, and if once the Court holds that what on the face of it purports to be an order of a revenue Court is in fact a nullity, it can give rise to no rights and impose no obligations. I do not think that the consequences of so holding will be as serious as Mr. Justice Broomfield considers. He seems to think that on that view of the matter it will be impossible to determine as a preliminary issue the question whether Section 11 operates as a bar. I do not follow that. The Court can raise as a preliminary issue the question whether the suit is barred by Section 11 ; and for determining that issue in the affirmative the Court will have to be satisfied that a revenue officer has made a valid order, that such order was appealable, and that no appeal was presented in time. I see no difficulty in determining the validity of the order on a preliminary issue.
7. In this case the trial Court undoubtedly decided that the order of the Commissioner was a valid order, whether right or wrong, and that Section 11 was a bar. As I read his judgment, the learned District Judge decided the same thing, because he refers to the order of the Commissioner, and says that it may be treated either as an order made in appeal against the order of the Collector, or as an original order made in revision, and that in either case it was appealable. He speaks of the order of the Commissioner, and not of a purported order of the Commissioner. I should myself think that this Court in appeal can decide on the validity of the Commissioner's order, but that is a matter for the referring bench, In my opinion, the view taken by this Court in Anant Krishnaji's case is correct, and if no valid order has been passed by the revenue authority, Section 11 does not come into operation.
8. The actual question which we are asked to answer is not, I venture to think, very happily expressed. It is :
Whether the fact that an act or order of a Revenue-officer is invalid or ultra vires prevents the operation of Section 11 of the Revenue Jurisdiction Act and gives jurisdiction to the; Court to entertain a suit on account of the act or order which would otherwise be barred by that section.
9. It is obvious that the existence of an order which is invalid cannot confer jurisdiction on the Court, and on a strict use of language, an order which is invalid is not an order. I would prefer to answer the question by saying that where a revenue officer purports to do an act or pass an order which is invalid his action does not operate to raise a bar under Section 11 of the Bombay Revenue Jurisdiction Act.
10. Costs will be costs in the appeal. The case will go back to the referring Court.
11. I agree.
12. I agree.