Skip to content


The Municipality of Sholapur Vs. Tuljaram Krishnasa Chavan - Court Judgment

LegalCrystal Citation
SubjectProperty;Arbitration
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 272 of 1929
Judge
Reported in(1931)33BOMLR1067
AppellantThe Municipality of Sholapur
RespondentTuljaram Krishnasa Chavan
Excerpt:
bombay city municipalities act (bom. xviii of 1925, section 198-arbitration for compensation-decision by district court-decision on matters not referred to arbitrators-decision outside the scope of the section-high court-revision jurisdiction-civil procedure code (act v of 1908), section 115- government of india act (5 & 6 geo. v. clause 61), section 107.;a district court, exercising judicial functions under the procedure laid down in the land acquisition act according to sub-sections (3) and (4) of section 198 of the bombay city municipalities act, 1925, is a subordinate court under section 107 of the government of india act if not under section 115 of the civil procedure code, 1908.;the high court can, under its revision jurisdiction, revise an order, passed by a district court,.....patkar, j.1. this is an application by the sholapur municipality against the order of the learned district judge of sholapur purporting to act under section 198 of the bombay city municipalities act, xviii of 1925, and directing the sholapur municipality to pay compensation for 2997 square feet at the rate of rs. 1-12-0 per square foot to opponent no. 1 tuljaram krishnasa alone, and holding that opponent no. 2 gangappa sangappa's mortgage was vitiated by the doctrine of lis pendens, inasmuch as he took the mortgage with notice of a prior agreement by the owner with tuljaram during the pendency of a suit by the latter.2. opponent no. 1 tuljaram was the owner of the land in suit, and demanded compensation from the municipality for the land encroached upon by the municipality at the rate of.....
Judgment:

Patkar, J.

1. This is an application by the Sholapur Municipality against the order of the learned District Judge of Sholapur purporting to act under Section 198 of the Bombay City Municipalities Act, XVIII of 1925, and directing the Sholapur Municipality to pay compensation for 2997 square feet at the rate of Rs. 1-12-0 per square foot to opponent No. 1 Tuljaram Krishnasa alone, and holding that opponent No. 2 Gangappa Sangappa's mortgage was vitiated by the doctrine of lis pendens, inasmuch as he took the mortgage with notice of a prior agreement by the owner with Tuljaram during the pendency of a suit by the latter.

2. Opponent No. 1 Tuljaram was the owner of the land in suit, and demanded compensation from the Municipality for the land encroached upon by the Municipality at the rate of Rs. 2-8-0 per square foot. The Chief Officer with the consent of the Managing Committee referred the matter to arbitration under Section 198, Sub-section (1), of the Bombay City Municipalities Act, 1925. The arbitrators gave an award allowing Rs. 1-12-0 per square foot. The award did not specify the number of square feet but the area mentioned in the proceedings related to 2997 square feet. Tuljaram then made the present application to the District Court demanding the amount as determined by the panchas, and prayed for an order compelling the Municipality to pay the amount due to the applicant at Rs. 1-12-0 per square foot as determined by the panchas with regard to the area of 2997 square feet. The general body subsequently resolved that 860 square feet covered by the drain were to be acquired, and deposited in Court the amount due in respect of the 860 square feet resolved to be acquired. Opponent No. 2 Gangappa claimed the money as the mortgagee of the property from the predecessor-in-title of the applicant Tuljaram.

3. The learned District Judge held that at the time when the negotiations were going on and when the panchayat was constituted, the intention of the Municipality was to acquire an area of 2997 square feet in order to open up and widen the roads in the locality, that it was impossible to say that the applicant's acceptance of the rate fixed by the panchas was not induced by the consideration of the resulting improvements to his remaining property, and that it was not open to the Municipality to withdraw from the acquisition of 2997 square feet, and that the award was binding on both the parties not only in respect of the rate but also in respect of the area. With regard to opponent No. 2 the learned District Judge held that Gangappa had both actual and constructive notice of the agreement in favour of Tuljaram and that the mortgage of Gangappa was affected by the doctrine of lia pendena, and ordered interest at the rate of six per cent for the remaining portion of the compensation until payment or deposit in the Court and ordered the Municipality to bear the coats of Tuljaram.

4. It is urged on behalf of the Municipality that the application made by Tuljaram for compelling the Municipality to pay compensation for the whole of the land is not warranted by any of the provisions of Section 198 of the Bombay City Municipalities Act, 1925, and, therefore, the District Court had no jurisdiction to entertain the application and the order passed by the District Court is a nullity and should be set aside. It is urged, on the other hand, that the order passed by the District Court is not appealable according to the decision in Chunilal Virchand v. Ahmedabad Municipality I.L.R. (1911) Bom. 47 13 Bom. L.R. 958 and that an application for revision is also incompetent according to the decision in Municipality of Belgaum v. Rudrappa I.L R. (1916) Bom. 509 18 Bom. L.R. 340

5. Under Section 198, Sub-section (1), of the Bombay City Municipalities Act, 1925, if an agreement is not arrived at with respect to any compensation directed to be paid by the Act, the amount and the apportionment of the same, if necessary, shall be determined by a panchayat of five persons, of whom two shall be appointed by the Municipality, two by the party, and one, who shall be sirpanch, shall be selected by the members appointed. Under Sub-section (2), if both parties fail to appoint the panchas or if the members fail to select the sirpanch, the members can be appointed by the District Judge at the instance of either party. Under Sub-section (8), in the event of the panchayat not giving a decision within one month the matter shall be determined by the District Court according to the procedure provided by the Land Acquisition Act, 1894. Under Sub-section (4), either party, if dissatisfied with the decision of the panchayat, may apply to the District Court which shall determine the matter in accordance with Sub-section (3), i.e. according to the procedure prescribed by the Land Acquisition Act, In the present case the panchayat gave the decision in favour of Tuljaram, and it cannot be said that he was dissatisfied with the decision of the panch. The application, therefore, of Tuljaram to the District Court to compel the defendant to pay compensation for the whole area of 2997 square feet does not fall under Sub-section (4) of Section 198. Under Sub-section (5), the Municipality has power, after the award has been made by the panchayat or the District Court, to take possession of the land after paying the amount of compensation to the party to whom such compensation may be payable, and if the party refuses to accept such compensation, or it there is no person competent to alienate the land, or if there is any dispute as to the title to the compensation or as to the apportionment, the Municipality may deposit the amount of the compensation in the District Court, It is clear from the provisions of Section 198 that the application made by Tuljaram to the District Court to compel the Municipality to pay compensation for the whole land is not maintainable under any of the provisions of the section. The decision of the panchayat was in favour of Tuljaram, and if the Municipality was dissatisfied with the decision, it could have applied to the District Court under Sub-section (4) of Section 198. It appears that the section has failed to make provision for compelling the Municipality to pay the amount determined by the panchayat, though provision has been made in favour of the Municipality to take possession of the property after paying compensation to the party entitled to it or depositing it in Court.

6. It is, therefore, clear that the District Court had no jurisdiction in this case to entertain the application made by Tuljaram, It had also no jurisdiction to determine the right of opponent No. 2 Gangappa who was a mortgagee from the predecessor-in-title of Tuljaram. The question of apportionment of the compensation had not been referred to the panchayat under Sub-section (1) of Section 198, and the determination by the District Court of the right of Gangappa to the compensation was illegal and without jurisdiction, Mr. Pradhan, appearing on behalf of the opponent Tuljaram, was constrained to admit that the application made by his client to the lower Court was not justified by the provisions of Section 193. The District Court, therefore, clearly had no jurisdiction to decide the question submitted for its consideration and the decision is null and aoid.

7. The next question is whether the High Court has power to interfere with the order of the District Court. In Chunilal Virchand v. Ahmedabad Municipality it was held that no appeal lay from the decision of the District Court under Clause (3) of Section 160 of the Bombay District Municipal Act (Bom. Act III of 1901), which corresponds to Section 198 of the Bombay City Municipalities Act, 1925, that though a right of appeal is given by Section 54 of the Land Acquisition Act, no appeal is provided by Section 160 of the Bombay District Municipal Act corresponding to Section 198 of the Bombay City Municipalities Act, and that the order of the District Court is not a decree because it is made not under the ordinary civil jurisdiction but under the special jurisdiction created by the special Act.

8. In Municipality of Belgaum v. Rudrappa, it was held that no application can be made under the revisional jurisdiction of the High Court from the decision of a District Court under Clause (3) of Section 160 of the Bombay District Municipal Act, III of 1901. In that case it was held that as no appeal lay from the decision of the. District Court under that section, it would be anomalous to hold that an application for revision lay, and further it was held, following the decision in the case of Balaji Sakharam v. Merwanji Nowroji I.L.R. (1895) Bom. 279 that though the words occurring in Section 160 are 'District Court', the distinction was not sufficient to support an application for revision to the High Court. Section 198 of the Bombay City Municipalities Act of 1925 refers to 'District Judge' in Sub-section (2) and refers to 'District Court' in Sub-sections (3), (4) and (6), just as in Sub-section (2) and Sub-section (3) of Section 160 of the Bombay District Municipal Act of 1901. It is difficult to under-stand why 'District Judge' is mentioned in Sub-section (2) of Section 198 and 'District Court' in Sub-sections, (8), (4) and (5). The differentiation in the phraseology may be explained if the District Judge is considered a persona designata so far as Sub-section (2) is concerned, and the District Court as distinguished from the District Judge is to determine the rights of the parties under Sub-sections. (3), (4) and (5).

9. In Balaji Sakharam v. Merwanji Nowroji it was held that a District Judge acting under Section 23 of the Bombay District Municipal Act was not a Court within the meaning of the word in Section 622 of the Civil Procedure Code, 1882, corresponding to a, 115 of the present Code, and the High Court had no jurisdiction to revise his order, and it was held that a District Judge as distinguished from a District Court is a persona designata. The decision in Balaji's case was followed in Gangadhar Baburao v. The Hubli Municipality I.L.R. (1925) Bom. 357 28 Bom. L.R. 519

10. In Vasudeva Aiyar v. The Negapatam Devasthanam Committee I.L.R. (1913) Mad. 594 it was held by the Madras High Court that an order made by a District Court under Section 10 of the Religious Endowments Act was an order revisable by the High Court under Section 115 of the Civil Procedure Code, Reference was made to the decision in the case of Balaji Sakharam v. Merwanji Nowroji and the decision that the District Judge was a persona designata under Section 23 of the Bombay District Municipal Act was held to be correct on the ground that the District Judge was a persona designata for a specific purpose and not an officer exercising judicial functions under the Act, but it was held that under the Religious Endowments Act the District Court was not a persona designata but a civil Court exercising jurisdiction under the Act. The case went on appeal to the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar where it was observed by their Lordships of the Privy Council:-' Moreover it is to the Civil Court and not to the individual Judge who may preside in or constitute the Civil Court that jurisdiction is given.' The decision in the case of Balaji Sakharam was referred to in the Madras case which went up to the Privy Council, and the remark of their Lordships appears to have been made in reference to the designation of the person who had to decide an election under Section 23 of the Municipal Act as a District Judge as distinguished from a District Court, Their Lordships of the Privy Council confirmed the view of the Madras High Court that the District Court, under Section 10 of the Religious Endowments Act, XX of 1863, empowering a civil Court to fill up the vacancy in the Devasthan Committee, was acting in a judicial capacity as a Court and not merely in an administrative capacity, and that though no appeal lay under the Civil Procedure Code from such an order, the matter in which the order of the District Court was made was a 'case' within the meaning of Section 115 of the Civil Procedure Code.

11. It appears, therefore, that where a Judge or the presiding officer of a Court as distinguished from the Court itself is directed to perform any function of an authority created by a statute, such a Judge may be considered as a persona designata and not a Court, but where a civil Court subordinate to the High Court is constituted an authority to decide the rights between the parties and is directed to perform judicial functions, it is difficult to hold that such a Court is a persona designata and not a Court subordinate to the High Court.

12. In National Telephone Company, Limited, v. Postmaster General [1913] A.C. 5446 it was held that a Railway and Canal Commission, which as regards England consisted of one ex officio and two appointed Commissioners, was established as a Court of Record and an appeal lay from the Commission to the Court of Appeal except upon questions of fact and locus standi. Lord Parker of Waddington observed as follows (p. 562):-

Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.

13. The question was fully discussed by the full bench of the Rangoon High Court in The Municipal Corporation of Rangoon v. M.A. Shakur I.L.R. (1925) Ram. 560 where a distinction is made between the entrustment of the determination of any question concerning rights to a Judge or the presiding officer of a Court as distinguished from the Court itself. The same reasoning was adopted in Lakshmanan Chetty v. Kannappar I.L.R. (1923) Mad. 121

14. The decision in Municipality of Belgaum v. Rudrappa proceeds on two grounds, first, that it would be anomalous to hold that an application for revision would lie when no appeal would lie, When the determination of the rights of parties is entrusted by statute to a civil Court which has to act judicially, the decision of that Court will be subject to appeal if the right is given by the statute, but the fact that no appeal is provided by the statute is not a sufficient basis for concluding that the Court is not subordinate to the High Court and that an application for revision would not lie. Ordinarily an application for revision would lie only when no appeal is provided. The question, therefore, is whether the Court which decides the rights between the parties according to the provisions of any statute is a subordinate Court. Though in Sub-section (2) of Section 198 reference is made to the District Judge, whereas in Sub-sections. (3)(4) and (5) reference is made to the District Court, the District Court under Sub-sections (3) and (4) has to act according to the procedure provided by the Land Acquisition Act of 1894. Though the District Judge may be a persona designata so far as Sub-section (8) is concerned as being empowered to appoint the members of the panchayat, it does not necessarily follow that the District Court mentioned in Sub-section (3) and (4) is not a Court but a persona designati under the Act. I feel some difficulty in agreeing with the view taken in the case of Municipality of Belgaum v. Rudrappa. The case of Municipality of Belgaum v. Rudrappa can be distinguished on the ground that the order of the District Court in that case was passed under clause 0) of Section 160 of Bombay Act III of 1901, whereas in the present case the application made by Tuljaram does not fall under any of the provisions of Section 198 of Bombay Act XVIII of 1925, and the conditions necessary to invest the District Court with jurisdiction to decide the matter in controversy do not exist. Even the Collector performing judicial functions under the Mamlatdars' Courts Act is a subordinate Court within the meaning of Section 115 according to the decision in Purshottam Janardan v. Mahadu Pandu I.L.R. (1912) Bom. 114 14 Bom. L.R. 947 though the Collector is not ordinarily a Court subject to the jurisdiction of the High Court. It is difficult to hold that the District Court when exercising judicial functions is not subject to the superintendence and control of the High Court though ordinarily subject to the superintendence and control of the High Court. In my opinion, the District Court exercising judicial functions in accordance with the procedure laid down in the Land Acquisition Act according to Sub-section (3) and (4) of Section 198 of the Bombay City Municipalities Act of 1925 is a subordinate Court under Section 107 of the Government of India Act if not under Section 115 of the Civil Procedure Code.

15. In the present case, the application made to the District Court to compel the Municipality to pay the compensation for the whole area was not maintainable under any of the provisions of a 198 of the Bombay City Municipalities Act. The decision, therefore, of the District Court in such an application is ultra vires. The question as to the area was not referred to the panchayat, though it was assumed, and not disputed that the area to be acquired consisted of 2997 square feet. The determination of the apportionment of the compensation between opponent No. 1 and opponent No. 2 by the District Court in the absence of any reference to arbitration of the panchayat under Sub-section (i) of Section 198 is also without jurisdiction, I think, therefore, that the decision of the District Court though purporting to be made under Section 198 of the Bombay City Municipalities Act, 1925, does not fall within the ambit of that section and is ultra vires, and cannot be allowed to stand.

16. In Jeranchod v. Lahore Temple Committee : (1925)27BOMLR872 where there was no right of appeal to His Majesty in Council and where it appeared that the order of the High Court was passed without jurisdiction, as the matter could not come in appeal to the High Court, under Section 47 of the Civil Procedure Code, the orders made by the High Court were vacated by their Lordships of the Privy Council. In Lambodar v. Dharanidhar (1925) 28 Bom. L.R. 64 it was held that no appeal lay to the High Court from the order passed by the District Judge as persona designata under a scheme for management of a charitable institution, but at page 67 it was observed as follows:-

We are not concerned with hypothetical oases which have been suggested be us, such as, the District Judge declining to exercise the functions imposed upon him by the scheme, or in the exercise of those functions entirely failing to exercise any discretion in the matter, When such oases arise, we have no doubt that the High Court will be competent to deal with them.

17. I think, on the whole, that the District Court was not competent to deal with the application made by Tuljaram and its order is illegal and must be vacated. I would, therefore, set aside the order of the lower Court.

18. As this point was not raised by the Municipality before the lower Court and the action of the Municipality is not free from blame in the present case, we think that the Municipality ought to bear their own costs and pay separate sets of costs of the opponents in this Court and in the lower Court.

Broomfield, J.

19. The short facts necessary for deciding this revisional application are these:-The present applicant, the Sholapur Municipality, desired to acquire some land belonging to Tuljaram Krishnasa, opponent No. 1. It was agreed between the parties that 2997 square feet should be acquired, and as the Municipality considered that the compensation demanded by Tuljaram was exorbitant, the matter was referred to arbitration as provided by Section 198 of Act XVIII of 1925. The panchas decided that compensation should be paid at the rate of Rs. 1-12-0 per square foot. The area to be acquired was not settled by the panchas, because at the time there was no dispute on that point, But afterwards the Municipality changed its mind and proposed to acquire 860 square feet only at the same rate per square foot. Tuljaram having failed to obtain payment made an application to the District Court, Miscellaneous Application No. 87 of 1928, described as an application under Section 198 of the Act, in which he prayed that the Municipality should be compelled to pay compensation at Rs. 1-12-0 per square foot for 2997 square feet. At the hearing of this application the District Judge considered two principal issues: (1) whether the Municipality was bound to acquire the whole area originally agreed upon, (2) whether the compensation should be paid to Tuljaram or to one Gangappa Sugappa, who claimed an interest in the property as mortgagee. This Qangappa is opponent No. 2. He was not a party to the arbitration proceedings but was made a party to the proceedings before the District Court at the instance of the Municipality. The District Judge decided (1) that the Municipality was bound to pay compensation at Rs. 1-12-0 per square foot for the whole area, and (2) that the compensation should be paid to Tuljaram Krishnasa, and payment was ordered accordingly. The Municipality has applied to this Court for revision of this order.

20. A preliminary question arises as to whether the application is competent, that is to say, whether the High Court has any power to revise the order of the District Court purporting to have been made under Section 198 of Act XVIII of 1925. Prima facie it would appear that the High Court must possess this power. Section 115 of the Civil Procedure Coda gives power to the High Court to revise the proceedings of any Court subordinate to the High Court in a case in which no appeal lies. Section 4, Clause. (1), of the Code provides as follows:-

In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

21. This has been interpreted to mean that the provisions of the Code apply to proceedings under special Acts unless there is some provision in the special Act which shows a contrary intention. See Ago, Mahomed Hamadani v. Cohen I.L.R. (1886) Cal. 221 Velli Peviya Mira v. Moidin Padsha I.L.R. (1886) Mad. 332 was a case under the Madras Rent Recovery Act which contained an express provision that orders passed under it should not be liable to revision except by the Zila Court. It was held, therefore, that the High Court had no power of revision, the implication being that but for this provision the High Court would have had that power. There is no provision in Act XVIII of 1925 such as there was in the Act dealt with in Velli Periya Mira v. Moidin Padsha, which excludes the revisional jurisdiction of the High Court. It would appear, therefore, that Section 115 must apply and give this Court power to revise the order of the District Judge, if it can be regarded as an order of a Court subordinate to the High Court.

22. Then there is Section 107 of the Government of India Act which gives the High Court powers of superintendence over all Courts subject to its appellate jurisdiction. The power of superintendence here referred to includes the power of revision: Nilmoni Singh Deo v. Taranath Mukerjee I.L.R. (1882) Cal. 295 and K.A.M. Mohideen v. Bukshi Ram I.L.R. (1925) Ran. 410 The words 'subject to its appellate jurisdiction' do not mean, of course, subject to the appellate jurisdiction in that particular matter, for revision would not be necessary if an appeal lay, but subject to its appellate jurisdiction normally, or even in certain specific cases only: Sheonandan Prasad Singh v. King-Emperor (1918) 3 P.L.J. 581 The High Court. therefore, has power to revise the order in question under Section 107 of the Government of India Act if it is an order of a Court normally subject to the appellate jurisdiction of the High Court.

23. That in the present case we are concerned with an order of a Court is clear from the language of Section 198. Under Clause (2) the District Judge is given power to appoint arbitrators in certain circumstances, but when it is a question of the determination of any dispute between the parties, whether on failure of the panchayat to give a decision, Clause (3), or in case either party is dissatisfied with the decision of the panchayat, Clause (4), it is the District Court which is empowered to deal with the matter, and the procedure to be followed is that laid down in the Land Acquisition Act for proceedings referred for the determination of the Court. That being so, the ratio decidendi of such cases as Manavala Goundan v. Kumarappa Reddy I.L.R. (1907) Mad. 326 K.A.M. Mohideen v. Bukshi Ram I.L.R. (1925) Ran. 410 Cooper, In re I.L.R. (1917) Bom. 119 19 Bom. L.R. 926 and Sheonandan Prasad Singh v. King-Emperor (1918) 3 P.L.J. 581 where it was held, respectively, that the High Court has no power to revise the orders of a District Registrar, a Rent Collector under the Rangoon Rent Act, a District Judge acting departmentally as the head of an office, and a Commissioner appointed under the Defence of India Act, has little or no application in the present case. Lastly, Section 3 of the Code provides in terms that the District Court is subordinate to the High Court for the purposes of the Code. So that for the purposes of Section 107 of the Government of India Act the District Court must be regarded as generally subject to the appellate jurisdiction of the High Court.

24. If the matter were res integra, there could be no question, in my opinion, that this application for revision is competent. The difficulty arises owing to the decision in Municipality of Belgaum v. Budrappa, where it was held that no application for revision lies against the decision of a District Court under Clause (3) of Section 160 of the Bombay District Municipal Act III of 1901, which corresponds to Clause (3) of Section 198 of the present Act, The first point to be noted in connection with this case is that the application had been properly made to the District Court under Clause (3) of Section 160. In that case the panch had failed to deliver their award and the District Court was, therefore, empowered to determine the dispute as to the amount of compensation. It is true that the Judge in that case-he happened to be an Assistant Judge-did not decide the dispute, because he was of opinion that he had no jurisdiction to do so until certain other matters had first been submitted to arbitration. Nevertheless it was possible for this Court to hold in the circumstances that the order was one which was intended to be final and should not, therefore, be revised. It was not a case like the present where the District Court was applied to for an order which it was not empowered to make-there is nothing in Section. 198 which gives the District Court power to enforce an award on the application of a party who relies upon it-and where moreover the Court has determined a dispute, viz., that between Tuljaram and Gangappa, which had not been submitted to arbitration and was not within the jurisdiction of the Court at all.

25. The judgment of Batchelor J. in Municipality of Belgaum v. Rudrappa I.L.R. (1916) Bom. 539 18 Bom. L.R. 340 is a short one and I quote the material part of it (p. 511):-

In the case of Chunilal Virchand v. Ahmedabad Municipality it has been decided by a Bench of this Court that no appeal lies from the decision of a District Court under Clause (3) of Section 160 of the Bombay District Municipalities Act. The object of this application is to obtain from the Court a decision that although no appeal would lie, yet an application in revision does lie. Such a decision would, in our opinion, be seriously anomalous, and we do not think that the words of the Statute require us to make such a pronouncement, The only decision which seems to us fairly consistent with that already recorded in Chunilal Virchand's case, is the decision that no application for revision is competent. In Balaji Sakharam v. Merwanji Nowroji this Court has held that it has no jurisdiction to revise the order of a District Judge acting under Section 23 of the Bombay District Municipalities Act of 1884. And although the words occurring in that section are 'District Judge,' whereas the words occurring in Section 160, last clause, are 'District Court,' we do not think that the distinction is sufficient to support the argument that an application for revision is competent, although admittedly no appeal would lie.

26. In Chunilal Virchand's case it was decided that no appeal lies from the decision of a District Court under Clause (3) of Section 160 of the Bombay District Municipal Act. The fact that there is no appeal does not ordinarily imply that there is no remedy by revision either. In fact revision only lies under Section 115 of the Code in cases where there is no appeal, So that evidently what Batchelor J. meant when he said that any other decision would be seriously anomalous was this, viz., that the particular grounds on which it had been decided that there was no appeal would apply equally in the case of a revision application. This appears to be the main ground of decision. A subsidiary ground was that in Balaji Sakharam v. Merwanji Nowroji it was decided that the High Court had no jurisdiction to revise the order of a District Judge under Section 23 of the Bombay District Municipal Act of 1884, on the ground that the District Judge was not a Court but a persona designata. Batchelor J. apparently considered that it made no material difference whether the powers under a special Act were assigned to the District Judge or to the District Court.

27. It is, therefore, necessary to refer to Chunilal Virchand v. Ahmedabad Municipality and Balaji Sakharam v. Merwanji Nowroji, and see exactly what was decided in those cases and what the basis for the decisions was. The facts in Chunilal Virchand's case were that an application had been properly made to the District Court under Section 160, Clause (3), for the determination of the compensation due to the applicant after failure of the panchayat to determine the amount. The District Court made an order determining the amount and the applicant appealed, Chandavarkar J.'s view was that the District Court only came in as a substitute for the panchayat where adjudication by the latter had failed, and, therefore, the District Court's order could not be questioned any more than the award of the panchayat could be questioned by way of an appeal. The learned Judge also referred to the provisos to Section 160, Clause (3), which are the same as the provisos to Section 193, Clause (3), of the present Act, namely, '(a) no application to the Collector for a reference shall be necessary', and '(b) the Court shall have full power to give and apportion the costs of all proceedings in any manner it thinks fit'. These provisos were relied upon as indicating that the decision of the District Court was intended to be final. This, so far as I can see, is the only reason in the judgment which can in any way be said to negative the power of the High Court to revise the District Court's order The additional reason given for holding that there was no appeal, namely, that the order could not be regarded as a decree, would not affect the question of revision at all.

28. Now, if the decision in this case is to be considered not with reference to the question which was decided in the case itself, namely, the question whether there was an appeal, but with reference to the question whether a revision application lies, there are two important points of difference which, I think, must affect the decision. In the first place, though the award of a panchayat is no doubt final in the sense that it is not open to appeal, it is not final in the sense that it can be executed as it stands. It can only be made executable apparently by being filed as a decree as provided by the Civil Procedure Code or by means of a suit to enforce it. On the other hand, the order of the District Court is itself enforceable in execution as held in Broach City Municipality v. Gulam Rasul I.L.R. (1923) Bom. 654 25 Bom. L.R. 305 In that very important respect, therefore, the award of a panchayat and the order of a District Court do not stand on the same footing, and the argument that the Legislature intended that there should be no interference with the District Court's order is, in my opinion, very materially weakened. The second argument baaed on the intention of the Legislature to give finality to orders passed under Section 198 can only apply with any force to orders contemplated by the provisions of that section, As I have mentioned, in Municipality of Belgaum v. Rudrappa, it was possible to hold that the District Court's order came within the purview of the section. But what the Court has decided and ordered in the present case is outside the purview of the section altogether. It would be impossible to hold that the Court was functioning simply as a substitute for the panchayat when it dealt with matters not referred to the panchayat at all. The main line of reasoning in Chunilal Virchand's case appears, therefore, to have no application.

29. As regards Balaji Sakharam v. Merwanji Nowroji, that was a case under the Bombay District Municipal Act, 1884, Section 23 of which Act empowered the District Judge to pass an order for confirming or amending the declared result of an election or for setting the election aside. The section also provided that the District Judge might exercise any of the powers of a civil Court and that his decision should be conclusive. In the particular case the District Judge had refused to set aside an election and had ordered the applicant to pay the costs of the other party. It was this order for payment of costs which the High Court was asked to revise, and it was held that the District Judge acting under Section 23 was not a Court and that the High Court could not interfere.

30. Two points are to be noted in connection with this case. In the first place, the powers under Section 23 of the Act of 1884 were given to the District Judge and not to the District Court. Batchelor J. in Municipality of Belgaum v. Rudrappa no doubt expressed the view that that made no difference. But that view, it would appear, is no longer tenable having regard to the judgment of the Privy Council in Balakrishna Udayar v. Vasudeva Ayyar I.L.R. (1917) Mad. 793 19 Bom. L.R. 715 The reasoning of Lord Atkinson in that case was that in determining whether an order is that of a Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //