1. By our interlocutory judgment of June 22, 1920, we sent down two issues for determination and we are now in possession of the findings of the lower Court upon those two issues and of the materials upon which those findings are based. The first issue was 'were the Panchas and the Sar-Panch appointed in this case as required by Section 18 of the Hereditary Offices Act,' and upon the facts stated in the judgment of the lower appellate Court upon remand, I think that this question must be answered in the negative.
2. Section 18 of the Bombay Hereditary Offices Act lays down the procedure to be followed in determining the rights and duties of certain classes of Vatandars, and it is necessary before the determination can be said to have been made under that section that the provisions of that section should have been complied with at least in substance. Now what the section requires is that the Collector, if he takes action under that section, shall cause the matter in dispute to be defined in writing by a Panchayat of five persons, whereof two shall be appointed by the villagers, two by the Vatandars, and one who shall be Sar-panch by the Collector. That section further goes on to provide that in case the villagers or the Vatandars fail to nominate members within seven days, the Collector shall appoint such members as may be required to constitute a Panchayat of five.
3. It may be premised that the Deputy Collector who dealt with this matter had no doubt the powers of the Collector as explained in our previous judgment. It is clear, however, that the Legislature intends that the Collector shall himself appoint the Panchas in case the villagers or Vatandars fail to nominate members within seven days and also that the Sar-panch shall be appointed by him.
4. Now what happened in this case was that on August 1, 1911, a petition was made to the Deputy Collector by the Mhars and on November 3, 1911, the Mamlatdar wrote to the Deputy Collector soliciting the appointment of a Panch according to Section 18 of the Bombay Hereditary Offices Act. Had the Deputy Collector proceeded to cause the appointment of a Panch to be made in the manner required by the section, all subsequent difficulties in the case would have been saved. But what he did was to write to the Mamlatdar directing him himself to take action in accordance with the suggestion made by him. From that time onwards he was in no way concerned in the matter. What appears to have happened afterwards is this. The Mamlatdar ordered his Head Karkun to get two Panchas appointed by each party and appointed the Head Karkun to be himself a Sar-panch. The Head Karkun then reported to the Mamlatdar that the Mhars had appointed Panchas but that villagers had refused to do so. Thereupon the Mamlatdar ordered the Head Karkun to appoint the necessary two persons under Section 18. It thus appears that the Sar-panch was not appointed by the Deputy Collector but by the Mamlatdar and that the two Panchas whose appointment became necessary owing to the failure of the villagers were not appointed by the Mamlatdar, still less by the Deputy Collector but by the Head Karkun. We are Unable to consider that the action here disclosed was a substantial compliance with Section 18 of the Bombay Hereditary Offices Act, or that a Panch so constituted could make a valid award. The fact that after the award was made the Deputy Collector approved the action taken and the finding of the Panch can give no kind of validity to that which had no validity at the time at which it was done. The approval of the Collector is not required by the Act in the case where the Panchas come to a decision. It is only where the Panchas fail to come to a decision that this approval is necessary and therefore the Deputy Collector's order cannot be considered as having been made in accordance with the proviso to the section. It follows that the award is invalid, in fact it is a nullity, not having been made in any respect whatever in accordance with the requirements of the legislature. Therefore the result must be that the case must be approached as though there was no such award.
5. Now what is the result The suit was one by the Mhars to restrain the villagers from giving the carcasses of dead animals to the Mangs in contravention of the award which was thus passed and if the award was a nullity it must of necessity fail. It was however suggested that, apart from the award, the question of the rights of the Mhars arises to be decided on the merits. But it has been held by this Court in Bhiva v. Vithya I.L.R.(1900) 25 Bom. 186; 2 Bom. L.L. 869 following the decision in Parsha v. Lagmya I.L.R. (1888) 13 Bom. 83 that a Civil Court has no jurisdiction to determine a matter of this kind having regard to Section 18 of the Bombay Hereditary Offices Act which provides the procedure whereby such disputes are to be determined. Following those decisions there is no other course possible except to allow the appeal and to dismiss the suit.
6. In view of the fact that this point was not raised until the case came before us in second appeal, we direct that the parties should bear their own costs throughout.
7. We wish to add that we regret the result in this case and that we trust that if the Mhar-plaintiffs move the Collector for a fresh decision under Section 18 of the Act, steps may be taken to ensure a speedy determination of the matter and that attention may be paid to the requirements of the Statute in order that so regrettable a result may not again occur.
Lallubhai Shah, Acting C.J.
8. I agree.