P. Chandra Reddy, C. J.
1. This is an appeal against the judgment of our learned brother Justice Jaganmohan Reddy dismissing a petition under Article 226 of the Constitution to quash the order of the Government in G. O. Ms. (Rev). 1322 dated 6-5-1953.
2. The circumstances constituting the background of this litigation may be briefly related.
3. The Thotapallo estate situated in Peddapuram taluk of East Godavary district was held by an ancestor of the parties before us, styled as mokhasa-dar or mansabdar under the zamimkr of Peddapuram to whom he was bound to pay quit-rent as an essential incidence of bis tenure. This estate was declared to be an impartiable estate by the Privy Council in the year 1870. Vide Rajah Yanumula Venkayamah v. Raja Yanumula Boochia Venkondora, 13 Moo Ind App 333 (PC). This was resumed by the Government in 1881 and a pension of Rs. 19,500/-was granted for the maintenance of the members of the family. In 1882, the Government, on a question raised by the Collector of East Godavary, decided in G. O. 329 dated 21-3-1882 that the mansabdar was to receive the whole pension in cash, it being understood that be would provide out of it for those who had a just claim on him.
The appellants and the 2nd respondent are the grandsons of Rajah Yenumala Mallu Dora who died in the year 1927 leaving behind him Rajah Yenumu-la Latchanna Dora and Rajah Yenumula Venkanna Dora, the former being the father or the present holder i.e., the 2nd respondent and another called Rajah Narasimharao, while the appellants are the sons of Rajah Venkanna Dora. Venkanna Dora the younger of the two passed away in 1935 survived by his two sons, the appellants, while Latchanna Dora died in the year 1945. Venkanna Dora applied to the Government claiming that he was entitled to half the allowance paid to his father as the other property was equally partitioned between himself and his brother, and that the pension might be continued to be paid to him and his brother in equal shares.
This application was rejected by the Government on the advice of the then Advocate-General of Madras who opined that the applicant was not entitled in the absence of a special custom obtaining in that particular estate to be maintained undet thet Hindu Law out of the impartible estate of Thotapalle or what was given as equivalent or a substitute for the jaghir. At the time of the death of Venkanna Dora, his two sons were minors and a court-guardian was appointed for their person and property as their mother had pro-deceased their father.
4. After the 1st petitioner became a major, he moved the Government for fixing the maintenance of his and that of his brother and for payment to them towards maintenance a portion of the pension payable to Mallu Dora the present 2nd respondent alleging that they were not being maintained by the said respondent. This petition was sent to the Revenue Divisional Officer, Kakinada for enquiry and report. Objections were filed on behalf of the present holder that the pension was not partible and consequently the appellants were not entitled to any portion thereof.
The Revenue Divisional Officer before whom no material was placed on either side taking into consideration the properties that fell to the share of Latchanna Dora and Venkanna Dora at a partition effected in or about the year 1928 recommended payment of Rs. 150/- to each of the brothers in his report dated 3-11-1949. This was forwarded to thel Board of Revenue through the Collector who adopted the report. The Board of Revenue remitted the matter to the District Collector for a, proper determination of the exact financial status of these petitioners.
The District Collector in his him called for a report from the Tabsildar. The document evidencing the partition referred to above and some other papers were filed before the Tahsildar showing the extent of the properties owned by the appellants' family is 678 acres which according to the appellants fetches only an annual income of Rs. 3,000/-. The Tahsildar accepted this and submitted to the Collector a report affirming his original recommendation, and the Collector resubmitted the same, to the Board with a similar recommendation. On this, the Board of Revenue made a recommendation to the Government for payment of Rs. 150/- per month to each of the brothers. The Government fixed maintenance at Rs. 100/- which was being paid to them month after month till 1953.
5. Coming to know of this, the respondent filed a petition in September 1951 before the Government for a reconsideration of that order alleging that he was not aware of the proceedings. This was forwarded to the Revenue Divisional Officer who after notice to the parties, held an enquiry. The appellants filed a counter before him contending that the matter could not be re-agitated and there were no new facts or circumstances to justify a re-consideration of the matter.
The Revenue Divisional Officer on a perusal of all the material placed before him and after an oral enquiry submitted a report stating that the appellants were in receipt of a net income of nearly Rs. 20,000/- from landed properties in addition to other sources of income, and their estimate of the income at Rs. 3,000/- was incorrect and consequently they were not in need of any maintenance allowance. Ho also added that the allowance was nothing for them when compared with their income and status and that they were more particular of having it so that it might continue in their family as a matter of right and as members of the ex-mansabdar's family, Accepting this report, the Government passed orders cancelling the previous ones allowing Rs. 100/- to each of the appellants.
The order recited that the earlier orders were passed by the Government as it was then represented to them that those persons were poor and were in need of maintenance and subsequent inquiries disclosed that they were by no means poor, that they owned considerable properties and were not persons who were in need of maintenance. Consequent upon this order, further payments of pension to the appellants were stopped. This has led the appellants to invoke the jurisdiction of this court under Article 226 of the Constitution. The learned Judge dismissed this petition as, in his opinion, the order of the Government could not be successfully assailed.
6. In this appeal, the contentions urged before the learned Judge, viz., that the Government had no jurisdiction to review the earlier order and that the principles of natural justice were violated in that an opportunity was denied to them to place their case before the enquiring officer are repeated.
7. On the first point, the argument pressed upon us is this. Having adjudicated the rights of parties under Section 5 of the Indian Pensions Act, it was not competent for the Government to review that order, there being no provision in that Act empowering it to re-open matters finally decided, nor any inherent jurisdiction to do such a thing. According to the learned Advocate, the proceedings under Section 5 are of judicial or quasi-judicial nature and as such they could not be reviewed in the absence of a specific provision enabling the Government to do it.
8. Before we examine the soundness of the contentions, it is convenient to extract the relevant sections of the Indian Pensions Act, 1871.
'4. Except as hereinafter provided, no Civil Court shall entertain any suit relating to any pension or grant of money or land-revenue conferred or made by the British or any former Government, whatever may have been the consideration for any such pension or grant, and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted.
5. Any person having a claim relating to any such pension or grant may prefer such claim to the Collector of the District or Deputy Commissioner or other officer authorised in this behalf by the appropriate Government; and such Collector, Deputy Com-missioner or other officer shall dispose of such claim in accordance with such rules as the Chief Revenue Authority may, subject to the general control of the appropriate Government, from time to time prescribe in this behalf.
6. A Civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorized in that behalf that the case may be so tried, but shall not snake-any order or decree in any suit whatever by which the liability of Government to pay any such pension, or grant as aforesaid is affected directly or indirectly.'
It is plain from these sections that the legislatures intended that the distribution of pensions should be left to the executive Government without the intervention of Civil Courts unless invited to do so by the concerned officer and that all claims put forward in regard to the pensions should be settled by them. Under Section 5, the authority mentioned therein is called upon to dispose of claims in the manner indicated above. A claim involves the basic element of a legal right. Therefore the statutory duty cast upon the officers enumerated in that section is to determine the legal rights of persons concerned. Hence, the primary question for consideration is whether the appellants-had advanced any claim or right to be maintained out of the pension within the purview of Section 5.
9. In this context, it is useful to remember that the pension granted to the original mansabdar was a substitute for the original estate governed by the rules pertaining to impartible zamindaris, the rights of the junior members of the family for maintenance being similar to the rights of such members of an impartible estate. The estate being an impartible one the compensation paid in lieu thereof partakes of its character. It is on this basis that the rights of the junior members of this family have to be determined.
10. At the outset, it should be mentioned that it was stated by the counsel for the appellants that Sections 9 and 10 of the Impartible Estates Act which were added by Section 2 of Madras Act XII of 1934 are not attracted to the present case in which the estate was resumed long before and does not find a place in the schedule annexed to the Act and that it is governed by ordinary principles of Hindu law as modified by customs prevailing in this State. This contention is sought to be established with reference to Ramarao Bahadur v. Rajah of Pittapur, ILR 41 Mad 778: (AIR 1918 PC 81).
11. Prior to the pronouncement of the Privy Council in ILR 41 Mad 778; (AIR 1918 PC 81), it was assumed that the junior members of an impartible estate were entitled to maintenance irrespective of the degree of their relationship with the zammdar or common ancestor subject to the limitation that only persons who could demand a partition of the heritage, were the estate a partible one, could claim maintenance. The same was assumed to be the position even in regard to Thotapalle estate. But, those decisions are no longer valid in view of ILK 41 Mad 778: (AIR-1918 PC 81). Their Lordships examined the position of junior members in an impartible estate at some length and enunciated the principle that the personal obligation under Hindu law to1 maintain based upon relationship existed only in the case of a widow, parent and an infant child. Such an obligation attached to the individual de hors the existence of any ancestral or joint family property.
Any other right of maintenance depended only upon the existence of a real coparcenery between the claimant and the holder of the property and since there could be no coparcenery in regard to an impartible estate between the junior members and the proprietor for the time being the former would have no right for maintenance. At the same time, their Lordships recognised that there was a well-established custom in the Madras Presidency for junior members up to the first generation to get maintenance. Beyond that generation the junior members could not claim maintenance unless a special custom was made out. Thus, so far as the first generation is concerned, a judicial recognition is given to the custom for the payment of maintenance.
12. That does not really help the appellants since they ace not within the first degree. They could Succeed only if a special custom prevailed in the family entitling the junior members beyond the first generation to get maintenance.
13. Could it be said in the instant case that the appellants pleaded any special custom existing in the family enabling the junior members to get maintenance beyond the first generation which could be regarded as a claim within the ambit of Section 5? A scrutiny of the contentions in the petition filed by them in the year 1948, the nature of the enquiries con-ducted by the proper officers as also the surrounding circumstances disclose that the parties had not contemplated any right based upon a special custom. There is not even a suggestion in it of a special custom obtaining in the family for the payment of maintenance to members in the position of the appellants.
It is true some reference was made to the division of the pension amongst the various members of the family at an earlier stage, but that does not amount to setting up of a special custom. Here, we cannot also ignore the fact that the petition was addressed by the appellants not to any of the authorities competent to adjudicate upon the claims under Section 5 but to one of the Ministers of the Government of Madras. Further, that they had not any special custom in view could be gathered from the fact that they had not made any attempt to substantiate it. It appears from the report of the Revenue Divisional Officer that though several opportunities were given to the appellants and the respondents to put forward their respective cases they did not avail themselves of it.
The reports also did not make mention of any custom and much less a special custom as a foundation for the claim of the appellant. Again the Government did not purport to decide any disputes as between the claimant and the present holder. They did not advert to any circumstances making out a Special custom. The order reveals that the Government accepted the representations of the appellants that they were in impecunious circumstances and therefore their request should be complied with. Thus it is clear the first order is not traceable to any tight or claim which the appellants urged before the Government but more to an act of bounty.
14. It could be seen from the G. O. issued in 1923 that the Government at the time of substituting the cash grant reserved to themselves a discretion to grant maintenance separately to such persons who are unable to maintain themselves during the term of their lives. The G. O. dated 28-5-1923 referred to above may usefully be extracted.
'On the resumption of the Totapalli estate in 1881, the Government, in their order. No. 329 D/-21-3-1882, sanctioned an allowance of Rs. 19,500/-per annum to the exmansubdar Yenumala Latchanna Dora Garu on condition of his providing out of it for those having a just claim on him. In 1885 the grant was divided among himself and six other members of his family (G. O. No. 1228 Judl. D/- 8-5-1885) It was also ordered subsequently that on the death of the members of the family either the whole allowance or a moiety thereof should be added each to the allowances of the ex-mansubdar who had the ultimate right of reversion. With reference to the orders the proposals were made for further sub-division of the allowances granted to the members of the family. The Government considered that it would not be good policy to allow indefinite transmission of the divided share by inheritance and accordingly requested the Board of Revenue to report on the possibility of restricting the sub-division beyond the third life from the original holder. Adding the amount so lapsing to the ex-munsubdar the Board of Revenue does not think that the suggestion is equitable.
The Government have considered the question again and consider that the impartibility of the original pension should be-maintained, subject to such rights of maintenance as the law of India allows. They accordingly direct that no further sub-division of the allowance should in future be made unless it is established that a particular member of the family cannot get maintenance in which case a portion of the whole sufficient for his maintenance may be separately granted for the term of his life.
The Board of Revenue is requested to issue necessary instructions and to instruct the Collector to notify the above decision to the present holders of the allowance,'
Obviously it is pursuant to the discretion reserved to themselves that the Government passed that order and not in exercise of any of the powers conferred by Section 5 of the Pensions Act. Since the basis of the grant of the pension was not in recognition of any, right but as a matter of grace or bounty taking into account the alleged want of the appellants, it is difficult to treat it as an order emanating from judicial proceedings incapable of being reconsidered. In such circumstances, there can be no doubt that the original order was made by the Government in an administrative capacity.
When on a further enquiry they come to the conclusion that they proceeded on a misapprehension as to basic facts, viz., the financial status of the appellants, surely, it is within the powers of the Government to reconsider that order. They could review the situation from time to time and consider whether the pension should be continued to he paid or not or whether there should be any modification in that regard. There is no impediment in the Government reconsidering the matter when it comes to their knowledge that the persons concerned were in no need of any maintenance having substantial income from other sources. It follows that Section 5 does not operate as a bar to the passing of an order like the impugned one.
15. Even otherwise, the objection is untenable. Our learned brother Mr. Justice Jaganmohan Heddi came to the conclusion that the prior order did not stand in the way of the Government passing another order, since the former was an ineffectual one having been based on a final report submitted without hearing the other side. There is ample material to sustain this conclusion. The first report of the Revenue Divisional Officer recited that no evidence was adduced by the appellants to establish their claim. Thus, the recommendation of the Deputy Collector was made without any regard to exact financial status of the appellants and their eligibility for a moiety of the pension.
It is stated in the order of our learned brother that there was nothing to indicate that notices were given to the holder after remand or that an enquiry was held after giving him an opportunity of being heard. This statement seems to be justified by the contents of the second report. On the second occasion also, the Deputy Collector merely discussed the matter with reference to the partition deed and a statement filed by the present appellants.
16. Whereas when the petition which has given rise to the appeal was filed by the respondent, the Collector at the instance of the Government instituted a more detailed enquiry. The Revenue Divisional Officer reported that the appellants were in very affluent circumstances being possessed of extensive properties fetching an annual income of nearly Rs. 20,000/-. The Government accepted this, report and cancelled the previous one, It is set out in the order now assailed, inter alia,
'These orders were passed as it was then represented to them that the two petitioners were poor and were in need of maintenance ..... The Government have examined this petition in consultation with the Collector of East Godavari and the Board of Revenue. The Collector reported after personal enquiry that the petitioners are by no means poor, that they own considerable landed properties and that they are not persons who are in need of maintenance. The Government were therefore convinced that the basis on which the orders in G. O. Ms. Rev. No. 234 dated 30-1-1951 were issued did not exist and is absent even now.' Thus it is clear that the first order was the result of a mis-conception and that obliged the Government to set right the matter. For these reasons, we are in agreement with the learned Judge that the first order could not he regarded as a judicial determination made after hearing both the parties. The impugned order is not therefore amenable to certiorari.
17. The second point urged is that though the appellants presented a petition before the Collector after the report by the R. D. O., requesting him to give them an opportunity to make out their case, the Collector declined to do it. We find it difficult to give effect to this contention. To substantiate this submission, the learned counsel invited our attention to an allegation in the reply affidavit.
'It is no doubt true that the petitioners filed counters to the said application before the Revenue Divisional Officer, Peddapuram and the District Collector, East Godavari, but no opportunity was given to them in the later stages of the enquiry before them or before the Government to substantiate those allegations and establish that the order dated 30-1-1951 was not based on any misrepresentation on the part of the petitioners etc.'
We are not impressed with this argument. The alleged Jack of opportunity is not alluded to in the affidavit as already stated. Secondly, the allegation pressed into service leads to the inference that the counter before the Collector was filed before the final stages of the enquiry held by the Revenue Divisional Officer.
18. Further, the documents on which they wanted to rely to disprove that they were in enjoyment of a large income were not such as would really throw much light on the matter or would furnish valuable evidence, having regard to their nature. The records which would have furnished useful information were the original documents relating to the inventory of the property prepared by the revenue authorities in 1935, money deposits made by the Court guardian from time to time and audit reports. The Revenue Divisional Officer commented and, in our opinion, rightly on the failure of the parties to place this material before him.
19. Assuming that the counter was filed, as now stated, and that the request was not complied with, we do not think that that in any way vitiates the enquiry. Indisputably, a notice was served on the appellants and they and their counsel appeared before the Revenue Divisional Officer and also filed certain correspondence not of a very helpful kind but withheld documents which would have established the real state of affairs regarding the income which the appellants were deriving from various sources. Having failed to avail themselves of the opportunities afforded to them, the appellants could not complain that the Collector had not given them second opportunity. The Officers concerned are not bound to start another enquiry to suit the whims of the parties.
20. Further, the Pensions Act does not contemplate any elaborate enquiry as in the case of a civil Court. The following remarks in Babaji Hari v. Rajaram Balial, ILK 1 Bam 75, are pertinent in this behalf:
'The purpose appears to be to keep the distribution of what is regarded as a bounty of Government wholly in the hands of its executive officers; and if suits, for shares could be brought, and rights, or the semblance of rights, established, by some co-sharers, while Government was paying the whole proceeds of a cash allowance to other sharers, the reclamations of the former would at least be embarrassing. They would practically necessitate an investigation by the revenue officer under Section 5, which must terminate by an adjudication similar to that of the civil Court if it were meant to command any public confidence, or else would entail a reference to the Civil Court under Section 6 with a similar result.'
21. This statement of law was accepted by the Madras High Court in Kombi v. Aundi, ILR 13 Mad 75 and Aundi Achen v. Kombi Achen, ILR 18 Mad 187, where it was observed by Multuswami Ayyar J. that
'possibly, the intention was that the distribution of what is regarded as the bounty of Government among co-sharers should remain under its control or that of its executive officers'. Thus, there is no foundation for the grievance that the principle of natural justice was violated and that [ho maxim audi alterem partem was not given effect to,
22. There is also another reason why certiorari will not issue to remove the order now attacked. It is only a junior member who has not sufficient income to maintain himself that should be afforded some relief. If could not be controverted that in deciding whether a particular person should be paid maintenance or not, the income of the parent estate; and the sources of income of the claimant etc., should he taken into account. Maintenance should be allowed to persons who could not maintain themselves except with such an allowance. It could be gathered from the report of the Revenue Divisional Officer that the appellants; far from being in needy circumstances were in enjoyment of a large income amounting to more than Rs. 20,000/- from landed property besides having other sources of income. The attitude adopted by the appellants before the Revenue Divisional Officer establishes that they were not really in want. This is what the report says among other things :
'During my enquiry, both the respondents turned up with their vakils and filed statements herein enclosed. Whatever may be the properties owned by them, they pleaded that they never represented to the Government nor had they put in petitions to the authorities stating that they were poor and that they had no means of subsistence to pull on. Then point is that they put in a petition in 1948 to the Government claiming a share in the pension as they are entitled to claim so as junior members of the family of the ex-mansubdar,'
23. This gives a clear indication of what prompted the appellants to file a petition to recover a portion of the pension not on the basis of inability to maintain themselves but on the supposed right which inhered in them as members of the family. There was therefore no justification for granting them any relief by way of maintenance.
24. It is argued by Sri Venkatessam that this Court in the exercise of jurisdiction under Article 226 is not concerned with the merits or quality of the claim but has only to see whether the offending order was one passed in exercise of jurisdiction. In support of the proposition, learned counsel relied on the following passage at page 180 in 'Extraordinary Legal Remedies' by Ferris :
'While certiorari is used in the exercise of a superior Court's supervisory jurisdiction, it is not to be confounded With its appellate jurisdiction, and the Court is restricted, on certiorari, to examination into the external validity of the proceedings had in the lower Court; it cannot inquire into the extrinsic correctness of the judgment, as on appeal, except to ascertain that the judgment is invalid because the essential forms of the law have not been observed, or that the Court had no jurisdiction.'
It is true that this Court, while exercising its writ jurisdiction, does not act as a Court of appeal. It is equally true that a Writ will issue only in aid of justice. Certiorari does not issue as a matter of course. If this Court is satisfied that the order that is sought to be removed has not resulted in any injustice to any of the parties, it would be very slow to interfere with it. It is not every error of law that should be ground for the issue of a writ of certiorari. In Ramachandra Row v. Seshiah, 1957-2 Andh WR 106, to which one of us was a party, it was observed :
'This Court is certainly entitled to consider whether the jurisdiction conferred under Article 226 of the Constitution should be exercised for the ends of justice. It does not follow that every error of law committed by a subordinate tribunal should be a ground for the exercise of the discretionary jurisdiction vested in the High Court under Article 226.' It was added after extracting the observations of Bose J. in Sangram Singh v. Election Tribunal, : 2SCR1 , that the powers conferred on the High Courts by Article 226 should not be lightly exercised in each and every case where an error of law is discovered.
25. This is not a case in which we will be justified in issuing the writ asked for. In these circumstances, we feel that the appellants' have not succeeded in showing that the writ asked for should be issued. It follows that the appeal should be dismissed with costs. Advocate's fee is fixed at Rs. 200/-.