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Mohona Ponda Vs. Raghunadha Das and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai
Decided On
Reported inAIR1939Mad888; (1939)2MLJ312
AppellantMohona Ponda
RespondentRaghunadha Das and anr.
Excerpt:
.....of the last holders of the offices which have been abolished and shall report his action to the revenue officer in charge of the division. it must have been the intention of the section that incumbents of each office abolished, should have a right to have their claims considered to the new office of the same class created and not to an office of a different class for which they might well be entirely unqualified. after the suit was decreed there was an appointment of the first defendant which would be perfectly legal, provided that there was a vacancy at that time. it seems to me that a proprietor under this act in a case of re-grouping has no power of appointment except that which is conferred by section 15. that power is only a power to appoint a person whom he may consider to be..........statutory power to interfere with an appointment made by the proprietor within the powers conferred by law.5. even otherwise, assuming that the appointment by the proprietor is illegal and that the cancellation of his order and the appointment of the first defendant by the revenue divisional officer are also illegal, what is the position? the plaintiff cannot base his suit on possession, for he never took possession of the suit office. he cannot base his suit on title, for he can derive no title to a statutory office by reason of an appointment which is beyond the statutory powers of a proprietor. he is therefore in the position of a would-be trespasser, whose trespass has been prevented before it is effective. certainly that is not a character which could afford a basis for the.....
Judgment:

Wadsworth, J.

1. This appeal raises questions relating to the powers of the proprietor and the Revenue Divisional Officer in making appointments under Section 15 of the Madras Proprietary Estates Village-Service Act (IIofl894) in a case of re-grouping of existing villages. The plaintiff was a karnam of one of the villages affected by the re-grouping. In the new group the proprietor appointed the plaintiff, not as karnam, but as headman. He did not actually take office owing to the fact that when the report of the appointment was received, after some correspondence, the Revenue Divisional Officer set aside the appointment and, purporting to act under Section 11(2) of the Act, appointed the first defendant who admittedly was qualified for the appointment. The plaintiff filed the suit for a declaration that the appointment of the first defendant was illegal. The suit was decreed in the trial Court. But before the appeal against this decision was heard, the proprietor on the basis of the decision of the District Munsif, treating the office as vacant by reason of that decision, made a fresh appointment and this time he appointed the first defendant, that is, the person actually substituted for his own first nominee by the original order of the Revenue Divisional Officer which had been declared illegal by the District Munsif. The Revenue Divisional Officer accepted this appointment; so that when the suit came before the District Judge in appeal the plaintiff was confronted, not by the order of the Revenue Divisional Officer which had been found to be illegal, but by a subsequent order of the Revenue Divisional Officer confirming an apparently legal appointment of the first defendant by the proprietor. The learned District Judge dismissed the suit. Hence this appeal.

2. Now, when there is a re-grouping of villages, the powers of appointment to village offices in the new group are governed by Section 15 of the Act which lays down that, by reason of re-grouping, new hereditary offices shall be created in the new village and in choosing persons to fill such new offices the proprietor shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished and shall report his action to the Revenue Officer in charge of the division. By a rule framed under the Act, embodied, in Appendix V of Board's Standing Order 147, it has been laid down that the proprietor should select a person from among the incumbents of the previously existing offices of the same class as that constituted; and it seems to me that this rule undoubtedly interprets the spirit of Section 15(1), the wording of which is not so specific, though I have no doubt that it was not the intention of the legislature to give incumbents of the talayari's office which has been abolished a right to claim that they should be considered for the appointment to the new headman's office and vice versa. It must have been the intention of the section that incumbents of each office abolished, should have a right to have their claims considered to the new office of the same class created and not to an office of a different class for which they might well be entirely unqualified. It follows that the order of the proprietor appointing the plaintiff as headman of the suit village was not in accordance with the powers conferred upon him by Section 15 of the Act.

3. The scheme of the Act provides no remedy for an appointment by the proprietor purporting to be made under Section 15 but not complying with the provisions of that section. There is no right of appeal laid down in the Act nor is there any right of suit similar to that given to an aggrieved person when the question is one of succession to an existing office. It would in my opinion be in accordance with the spirit of the Act for the Board of Revenue to exercise its rule-making power under Section 32 and to provide for the contingency of the proprietor making appointments in excess of his powers under Section 15. But so far as I can gather, no such rule has been framed. The rules under the Act are embodied in Appendix V to Board's Standing Order 147. Board's Standing Order 149 contains what appear to be executive instructions for the working of the Act and there is nothing in the form of this order to suggest that it embodies statutory rules. Sub-section 3(2) of that order as it stood at the time of the present suit, contained a direction to the Revenue Divisional Officer to make a selection himself if the proprietor should select a person other than a member of the families of the last holder. That provision was deleted in 1935, but in any case it is not shown to be part of any rule framed under the statutory rule-making power conferred by Section 32 of the Act.

4. The position therefore seems to me that the plaintiff was appointed by the proprietor illegally from out of a class of persons from whom the proprietor had no legal right to make an appointment. That appointment was vetoed by the Revenue Officer by an executive act not based on any statutory power. After the suit was decreed there was an appointment of the first defendant which would be perfectly legal, provided that there was a vacancy at that time. It seems to me that a proprietor under this Act in a case of re-grouping has no power of appointment except that which is conferred by Section 15. That power is only a power to appoint a person whom he may consider to be best qualified from among the families of the last holders of the defunct offices of the same class as the new office created in the new village. If when purporting to exercise that power he goes outside the field of selection and appoints a stranger or a person who is not a member of the families of the incumbents of the defunct offices of the same class, he is not only arrogating to himself a power which he does not possess under the statute, but he is in fact encroaching upon the residuary power of the Revenue Divisional Officer to fill the vacancy in case it is not filled by the proprietor. If the appointment of the plaintiff by the proprietor derives no validity from the statute, the plaintiff must be deemed to be at most a mere personal servant of the proprietor and not the holder of a statutory office. It seems to follow that the proprietor's appointment does not affect the existence of a vacancy for the statutory office and that no valid appointment having been made by the proprietor within the time allowed, the Revenue Divisional Officer's order appointing the first defendant would be legal, even though he has no statutory power to interfere with an appointment made by the proprietor within the powers conferred by law.

5. Even otherwise, assuming that the appointment by the proprietor is illegal and that the cancellation of his order and the appointment of the first defendant by the Revenue Divisional Officer are also illegal, what is the position? The plaintiff cannot base his suit on possession, for he never took possession of the suit office. He cannot base his suit on title, for he can derive no title to a statutory office by reason of an appointment which is beyond the statutory powers of a proprietor. He is therefore in the position of a would-be trespasser, whose trespass has been prevented before it is effective. Certainly that is not a character which could afford a basis for the granting of any declaration. Whichever way one looks at the case, therefore, the plaintiff's suit must fail. The appeal is therefore dismissed with costs - two sets.

6. Leave to appeal is refused.


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