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K. Nagarathnammal Vs. S. Ibrahim Saheb and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 838 of 1952
Judge
Reported inAIR1955Mad305
ActsMadras Hereditary Village Offices Act, 1895 - Sections 10(5); Madras Regulation, 1928 - Sections 3; Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908
AppellantK. Nagarathnammal
RespondentS. Ibrahim Saheb and anr.
Appellant AdvocateN.V.B. Shankar Rao, Adv.
Respondent AdvocateAdv. General, ;Special Govt. Pleader and ;S.V. Venugopalachari, Adv.
DispositionWrit issued
Cases ReferredSecy. of State v. Raghavalu
Excerpt:
civil - inherent power - section 10 (5) of madras hereditary village offices act, 1895, section 3 of madras regulation, 1928 and article 226 of constitution of india - where statute made provision in respect of particular matter then same must be worked out in statutory frame-work - in case particular mode for enforcement provided then enforcement of right must be sought in that mode - in present case in respect of appointment under section 10 (5) neither right of appeal not right of revision provided for - order of district collector cannot be interfered with by any higher authority. - - have taken the view that the board of revenue have no revisional powers over collectors in respect of their judicial or quasi-judicial functions like the latter case a directly opposite conclusion.....balakrishna ayyar, j.1. on 24-3-1950, komaravelu pillai, the permanent hereditary karnam of the village of thadikombu in dindigul taluk died leaving him surviving a widow by name nagarathnanimal and aminor son, vellaswami, aged about 12 years. byan order made on 4-9-1950, the sub-collector;dindigul, registered vellaswami as the permanentkarnam and appointed one ibrahim sahib to behis deputy during the period of his minority.against this order of appointing ibrahim sahib as deputy, nagaratnammal, preferred an appeal to the district collector, madurai. her prayer to the sub-collector appears to have been that one nagaratnam, a relation of hers, should be appointed deputy, by an order dated 28-10-1950 the district collector set aside the appointment of ibrahim sahib on the ground that it was.....
Judgment:

Balakrishna Ayyar, J.

1. On 24-3-1950, Komaravelu Pillai, the permanent hereditary karnam of the village of Thadikombu in Dindigul taluk died leaving him surviving a widow by name Nagarathnanimal and aminor son, Vellaswami, aged about 12 years. Byan order made on 4-9-1950, the Sub-Collector;Dindigul, registered Vellaswami as the permanentkarnam and appointed one Ibrahim Sahib to behis deputy during the period of his minority.Against this order of appointing Ibrahim Sahib as Deputy, Nagaratnammal, preferred an appeal to the District Collector, Madurai. Her prayer to the Sub-Collector appears to have been that one Nagaratnam, a relation of hers, should be appointed deputy, By an order dated 28-10-1950 the District Collector set aside the appointment of Ibrahim Sahib on the ground that it was undesirable to appoint a Muslim as deputy of a Hindu minor. As Nagaratnammal had intimated that she was willing to nominate Nagaratnam the District Collector directed the Sub-Collector to examine the qualifications of the nominee and to appoint him if he was found suitable.

Ibrahim Sahib, thereupon filed a revision petition to the Board of Revenue. Nagaratnammal appeared by counsel before the Board and raised the objection that it had no jurisdiction to interfere with the order of the Collector. But by its order dated 25-4-1951 the Board overruled the objection of Nagaratnammal to its jurisdiction and set aside the order of the Collector and confirmed the appointment of Ibrahim Sahib as deputy. Nagaratnammal then preferred a revision petition to the Government, and the Government allowed the petition without notice to Ibrahim Sahib who thereupon came to this Court by a writ petition No. 173 of 1952 calling in question the order of the Government on the ground that it was passed without notice to him & therefore in contravention of the principles of natural justice. The writ petition was allowed on that ground and the matter remitted to Government for fresh disposal in accordance with law.

2. When the matter thus went back to the Government, they took the view that they had no revisional powers and declined to interfere. The result was that the order of the Board appointing Ibrahim Sahib as deputy stood. Nagaratnammal has therefore come to this court with this petition to quash the order of the Board on the ground, that it had no jurisdiction to interfere with the order of the District Collector. That petition came on in the first instance before one of us, namely, Rajagopala Aiyangar J. He observed:

'The question, therefore, is whether the Board of Revenue have or have not the power of revision which they have purported to exercise in their order now impugned dated 25-4-1951. There are two decisions of this court both of them of Benches which have a bearing upon this question, the first one being -- 'Seshagiri Sarma v. State of Madras', : AIR1953Mad1005 (A) and the other which is still unreported being one rendered in L. P. A. No. 225 of 1952 (Mad) (B). In the earlier decision the learned Chief Justice and Venkatarama Aiyar J. have taken the view that the Board of Revenue have no revisional powers over Collectors in respect of their Judicial or quasi-judicial functions like the latter case a directly opposite conclusion was reached by Govinda Menon and Basheer Ahmed Sayeed JJ. It is possible that there might be some small points of difference or distinction between the present case and those dealt with by the two judgments but I do not think that without preferring the one decision to the other the 'present writ can be disposed of. The proper course, it appears to me, to follow, is to place the papers before my Lord the Chief Justice for directions either to refer the case to a Benchor to a Full Bench for resolving the conflictbetween these two Bench decisions and therewill be a direction accordingly.'

3. That is how the matter now conies before us. The question we have to decide is whether the Board of Revenue has power to interfere with an order made by the District Collector under Section 10(5) of Madras Act 3 of 1895 -- the Madras Hereditary Village Offices Act, 1895 -- appointing a deputy to a post registered in the name of a minor. To answer this question it is necessary pt the outset to examine the statutes that have a bearing on the powers of the Board and the Collector. The earliest of these is Regulation I of 1803. Up to that time the Board had a considerable amount of judicial authority in the determination of certain cases of a civil nature. The regulation' formally abrogated this judicial authority of the Board of Revenue in those districts where Zilla Courts had been established. Thereafter the preamble proceeds to state the further object of the Regulation:

'and whereas it is important .... that the powers and authorities entrusted to the said Board of Revenue in respect of the executive administration of the revenues, should be defined and published;'

These words make it plain that the intention of the Regulation was to define the power of the Board in so far as it related to the executive administration of the revenues. Section 4 of the Regulation specifies the duties of the Board to be 'the general superintendence of the revenues from whatever source they may arise.' Section 5 runs:

'The Board of Revenue have had, and are here by declared, to have authority to superintend and control all persons employed in the executive administration of the public revenue .... as far as the said superintendence and control may relate to the executive administration of the revenue under the regulations now enacted, or to be hereafter enacted.'

It will be noticed that the section, though it confers on the Board power and authority to superintend and control all persons employed in the executive administration of the public revenues, imposes one important qualification thereon, and it isthis: the power of superintendence and control islimited to the executive administration of the revenue. In other words, under the guise of superintendence and control of persons employed in theexecutive administration of the revenue, the Boardcannot give instructions to them in respect of othermatters; as for instance the spread of literacy.Section 33 of the Regulation explicitly places onthe Board of Revenue the responsibility of seeingthat the executive officers employed under it discharge their duties diligently. The section runs:

'The Board of Revenue shall be responsible thatthe executive officers employed under them discharge the duties of their respective stationswith assiduity, and shall require them to pay aready and implicit obedience to all orders andregulations, and shall punish neglect in the subordinate officers of revenue, at their; discretion,according to the powers vested in them for thatpurpose.'

While fixing responsibility on the Board for maintaining discipline among the officers subordinate to it, the requisite power to discharge the responsibility is also conferred on the Board by empowering it to punish the officers, subordinate to it. The limitation on this power is the requirement that it shall be exercised 'according to the powers vested in them for that purpose which might be by statute or rule or otherwise.

4. We have next Regulation 2 of 1803. The preamble recites:

'and whereas the said system (the system of internal government established for the administration of the public revenue) further requires thatthe power and authority heretofore vested in theimmediate collectors of the revenue should becurtailed; wherefore the following Regulation'- has been passed for the purpose of defining theauthority committed to Collectors, and for describing the modes of procedure, required in thedischarge of their duty.'

Section 5 states:

'Collectors shall be under the immediate control of the Board of Revenue, and shall obey all orders communicated to them by the authority of that Board.'

Section 9 enacts:

'Collectors have had, and are hereby declared to have, authority to superintend and control, under the orders of the Board of Revenue, all persons employed in the executive administration of the public revenue ...... as far as the said superintendence and control may relate to the executive administration of the revenue under the regulations now enacted, or to be hereafter enacted.'

It will be noticed that this section is practically the same as Section 5 of Regulation 1 of 1803 with the 'Collectors' taking the place of the 'Board,'

5. The next regulation that has to be referred to is Regulation 7 of 1828. It is headed:

'A regulation for declaring the powers of Subordinate and Assistant Collectors in charge of particular divisions' of districts and for facilitating proceedings under Regulation 9, 1822.'

The preamble runs:

'Whereas the efficient discharge of the functions of Collectors requires that subordinate and Assistant Collectors should be empowered to exercise within their divisions all the powers of the Collector, but subject, nevertheless, to their revision and correction.'

Paragraph 1 of Section 3 states:

'A subordinate or Assistant Collector in charge of a particular division of a district shall 'ex officio' have authority to exercise within the division under his charge all the powers granted to Collectors by the Regulation now in force, or that may be hereafter enacted unless the contrary shall be expressly declared in any Regulation.'

We would emphasise the last words of the section: 'unless the contrary shall be expressly declared in any Regulation'; which mean that in the absence of express provision to the contrary, all the powers conferred by any statute on a Collector may be exercised within the limits of his territorial jurisdiction by a Sub-Collector or Assistant Collector in charge of a division. But the powers so granted are subject to the control of the District Collector -- a control very comprehensive in its scope. Paragraph 3 of Section 3 makes this unmistakably plain:

'The proceedings of subordinate and Assistant Collectors . acting under the preceding clauses shall be subject, in all cases, and in the fullest manner, to the superintendence, control and revision of the Collector, who shall have power either to direct, generally, that the proceedings of any of his subordinates or Assistants shall be regularly submitted to himself before the decision, order or sentence is earned into execution, and to confirm, modify or annul them, or issue any further orders in the cases, as he may see fit; or in any particular case to direct that the decision, order or sentence of any of his subordinates, or Assistants shall not be carried into execution and to pass such further orders as he may see fit,'

It will be appreciated that the scheme of these Regulations is this the duty and the responsibility for the executive administration of the revenue is placed squarely on the Board, and it is given the power to discharge that responsibility by punishing those who neglect their duties. In / like manner, so far as his district is concerned, the responsibility is placed on the Collector; but in order to enable him to discharge his duties, he is given a plenary 'power of control' and superintendence over his subordinate and 'assistant Collectors'. It will be notice that para. 3 of Section 3 of Regulation 7 of 1828 states that the proceedings of the Subordinate and Assistant Collectors shall be subject, in all cases, and in the 'fullest' manner to the superintendence, control and revision of the Collector. He has been given power to require Sub-Collectors and Assistant Collectors, to submit to him their proceedings before they are given effect to and he is given power to confirm, modify or annul their decisions.

6. At the bottom of the revenue hierarchy are the village officers. So far as they are concerned their appointment, removal etc. are governed by two statutes. One is Act 2 of 1894 which deals, generally speaking, with village establishments in zamindaries. With that Act we are not here concerned. The other is Act 3 of 1895 which deals with village establishments in ryotwari areas. Section 3 of this Act enumerates the village offices to which it applies, and the enumeration includes village munsifs and karnams. Para 1 of Section 10 provides:

'When a vacancy occurs in any of the village officers forming class (1) in Section 3, the Collector shall fill up the vacancy in accordance with the provisions of the following sub-sections.';

One of these is Sub-section (2) which says:

'The succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaries in Southern India.'

Sub-section (5) provides:

'When the person who would otherwise be entitled to succeed to an office is a minor, the Colletor shall register the minor as the heir of the last holder and appoint some other person qualified under Sub-section (1) to discharge the duties of the office until the person registered as heir, on attaining majority, or within three years thereafter, is qualified under Sub-section (1), to discharge the duties of the office himself, when he shall be appointed thereto.'

7. Under Section 13 any person who considers that he is entitled to any of the offices specified in Section 3 may sue before the Collector to establish his right to the office. Under Section 23, an appeal lies to the District Collector from every decision given by the Collector under Section 13 and to the Board of Revenue if the decree was made by the District Collector. In certain cases a second appeal is also provided for. Under Section 7(b), the Collector is given power to fine, suspend, dismiss or remove village officers. Under Sub-section (2) the Tahsildar or Deputy Tahsildar is also given certain punitive powers though they are of a more limited kind. In respect of every punishment imposed under Section 7 by the Collector, an appeal lies to the District Collector, and, in certain cases, to the Board of Revenue. But what has to be noticed, -- arid that is the point we desire to emphasise here, --is that no appeal is provided for from an order made under Section 10(5).

8. Village Officers in the State fall into two broad categories: those in respect of whom there is specific statutory provision and those for whom there is no such provision. In the case of certain specified, village offices in ryotwari areas, claims to them by way of hereditary right are recognised by statute, which confers 'some special rights on the claimants to and incumbents of such offices. If the claim which such a person thinks he has to a particular office is not conceded, he can maintain a suit before the Collector to establish his claim. From the decision of the Collector, an appeal and in certain cases, a second appeal lies. Village officers who are not governed by these statutes have no such right. A village officer to whom Act 2 of 1894 or Act 3 of 1893 applies cannot be punished except in the manner provided for by the Acts; and when he Is punished, he has got a right of appeal as provided in the Acts. To put it in another way, holders of offices governed by Act 2 of 1894 or Act 3 of 1895 cannot in relation to their offices be dealt with except in the manner provided by the relevant statute. Neither the Revenue Divisional Officer nor the District Collector nor the Board can touch them except in the manner that the statute permits. The other village officers, that is to say, village officers hot governed by either of those Acts are not in so fortified 'a position. They are under the superintendence and control of the District Collector, the Board and the Government just like other Government servants.

9. We will next examine the case law on the subject. The earliest of the decisions cited before us is -- 'Subba Rao v. Secy. of State : AIR1930Mad349 . The facts there were these:

'The plaintiff was a karnam of the ryotwari village of Voonagatla. On 4-10-1921, the Revenue Divisional Officer, Ellore, dismissed him. He appealed to the District Collector who modified the order into one of suspension for one year. He preferred a second appeal to the Board of Revenue, the result of which was that the Board on 8-7-1922, restored the order of the Revenue Divisional Officer dismissing him. The plaintiff maintained that that order was 'ultra vires' and invalid. The above proceedings were then taken under Act 3 of 1895. The original dismissal was under Section 7 and the appeals were under Section 23.'

Wallace J. observed:

'It is quite clear, I think, that no second appeal lay in this case .... The learned Government Pleader, however, contends that the order was passed in the exercise of powers of revision possessed, by the Board. He claims that the Board could have acted, and, therefore, must be presumed to have acted either in the exercise of revisional powers under Section 23 or in the exercise of inherent executive powers outside the scope of Act 3 of 1895. As to the powers of revision under Section 23, the statute itself does not confer on the Board any power of revision. But it is argued that as the Board is constituted the superior appellate authority, it follows that it has a general power of revision. Reliance is placed on, a sentence quoted from the ruling in -- 'In re Palanikumara Chinnayya Goundan', AIR 1922 Mad 337 (D), which states the well-known proposition that appellate jurisdiction includes the power to interfere in revision, But in order that that proposition may apply, a revisional power must have been conferred by the statute on the tribunal. If revisional power has been conferred, then it is exercisable over all tribunals against whose orders an appeal is provided. I am not referred to any authority which lays down that, where a statute confers a right of appeal and is silent about a right of revision, it has conferred a right of revision; apparently unlimited in extent and absolute in authority, so that, for example, as in this case, the mere con-ferment of a right of appeal on the Board 'ipso facto' confers on it a right to enhance the sentence of a lower tribunal without notice to the party affected. Such a contention is tantamount to saying that, where a statute provides a right of appeal and also provides a power of revision, the latter provision is not an enabling provision but is a restricting provision limiting the unlimited powers of revision otherwise possessed by the Tribunal.'

The learned Judge then went on to examine thehistory of the legislation on the subject and atpp. 351-352 observed as follows:

'In all this history I see no room for the contention that the Board of Revenue possesses some powers outside this legislation. It has all along derived what power it possessed from the legislating authority, and not being itself the sovereign authority it has not inherent in it the powers of the Sovereign. Such a theory really implies that although the statute says by Section 23 that a dismissal of an appeal to the District Collector in a case where the order on appeal is not one of dismissal, shall be final, yet that order is notfinal, because the Board possesses undefined andunrestricted inherent powers to interfere with it.'

On p. 352, the learned Judge expressed is conclusion :

'I am not, therefore, prepared to support thelearned Government Pleader in his argument that the Board has an inherent power outside the Acts and Regulations to interfere with and enhance the order of suspension passed by the District Collector.'

We are in full agreement with this reasoning and conclusion.

10. There was an appeal from the decision of Wallace J. which was dismissed. The decision is reported in -- 'Secy. of State v. Subba Rao', AIR 1933 Mad 618 (E). Bardswell J. who delivered the judgment of the Bench observed:

' It is however contended by the learned Government Pleader that the Board was in fact actingin the exercise of its revisional powers, though it did not in any way indicate that it was so doing, and that it got such powers from Section 5 of Regulation 1 of 1803 which section has never been abolished. Wallace J. has dealt with that contention in his judgment and 1 would with all respect, express myself as in entire agreement both with the conclusion which he has come to and the reasons that he has given therefor.'

The next case on the point appears in -- 'Dorai swami Reddiar v. Secy. of State', AIR 1939 Mad 648 (P). The facts there were as follows: The plaintiff was appointed headman of a village by the Revenue Divisional Officer; and that order was confirmed by the District Collector. Against the Collector's order, defendant 2 preferred what was called a second appeal to the Board of Revenue. The Board took the view that defendant 2's claims should be preferred to those of the plaintiff, and proceeded to appoint him to the office. The plaintiff then filed a suit for a declaration, that he was the legal holder of the office of headman and the appointment of defendant 2 made by the Board was illegal. At p. 649 Wadsworth J. formulated the question for determination in these terms:

'The only question therefore is whether the order of the Board of Revenue on this so-called second appeal by defendant 2 is a legal order which would have the effect of putting the plaintiff in the position of one seeking to establish his right to succeed to an office, or is it an unlawful attempt to invade the established rights which the plaintiff has already acquired?'

At p. 650 the learned Judge stated:

'The only power which can be claimed by the Board of Revenue is based on Section 5, Board of Revenue Regulation (1 of 1803), whereby, the Board is given authority to superintend and control all persons employed in the executive administration of the public revenue. . . I do not wish to say anything which might be taken as indicating that in no circumstances can the Board of Revenue by virtue of its powers under Section 5, Board of Revenue Regulation set aside a statutory order of its subordinate in the case of a gross error attended by serious consequences for which no other remedy is provided by law. But I am emphatically of opinion that these general powers of superintendence did not authorise the Board of Revenue to arrogate to itself a power of interference in revision or in second appeal from a statutory order, when machineryof the statute itself confers no such power andcontemplates the utilisation of another remedywhich is accessible to the person aggrieved, morespecially in a case in which the consequencesof any error are purely personal to the rivalclaimants.'

11. We next have the case in : AIR1953Mad1005 (A). The facts there were as follows: In 1935, one Krishnamurthi, who was then a minor, was registered as the village headman of a village in Itchapuram Taluk, and one Seshagiri Sarma was appointed as his deputy under Section 10(5) of Madras Act 3 of 1895. In 1948 Krishnamurthi was removed from his office, as he had failed to passthe requisite tests and qualify himself. In the vacancy that thus arose one Surayya was registered as the office holder. He too was a minor, and Seshagiri Sarma was again appointed as his deputy. Subsequently the mother of the minor complained to the Revenue Divisional Officer and by an order, made on 9-11-1949 the Divisional Officer removed Seshagiri Sarma from office and appointed one Barla Appadu in his stead. Against the order of the Divisional Officer, Seshagiri Sarma appealed to the District Collector who set aside the order of the Revenue Divisional Officer and restored Seshagiri Sarma to the position which he had been occupying. Appadu then carried the matter to the Board of Revenue, but the Board refused to interfere. Appadu then petitioned theGovernment, who, by their order dated 17-1-1951, directed that Appadu be restored as deputy, ousting Seshagiri Sarma. Seshagiri Sarma thereupon came to this court for the issue of a writ. That Case was heard by the learned Chief Justice and Venkalarama Ayyar J. and in the course of his judgment, the learned Chief Justice observed:

'We have no hesitation in holding that the Government had no power whatever to pass any order in this matter. . . There is no provision in that Act (Act 3 of 1895) conferring any power on the Government to interfere with the orders of any of the Subordinate revenue authorities entrusted with specified powers by the provisions of that Act. . . We do not desire to say anything about the powers of the Government to interfere with the orders of the 'Board of Revenue generally because we are convinced that the Board of Revenue itself had no power to interfere with the order passed by the District Collector in a case like the present.......In this case the order of the Revenue Divisional Officer removing the petitioner and appointing another as the person to discharge the duties of the office during the minority of the registered heir was liable to be revised by the District Collector. The District Collector in the exercise of this power set aside the order of the Revenue Divisional Officer and restored the petitioner to his original position. This order of the District Collector was not subject to any appeal or revision and we are unable to discover any statutory power under which either the Board of Revenue or the Government could interfere with his order.'

12. The legal position appears to be plain. Where a statute takes over and occupies a field previously not regulated by legislation, the rights and powers conferred and the obligations imposed by the statute must be worked out within the statutory frame-work. It a statute confers a particular right and prescribes a particular mode for its enforcement, the enforcement of the right must be sought in that mode. If it is to be enforced by a suit, then a suit must be filed; it it is to be vindicated by an appeal, then an appeal must be preferred to the specified authority. It no appeal is provided for but only a right of revision, then that remedy must be sought in aid. Conversely, it no appeal or revision is provided for, then the order of the original authority cannot be interfered with and that order would be the his and final order. It has been noticed that under Act 3 of 1895 a right to sue is given to establish title to certain offices. A right of appeal and in some cases a right of second appeal are given in respect of certain punitive orders. Only a single right of appeal is given in respect of certain other punishments. In respect of an appointment made under Section 10(5), neither a right of appeal nor a right of revision is provided for; the order of the District Collector cannot therefore be interfered with by any higher authority. The question maybe asked: has the District Collector power to interfere with an order passed by the Divisional Officer, i.e., the 'Collector', under Section 10(5). The decision in --'Srinivasa Ayyangar v. Jagannatha Ayyangar : AIR1938Mad903 , helps in answering this question. The facts of that case are set out at p. 489 of the report. There was a vacancy in the office of village munsif. The Revenue Divisional Officer at first registered defendant 1 (then a minor) in the vacancy. That registration was subsequently cancelled, and the plaintiff was permanently appointed under Section 10(3). Defendant 1 then filed what purported to be an appeal before the District Collector. The Collector himself was under an erroneous impression, that there was a right of appeal and he reversed the order of the Revenue Divisional Officer and appointed defendant I in his place. The question was raised whether the order of the District Collector which was certainly 'ultra vires' as an appellate order, could be treated as 'intra vires', as an order in revision. The Court observed;

'Paragraph 1 of Section 3 of Regulation VII of 1828 expressly states that it applies to 'all the powers granted to Collectors by the Regulation now in force or 'that may hereafter be enacted'.

It is only by virtue of this Regulation that a Revenue Divisional Officer gets authority to exercises the powers of 'Collector' under Act 3 of 1895, Consequently the District Collector's power of Revision created by the same Regulation, unless it is expressly taken away must be held to continue.'

They, therefore, held that the Collector had power to interfere.

13. The next case we would refer to is in --'Venkata Subba Rao v. Ananda Rao', : AIR1952Mad491 (H). The facts there may be thus summarised. On 21-4-1932 X, who was the hereditary village munsif, was dismissed by the Revenue Divisional Officer, who thereafter registered Y, a son of X to the office. Following the procedure laid down in Sub-section (5) of Section 10 of the Act, the Divisional Officer appointed a Muslim to be the deputy of Y. In 1937 Y attained majority and qualified himself by passing all the prescribed tests. He then applied to the Deputy Collector for permission to enter upon his duties. The Revenue Divisional Officer sought the advice of the District Collector, who felt that the officer who dismissed X from service should have given a direction under Sub-section (4) of Section 10 and should not have registered the minor as entitled to the office. Ultimately the Collector made an order on 27-11-1937, cancelling the order registering Y. Y exhausted all his remedies by way of appeal and otherwise and eventually on 20-11-1943, -Y filed a suit for a declaration that the orders of the District Collector were illegal and 'ultra vires'. Satyanarayana Rao J. held that the Collector had no jurisdiction to make the order cancelling the registration of Y under Section 10 (5) of the Act. With the actual decision itself one can have no quarrel; but with the reasons which the learned Judge gave we find it difficult to agree. Dealing with para. 3 of Section 3 of Regulation 7 of 1828, the learned Judge observed:

'The power conferred under this paragraph is of a twofold character. The Collector under this clause may direct generally that the proceedings of any of his subordinates or Assistants shall be regularly submitted to himself before the decision, order or sentence is carried into execution and if so, submitted he is empowered to confirm, modify or annul those proceedings or even may issue any further orders in the case as he may think fit. Instead of making a general direction he may require that in a particular case the decision, order or sentence of any of his subordinates or Assistants shall not be carried into execution and ha may pass such further orders as he may think fit. In either case, it should be noticed that the power is conferred to interfere with the order in the manner provided by the section only before the order is carried into execution. If once an order is carried into execution, it is but natural that the Collector should not undo what has been done by his subordinate. The power, therefore, cannot obviously be exercised after the order of his Subordinate has been carried into execution whether the proceedings come to his notice by virtue of a general direction or a particular direction.'

14. With all respect to the learned Judge we do not think that this reasoning is correct. The preamble to the Regulation states that the powers of Collectors are conferred on Sub-Collectors and Assistant Collectors subject to revision and correction by Collectors. As already mentioned, para. 3 of Section 3 states in unmistakable terms that the proceedings of Sub-Collectors and Assistant Collectors shall be subject, 'in all cases', and 'in the fullest manner', to the superintendence, control and revision of the Collector. The expressions 'in all cases' and 'in the fullest manner' seem to be designed and are sufficient to confer on the District Collector plenary powers of supervision and control. The clauses that follow, instead of being intended to limit the power conferred by the earlier part of the paragraph, seem to be intended to emphasise it. Under that paragraph the Collector is given power not merely to revise an order already made but also to see in advance an order intended to be issued before it actually goes out. The Collector is given power not merely to correct a mistake which a Sub Collector or an Assistant Collector may have made but to step in before he makes a mistake. Sub Collectors and Assistant Collectors would be generally recent entrants to Government service, and, at the time this Regulation was passed, would have been all of them foreigners with little or no knowledge of local conditions. Power was conferred in the amplest manner on collectors to prevent the consequence of mistakes which their inexperience might produce. To say that, when once the orders of a Sub Collector have been put into effect, the District Collector will have no more power in relation to those orders, would be drastically to curtail the power of the District Collector and to emasculate the section.

One illustration will suffice. Supposing in a taluk the collection of land revenue is not proceeding as fast as it normally does; and the Sub Collector thinks that the process should be speeded up. To attain that object he might issue instructions to Tahsildars and other subordinate officers to effect distraints of moveables or to attach immoveables and also to arrest defaulters under Act 2 of 1864. Would it be right to say that because those orders of the Sub Collector have been given effect to that is to say, the distraints have been made, immoveable properties have been attached and persons arrested, the District Collector has no power to interfere, even if he considered the Sub Collector's orders to be unduly harsh and oppressive. In fact, one would have thought that it was exactly in such a situation that the District Collector had authority to interfere. As we have already stated, the actual decision of Satyanarayana Rao J. was right because since more than five years had elapsed after the original order of the Revenue Divisional Officer it would be hardly right to say that the order passed by the Collector in November 1937 was in the exercise of any powers of revision.

15. Of the cases cited, one more may be referred to here. That is reported in --- 'Commissioner of Police, Bombay v. Gordhandas Bhanji', : [1952]1SCR135 (I). That decision proceeds on the basis, that where a statute or rule framed thereunder vest a discretion in an officer subordinate to the Government, then that discretion must be exercised by the officer and cannot be exercised by the Government. In other words, the power of superintendence which the Government may claim cannot be invoked to justify interference with the statutory discretion of its subordinate officers, a view which confirms what we have already set out.

16. We shall deal next with the decision of Govinda Menon and Basheer Ahmed Sayeed JJ. in L. P. a. No. 225 of 1952 (Mad) (B).

17. 'Thimmiah v. Commr. of Land Revenue, Board of Revenue, Madras (B)', as it has been specifically referred to in the order of reference made by Rajagopala Aiyangar J. we have to observe even . at the outset that that case fell outside the scope of Act 3 of 1895 and the rules framed thereunder and on that ground it is clearly distinguishable from : AIR1953Mad1005 (A).

18. The facts in Thimmiah's case (B)' were as follows. Veerabhadra Gowda was appointed to act as the village munsif of Madakkal, when that post fell vacant on the resignation of the permanent village munsif The office was not governed by the provisions of Madras Act 3 of 1895. Subsequent to his appointment, there were complaints against Veerabadra, and the Sub Collector of Hosur terminated his appointment. Veerabadra appealed to the' District Collector who confirmed the order of the Sub Collector. On second appeal to the Board of Revenue, the order of termination of service was modified to one of suspension till 31-10-1951. When the Sub Collector directed the removal of Veerabadra, he appointed Thimmiah to the office of the village munsif. Against that appointment of Thimmiah, Veerabadra preferred an appeal to the Collector who dismissed the appeal. Veerabadra then moved the Board of Revenue 'in revision'. By this time the Board had modified the punishment imposed upon Veerabadra to one of suspension till 31-10-1951. The Board set aside the order of the Sub Collector appointing Thimmiah which was con-firmed by the Collector, and the Board ordered the appointment of Veerabhadra to the post of village munsif. Thimmiah moved this court under Article 226 of the Constitution for the issue of a writ of certiorari to quash the orders of the Board. That was dismissed, and it was against that dismissal that Thimmiah preferred L. P. A. No. 225 of 1952 Mad (B).

19. The learned Judge dismissed the appeal preferred by Thimmiah. They rejected the contention that Thimmiah could not invoke the writ jurisdiction of this court, because he had submitted to the adjudication of the dispute between himself and Veerabadra by the tribunal that is, the Board of Revenue, the jurisdiction of which he challenged in this court. The learned Judge observed:

'In our opinion, the petitioner's submission to the jurisdiction of the Board is not the kind of acquiescence which would debar him from raising the question before a superior tribunal. If the petitioner had moved the Board of Revenue for an order in his favour and after having failed in such proceedings had come up to this court challenging the Board's jurisdiction to entertain his application, then the matter would have been different.'

The learned Judges further held that Veerabadra's appointment was justified in the circumstances of that case. They observed:

'When the appellant Thimmiah was appointed to the office by the Sub Collector, respondent 3 Veerabadra Gowda was under a bar, having been removed from the office for misconduct. This bar continued so long as his removal was in force. But when the Board modified the punishment of removal into one of suspension upto 31-10-1951, Veerabadra Gowda must be deemed to have been restored to the office from 1-11-1951 onwards, Therefore Thimmiah's appointment can ensure only so long as the disqualification of Vecrabadra Gowda continued. It cannot be disputed that Thimmiah's appointment was subject to defeasance as a result of a second appeal by Veerabadra Gowda and such being the case Thimmiah cannot be said to have been removed and Veerabadm Gowda appointed in a vacancy.'

Neither of these findings really affected the consideration of the other question which the learned Judges posed, viz., had the Board jurisdiction to entertain revision petitions from the orders passed by the authorities, immediately subordinate to it, which question the learned Judges answered, 'In our opinion there can be no doubt that the Board possessed such a power.' With all deference to the learned Judges, we regret our inability to accept that as correct statement of law.

20. The learned Judges referred to Section 5 of Madras Regulation 1 of 1803 and also to Section 5 of Madras Regulation 2 of 1803, and observed:

'Therefore, it is open to the Revenue Board to provide the rules and act in the nature of a supervisory authority over subordinate revenue collectors,'

We respectfully agree with that observation. The provision for appeals in para. 4 of B. S. O. 156 was thus well within the powers of superintendence of the Board conferred on them by these regulations. Paragraph 4 of B. S. O. 156 runs:

'Appeals against punitive orders: No appeal will be allowed against an order imposing a petty fine on the holder of a non-hereditary village office. An appeal will be allowed against an order imposing any other punishment on such officer. An appeal will be allowed to the Board of Revenue against an order passed by the Collector on appeal by a holder of non-hereditary village office of karnam or headman enhancing the punishment imposed by the original order to removal or dismissal and a second appeal against an order passed by the Collector on appeal confirming the punishment of removal or dismissal imposed by the original order.'

21. The learned Judges rightly pointed out that the rules did not specifically provide for the exercise of any revisional jurisdiction by the Board, of Revenue. They observed:

'All that paras. 3 and 4 of the Standing Order156 lay down is that in particular cases anaggrieved party will have a right of appeal andsecond appeal. But the specific grant of a rightof appeal would not take away from the Boardthe statutory right which it has of superintendence under Section 5 of Regulation 1 of 1803 andthe reciprocal subservience of the Collector under Section 5 of Regulation 2 of 1803.'

The learned Judges further observed:

'...... .if the Board today makes a specific provision for revision on the same lines as paras. 3and 4 of Standing Order No. 156, then nothingcan be said against the interference'.

What, however, we have to say is that the powerto frame a rule or to amend it should not cloudthe real issue. Was not the jurisdiction of theBoard of Revenue limited in Thimmiah's case todecide the questions before it in accordance withthe rules as they stood then?

22. With all respect to the learned Judges who decided Thimmiah's case, we have to observe that they appear to have been under a misapprehension as regards the true scope and legal effect of the standing orders of the Board. They stated:

'After all, the standing orders of the Board of Revenue are merely collections of resolutions made by the Board for its own conduct of business as well as for regulating the procedure inthe matter of collection of revenue by subordinate revenue tribunals and executive functionaries,'

They observed further:

'As we have already remarked, standing orders of the Board are merely executive instructions by the Board to its subordinate officers whereby they lay down the procedure to be adopted in certain cases.'

Actually, however, that is not so. The Standing Orders of the Board of Revenue consist of at least three categories of rules: (1) Rules framed either by the Government or by the Board itself in pursuance of a statutory power. Thus, for instance, Section 20 of Madras Act, 8 of 1895 confers on the Board power to make rules on various matters with the approval of the Government after previous publication. Such rules are incorporated in the Board Standing Orders, We have mentioned Madras Act, 3 of 1895 only by way of illustration. There are several other statutory provisions incorporated in the Board's Standing Orders. (2} The Board's Standing Orders next consist of a large number of orders issued by the Government, (3). The third category consists 'of orders issued by the Board itself with the approval and very often with the previous sanction of the Government. All these have been arranged in the Board Standing Orders in a manner that should make reference to them easy. It is not therefore entirely correct to say that the orders of the Board are all merely executory instructions devoid of statutory force.

23. In the course of their judgment, the learned Judges observed:

'The fact that there is no executive order enabling a party to come by way of revision would not take away from the Board the statutory right conferred upon it under Section 5 of Madras Regulation, 1 of 1803. The mere fact that the Board has thought fit under its superintending powers to interfere is itself an instance of the issue of an executive instruction.'

We do not suppose that in making these observations the learned Judges intended to refer to matters for which statutory provisions exist; for example, Madras Act, 3 of 1895 and the rules framed thereunder. As we have already pointed out, the case which the learned Judges had to decide was not governed by any statute. But even with reference to matters not governed by statutory provisions or rules but governed only by the Standing Orders of the Board of Revenue, the passage we have extracted above is liable to be misunderstood. We are unable to subscribe to the view that where a rule already exists and provides for any specific matter, still when an individual case comes up before the Board, it is open to the Board, notwithstanding the existence of that rule, to decide that case in any manner it thinks fit, even in contravention of the existing rule. In other words, the Board cannot ignore the existing rule by treating the order made in that particular case, as an amendment of the rule. That the Government or the Board has- the power to amend the rule should make no difference; both are bound to dispose of the matters that come up before them in accordance with the rules at the time in force on the subject.

We doubt whether the learned Judges anticipated that such a construction would be placed on their observations. We only want to make it clear that such a construction would not be right. The Board possesses both the powers to frame rules and the power to pass orders in individual cases. But when a case comes up, for which provision already exists under the rules in force, that case must be disposed of in accordance with the rules. No doubt, it is open to the Board to revise or amend the rules it has framed. But till the rules are revised or amended, the existing rules must be honoured and given effect to. We wish to emphasise the position, that the decision in any given case must be in accordance with the rules in force on the date of the decision. Otherwise the difference between what may be by way of analogy be called legislative (rule-making functions of the Board) and its judicial and quasijudicial functions would be blurred and the door thrown open to charges of arbitrariness. What we have said about the Board also applies to the Government.

24. Thus, 'while the Board has undoubted power to superintend and a power to frame rules and amend them from time to time in exercise of that power of superintendence, the Board is bound by those very rules when it acts as quasi-judicial tribunal and adjudicates on rights of parties founded on those rules. The rights of the parties before the Board & the corresponding liability of the Board to decide questions before it in accordance with the rules, no doubt issued by the Board itself, should not be confused with the right of the Board to frame or to amend rules. The distinction is real and that, if we may say so with respect, appears to have been lost sight of by the learned Judges who decided 'Thimmiah's case (B).

25. Before parting with this rule, we might refer to the judgments in W. P. No. 696 of 1953 (Mad) (J) and 473 of 1954 (Mad) (K), rendered by one of us on 21-9-1954, which appear to sustain the powers of the Government to interfere with appointments to a non-hereditary office of village munsif. We understand that a Letters Patent Appeal has been preferred against one of these judgments, which is pending. While not desiring to say anything which might embarrass the learned Judges who might dispose of the appeal, we deem fit and proper to state that the attention of the Court was not then drawn either to the terms of B. S. O. No. 156, nor to the decision in L. P. A. No. 225 of 1952 (Mad) (B), in which the relevant Standing Order and its legal effects were dealt with.

26. In this connection we can usefully refer to --'Blackpool Corporation v. Locker', 1948 1 KB 349 (L). Under certain wartime Regulations and enactments, the Minister of Health in Great Britain 'enacted' a considerable measure of delegated legislation under which power was given to local authorities to requisition premises. The Corporation of Blackpool requisitioned a house in contravention of the rules. The action of the Corporation was challenged. But it was contended for the local authority that subsequent to the original attempt at requisition of the house, the Minister had either himself requisitioned the house or ratified the act of the local authority. The Minister was stated to have done so in the exercise of his original statutory authority. The Court held that in fact the Minister did not requisition or purport to requisition the house. What is germane to the case before us is the observation made by Scott and Asquith L. JJ.

'The Minister only retained those powers which in his 'sub-delegated legislation' he had expressly or impliedly reserved for himself and since he had not in his sub-delegated legislation reserved to himself the power of requisition, he could not himself then requisition the house.'

The point of the case is this: that the possession of what may be called legislative authority does not necessarily carry with it the power to interfere in particular cases, if the rules on that topic issued in the exercise of legislative authority do not provide for such interference.

27. That the rule-making power cannot be invoked to give a particular decision in a particular case will be apparent from one example. Section 5(vi), General Sales-tax Act empowers the Government to fix a single point for the levy of tax on hides and skins. After having issued a rule on the point fixing the liability on, let us say, the last purchaser the Government cannot, -- assuming for our purpose that the Government have been given the power by the Act to frame rules,--give final decisions in individual cases of assessment that the liability shall not be on the last purchaser but on his vendor.

28. The principles laid down by Scott and Asquith L. JJ. should, in our opinion, govern also the rules framed by the Board of Revenue with reference to non-hereditary officers, though appointments and punishments of those officers are not governed by any statute. The powers of superintendence of the Board are statutory and are traceable to Section 5 of Regulation 1 of 1803.

29. In support of his contention that the Board had the power to interfere in the manner that it did, the learned Advocate-General referred to the case in -- 'Secy. of State v. Raghavalu : AIR1931Mad607 . The facts there were as follows: The Sub-Collector of Ongole dismissed the village munsif of Chimakurti village in the Guntur district whose office was governed by Act 3 of 1895, Acting under Section 10(4) of the Act, he appointed one Raghavalu to the office. This was in December 1922. On 30-3-1923, the Collector of Guntur removed Raghavalu from the post to which he had been appointed by the Sub-Collector. Raghavalu exhausted his remedies by way. of petitions to the Revenue authorities and finally brought a suit for a declaration that his removal was illegal. The District Munsif dismissed the suit. In appeal the Subordinate Judge decreed the suit. The matter was brought in appeal to this court. Pandalai J. in allowing the appeal observed:

''The person put in to do the duties of the dismissed officer is not appointed to an office governed by the Act. He is put in to do the duties of the office which is a different thing. The Act does not provide for a subsidiary class of hereditary officers other than those for whom the Act is intended, consisting of their substitutes and their heirs......... A person appointed under Section 10(4) is a person appointed only to do the duties of the office and when the section says that the Collector may direct that until the death or return to duty of such last holder, the duties of the holder shall be performed by some person, it only prescribes the period of time during which that provision has to be made but does not mean that the person who is appointed is to hold for that period . . . .'

And finally:

'The act does not govern the case and the respondent has no grievance.'

We consider that the view taken by the learned Judge about the position of an appointee under Section 10(4) namely, that he is a person to whom the Act does not apply is not correct.

30. Of the various other arguments urged by the learned Advocate-General only this one need be noticed. He said: Act 3 of 1895 confers a right to certain offices on certain individuals who stand in a particular relationship to the last office holder; the order of appointment made by the Revenue Divisional Officer in respect of these persons amounted only to a formal recognition of this right which is really antecedent to the order o appointment; a person appointed under Section 10(5) has no such antecedent right; he derives his right to the office only from and by virtue of the order of appointment made by the Revenue Divisional Officer. In relation to persons possessing or claiming to possess antecedent rights, the power exercised by the Revenue Divisional Officer and the authorities superior to the Revenue Divisional Officer would be in the nature of a judicial or quasijudicial process, and it would be right to say that so far as such persons are concerned, the requirements of the statute must be complied with; but persons who have no such antecedent rights would be amenable to the general superintending power possessed by Collectors and the Board and the Government; therefore, and by virtue of this power, the Board and the Government can interfere. He went on: All the administrative and executive acts of any authority under the Government are subject to the overall control of the Government; the power of the Government to interfere and revise the orders of these subordinate authorities is derived from the power of the Government to govern. Where the power exercised by the authorities subordinate to the Government may be described as judicial or quasi-judicial process, Government may not have power to intervene. But where it is not of such a nature but is purely administrative in character, the Government have power to interfere.

31. We are unable to accept this distinction. That in the past an argument of this kind does not appear to have been put forward, -- at least the cases cited before us do not show that it was done -- is, of course, not a reason for declining to entertain the argument of the learned Advocate General. There is no interdict on fresh or new ideas. But for drawing a distinction between persons with antecedent rights and those without antecedent rights, when provision as regards both these categories of persons are made in the statute, there is no warrant whatsoever. The contention is opposed to what seems to us to be a sound rule, that where the statute has made provision in respect of particular matters, it is -to the statute that we must look for the determination of the rights of individuals and not to the vague and indefinite background of the overall powers of the Government. Whatever validity the argument may have had at a time when the Government constituted both the executive and the legislative authority of the State, it can have none at a time when the Government is really only the executive organ of the State.

32. The conclusion we have reached is that neither the Board nor the Government have power to interfere with the order made by the District Collector. A writ will, therefore, issue quashing the order of the Board. The petitioner will have her costs from respondent 1. Advocate's fee Rs. 150.


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