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In Re: Annamalai Mudaliar - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberS.R. No. 3853 of 1952
Judge
Reported inAIR1953Mad362
ActsConstitution of India - Article 227; Madras Co-operative Societies Act, 1932 - Sections 51(6)
AppellantIn Re: Annamalai Mudaliar
Advocates:N.R. Raghavachari, Adv.;Govt. Pleader
Cases ReferredRajkumar Sen v. Ramsundar
Excerpt:
.....showing that the position taken by the government pleader is untenable. under section 107, government of india act, 1915, superintendence' was interpreted to include judicial as well as administrative superintendence, and the high court was intervening by revision in proper cases, under section 107, government of india act, 1919, in cases where section 115, civil p. that this would be the proper construction of the article receives strong support from the express exemption from the high court's superintendence of a court or tribunal constituted by or under any law relating to armed forces from which the inference is irresistible that all other tribunals and courts, both civil and criminal are amenable to the supervisory jurisdiction of the high court under article 227..........1933 lah 259; -- 'bhimnath v. jagannath', a. i. r. 1925 pat 674.7. but under the constitution of india, article 327 is a reproduction of section 224, government of india act of 1935 with the following changes; (i) 'and tribunals throughout the territories' have been added in clause (1) after courts; (ii) sub-section (2) of section 224, government of india act 1935 has been omitted; (iii) clause (4) of article 227 has been newly provided; i have already pointed out how sub-section (2) of section 224 barred judicial interference by the high courts. this omission of sub-section (2) of section 224 in this article shows that the constitution of india has restored to the high court the power it had under the government of india act of 1919:-- 'abdul rahim v. abdul jabbar', : air1950cal379 ;.....
Judgment:
ORDER

Ramaswami, J.

1. This S. R. is sought to be filed as a Civil Revision Petition against the order dated 15-10-1951, in the nature of an award, passed by the Deputy Registrar of Co-operative Societies, Tiruvannamalai, in C. L. No. 920/50-51.

2. The High Court Office thereupon took two objections viz., that this Civil Revision petition has not been filed within 90 days of the date of the order and secondly, that it does not appear that a civil revision petition of this nature can be preferred on the foot of Article 227, Constitution of India.

3. Taking the first point, there is a delay of 8 days and the learned advocate is directed to file a formal petition for excusing the delay and orders will be passed excusing the delay. This aspect of the case need not detain us further.

4. The maintainability of this S. R. as a civil revision petition depends upon the decision whether it would be open to the High Court to revise, the order. Under Section 51(6)(a) of Madras Act 6 of 1932 any decision passed by the Registrar under Clause (a) of Sub-section (2) or under Sub-section (5) shall be final and shall not be called in question in any civil or revenue Court. Section 57 prescribes a revision to the local Government or to the Registrar from such a decision. In this particular case the petitioner has not pursued the remedy under Section 57 of the Act. Secondly, it is contended by the Government Pleader that Article 227, Constitution of India is not couched in such wide terms as Article 226 which enables the High Court to issue to any person or authority, including in appropriate cases any Government, various writs for the enforcement of any of the rights conferred by Part III of the constitution of India or for any other purpose and that Article 227 has to be construed as one conferring on the High Court no special authority beyond general superintendence on subjects set out under the various sub-clauses therein. Thirdly, it was contended that the tribunals contemplated therein are those tribunals which though not described as courts strictly speaking, discnarge the same or analogous functions as are being discharged by Courts and that the Registrar is not one such tribunal synonymous with court. I shall now deal with these points one by one.

5. Point l: The clause inserted 'that the decision shall be final', in Section 51 (6) (a) of Madras Act 6 of 1932 has been the subject of decisions of Madras High Court. This High Court has held repeatedly that this clause does not take away the right of a Court to interfere but only indicates tne finality so far as the right of appeal within the department is concerned; see the Bench decision of the Madras High Court in --'Valli Ammal v. Corporation of Madras', 23 Mad LJ 531. Dealing with the word 'final1 in Section 287 (3) of the Old City Municipal Act, See -- 'Narasimha Rao v. The Chairman Municipal Council, Narasaraopet,' 68 Mad LJ 162, -- 'Ramasami v. Muthuvellappa', 44 Mad LJ 1. The exclusion of the High Court's Jurisdiction is 'ultra vires' has been herd in --'Ram Dubey v. Government of Madliya Bharat', AIR 1952 Madh B 57; --'Jagannath v. Mt. Puniya', AIR 1952 Madh B 51; -- 'Israil Khan v. State', AIR 1951 Assam 103; -- 'Muhaniad Bacjuar v. State of Hyderabad', AIR 1951 Hyd S2; and --'Haripada Dutta v. Ananta Mandal', : AIR1952Cal526 . Point 1 therefore has to be decided in favour of the petitioner viz., that the decision passed by the Registrar shall be final will not in any way prevent the High Court from interfering in revision.

6. Point 2: The restrictions sought to be imposed upon the scope of Article 227, Constitution of India as well as confining the superintendence to administrative superintendence have been the subject-matter of a catena of decisions showing that the position taken by the Government Pleader is untenable. In regard to the scope of Article 227 viz., whether it includes powers of judicial revision as contra-distinguished from administrative supervision alone, we must bear ill mind the following facts. Under Section 107, Government of India Act, 1915, 'Superintendence' was interpreted to include judicial as well as administrative superintendence, and the High Court was intervening by revision in proper cases, under Section 107, Government of India Act, 1919, in cases where Section 115, Civil P. C- or Section 430, Criminal P. C. did not apply; -- 'Sholapur Municipality v. Tuljaram', AIR 1931 Bom 582 and -- 'Emperor v. Jainnadas', : AIR1937Bom153 and--'Balakrishna v. Emperor', 57 Bom. 93 (F.B.) -- 'Manmatha Nath v. Emperor', 37 C. W. N. 201. But Sub-section (2) of Section 221, Government of India Act, 1935, expressly barred this power of judicial interference and Beaumont C. J. in -- 'Balakrishna v. Emperor', observed that this taking away of the power of extraordinary revision from the High Court was an unfortunate thing. By reason of Sub-section (2) it was held under the Act of 1935 that Section 224 had no application to legal proceedings and did not confer any fresh revisional jurisdiction and that it only conferred powers of an administrative character; -- 'Sakkal Sardar v. Issurdas', I. L. R. (1941) Cal 366; -- 'Jahnabi v. Basudeb', 54 C. W. N. 628. Therefore it was held in the following leading cases that the High Court could not interfere in revision exercising judicial functions such as the Madras Board of Revenue as in -- 'Ryots of Carabandho v. Zemindar of Parlakimedi', 70 Ind. App. 129, or the Deputy Collector making an order under the Rent Act as in -- 'Bhagwan Dayal v. Chandu Lal', ILR (1938) Cal. 256 or the decision of the District Judge under Section 36, Legal Practitioners Act as in -- 'Re Adiraju Semanna', ILR (1938) Mad 988 or the decision under the Bengal Municipal Act as in -- 'Bonbehari v. Makhan Lal', ILR (1938) 2 Cal. 69. Other cases on which it was consistently held that the High Court could exercise its powers of revision only where no revision lay under Section 115, C. P. C. are:

-- 'Municipality of Sholapur v. Tulja Ram', AIR 1931 Bom. 582; -- 'Lalta Devi v. Balkrishna', AIR 1933 Lah. 327; -- 'Gokool Chandra v. Motilal Ghose : AIR1931Cal553 ; -- 'Jowahir Singh V. Fleming Shaw & Co', A. I. R. 1937 Lah. 28; --'Indubala v. Lakshminarayan : AIR1935Cal102 ; -- 'Beli Ram v. Lal Shah', A. I. R. 1935 Lah. 956 -- 'Soloman v. S. C. Stork : AIR1934Cal758 ; -- 'Lokenath v. Abani Nath : AIR1934Cal102 ; -- 'Behari Lal v. Sardarilal', A. I. R. 1933 Lah. 605; -- 'Ganesh v. Asanand', A. I. R. 1933 Lah 259; -- 'Bhimnath v. Jagannath', A. I. R. 1925 Pat 674.

7. But under the Constitution of India, Article 327 is a reproduction of Section 224, Government of India Act of 1935 with the following changes; (i) 'and tribunals throughout the territories' have been added in Clause (1) after courts; (ii) Sub-section (2) of Section 224, Government of India Act 1935 has been omitted; (iii) Clause (4) of Article 227 has been newly provided; I have already pointed out how Sub-section (2) of Section 224 barred judicial interference by the High Courts. This omission of Sub-section (2) of Section 224 in this Article shows that the Constitution of India has restored to the High Court the power It had under the Government of India Act of 1919:

-- 'Abdul Rahim v. Abdul Jabbar', : AIR1950Cal379 ; -- 'Mani Ram v. Jhamru', (April); -- 'Bimala Prosad v. State of West Bengal', 55 Cal. W. N. 87. Therefore, it is now possible to hold by reason of this omission that the various conditions imposed by Section 115, Civil P. C. for the exercise of revisional jurisdiction as construed by the Privy Council decision in -- 'Vekatagiri Tyengar v. H. R, E. Board', Madras', 62 Mad L. W. 374 and -- 'Joy Chand v. Kamalaksha', 63 M L. W. 6:1949 2 M L. J. 6 have been removed. That this would be the proper construction of the Article receives strong support from the express exemption from the High Court's Superintendence of a Court or tribunal constituted by or under any law relating to Armed forces from which the inference is irresistible that all other tribunals and Courts, both civil and criminal are amenable to the supervisory jurisdiction of the High Court under Article 227 Constitution of India; Vide --'Abdul Rahim v. Abdul Jabbar', 54 Cal WN 445; -- 'Abdur Rahim v. J. A. Pinto', AIR 1951 Hyd 11 and -- 'Abdul Aziz v. State', : AIR1950All611 . Thus we arrive at the position that Article 227 confers upon the High Court a power of supervision over all judicial matters decided by any Court or tribunal within the State; -- 'Bimala Prosad v. State of West Bengal', : AIR1951Cal258 (S B) --'Muhamad Baquar v. State of Hyderabad', AIR 1951 Hyd 82, -- 'Hanunian Prasad v. Ram Autar', AIR 1952 VP. 10; -- 'Jagannath v. Mt. Puniya', AIR 1951 Madh B 51 (April); --Municipal Board Allahabad v. - District Judge, Allahabad', : AIR1952All505 .

8. Point 3. The argument is that Article 227 covers only cases of tribunals discharging the same or analogous functions as were being discharged by Courts. This argument was advanced in -- 'Haripada Dutta v. Ananta Mandal', 56 Cal WN 124 and repelled by Chakravartti and Mookerjee JJ. It was pointed out therein that the word 'Tribunal' in Article 227 means a person or a body other than a Court set up by the State for deciding rights between contending parties in accordance with the rules having the force of law and doing so not by way of taking executive action, but of determining a question. The learned Judges have pointed out how in this view the Commissioner of a Division acting as the appellate authority under the Motor Vehicles Act was held to be a tribunal within Article 227 in -- 'Sabitri Motor Service Ltd. v. Asansoi Bus Association', 65 Cal WN 81 and an appellate Court under the Rent Control Act of 1950 was held to be a tribunal in -- 'P.C. Guha v. B.A. Basil', 55 Cal WN 611. The learned Judges concluded that the effect of the addition of the word 'Tribunal' to the word 'Court' in Art 227 and the removal of the bar against revision of Judgments in exercise of the power of superintendence, meant that all agencies whether Courts or not, performing the duty of deciding disputed questions of right between parties on behalf of and under the sanction of the State and in accordance with State-made laws are placed under the 'Administrative and judicial control of the High Court.' On this line of reasoning we have other decisions which may be usefully referred to. In -- 'Kartar Singh v. Custodian M.E.P. Pepsu', AIR 1953 Pep 82, Teja Singh C. J. and Kesho Ram Passey J. held that the word 'Tribunal' is a general term and it includes a Court of justice or in other words every Court of justice or a Court can be described as a tribunal, but every tribunal is not necessarily a Court, that since the Legislature has used both the words together their intention appears to be that the word 'Tribunal' should have a wider meaning than Court or Court of justice and that probably it would be permissible to think that it is used in the popular sense meaning a person or body of persons having authority to hear and decide disputes so as to bind the disputants. In that case it was held that apart from the administrative and executive functions that the Custodian under the Evacuee Property Act, 1950, has to perform, it was also a part of his duty to work as a tribunal in the sense mentioned above and so in respect of what he did as a tribunal he was amenable to the jurisdiction of the High Court under Article 227. In -- 'Union of Workmen, R. S. N. and I. G. N. & Rly. Co. Ltd. v. River Steam Navigation Co. Ltd.', AIR 1951 ass 95: Thadani C. J. and Ram Labhaya J. held that a duly constituted Industrial Tribunal is a judicial body and amenable to the jurisdiction of the High Court in revision under Article 227 in regard to matters arising out of awards passed under the Industrial Disputes Act. It is on the same principle that my Lord the Chief Justice and Panchapskesa Ayyar J. have held in -- 'Dr. M. Krishnamoorthi v. State of Madras', 1351 1 Mad LJ 709 that neither the Government nor the disciplinary proceedings Tribunal holding enquiry on charges against Government servants and recommending disciplinary action would fall under Article 227, Constitution of India; and the Allahabad High Court has held in --'Mathur v. E. I. By. Co.' : AIR1950All80 (F B) that authority invested with jurisdiction under the Payment of Wages Act 1933 is- not a tribunal. The use of the unqualified word jurisdiction includes all different Jurisdictions of the High Court -- Civil, Criminal, Admiralty, Testamentary, Matrimonial, etc.

9. Therefore the S. R. in this case can be preferred as a civil Revision Petition because this High Court has got revisional jurisdiction under Article 227 by way oi superintendence over the judicial work of a duly constituted tribunal, like the Deputy Registrar under the Co-operative Soicieties Act.

10. The matter does not rest here because the superintendence conferred on the High Court does not mean any unlimited prerogative to correct all species of hardship; vide -- 'Manmatha Nath v. Emperor', 39 Cal W.N. 201; -- 'Dalmia Jain Airways Ltd. v. Siikumar Mukherjee', : AIR1951Cal193 (S.B.). 'Superintendence has been defined and explained in -- 'Emperor v. P.C. Tarapore', AIR 1940 Sind 239, -- 'Rajkumar Sen v. Ram Sundar', AIR 1932 P. G. 69, -- 'Muhamad Baquar v. State of Hyderabad', AIR 1951 Hyd 82 and -- 'Israil Khan v. State', AIR 1951 Ass 106. The limits within which the prerogative can be exercised by the High Court have been the subject-matter of several recent decisions and the scope of such exercise has now become fairly delimited. I shall briefly summarise the recent well-known decisions indicating the power to correct and interfere. In construing the scope of the powers under this Article 227 we can usefully bear in mind the cases under Section 107 because it is now settled opinion that Article 227 has restored to the High Court the powers exercised under Section 107, Government of India Act, 1915. The following summarised statement will indicate the scope of interference under Section 107.

Denial of right of fair trial: -- ' Jagdip v. Harku', AIR 1926 Pat 37; decision hopelessly Inadequate --'Bishun Mohan v. Narayan Prasad', : AIR1924Pat434 . Indefinite postponement of trial: --'Bhimnath v. Jagannath', AIR 1925 Pat 674; power to be exercised in doing real and substantial Justice even in criminal matters: -- 'Pigot v. Ali Muhammad', AIR 1921 Cal 30. Misuse of power and non-exercise of judicial discretion: -- 'Mohideen v. Bukshi Ram', 3 Rang 410; Order so bad on the face of it as to be in a sense denial of justice: -- Mt. Maharup Kuer v. Mahabir Singh', : AIR1928Pat111 ; Gross error on the face of record: -- 'Munigadu v. Emperor : AIR1925Mad1144 ; Absence of reasonable opportunity of defence:

-- 'Chater Bhuj v. Emperor', AIR 1930 Lah 889; Proceedings so erroneous as to manifestly amount to injustice: -- 'Venkata Ranga Bhusanam v. Karelia Ramaswami', AIR 1923 Mad 500; No absolute bar to party coming to High Court before exhausting other remedies: -- 'Shebalak v. Kama-ruddin', : AIR1922Pat435 ; Refusal to frame triable Issue: -- 'Sheo Prasad v. Sukhu Mehto'; AIR 1923 Pat 518.

Then coming to the High Court's powers under Article 227 it has been laid down that the High Court's powers under Article 227 are larger than under Section 115 Civil P.C. -- 'Aswini Kumar v. Dominion of India', : AIR1952Cal251 ; -- 'Mani Ram v. Jhamru', and -- 'Vurjee Vandass Moolji v. R.H. Singha & Co.', : AIR1952Cal290 . The fact that other remedies are open will not prevent the High Court from interfering; vide -- 'Ma'ni Ram v. Jhamru'. The following precis shows the existence of the powers to correct and interfere In the following cases; Without jurisdiction: --'Dalmia Jain Airways Ltd. v. Sukumar Mukherjee', : AIR1951Cal193 (S.B.); Absence, excess or refusal of jurisdiction: -- 'Sukh- deo v. Brij Bhushan', : AIR1951All667 ; Ignoring the provisions of law: -- 'Madhusudhan v. Shyam Dass', ; Acting outside the limits of the Statute: -- 'Girish Chandra v. Girish Chandra', : AIR1951Cal574 ; Proceeding against natural justice: -- 'Mt. Khela Wati v. Chet Ram', ; Consideration unjustified by Act;

-- 'Ramhari v. Nilmoni', : AIR1952Cal184 ; Finding not supported by evidence: -- 'Anand Kumar v. Patch Singly, ; Injustice: -- 'Aswini Kumar v. Dominion of India', Arbitrary dismissal of suit: -- 'Mani Ram v. Jhamru', Miscarriage of justice by arbitrary or despotic approacli: -- 'Jagannath v. Mt. Puniya', AIR 1952 Madh B. 51; Illegal and Improper order:

-- 'Gurdwara Anandpur v. Kartar Singh', ; Opposed to law: -- 'Samanta Radha Prasanna v. Province of Orissa', : AIR1952Ori98 ; To secure fair and impartial trial transfer can be made: -- 'Muhammad Abdul Raoof V. State Of Hyderabad', AIR 1951 Hyd 50.

Article 227 although it does not in terms give a right to interfere with orders is an article which does give a right to High Court to interfere in proper cases and therefore does give rights to the parties to move the High Court to vary or reverse orders i.e. to exercise powers similar to those exercised in appeal and hence must be construed in the same manner as provisions in a statute would be construed which gave a right to parties to challenge a decision by appeal or revision; -- 'Bimala Prosad v. State of West Bengal', : AIR1951Cal258 (S.B.). Where a tribunal has been set up under a special Act, it is the duty of the High Court to see, in the exercise of its power of superintendence, that such tribunal acts within the limits of the Statute creating it, and applies correctly and properly the laws it is authorised to administer:

--'Girish Chandra v. Girish Chandra', : AIR1951Cal574 . If in an arbitration under the Co-operative Societies Act, the conduct of the case and the decision is against all canons of justice, the High Court will set aside the order of the tribunal under Article 227: --'Mt. Khela Wati v. Chetram', . In the case of the Tribunals, the power of the High Court under Article 227 at least includes power to require that the facts should be fully investigated and fairly found and when found fairly considered after giving the parties a proper opportunity to explain them; --'Haripada Dutta v. Ananta Mandai', 56 Cal WN 124. Power conferred by Article 227 is not in any way controlled under Article 226: --'Ramprasad v. State, 1952 All LJ 161.

11. The substance of all these decisions can be summed up in three propositions viz. it does not involve a responsibility of the superintending tribunal for the correctness of the decisions of the inferior Courts, either in fact or law. If the inferior Court, after hearing the parties, comes to an erroneous decision on a matter within its jurisdiction, the Court having power of superintendence never interferes. The only mode of questioning the propriety of such a decision is by appeal. Nor can this power be invoked to get round any express provision of the Code of Criminal Procedure or any other law. Secondly, the general superintendence conferred by this constitutional provision over all jurisdictions subject to appeal involves a duty to keep them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. Therefore, the interference under Article 227 would naturally be in cases where there is a grave dereliction of duty: --'Shitab Singh v. Suraj Bali', 1952 All LJ 283, or there is a flagrant abuse of fundamental principles of law of natural justice or there is in existence no other remedy for remedying the wrong: -- --Madhusadhan v. Shyam Doss', ;

--'Basant Lal v. Arjundas', AIR 1951 Vindh P. 4; or prevent miscarriage of justice: --'Jagannath v. Mt. Puniya', AIR 1952 Madh B 51; --'Mani Ram v. Jharmu', ; --'Mitra v. Datta Gupta',; --'Union of Workmen of R. S. N & I. G. N. & Rly Co Ltd v. R. S. N. Co Ltd', AIR 1951 Ass 96; --'Abdul Rahim v. Abdul Jabbar', 64 Cal WN 44b; Nor is Article 227 meant for correcting slight errors: -- 'Dalmia Jain Airways Ltd. v. Sukumar Mukherjee' : AIR1951Cal193 (S.B.); --'State of West Bengal v. Durga Devi', AIR 1951 Cal 100, or to interfere in cases of mere failure to appreciate evidence on the part of a final tribunal. --'Bavalal v. Jivanlal', AIR 1951 Sail 43;

--'Israil Khan v. The State', AIR 1951 Ass 106.

12. In short, superintendence includes power to guide, advice and encourage Judges of the subordinate Courts, to direct subordinate Courts and tribunals to carry out its orders; and to direct enquiry with a view to take disciplinary action for flagrant maladministration Of justice; see --'Emperor v. P.C. Tarapore', AIR 1940 Sind 239; --'Sant Lal v. Kedar Nath : AIR1935All519 , and --'Rajkumar Sen v. Ramsundar . If we bear these propositions in mind and apply these well-established principles to the facts of the case on hand, the extraordinary powers conferred on the High Court under Article 227 would enable the High Court to ensure that the tribunals are kept within the bounds of their authority and that they do what their duty requires and that they do it in a legal manner.

13. So this S. R. can be filed as a civil revision petition but its admission depends on the facts of this case subject to the observation made above. The office note is answered accordingly and for consideration of admission post the matter.


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