1. The original suit out ,of which this second appeal arose was a suit against the Secretary of State to declare that an order of the Board of Revenue, dated 8th July, 1922, is invalid and for consequential relief. The original Court decreed for the plaintiff, the Appellate Court reversed that decree and the plaintiff appeals.
2. The plaintiff was a karnam of the ryotwari village of Voonagatla. On 4th October, 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 8th July, 1922, restored the order of the Revenue Divisional Officer dismissing him. The plaintiff maintains that that order is ultra vired and invalid. The above proceedings were taken under Act III of 1895. The original dismissal was under Section 7 and the appeals were under Section 23.
3. It is quite clear, I think, that no second appeal lay in this case. The only case in which a second appeal lies to the Board of Revenue in a matter of dismissal of a village officer is given in the proviso to Section 23 (1), and that is a case where there has been a dismissal under Section 7. That that dismissal must be by the order directly appealed against is clear. It cannot be reasonably contended that a second appeal lies to the Board in all cases where the original order by the Revenue Divisional Officer was dismissal. The result of such a contention would be that, in cases where the Revenue Divisional Officer has dismissed and the District Collector has modified the dismissal into a fine, a second appeal would lie to the Board; but where the Revenue Divisional Officer suspends and the District Collector confirms, no appeal would lie to the Board. The object of the proviso clearly is that it is only against orders of dismissal that the Board will entertain a second appeal ; that is, there must be an order of dismissal by the District Collector. There was in the present case no such order and, therefore, no second appeal lay to the Board. This is in fact the view of the Board itself in the Board's resolutions exhibited as Exhibits D and E and I may note that this position was accepted by the Government Pleader in the Lower Appellate Court. Therefore the Board had no jurisdiction to entertain a second appeal. The proper order would have been to have dismissed the appeal summarily.
4. 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 III 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 Chinnayya Goundar : AIR1922Mad337 , 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 exerciseable 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 conferment 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. It would mean, for example, that, if the Criminal Procedure Code had not defined the right of the High Court to interfere in revision, the High Court would nevertheless have power to reverse an acquittal without notice to the party concerned and without there being any appeal presented against the acquittal. I am clear that this contention is unsound and that the mere mention of appellate powers in a statute, which is silent as regards revisional powers, does not carry with it any revisional powers. Reference may be made to the Full Bench case in Khoja Shivji v. Hasham Guntam I.L.R.(1895) B. 480 (F.B.) where it was held that, where an order in Council provides for appellate powers and is silent about revisional powers, no revisional powers are conferred, and to Salig Ram v. Ramji Lal I.L.R.(1906) A. 554 where it was held that, if the revisional power has to be derived from statute, it must have been conferred directly by the statute. 1 am not therefore prepared to accept this argument; so that, if the Board had any power of revision in the present case, that power will have to be derived outside Act III of 1895. It remains to consider whether there is any such power.
5. For this position the learned Government Pleader has called in aid the general history of the powers of the Board of Revenue. An early regulation now partly in force, Regulation I of 1803, is relied upon. It is argued that Sections 5 and 33 give the general power claimed. The Lower Appellate Court bases its decision upon Section 5; But of these two sections, Section 33 is the one which deals with punishment, and it enacts that the Board shall punish neglect at their discretion, according to the powers vested in them for that purpose, So that Regulation takes us no further. We have to see what powers are vested in the Board. That appears from later regulations, first of all Regulation 1I of 1806, Section 7 (3), applying eo nomine to kar nams, laying down that the Board of Revenue has power to dismiss them. Then by Sections 7 and 8 of Regulation VI of 1831 the power over karnams in ryotwari tracts hitherto exercised by the Board of Revenue was transferred to Collectors, subject to the approval of the Board. Section 7 (3) of Regulation II of 1806 was repealed by Act II of 1869. I do not appreciate the learned Government Pleader's suggestion that this section was repealed merely because it was at that time too well known to require retention on the statute book. Such an argument might be put forward in the case of any repealed Act and has no substance. Obviously, the Act which repeals another and the Act repealed, cannot both be in force at the same time. Clearly, the authority which had power to legislate on the punishment of karnams had the same power to delegate its power of punishing karnams and intended by the repealing Act II of 1869 that the power exercised under Regulation II of 1806 should be delegated no longer to the Board but to the Collector. So that between 1806 and the present Act III of 1895 the authority to whom was delegated the power to punish karnams was set out in Regulation VI of 1831. That itself was definitely repealed by Act III of 1895, whereby the legislating authority in whom ultimately this power vested laid down definitely which officer or officers were to exercise the power of dismissing .karnams and the manner in which that power could be exercised. 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 not final, because the Board possesses undefined and unrestricted inherent powers to interfere with it. It may be noted that the Board of Revenue in its order in the present case did not purport to act under any such inherent powers but purported to be disposing of an appeal presented under Section 23 of Act III of 1895. I am not, therefore, prepared to support the learned 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.
6. The only other point to consider is the contention of the Government Pleader that the suit is not maintainable because it does not fall within Section 42 of the Specific Relief Act. Both the Lower Courts have agreed in holding that the suit is maintainable. It is clear, of course, that the plaintiff's suit must in the nature of the case be purely a declaratory one. He is not challenging the authority of the Collector's order of suspension and, therefore, he could not sue for reinstatement or for the emoluments of the office. The cause of action is the passing of the order of the Board of Revenue without jurisdiction. It must be conceded that the plaintiff is not suing as a person entitled to any legal character or to any right as to any property; so that if Section 42 is exhaustive of declaratory suits the suit will not lie. The ruling of the Privy Council in Robert Fischer v. The Secretary of State for India in Council is authority for the proposition that the section is not exhaustive. That was a case similar to the present in which it was sought to set aside an order of Government on the ground that it was ultra vires. That ruling has been frequently relied upon in this Court. See Ramachandra Rao v. Secretary of State for India I.L.R.(1915) M. 808 Veeramachaneni Ramaswami v. Soma Pitchayya I.L.R.(1919) M. 410 : 38 M.L.J. 226 Ramakrishna Father x. Narayana Pattar : (1914)27MLJ634 and Lakshminarasimha Somayagiyar v. Ramalingam Pillai : (1920)39MLJ319 . The High Court of Calcutta has taken an opposite view in Deokali Koer v. Kedar Nath I.L.R.(1912) C. 704 though the decision of the case did not rest upon that ground. The learned Government Pleader relies upon a later Privy Council case in Sheoparsan Singh v. Ramnandan Prasad Singh . That, however, has been interpreted by a Bench of this Court in Surayya v. Subbamma : (1919)37MLJ405 to be a decision on a finding of fact that the plaintiff had not the legal character of a reversioner, and, therefore, that the suit specifically brought under Section 42 was not maintainable under that section. It cannot be held that this Court has yet adopted the view that Section 42 is exhaustive or that the Privy Council case in Sheoparsan Singh v. Ramnandan Prasad Singh has overruled the Privy Council case in Robert Fischer v. The Secretary of State for India in Council and sitting here as a single judge, I consider I am bound to follow the interpretation of Sheoparsan Singh, v. Ramnandan Prasad Singh given in Veeramachaneni Ramaswami v. Soma Pitchayya I.L.R.(1919) M. 410 : 38 M.L.J. 226 and the Privy Council ruling in Robert Fischer v. The Secretary of State for India in Council . I am not therefore prepared to hold that the Lower Courts erred in law in holding that the suit was maintainable.
7. I must, therefore, allow the appeal and restore the decision of the District Munsif with costs against Government here and in the Lower Appellate Court.
8. The memorandum of cross-objections by Government as regards costs in the Lower Appellate Court is dismissed with costs. 3 months' time for payment of costs.