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Thalagadadivi Saty Venkata Subba Rao Vs. Yellapragada Ananda Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2024 of 1947
Judge
Reported inAIR1952Mad491; (1951)IMLJ410
ActsMadras Subordinate Collectors and Revenue Malversation (Amendment) Regulation, 1828 - Sections 3; Madras Hereditary Village Offices Act, 1895 - Sections 10, 10(2), 10(3), 10(4), 10(6), 13, 13(1) and 21; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantThalagadadivi Saty Venkata Subba Rao
RespondentYellapragada Ananda Rao and ors.
Appellant AdvocateC. Rama Rao and ;M. Appa Rao, Advs.
Respondent AdvocateGovt. Pleader
Disposition Appeal allowed
Cases ReferredState v. Subbarao
Excerpt:
.....as deputy village headman - collector had no jurisdiction to revise order of revenue divisional officer - suit filed against collector before civil court maintainable - held, petitioner entitled to declaration that orders of collector ultra vires. - - was making unsuccessful attempts to assume charge as headman of the village alter he had attained majority & qualified himself to the post. p .1 was not intended to be a direction imposing a disability or what is styled in the revenue language a 'bar order'.under section 10(4), the revenue divisional officer is not bound to issue a direction in exercise of his discretion & this view receives support from the language of sub-section (6) which clearly contemplates that if the collector did not issue a direction under sub-section (4),..........in the civil court. under section 9 civil p. c., civil courts have 'jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred'. the point for consideration therefore is whether under the provisions of the madras hereditary village offices act, the present suit is barred. under section 21 of the act. 'no civil court shall have authority to take into consideration or decide any claim to 'succeed' to any of the offices specified in section 3 or any question as to the rate or amount of the emoluments of any such office, or except as provided in proviso (ii) to sub-section (1) of section 13, any claim to recover the emoluments of any such office'. notwithstanding the generality of the language of section 21, the.....
Judgment:

Satyanarayana Rao, J.

1. In this second appeal, the plff. appellant seeks in substance a declaration that two orders of the District Collector, Krishna, dated 27-11-1937 & 31-7-1942 are Illegal & 'ultra vires'. In the suit he also prayed for a mandatory injunction directing the District Collector, Krishna to recognise the plff. as the permanent headman of the village of Thalagadadivi but that prayer is now out of the case & is not pressed. From 1937 the plff. was making unsuccessful attempts to assume charge as headman of the village alter he had attained majority & qualified himself to the post. His right to the headmanship was recognised in 1933 during his minority & he was registered under Section 10(5), Madras Hereditary Village Offices Act, as the person entitled to succeed to the office. The plff.'s father, Mallikarjuna Prasada Rao was the village munsif of Thalagadadivi till he was dismissed from service on 21-4-1932 as he was found guilty of misappropriation of Govt., money amounting to over Rs. 1000. The office was held by the family in hereditary right. The Revenue Divisional Officer who dismissed him from service by his proceedings dated 21-4-1932, Ex. P. 1, did not conform to the procedure applicable under Section 10(4) of the Act. That sub-section empowers the collector to direct when a vacancy had occurred & when the holder of the office is dismissed or suspended that until the death or return to duty of such last holder, the duties of the office shall be performed by some person duly qualified under Sub-section (1) who is not an undivided member of the family of the dismissed or suspended officer. The disability, if Imposed by a direction under this section, continues until the death of the dismissed holder. If a vacancy is caused by the dismissal of the holder of the office under Section 10 (4) & if the collector did not thing fit to issue a direction contemplated by Section 10 (4), the vacancy has to be filled up under Sub-section (6) as if the dismissed older died at that moment; in other words, when there is no direction Imposing a disability on an undivided member of the family of the dismissed office holder, such undivided member if he is otherwise entitled to hold the office is entitled to be appointed to fill up the vacancy under Sub-section (6) of Section 10. The direction actually given in Ex. P, 1 was not in terms of Section 10 (4). He merely stated there as follows :

'I therefore dismiss him from service & order that during his life time no undivided member of his family should succeed to the post.' This direction means that if the person entitled to succeed to the office at the time the vacancy had occurred becomes divided from the family, he should be entitled to succeed to the post. The Revenue Divisional Officer who can be assumed to have understood the import of the order he passed on 21-4-1932, followed up this order by registering the pltf. who was then a minor aged 16 as the headman of the village in place of the dismissed Malli-karjuna Prasada Rao & also appointed as his deputy a Muhammadan following the procedure laid down in Sub-section (5) of Section 10. This conduct of the Revenue Divisional Officer makes it clear that he did not intend by his order of 21-4-1932 to impose a disability on the undivided member to succeed to the post under Sub-section (6) of Section 10 as the pltf. could be recognised & registered as the successor to the office under that sub-section, only if there was no direction contemplated & permitted by Section 10 (4). What is more, the same Revenue Divisional Officer subsequently modified his order dated 9-1-1933, Ex. P. 2 registering the minor pltf. as the successor to the Office & appointing a deputy by a subsequent order of 1-5-1933, Ex. P. 3. In place of the Muhammadan deputy whom he appointed under the previous order, he appointed the pltf's maternal grandfather, the first deft, in the present suit as his deputy. These two orders make it abundantly clear that the order of the Revenue Divisional Officer in Ex. P .1 was not intended to be a direction imposing a disability or what is styled in the revenue language a 'bar order'. Under Section 10(4), the Revenue Divisional Officer is not bound to issue a direction in exercise of his discretion & this view receives support from the language of Sub-section (6) which clearly contemplates that If the collector did not issue a direction under Sub-section (4), the vacancy can be filled up as if it was caused by the death of the last holder. By 1937 the plff. attained majority & completed all the tests required for qualifying himself to the post. He also became divided from his father & this fact is now beyond dispute. By his application dated 28-5-1937, Ex. P. 7 to the Deputy Collector, he prayed that he should be permitted to enter upon hSs duties. The Deputy Collector seems to have sought the advice of the District Collector in the matter as the Revenue Divisional Officer at that time was a different person from the officer who passed the earlier orders, Ex. P. 1, P. 2 & P. 3. The Colltctor of Krishna seems to have felt that Revenue Divisional Officer who dismissed the plff.'s father from service should have given a direction under Sub-section (4) of Section 10 & should not have registered the minor as entitled to the office overlooking the fact that Section 10(4) does not make it obligatory on the Revenue Divisional Officer to issue the direction contemplated by that sub-section but vests in him a discretion. The Collector of Kistna issued a notice to the plff. on 5-11-1937, Ex. D. 1, calling upon him to show cause why the order registering him as headman of the village should not be cancelled as being Illegal. This notice was served on the plff. who appeared before the collector by a pleader to present his case. But the Collector cancelled on 27-11-1937 by Ex. p. 8 the order registering the plff, under Section 10(5) as entitled to succeed to the office. This order of the Collector was based on his view that the order of the Revenue Divisional Officer in Ex. P. 1 was wrong & that he should have passed a 'bar order' without filling up permanently the vacancy under the provisions of Sub-section (2) or (3) of Section 10 as that question would arise only after the death of the dismissed holder. He thought that the registry of the minor as heir was void 'ab initio' & was inoperative. The plff. took up this matter through various stages up to the Board of Revenue & even applied for a review of the order by the Collector but was unsuccessful. He then filed a suit under Section 13 of the Act on 25-11-1940 substantially for getting the orders of the Collector set aside. That suit which was ill-conceived & was without jurisdiction was of course unsuccessful though it was found by the Deputy Collector who tried the suit that the partition pleaded by the plff. was true. There was an appeal against the decision of the Deputy Collector to the Collector. In disposing of the appeal & dismissing it, the collector followed the somewhat extraordinary procedure of revising the order passed by the Revenue Divisional Officer in Ex. P. l & In doing so, he purported to act under the powers assumed to have been conferred upon him by Regulation VII of 1828. The order that was passed was in these terms :

'In the interest of the administration, I direct under Section 10(4) of Act III (3) of 1895, that until the death of the dismissed village munsif the duties of the office shall be performed by some person duly qualified under Section 10(1) who Is not an undivided member of the family of the dismissed village munsif.'

There were in the usual course appeals to the Board of Revenue & to Govt. but to no purpose.

2. On 20-11-1943 the plff. launched the present suit for the reliefs already stated impleading as parties to the suit, the deputy, his maternal grand father as the first deft. & the Province of Madras as deft. 2. Both the defts. supported the two cancellation orders passed by the Collector, Krishna as valid & also raised the further plea that the civil court had no jurisdiction to entertain the suit as its jurisdiction was barred by Section 21 read with Section 13 of the Act. The District Munsif who tried the suit found on the merits in favour of the plff. but thought that he had no jurisdiction to entertain the suit. On appeal the learned Subordinate Judge held on both the points against the plff. Hence this second appeal.

3. The validity of the orders of the Collector of Krishna & the Jurisdiction of the civil court to entertain the suit, has been hotly contested on both sides i. e., by the Govt. & the plff. & counsel on both sides argued the two questions with considerable ability & learning.

4. The order of the Collector of Krishna cancelling the registration was assumed by the District Munsif as having been made without notice to the plff. If this fact were true, the order would be invalid as it is an elementary principle of the law that no order to the prejudice of a person should, be made without giving an opportunity to him of making his defence. This is based on the maxim 'audi alteram partem' & is a principle of natural justice -- see 'Satyanarayana v. Venkatramayya', I. L. R. (1948) Mad 91 but it has been brought to my notice by the learned Govt. Pleader that in fact a notice was issued by the Collector before cancelling the order on 5-11-1937, Ex. D. 1 & I find from an endorsement on that notice that the plff. was served. What Is more, it is admitted by this very plff. in Ex D. 2, the plaint filed by him under Section 13 of the Act, that he had received such a notice & that he had appeared by pleader to represent his case before the District Collector who thereafter passed the order of 27-11-1937. The order, therefore, cannot be attacked on the ground on which it was held to be invalid by the learned District Munsif.

5. The point which was pressed on behalf of the appellant, however, is that the Collector of Krishna had no jurisdiction to revise the order under the Madras Subordinate Collectors & Revenue Malversation (Amendment) Regulation VII of 1828. That Regulation was intended to declare the powers of Subordinate & Assistant Collectors in charge of particular divisions of districts & to confer upon them the powers of collectors granted by the Regulations then in force & thereafter to be enacted. The Regulation also empowered the Collector to delegate his functions at his discretion in the manner provided by Section 3. The third para of Section 3 contains the provisions conferring upon the Collector of the District power of revision to control the action of the Subordinate & Assistant Collectors. It reads as follows :

'The proceedings of Subordinate & Assistant Collectors acting under the preceding clauses shall be subject, in all cases, & in the fullest manner, to the superintendence, control & 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 carried into execution', & 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', & to pass such further orders as he may see fit' (the itlics (here into invested comas') are mine). The power conferred under this para is of a twofold character. The Collector under this clause may direct generally that the proceedings of any of his subordinates & assistants shall be regularly submitted to himself before the decision, order or sentence is carried into execution & 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 & he 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 the Subordinate has been carried into execution whether the proceedings came to his notice by virtue of a general direction or a particular direction. That this regulation is not a dead letter is Clear from the decision ot a Bench of this court in 'Srlnivasa Iyengar v. Jagan-nahta Aiyangar : AIR1938Mad903 . In that case there was no question of the order sought to be revised having been executed before it was altered in revision by the Collector. The Collector in a matter in which there was no right of appeal interfered & reversed the order of the Revenue Di-visional Officer In a matter arising under the Madras Hereditary Village Offices Act. The order was justified on the ground that though the Collector could not entertain an appeal & interfere with the order of the Revenue Divisional Officer in the exercise of his appellate jurisdiction, was certainly entitled to reverse the order in the exercise of his revislonal jurisdiction under Regulation VII of 1828. In the present case, the order of 21-4-1932 was given effect to and acted upon by registry of the minor & even appointing a deputy for him --vide Exs. P. 2 & P. 3. The order registering the minor under Section 10(5) of the Act was acted upon by appointing a deputy & then later by modifying that order by appointing the first deft, as a deputy. Therefore, during all these years till the cancellation in 1937 & later on by the Collector in 1942 the two orders were in force & were treated as valid. The deputy functioned only as the deputy of the minor. He could so function only if the order registering the minor under Section 10(5) was valid on the basis that there was no bar order under Section 10(4) & the deputy could not have acted otherwise. The Collector, therefore, could not have exercised & had no jurisdiction to exercise his power of revision when once the orders were put in execution. I am therefore clearly of opinion that the Collector of Krishna had no jurisdiction to make the two orders, one in 1937 & the other in 1942 cancelling the registration of the minor under Section 10(5) of the Act & making a fresh bar order under Section 10(4). Those orders therefore are wholly without jurisdiction & are null & void.

6. The next important question is whether the present suit is maintainable in the civil court. Under Section 9 Civil P. C., Civil courts have 'jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred'. The point for consideration therefore is whether under the provisions of the Madras Hereditary Village Offices Act, the present suit is barred. Under Section 21 of the Act.

'No civil court shall have authority to take into consideration or decide any claim to 'succeed' to any of the offices specified in Section 3 or any question as to the rate or amount of the emoluments of any such office, or except as provided In proviso (ii) to Sub-section (1) of Section 13, any claim to recover the emoluments of any such office'.

Notwithstanding the generality of the language of Section 21, the Jurisdiction of the civil court is taken away only in cases in which such jurisdiction is conferred on the revenue court under Section 13. Section 21 therefore must be read with Section 13 -- See 'Seetharam Naidu v. Rami Naidu', 33 Mad 208 followed in 'Sahadeva Reddi v. Lingappa Asarl', 20 M. L. W. 451 (the reference to 33 Mad in 20 L. W. is not accurate. The decision was reported in 33 Madras at p. 208 & not 308). This takes one back to Section 13 to find out the nature & the class of suits in respect of which jurisdiction has been conferred on the Revenue court under the Section. Sub-section (1) of Section 13 is in these terms :

'Any person may sue before the Collector for any of the village offices specified in Section 3 or for recovery of the emoluments of any such office, on the ground that he is entitled under Sub-section (2) or (3) of Section 10 of the Madras Property Estates Village Service Act, 1894 or under Sub-section (2) or (3) of Section 10 or Sub-section (2) or (3) of Section 11 or Section 12 of this Act, as the case may be, to hold such office & enjoy such emoluments, or being a minor, may sue before the Collector to be registered as heir of the last holder of any such office'.

7. It has been authoritatively decided by a Pull Bench of this court in 'Rangareddi v. Dasaradha Rami Reddi', I. L. R. (1938) Mad 841 that the word 'succeed' in Section 21 should be understood in its ordinary sense of succession strictly so called as it was used in the same sense in Section 10(5). The word should receive the same construction throughout the Act & when so interpreted, Section 21 does not bar a suit for declaration that a person is a rightful holder of an office newly created under Section 6(1) of the Act. The right to the office in such a case is not based on succession & the new office has to be filled by the Collector under Section 6(1) of the Act by selecting a person from among the persons whom the Collector may consider best qualified from among the families of the last holders of the offices which have been abo-lished. Section 10 relates to offices forming class (1) in Section 3, Section 11 to offices in a proprietary estate forming class (3) in Section 3 & Section 12 to class (4) in Section (3). Whenever therefore a person basing his claim to succeed to the office rests his right in respect of offices forming class (1), (& the present suit relates to an office in class (1)) & seeks to recover the office or the emoluments attached to such office on the ground that he Is entitled to so succeed under Sub-section (2) or (3) of Section 10 must institute his suit in the Revenue court under Section 13. On the revenue court therefore an exclusive jurisdiction is conferred to try the right claimed & to give him the appropriate relief. Appeals against the decision of the Collector & even a second appeal to the Revenue Board in some cases are provided by Section 23 of the Act. The decision in such a suit is binding & is final & cannot be questioned in a civil court. The jurisdiction of the Revenue court in these matters is analogous to the jurisdiction of the Revenue court to try suits for rent under the provisions of the Madras Estates Land Act. A decision of a court of exclusive jurisdiction is binding on the civil court. Suits for declaration, therefore, that the ultimate decree in a suit filled under Section 13 (sic) do not lie as the Jurisdiction of the civil court in such matters is barred under Section 21 of the Act, & even apart from Section 21, on general principles a decision of a court of exclusive Jurisdiction is binding on the parties to it & cannot be question-ed in a collateral proceeding. If, however, the tribunal created by Section 13(1) of the Act acts without jurisdiction there would be a right of suit in the civil court to an aggrieved person, as for example where the revenue board purporting to exercise its second appellate Jurisdiction in matters where no such second appeals lie, reverses the decision of the appellate court. It will be noticed that in the proviso to Section 23 a second appeal is provided for against the decisions arising out of suits under Section 13 only in respect of the offices of head of the village & village accountant to the Board of He-venue. The decisions in 'Venkatasubbayya v. Secy. of State : AIR1938Mad483 & 'Venkatasastri v. Umamaheswara Venkata Jaganatha Rao', I. L. R. (1948) Mad 548 are instances In which the final decision arising in a suit under Section 13(1) of the Act was not allowed to be questioned in a civil court. Gentle C. J. in the last of the cases recognised art exception in cases where the tribunal created under Section 13(1) of the Act acted without jurisdiction for he observed at p. 552,

'I think it desirable to add that, if the tribunal created by Section 13(1) of the Act did in fact act without Jurisdiction, then there would still be a right, in spite of Section 21, for the aggrieved person to come to this court if he could show that the special tribunal had acted without jurisdiction.' So long as the plff. in the action does not rest his claim in the suit in the civil court for the office on the ground that he Is entitled under Sub-section (2) or (3) of Section 10, the bar under Section 21 does not operate & does not come into play as in respect of claims to office or emoluments resting on Section 10(2) or (3) alone the Revenue court is given exclusive jurisdiction under the Act. If once a person is validly appointed to a post either as karnam or as headman but by reason of a subsequent order which was passed by a Revenue authority without jurisdiction he is deprived of the right which was recognised & acce-pted by the authorities concerned at a previous stag, it would be open to the aggrieved person to institute a suit to have the legality of the order which had the effect of depriving him of that which was previously secured tested in a civil court. The basis on which such suits are held to be cognizable by a civil court is that if once the order which was passed without jurisdiction by the revenue authorities is got rid of by a declaration by the civil court, his right to the office held by him under a valid order which was negatived by a latter void order, would automatically be restored. The decisions have recognised the right of the person ag-grived by an 'ultra vires' order to institute a suit for a bare declaration. This principle was established by the Judicial Committee in the well known case of 'Robert Fisher v. Secretary of State', 22 Mad 270. The decision no doubt was under a different Act but the principle established by that decision is applicable to all similar situations & is stated by Lord Macnaghten at p. 282 :

'If the so-called cancellation is pronounced void the order of the Govt. falls to the ground & the decision of the Collector stands good & operative as from the date on which it was made. The vitality of the decision is not impaired or affected merely by destruction or mutilation of entry in the Collector's book. Cancellation in obedience to illegal commands of the Govt. can have no more effect than cancellation made at the dictation of a lawless mob which the officer in charge has no power to resist.'

This principle was applied to a case under the Hereditary Village Offices Act by Wallace J. in 'Subbarao v. Secretary of State', 58 ML J 698 & by Beasley C. J. & Bardswell J. in Letters Patent Appeal against that decision in the 'Secretary of State v. Subbarao', 56 Mad 749. In that case the order of the Collector suspending a karnam who had a hereditary right to the office was modified into an order of dismissal by the Board of Revenue in second appeal. The second appeal was incompetent & the Board had no jurisdiction to alter the order of suspension made by the Collector into one of dismissal. It was held that a suit for a declaration that the order made by the Board of Revenue was invalid & 'ultra vires' was maintainable in a civil court & that even a suit for bare declaration was competent. To a similar effect is an earlier decision of Madhayan Nair J. (as he then was) In 'Venkata-raghaviah v. Chenchu Subbiah : AIR1931Mad502 where the learned Judge pointed out that if the suit is based on Section 10(2) or (3) of the Act, then alone the jurisdiction of the civil court is barred & not otherwise. Wadsworth J. applied the principle of 'Subbarao v. Secretary of State' 58 M. L. J. 698 and the 'Secy, of State v. Subbarao' 56 Mad 749, to a case where a village munsif who was lawfully appointed has been unlawfully threatened with ejection by an official act & the learned Judge held that a suit in the civil court to protect his right to the office, & for a declaration that the order which purported to affect his rights was 'ultra vires' & void was maintainable -- See 'Du-ralswami Reddl v. Secy, of State : AIR1939Mad648 . Section 5 of the Board of Revenue Regulation which was pointed out both in 'Secy, of State v. Subbarao' 56 Mad 749 & by Wadsworth J. in the decision above cited does not give the Board of Revenue power to set aside a statutory order passed by one of his subordinates particularly when the statute itself provided a remedy for rectifying the error, of course, as pointed out by Somayya J. In 'Narasl-maharao v. Venkataramana Rao : AIR1941Mad857 , a person by a trick of pleading cannot get out of the statutory bar but one has to see the substance of the claim. If his claim was already recognised and that right was sought be affected by a subsequent Illegal order then it would be open to him to come to a civil court for a declaration that the right recognised earlier should be protected by granting a declaration in cases where the subsequent order was without jurisdiction & was 'ultra vires'. If, on the other hand, his right in substance & in effect is founded on Section 10, he cannot get out of the statutory bar and agitate his rights in the civil court.

8. I have come to the conclusion that the twolater orders of the Collector are without jurisdiction as he had no power to revise those orders underRegulation VII of 1828. In the light of the principles above discussed, it follows that the presentsuit by the plff. in a-civil court is maintainable &he; is entitled to the declaration asked for. Theresult is that the second appeal is allowed & therewill be a decree in favour of the plff. granting adeclaration that the two orders of the Collectorare 'ultra vires' & without jurisdiction & the plff.is entitled to his costs throughout. No leave.


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