1. The non-hereditary post of the Talayari of Kalpalayam village in Lalgudi Taluk, Tiruchirapalli district, fell vacant when its permanent incumbent died on 19th December, 1955. The appointment to that post was governed by the provisions of the Proprietary Estates Village Service Act II of 1894.
2. Section 8 of Act II of 1894, which I shall hereafter refer to as the Act, required the proprietor of the village or estate to inform the Revenue Divisional Officer of the vacancy within 30 days after its occurrence. The right to fill up the vacancy was given to the proprietor of the village by Section 9 of the Act, the relevant portion of which directed:
The proprietor of the village shall within six weeks appoint a person to such vacant office and send notice of the appointment in writing to the Revenue Officer in charge of the division in which the village is situated,
3. Section 10(1)(ii) set out the statutory disqualifications. The relevant portion of Section 11(1) provided:
If the Revenue Officer to whom notice of appointment is sent under Section 9 considers the person appointed to be disqualified under Sub-section (1) of the preceding section, he may at any time within three months from the date of the receipt by him of the said notice of appointment, and after giving notice to the parties concerned and making enquiry record his objections and call upon the proprietor to appoint another person and the proprietor shall thereupon do so and send notice of such new appointment to the said Revenue Officer within six weeks of such requisition.
4. Section 11(2) directed:
If the notice of appointment referred to in Section 9 or the notice of the new appointment referred to in Sub-section (1) is not received within the prescribed time, or if the person newly appointed under Sub-section (1) is also considered by the said Revenue Officer, after giving notice and making inquiry as aforesaid, to be disqualified as aforesaid, such officer may make the appointment himself by selecting a person duly qualified under Section 10.
5. Section 11(3) provided for an appeal and it ran:
Whenever an appointment is disallowed under this section, an appeal shall lie to the District Collector within one month.
6. The vacancy arose on 19th December, 1955. The proprietor appointed the first respondent, Mari Samban. The nomination of Mari Samban was dated 29th January, 1956, which was within the period of six weeks for which Section 9 provided. The nomination, however, reached the Revenue Divisional Officer on 31st January, 1956, which was one day beyond the period of six weeks.
7. The procedure adopted thereafter by the Revenue Officers was certainly not in accordance with the provisions of the Act, the relevant portions of which I have referred to above. If the notice of appointment dated 29th January, 1956 and received on 31 st January, 1956, by the Revenue Divisional Officer was a valid notice of appointment, the Revenue Divisional Officer could have disallowed it only in the circumstancee& set out under section n (1) of the Act. If, however, it was not a valid notice of appointment, in the sense that it was not sent wtihin the statutory period for which Section 9 provided, the Revenue Divisional Officer could exercise his power of appointment under Section 11(2). What the Revenue Divisional Officer, did on receipt of the notice of appointment dated 29th January, 1956, was to forward the papers to the Tahsildar. The Tahsildar purported to appoint the first respondent. The Tahsildar had certainly no jurisdiction to order any appointment. Against that order the petitioner purported to prefer an appeal to the Revenue Divisional Officer There was no statutory provision for any appeal against the order of a Tahsildar. Nor could the Revenue Divisional Officer claim any appellate jurisdiction. The Revenue Divisional Officer however allowed the appeal of the petitioner on 3rd April, 1956,. and in purported exercise of that appellate jurisdiction he appointed the petitioner. Mari Samban, the first respondent, and the proprietor, who has been impleaded as the second respondent in these proceedings, preferred appeals to the Collector against the order of the Revenue Divisional Officer dated 3rd April, 1956. Section 11(3) of the Act, it should be remembered, was limited in its scope. It provided for an appeal only against the disallowance of an appointment. There was no disallowance as such by the competent authority in this case under Section 11(1) of the Act. Though the scope of Section 11(3) of the Act was limited, Section 3(3) of Madras Regulation VII of 1828 gave certain controlling powers to the Collector if the statutory conditions were satisfied. But it was not thise powers the Collector purported to exercise. He held that the notice of appointment sent by the proprietor was not within the time allowed by the Act, but the Collector purported to condone the delay of one day. The Collector allowed the appeal, set aside the order of the Revenue Divisional Officer and directed the appointment of the first respondent. It should be needless to point out that the Act did not empower the Collector to condone any delay, or to treat as valid a notice of appointment that did not conform to the statutory requirements of Section 9 and Section 11(2).
8. The petitioner applied under Article 226 of the Constitution for the issue of a writ of certlorari to set aside the order of the Collector dated 6th September, 1957. In purporting to condone the delay the Collector acted without jurisdiction.
9. Since the question was debated at length I shall record my opinion on the scope of Section 9 and Section 11(2) of the Act. Section 9 permits the proprietor six weeks within which to appoint a person to the vacancy and send the notice of that appointment to the Revenue Divisional Officer. Section ii (2) empowers the Revenue Divisional Officer to make the appointment himself, if the notice of appointment authorised by Section 9 is not received within the prescribed time. While Section 9 prescribes six weeks for the appointment and the intimation thereof by the proprietor, Section 11(2) refers to the receipt of the notice of appointment ' within the prescribed time '. Neither Section 9 nor any other provision of the Act prescribes any time within which the notice of appointment should reach the Revenue Divisional Officer. The normal rule of harmonious construction has to be adopted in construing the scope of Sections 9 and 1.1 (2) read together. It should be remembered that the pro-prietor of the village has to send the notice to the Revenue Divisional Officer. Considering the distances and the normal means of communication even at the time when the Act was passed, 1894, it should be fairly obvious that no considerable delay was anticipated between the despatch of the nomination by the proprietor and its receipt by the Revenue Divisional Officer. Whether the notice of appointment was, sent by post or delivered by messenger within the comparatively small area of a revenue division, there would have been no considerable delay in the transmission of the notice of appointment. The six weeks specifically prescribed by Section 9 of the Act does not include within it the date of receipt by the Revenue Divisional Officer. Six weeks are allowed to the proprietor within which he has to appoint a person to the vacancy and send notice of that appointment to the Revenue Divisional Officer. The expression ' if the notice of appointment is not received within the prescribed time ' in Section 11(2) of the Act could only mean ' if, taking the normal means of communication available, notice of appointment is not received within a reasonable time after the expiry of the six weeks referred to in Section 9 of the Act '. It is by that test'that the validity of the notice of appointment dated 29th January, 1956, but received by the Revenue Divisional Officer on 31st January, 1956, will have to be tested. Was it sent within the time allowed by Section 9 and was it ' received within the prescribed time' referred to in Section 11(2). The Revenue Divisional Officer never addressed himself to that question. He left the appointment to be made by the Tahsildar, and he himself purported to exercise an appellate jurisdiction. The Collect tor also did not go into the question. He held that there was a delay but purported to condone it.
10. Section 11(3) which conferred appellate jurisdiction on the Collector is limited in its scope. An appeal is allowed against the disallowance of an appointment made by the proprietor, the disallowance having been ordered by the Revenue Divisional Officer. It was for the Collector to decide whether the order of the Revenue Divisional Officer, dated 3rd April, 1956, against which an appeal was preferred, was an order disallowing the appointment made by the proprietor. If that test was satisfied and the appeal was competent, it was for the Collector to decide whether the Revenue Divisional Officer was justified in disallowing the appointment of the first respondent. The grounds on which a disallowance could be ordered have been specified in Section 11(1) of the Act. Even if the appeal fell outside the scope of Section 11 (3) of the Act, whether the Collector had any controlling power or revisional jurisdiction to set aside an irregular order of the Revenue Divisional Officer may also arise for consideration. None of these factors was taken into account by the Collector. As I said, the procedure adopted all through, by the Tahsildar, by the Revenue Divisional Officer and by the Collector was one not sanctioned by the provisions of the Act.
11. The order'of the Collector will be set aside by the issue of a writ of certlorarl, which in effect means the Collector will have to dispose of the 'appeals' preferred to him afresh and in accordance with law. I have refrained from deciding the validity or otherwise of the order of the Revenue Divisional Officer dated 3rd April,1956. The petitioner had the benefit of it, and he did not seek that order being set aside in these proceedings. Besides it is for the Collector to decide in the first instance whether the order dated 3rd April, 1956, should be set aside at all either in, the exercise of any appellate or revisional jurisdiction.' That was why I refrained from pronouncing on the validity or otherwise of the order of the Revenue Divisional Officer dated 3rd April.
12. The rule nisi is made absolute and the petition is allowed. No order as to costs.