PHUL KUMARI Vs. STATE

JUDGEMENT

(1.) This is an application under Section 115, C. P. C., for revision of an order passed by a compensation officer under the Zamindari Abolition and Land Reforms Act (No. I of 1951). The applicant is the intermediary, who is entitled to compensation for the loss of her proprietary rights. The compensation payable to her is being assessed by the compensation officer, who prepared a draft compensation assessment roll. The applicant filed an objection against it on two grounds one of which was that the rental value had been under-estimated. One of her tenants is the opposite-party No. 2, the Upper Ganges Sugar Mills Limited. The dispute before the compensation officer was at what rent the land let out to the opposite-party should be assessed. It has obtained a Sanad for bhumidhari rights. The applicant informed the compensation officer that she had applied to Government for cancellation of its Sanad and her application was pending. Thereupon the compensation officer suo motu impleaded it as a party in the compensation proceedings. A notice was issued to the opposite-party which appeared and objected to its being impleaded contending that it had no concern with the amount of compensation payable to the applicant and that it was unnecessarily impleaded. The applicant also objected to the impleading of the opposite-party but the compensation officer refused to cancel his order. Now she wants his order to be set aside under Section 115, C. P. C.

(2.) The question is whether Section 115, C. P. C., at all applies. Under it a High Court may call for a record of any case decided "by any Court subordinate to such High Court and in which no appeal lies thereto" and may make such order in the case as it thinks fit if the subordinate Court has exercised jurisdiction not vested in it or exceeded it or exercised it with material irregularity. The compensation officer is at present deciding objections under Section 48 of the Zamindari Abolition and Land Reforms Act. Any objection decided by him is deemed to be a decree of a civil court under Section 49. Undoubtedly he acts as a court when disposing of the objections. Under Section 48 he has all the powers of a civil court and is required to follow the procedure laid down in the Code of Civil Procedure for the hearing and disposal of suits relating to immovable property. This provision would not by itself make Section 115, C. P. C., applicable to any order passed by him; he has all the powers of a civil court but is not made subject to all the liabilities to which a civil court is liable under the Code. Only those provisions of the Code that relate to the hearing and disposal of suits are made applicable to the proceedings before him. But even if Section 115 of the Code were to be applied, it would have to be applied as it stands and this Court would have jurisdiction to interfere with an order passed by him only if he were a Court sub-ordinate to this Court. His is a special court creaed under the Zamindari Abolition Act and different from civil courts created under the Bengal and Assam. Civil Courts Act (No. XII of 1887). Civil courts in this State are only those civil courts that have been created under the Bengal and Assam Civil Courts Act. All those courts are under the administrative control of the District Judge subject to the superintendence of the High Court, vide Section 9. They have ordinary and appellate jurisdictions mentioned in Chapter III of the Act. It is provided in Section 20 that an appeal from a decree of a District Judge shall lie to the High Court and in Section 21 that an appeal from a decree or order of a Munsif shall lie to the District Judge. The words "immediately subordinate" are used in Section 38, and which courts are immediately subordinate to which courts for the purposes of Section 38 is stated in Section 39. The court of a Compensation Officer is created under Section 319 of the Zamindari Abolition and Land Reforms Act, and it is to exercise the powers conferred upon it by or under the Act. It is laid down in Section 325 that a proceeding in it shall be deemed to be a judicial proceeding within the meaning of certain sections of the Indian Penal Code; this means that it is not created as a Civil court. An order of it deciding an objection under Section 48 is under Section 49 to be deemed to be a decree of a civil court; this also indicates that it is not a civil court. The same inference is to be drawn front the provision in Section 48 conferring upon it all the powers of a civil court and requiring it to follow the procedure laid down in the Code of Civil Procedure. Section 330 bars the jurisdiction of a civil court in respect of any order passed under Part I of the Act. Section 48 is contained in Part I of the Act and, therefore, a Compensation Officer's order disposing of an objection cannot be challenged in a Civil Court. This express exclusion of a civil court's jurisdictions means that the Compensation Officer does not act as a civil court. An appeal from his order on an objection is appealable to a District Judge (or to the High Court if the valuation exceeds a certain amount) and a Second Appeal would lie to the High Court on any of the grounds specified in Section 100, C. P. C., see Sections 50 and 51. These provisions regarding appeals in spite of provisions regarding appeals from the civil courts in the Bengal and Assam Civil Courts Act also show that a Compensation Officer does not act as a civil court. The Compensation Commissioner and his assistant exercise powers of supervision and superintendence over his work, vide Section 320 (1); there is no provision investing this Court with powers of superintendence and supervision over his court. Under Section 333 the Board of Revenue may call for the record of any suit or proceeding referred to in Schedule II decided by any "subordinate court", and correct errors of jurisdiction. Proceedings under Section 48 are not included in Schedule II; therefore, the Board has revisional jurisdiction over an order passed by a Compensation Officer. The same, however, cannot be assumed by this Court merely because it does not vest in the Board. I have referred to Section 333 principally because it uses the words "subordinate court", and which are subordinate courts is not stated anywhere in the Act. The word "subordinate" has two distinct meanings, (1) "of interior importance or rank" and (2) "subservient to, or under the authority of". A court may be a subordinate court in the sense that it is of an interior grade or status, but it does not follow that it is subordinate to, or under the authority of another court, such as the High Court. A court that is subordinate in the sense that it is of an interior grade or status may not be subservient to or under the authority of any other court; in spite of the finality of its orders, in grade or status it may be subordinate to a High Court or a Board of Revenue. In the phrase "subordinate to.......''the word "subordinate" is used in the second sense but in the phrase "subordinate court" it is used in the first sense, unless it refers to a "court subordinate to ...........". The words used in Section 333 are "subordinate court", the word "subordinate" is used in the first sense and since all courts created by the Act are of an inferior grade or status in comparison to the Board of Revenue, it has not been explained which courts are subordinate courts. The question of a court's being subordinate to another should arise when the word is used in the second sense. When one has to consider whether a court is subordinate to a High Court within the meaning of Section 115, it is not enough to show that it is a subordinate court in the sense of being a court of an inferior grade or status; it must be shown that it is subservient to, or subject to some authority of, the High Court. Subservient may arise out of some authority over the court being vested in a superior court or it may be created by a statutory provision independently of any statutory authority being exercised over it. A court is subordinate to a court which has appellate or supervisory jurisdiction over it; appellate or supervisory jurisdiction is exercised over it by virtue of a statutory provision. But a court can also be declared by a statutory provision to be subordinate to another court even though it exercises no appellate or supervisory jurisdiction over it. Similarly a. statute may declare that a court shall not be subordinate to another court even though it exercises appellate jurisdiction over it. There are indications that the subordination contemplated by Section 115 is the subordination not arising out of the subjection to appellate or supervisory jurisdiction but the subordination arising out of a statutory provision. Section 275 of the U. P. Tenancy Act contained a provision exactly similar to that in Section 333; that Act also did not contain any provision declaring which courts created by it were subordinate to the Board of Revenue because they were all courts of inferior status. There was Section 282 declaring for certain purposes which courts were subordinate to the Collector and which, to the Sub-Divisional Officer. Section 276 empowered a High Court to exercise revisional jurisdiction over subordinate revenue courts in certain cases. Here also "subordinate..... courts" meant "revenue courts of inferior status"; there having been no provision making any of the courts created by it subservient to, or under the authority of, the High Court the words could not have been used in the second sense. Since all the revenue courts created by the Act (except the Board of Revenue) were of an inferior status in comparison to the High Court, there was no necessity of describing which courts were subordinate revenue courts. No statutory provision is required for declaring a court to be of an inferior status or grade in comparison to a High Court or a Board of Revenue; but a court cannot be subservient to, or under the authority of, a High Court (or even a Board of Revenue) unless the latter has been invested with some jurisdiction over it. A court cannot be subservient to a High Court unless the latter has been given some power to control it. Therefore, a court cannot be a court subordinate to a High Court in the absence of a statutory provision. Since ''subordinate court" does not mean the same thing as "court subordinate to'', the courts referred to as "subordinate courts" in the Zamindari Abolition and Land Reforms Act cannot be held to be courts subordinate to the High Court within the meaning of the Code of Civil Procedure. The word "subordinate" was used in both the senses in the U. P. Tenancy Act; it was used in the first sense in Sections 275 and 276 and in the second sense in Sections 280 and 281. Because subserviency depends upon statutory authority, there was Section 282 describing which courts were subordinate to the Collector and the Sub-Divisional Officer within the meaning of Sections 280 and 281. Under Section 264 an appeal lay to the Collector from every decree Of an Assistant Collector of the second class, but the latter was declared to be subordinate to the Sub-Divisional Officer. Under Section 265 an appeal lay to the District Judge or to the Commissioner from the decree of an Assistant Collector of the first class, but he was declared to be subordinate not to either of them but to the Collector, who had no right to hear any appeal except from certain orders passed by him. These provisions show that subordination of one court to another does not depend upon its being subject to the other's appellate jurisdiction.

(3.) The words used in Section 115 of the Code of Civil Procedure are "court subordinate to .......High Court''. The word "subordinate" is used in second sense, as explained above. Since which courts are subservient to a High Court is a matter of statutory provision, we find Section 3 in the Code laying down which courts are subordinate to which courts; this subordination is, as expressed in the section itself, "for the purpose of this Code". A District Court is subordinate to the High Court and every inferior civil court including a court of small causes is subordinate to the High Court and the District Court. When for the purposes of the Code of Civil Procedure, including those of Section 115, every inferior civil court is subordinate to the High Court the words "subordinate court" in Section 115 must mean every civil court including a district court and a court of small causes. There would be no justification for bringing in other courts within the subordination of the High Court unless there is a statutory provision. The words "subordinate court" in Section 115 must be understood in the sense given to them in Section 3; otherwise the words "for the purposes of this Code" would be rendered useless. According to the maxim expressio unius est exclusio alterius also, the express mention of certain courts as being subordinate to the High Court, excludes others being subordinate to it. Even if one does not read more in Section 3 than what is contained therein, one would require a cogent ground for holding that a court not mentioned therein is a court subordinate to the High Court. Section 115 C. P. C., must refer to a court which is governed by the Code of Civil Procedure; a court not governed by the Civil Procedure Code, i. e., a court not within the contemplation of the Code of Civil Procedure cannot be a court subordinate to the High Court within the meaning of Section 115. The only courts that the Civil Procedure Code caters for are the civil courts established under the Bengal and Assam Civil Courts Act. The very preamble of the Code states that it consolidates and amends the laws "relating to the Procedure of the Courts of Civil Judicature". Hence the word "court" wherever it occurs in the Code necessarily means a court of civil judicature. The subordinate courts referred to in Section 115 must also mean subordinate courts of civil judicature. Courts of civil judicature are only those courts that are created by the local Civil Courts Acts, such as the Bengal and Assam Civil Courts Act, the Punjab Courts Act etc. There are other courts (and tribunals) also created by other Acts; they are not civil courts and the procedure before them is not automatically governed by the Code. They cannot, therefore, be subordinate courts within the meaning of Section 115. It is open to the Acts creating them to provide for any procedure to be followed before them; they may contain the whole procedure, or they may adopt by reference the procedure prescribed for some other courts in some other statute or they may combine the two methods. It is a frequent practice with such Acts to lay down that the procedure before the courts created by them would be governed by the Code of Civil Procedure; this is only a compendious way of prescribing the same procedure as is prescribed for the civil courts; instead of reproducing all the relevant provisions of the Code they simply refer to them. But by laying down that their procedure would be governed by the Code of Civil Procedure they do not convert them into civil courts because the Code of Civil Procedure is not a monopoly of civil courts. Sections 4(1) and Section 5 (1) of the Code contemplate that the same procedure may be prescribed for courts other than the civil courts. If the other courts do not become civil courts merely because they are governed by the Code of Civil Procedure, they cannot become subordinate courts within the meaning of Section 115. It has been observed in Hasan v. Mohammad Shamsuddin, AIR 1951 Pat 140 (A), Bishambhar Nath v. Achal Singh, AIR 1932 All 651 (B) and Purshottam Janardan v. Mahadu Pandu, ILR 37 Bom 114 (C) that enumeration of courts subordinate to the High Courts within the meaning of Section 115 is not exhaustive. Unfortunately no reasons for thinking that Section 3 does not exhaustively lay down which courts are subordinate to the High Court within the meaning of Section 115 have been given in these cases. In Rajah of Venkatagiri v. Mahaboob Saheb, AIR 1944 Mad 139 (D) it was stated that revenue courts are also subordinate to the High Court within the meaning of Section 115. On the other hand, in Sultan Ali v Nur Hussain (AIR 1949 Lah 131) (FB) (E) it was held that a court not mentioned in the section is not sum ordinate to the High Court. Munir, C. J., pointed out at page 161 that Section 3 contains the only definition of subordination given in the Code, and observed that "the presumption is that the word 'subordinate' in Section 115 of the Code is used in the sense in which it is defined in Section 3." He referred to the provisions of Sections 44 and 18 of the Punjab Courts Act, and refused to accept the broad and unqualified proposition that once it is held that an authority is exercising the function of a court in relation to rights that may be called civil, it must be held to be subordinate to the High Court. I respectfully agree with him rather than with the other authorities. Since Section 3 is enacted for the purposes of the Code and deals with all the civil courts and their subordination to one another, I have no doubt that it is exhaustive and that no court other than that mentioned in it can be said to be subordinate to a High Court within the meaning of Section 115.