PARVATIBAI UTAMLAL VANI Vs. RUPA KESHAV TAMBOLI

JUDGEMENT

(1.) THE following question has been referred to this bench : Whether an order made by the Collector under Section 24 of the Bombay Tenancy Act, 1939), is subject to the revisional jurisdiction of this Court? Weston J. , who has referred this question, has expressed the following opinions. (1) THE Mamlatdar and Collector, when administering the Act, are Courts within the definition of the Indian Evidence Act, and the Mamlatdar when acting' under Section 12 of the Bombay Tenancy Act for the determination of the reasonable rent is a revenue Court within the definition of Section 5 (2) of the Code of Civil Procedure. (2) THEre seems to be some distinction as regards the appellate authority between Section 12 of the Act, under which appeals lie to a Civil Judge, on the one hand and on the other hand Sections 13, 19 and 24, under which appeals lie to the Collector; but that of itself does not make much difference in view of the decision in Purshottam Janardan v. Mahadu Pandu (1912) I. L. R. 37 Bom. 114, s. c. 14 Bom. L. R. 947, where it was held that the Collector when exercising a judicial function is subject to the superintendence and control of the High Court and is, therefore, a Court subordinate to the High Court. (3) But for the provisions of Section 28 of the Tenancy Act he would be prepared to extend the power of revision of this Court which may be said (on the analogy of the decisions under the Mamlatdars' Courts Act) to exist in respect of orders made under Section 12 of the Bombay Tenancy Act to decisions made under Sections 13, 19 and 24 of the said Act. Section 28 of the Act is in these terms: Except in cases provided in Section 12, in all matters connected with this Act, the Provincial Government shall have and exercise the same authority and control over the Collectors and Mamlatdars as they have and exercise over them in the general and revenue administration.

(2.) NO doubt the Legislature has deliberately drawn a distinction between questions to be determined under Section 12 of the Act by the Mamlatdar, appeals from whose decisions under that section lie to a Civil Judge, and questions to be determined under Sections 13, 19 and 24 by the Mamlatdar, appeals from whose decisions under those sections lie to the Collector; and this distinction again appears in Section 28 of the Act. The provision in Sub-section (5) of Sections 13, 19 and 24 that the orders passed by the Mamlatdar and the Collector shall be deemed to be decrees of a civil Court and shall be executable as such has, in my opinion, reference merely to the manner in which such orders are to be carried out or given effect to and not to the question under consideration. In Bhaishankar v. The Municipal Corporation of Bombay (1907) I. L. R. 31 Bom. 604, s. c. 9 Bom. L. R. 417, which was a case arising under the City of Bombay Municipal Act, 1888, it was held that where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. If we were to hold that principle applied to the present case, this Court would clearly have no jurisdiction. But there are a large number of decisions of this Court and other High Courts in which the view has been taken that decisions affecting civil rights by Courts or authorities which are not subject to the Code of Civil Procedure, are subject to the revisional jurisdiction of the High Court. Those decisions raise the question whether by analogy a similar jurisdiction may not exist in this Court in the present case, in spite of Section 28 of the Bombay Tenancy Act. In the earliest of the cases arising out of the Mamlatdars' Courts Act, Mahadaji Govind v. Sonu bin Davlata (1872) 9 B. H. C. R. 249, this Court, after holding that the Mamlatdars' Courts constituted under Bombay Act V of 1864 were subordinate civil Courts within the meaning of Section 5 of Regulation II of 1827, took the view that the High Court had the power, in exercise of its extraordinary jurisdiction, to set aside an order made by a Mamlatdar under the said Act. Though that Act conferred upon the Mamlatdars' Courts new jurisdiction, it expressly declared them to be Courts which were referred to in Regulation VI of 1830, which Regulation provided that an appeal should lie from the decisions of those Courts to the Collector or Sub-Collector, and from that officer to the Sudder Dewanee Adawlut, whose powers had been transferred to the High Court. In Bai Jamna v. Bai Jadav (1879) I. L. R. 4 Bom. 168, F. B. it was held that the effect of Bombay Act III of 1876, under which the Mamlatdars' Courts had been reconstituted, was not to divest the High Court of the power of superintendence and revision which, as held in Mahadaji's case, it could exercise over such Courts prior to the passing of that Act (p. 170): If we had more doubt than we have on this question, it would be removed by the consideration of the very great improbability that the Legislature, in giving largely increased powers to the Mamlatdars' Courts, would at the same time have exempted them from all supervision and control. Mahadaji's case was decided at a time when the procedure of civil Courts was regulated by Act VIII of 1859, under Section 3 of which all revisions of the judgments of the civil Courts were barred otherwise than by those Courts and by the constituted Courts of appellate jurisdiction. When Bai Jamna's case was decided by this Court, Act X of 1877 had come into force; and Section 622 of the said Act corresponded mainly to Section 115 of the present Code. Yet in neither of the two cases recourse was had to the ordinary revisional powers of the High Court. In Purshottam Janardan v. Mahadu Pandu, however, it was held that the Collector acting under the Mamlatdars' Courts Act was a Court and as such surbordinate to the High Court within the meaning of Section 115 of the Civil Procedure Code. This was because under Section 23 (3) of that Act it is provided that where the Collector takes any proceedings under the Act he shall be deemed to be a Court under the Act and because of the ruling in The Collector of Thana v. Bhaskar Mahadev Sheth (1884) I. L. R. 8 Bom. 264 that being a case under the Bombay Hereditary Offices Act III of 1874, that the Collector when exercising judicial functions is subject to the superintendence and control of the High Court. In Bhaskar Mahadev's case it was said that the statute constituting this High Court and the Letters Patent gave to the Court such jurisdiction as was possessed by the Supreme and Sudder Courts together with a general power of appeal and superintendence over the Civil Courts of the Presidency of Bombay (Letters Patent Clause 16, statute 24 & 25 Vic. c. 104, Sections 9 and 15), and that any Act, therefore, of the local Legislature which should propose to cut down this jurisdiction would so far be ultra vires and inoperative.

(3.) THE history of the High Court's statutory powers of revision appears to be as follows. Under Section 372 of Act VIII of 1859 a "special appeal" lay (unless otherwise provided by any law for the time being in force) to the Sudder Court from all decisions passed in regular appeal by the Courts subordinate to the Sudder Court, on the ground of the decision being contrary to some law, or usage having the force of law, or of a substantial error or defect in law in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground. Under Section 3 of the said Act all revision of "the judgments of the Civil Courts" was barred otherwise than by those Courts and by the constituted Courts of appellate jurisdiction. Under Section 1 of the said Act all suits of a civil nature, with the exception of suits of which their cognizance was barred by any Act of Parliament, or by any Regulation of the Codes of Bengal, Madras and Bombay or by any Act of the Governor-General-in-Council were cognizable by the Civil Courts. What were the Civil Courts within the meaning of Sections 1 and 3 was nowhere defined, but they would, I think, prima facie be the Courts to which the provisions of Act VIII of 1859 applied. Under Section 35 of Act XXIII of 1865 it was provided that the Sudder Court might call for the record of any case decided on appeal by any subordinate Court in which no further appeal lay to the Sudder Court if such subordinate Court appeared to have exercised jurisdiction not vested in it in law and the Sudder Court was empowered to set aside the decision passed on appeal in such a case by the subordinate Court or to pass such other orders in the case as the Sudder Court might think fit. Under Section 622 of Act X of 1877 the High Court was empowered to call for the record of "any case" in which no appeal lay to the High Court if the Court which had decided the case appeared to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, and the High Court in such a case might pass such order as it thought fit. Section II of the said Code provided that the Courts (subject to the provisions therein contained) had jurisdiction to try all suits of a civil nature except suits of which the cognizance was barred by any enactment for the time being in force. THE corresponding sections, in the next Civil Procedure Code (Act XIV of 1882) were also Sections 622 and 11, the only difference in Section 622 of the later Code being that the words "or to have acted in the exercise of its jurisdiction illegally or with material irregularity" were added therein. Both the Codes of 1877 and 1882 used the words "record of any case" without reference to the question of the Court deciding the case being subordinate to the High Court. THEn came the present Civil Procedure Code of 1908, Section 115 of which substantially reproduces the provisions of Section 622 of the Code of 1882; and Section 9 of the present Code corresponds to Section 11 of the earlier Codes. In Section 115 of the present Code, however, the words "record of any case" are qualified by the words "which has been decided in any Court subordinate to such High Court," thus reverting to the phraseology of Act XXIII of 1861.