MAHARAJA OF JEYPORE Vs. NELADEVI

JUDGEMENT

(1.) Objection was taken on behalf of the respondents that Rule XXXI of the Vizagapatam Agency Rules gave no general right of petitioning the Government, but only presented the channel through which petitions that were otherwise provided for should pass. If this view were correct, the rule would have been quite unnecessary, as at the time it was enacted there were no cases in which petitions were otherwise provided for. The cases to which our attention has been drawn were provided for subsequently to the passing of Rule XXXI. Rule XXXI must therefore have been intended to provide for cases for which no previous provision had been made--such as petitions relating, like this, to matters in execution of decrees, for which no appeal was allowed, It is unlikely that Government should have overlooked the necessity for providing for revision by them of the orders of the agent and his assistants in the very important subject of execution of decrees when several rules have been made regarding the subject, and the control of Government in the matter is expressly reserved in one instance (see Rule XXII). The provision in the Rule XXXI that the petition thereunder received may be referred to certain authorities, shows that the rule was one of a substantive character and not merely to provide for the formality to be observed in the submission of the petition. Our view is the same as that taken in Chakrapani V/s. Varahalamma I.L.R. 18 M. 227.

(2.) It was next contended that if the rule was what we consider it to be, it was ultra vires, inasmuch as it was in excess of the powers conferred upon the Government by Section 4 of Act 24 of 1839 under which the rules were made. We are unable to agree with the contention that it was not competent for the Governor-in-Council acting under that section to reserve any control in himself over the agents and their subordinates in the exercise of their judicial powers. The words " to determine in what suits an appeal shall lie to the Sadar Adawlut " should not be understood as restricting the Government from making rules for the control of the agents and their subordinates otherwise than by appeal to the Sadar Adawlut and the words "to determine to what extent the decisions of the agents in civil suits shall be final" have been held in Maharajah of Jeypore V/s. Jammanadhora I.L.R. 24 M.345 not to disable the Government from making the decisions of the agents subject to review under the orders of the Sadar Adawlut as provided in Rule XX although no appeal is provided for. We consider that the words " to prescribe such rules as he may deem proper for the guidance of such agents, etc., " are wide enough to warrant the Governor-in-Council to reserve to himself a power of control such as he gives himself under Rule XXXI. Under the Act the operation of the ordinary lands within the Agency tracts was excluded and the control of the administration of justice was virtually vested in the Governor-in-Council as is implied from the provision empowering him to make such rules in that respect as he deems proper, without any limitation to his powers. The designation of the officer in whom the actual administration of justice was vested in the Act namely the " Agent to the Governor" shows that the Legislature itself recognized his subordination to the Governor, leaving it to the Governor to define and explain the extent of such subordination by rules. As in our opinion the Rule XXXI was not " ultra vires" the question whether it was validated under the Indian Councils Act 24 and 25 Vic. Chap. 67, Sec. 25 does not arise.

(3.) It was further urged that the order was not that of the agent but of his assistant, and so Rule XXXI was inapplicable, but we find that the order was passed under the authority of the Agent as is expressly stated therein.