KUMARASWAMI MUDALI, MINOR, BY NEXT FRIEND GANAPATHI MUDALI Vs. MUNIRATNA MUDALI AND THE BOARD OF REVENUE

JUDGEMENT

(1.) This is an application for the issue of a writ of certiorari: There is also a Civil Revision Petition. Both arise out of an order made by the Board of Revenue in a second appeal to it under Section 23 of the Madras Hereditary Village Offices Act. The petitioner in a suit before the Revenue Divisional Officer got himself registered as a village officer. An appeal under the Act was taken to the District Collector who confirmed the Revenue Divisional Officer's order and there was a second appeal to the Board of Revenue. The Board of Revenue allowed the appeal. The petitioner argues that he is entitled to a writ of certiorari or to have the order of the Revenue Board revised here on a Civil Revision Petition, A preliminary objection is taken both to the petition for a writ of certiorari and the Civil Revision Petition. With regard to the issue of a writ of certiorari, it has been laid down by this Court, following the decisions of the English Courts, that a writ of certiorari will only issue where it is shown that the Court, whose order is sought to be made the subject of the writ, has acted either without jurisdiction or in excess of it. It is clear also that, even if either of these essentials is present, the issue of the writ is purely discretionary in the High Court. We have got to consider here, first of all, what is the want of jurisdiction or excess of it alleged by the petitioner. It is stated - and it is a fact - that the Board of Revenue came to a decision and made its order in the second appeal without hearing the petitioner. It is said that, in doing so, the Board acted in excess of its jurisdiction. This contention has to be examined in the light of the Act itself and of the rules made both under the Act and in consequence of the Act. By Section 23 of the Act, in such cases as the present, an appeal is given from the District Collector to the Board of Revenue. Certain rules are made by the Board of Revenue with the approval of Government under Section 20 of the Act and amongst others are rules for the holding of enquiries under Secs.6, 7 and 8 and the hearing of appeals under Section 23. It is with the hearing of the appeal under Section 23 that we are concerned here. Those rules commence at No. 11 and provide for the service of notice upon the parties to the suit and the appeal and also for the hearing of the parties on an appeal to the District Collector. Although the rules proceed to lay down the procedure to be adopted on second appeal to the Board of Revenue, they are silent with regard to the hearing of the parties to the appeal. Hence it is argued on behalf of the Board that, whilst the rules provide for the hearing of the parties both in the suit stage of the case and in its first appellate stage, when it reaches the stage of a second appeal, that provision is expressly omitted. The matter is, however, made more certain by rule 16, (under Standing Order No. 172, paragraph 11), which is not a rule made under Section 20 of the Act. That is as follows: The Board will not hear either petitioners or their counsel in person except as provided by Section 18(2) of Madras Act III of 189S or by Secs.190 and 205 of Madras Act I of 1908.

(2.) Section 18(1) deals with the reference in certain cases of questions of law by the Collector to the Board of Revenue; and Sub-section (2) of the same section provides the procedure and States that the Board of Revenue shall, if any of the parties so request, hear him or his agent and shall decide the point referred. Here there is in the Act an express provision for the hearing of the parties when the case is considered by the Board of Revenue on a reference and it seems to me that this shows that an exception is made to the case which comes up to the Board on second appeal. In my view it is only in cases of reference of points of law to the Board of Revenue that it is bound, on the request of the parties, to hear them. It is, however, argued on behalf of the petitioner that Rule 16 is ultra vires because it goes beyond anything in the Act and it is contrary to law and justice that, in the absence of a party, his rights should be injuriously affected. For the reasons which I have already stated, I am of the opinion that Rule 16 is certainly not inconsistent with the sections dealing with this matter in the Act. It seems to me that Section 18 by expressly providing for parties counsel to be heard in cases of reference makes the procedure not allowing the parties to be heard on second appeals to the Board of Revenue quite consistent. It is, therefore, clear that the Board of Revenue in making its order in the absence of the petitioner was not acting in excess of its jurisdiction. That being so, this is certainly not a case for the issue of a writ of certiorari. Upon this point there is a case in this High Court, viz., a decision of Ayling, Offg. C.J., and Odgers, J. in In re Chinnayya Gounder The case deals with the question of the right of the High Court to interfere with the orders of the Board of Revenue made under the Hereditary Village Offices Act, under either Section 115 of the Civil P. C. or Section 107 of the Government of India Act. Dealing with Section 107 of the Government of India Act, Ayling, Offg. C.J., says: Appellate jurisdiction no doubt includes the power to interfere in revision and is not confined to cases in which the law allows a regular appeal. As stated by Subramania Aiyar, J., in Chappan V/s. Moidin Kuth (1897) I.L.R. 22 Mad. 68 : 8 M.L.J. 231 (F.B.), the two things required to constitute appellate jurisdiction are the existence of the relation of superior and inferior court and the power on the part of the former to review the decisions of the latter. I accept this definition but I cannot see here either the relation or the power. It cannot be assumed that every officer exercising statutory powers in this Presidency stands to this Court in the relation of an inferior court to a superior or that we have the power to review his decisions. Madras Act III of 1895 is a self-contained Act which, as set out in its preamble, purports to provide, for the succession to certain hereditary village offices in the Presidency of Madras; for the hearing and disposal of claims to such offices or the emoluments annexed thereto; for the appointment of persons to hold such offices and the control of the holders thereof; and for certain other purposes.

(3.) It is difficult to say how in such a case as this it can be argued that a Revenue Court is a Court which stands in relation to the High Court as an inferior court to a superior court, when reference is made to Section 21 of the Act which says: 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.