PERUMALLA VENKAYYA Vs. BATCHU PULLAYYA

JUDGEMENT

(1.) This petition is preferred against a decision under the rules framed by the Provincial Government under Section 28 of Madras Act IV of 1938 and promulgated in G.O. No. 2634 (Development), dated 27 October, 1939.

(2.) An objection to the maintainability of the revision petition was raised on the ground that Rule 9 of these rules provides a right of appeal and that when there is a right of appeal there can be no revision. This objection is met by the contention that Rule 9 of the rules is itself ultra vires of the Provincial Government and that, therefore, it must be deemed that there is no valid right of appeal, with the result that the right of revision is the only remedy of an aggrieved person.

(3.) The question first to be determined is, therefore, whether Rule 9 is beyond the powers of the Provincial Government. We decided yesterday in C.R-P. No. 910 of 1941, since reported in Swayamprabhai Ammal V/s. Muthukrishna Padayachi , that the main procedure laid down in these rules for the determination of the amount of a debt other than a decree debt due by an alleged agriculturist by an application to the Court, was a procedure which could properly be prescribed under the rule-making powers conferred by Section 28 of the Act. In disposing of that matter we refrained from expressing any opinion as to the validity of Rule 9 which prescribes that the order of the Court declaring the amount of the debt under Rule 7, shall be subject to appeal and second appeal as if it were a decree in an original suit. The argument before us is that granting that the enactment of a cheap and expeditious procedure for determining the amount of the debt affected by the provisions of this Act was a regulation for carrying into effect the purposes of the Act or for removing a difficulty in giving effect to the provisions of the Act, it was not a necessary incident of such a procedure to prescribe a right of appeal and that a right of appeal is a substantive right which cannot properly be conferred by a rule and should be implicit in the provisions of the statute itself. A Full Bench of this Court decided in the case of Nagappa V/s. Annapooranfi , that Rule 8 of the rules relating to the procedure for dealing with debts embodied in decrees which are to be modified under Act IV of 1938, was ultra vires on the ground that it adds to the procedure laid down in Section 19 of the Act a power of appeal which the Legislature did not see fit to prescribe. It was observed that in making a rule providing for such appeals the Provincial Government is not making a rule for carrying into effect the purposes of the Act, but it is adding something to the Act. Now the decision of the Full Bench does not, in our opinion, affect the disposal of the case before us. We are concerned not with the addition of a right of appeal to a procedure prescribed by the statute but with the insertion of a right of appeal in a procedure prescribed by rules under the statute. When once it is conceded that the Act provides rights without providing a remedy and that the power of the Provincial Government to make rules for carrying into effect the purposes of the Act and removing any difficulty in giving effect to its provisions, warrants the promulgation of a procedure such as has been laid down in these rules, can it be said that the qualification of the remedy prescribed by the insertion of a right of appeal is something which is beyond the powers of the Provincial Government?