SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF KISTNA DISTRICT Vs. KOCHERLAKOTA SUBBA RAO

JUDGEMENT

(1.) The appellant is the Secretary of State. The respondent was the karnam of a village in the Kistna District. He was dismissed on 4 October, 1921, by the Revenue Divisional Officer of Ellore for having got appointed as talayari, a young boy, whom he made use of as his own servant. On appeal the District Collector, on 2nd December, 1921, modified his punishment to one of suspension for a year. He then, very ill-advisedly, presented a second appeal to the Board of Revenue. He had, in fact, no right of appeal as under the proviso to Section 23(1) of Madras Act III of 1895 there can be a second appeal to the Board, on a matter of punishment, only in the case of a dismissal of a Village Officer. None the less the appeal was entertained by the Board which, apparently without hearing the present respondent, set aside the Collector's order of suspension and restored the original order of dismissal. The respondent then filed O.S. No. 699 of 1922 in the Court of the District Munsif of Kovvur praying for a declaration that the order of the Board of Revenue was invalid and ultra vires. The District Munsif, granted a decree as prayed for, but on appeal the Principal Subordinate Judge of Masulipatam dismissed the suit, holding that the Board of Revenue had acted in the legitimate exercise of revisional powers which it derived from Section 5 of Madras Regulation I of 1803. On Second Appeal (No. 202 of 1926) 58 M.L.J. 698 Wallace, J. has restored the decision of the District Munsif, holding that Section 5 of Regulation I of 1803 did not give to the Board the power of revision which the first appellate Court had found that it possessed thereunder, neither did the Board have any inherent power, outside the Acts and Regulations, to interfere with and enhance the order of suspension which had been passed by the District Collector in this case. He has also held, in agreement with the two lower Courts, that the suit was maintainable.

(2.) That there was no right of appeal is conceded and cannot, indeed, be disputed in the face of the plain language of the proviso to Section 23(1) of Madras Act III of 1895. The Board of Revenue should not, therefore, have entertained the respondent's appeal. It is, however, contended by the learned Government Pleader that the Board was in fact acting in the exercise of its revisional powers, though it did not in any way indicate that it was so doing, and that it got such powers from Section 5 of Regulation I of 1803 which section has never been abolished. Wallace, J. has dealt with this contention in his judgment and I would, with all respect, express myself as in entire agreement both with the conclusion which he has come to and the reasons that he has given therefor. Section 5 of Regulation I of 1803 runs thus: The Board of Revenue have had, and are hereby declared to have, authority to superintend and control all persons employed in the executive administration of the public revenue; all Zamindars or proprietors of land paying revenue, and all farmers, securities, ryots or other persons concerned, in, or responsible for, any part of the revenue of Government as far as the said superintendence and control may relate to the executive administration of the revenue under the regulations now enacted, or to be hereafter enacted.

(3.) As has been pointed out by Wallace, J., the section gives to the Board no punitive powers over village officers but such power is given to it by Section 33 of the same Regulation, which empowers it to "punish neglect in the Subordinate Officers of Revenue according to the powers vested in them for that purpose". Under Regulation XXIX of 1802 it was laid down that karnams could only be dismissed from their offices by the sentence of a Court of Judicature. Power to dismiss karnams was given to the Board of Revenue by Section 7(3) of Regulation II of 1806, while by Regulation VI of 1831 the power theretofore exercised by the Board of Revenue over karnams in ryotwari tracts was transferred to Collectors subject to the approval of the Board, and by Act II of 1869, Section 7(3) of Regulation II of 1806 was repealed. Finally there came Madras Act III of 1895, in which there is no mention of any revisional power being vested in the Board of Revenue, while its appellate powers in matters of punishment are stated as being those of hearing first appeals against punitive orders passed by the District Collector in the first instance and second appeals in the circumstances already noted. It is argued for the appellant that, though there have been express provisions as to the powers of the Board in matters of punishment, yet it still has authority to deal with questions of punishment in revision under Section 5 of Regulation I of 1803, though such authority is not expressly given to it by that section. That contention, however, is not justified by the wording of the section itself, while the fact that powers of punishment have always been given by specific provision indicates that such powers belonged to a separate category from those of general superintendence and control. The learned Government Pleader has referred byway of analogy to Section 107 of the Government of India Act and has quoted Chinnayya Gounder In re which, in agreement with what was stated in a previous decision of this Court, points out that the two things required to constitute appellate jurisdiction, in which revisional jurisdiction is included, are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. But the same decision holds that a Collector, when passing a punitive order under Section 7 of Act III of 1895, is not a Court subject to the High Court's jurisdiction. He cannot, indeed, when he passes a punitive order against a village officer be taken as acting as a Court at all. He is acting then departmentally as an executive officer as is, indeed, pointed out in Chinnayya Gounder In re and so too the Board of Revenue, when it deals on appeal with such orders, is an executive authority and not a Court. And so the analogy of Section 107 cannot apply. Especially is it impossible to hold that the Board can have the authority which it claims to dismiss a karnam in revision in circumstances such as those in the present case. Under Regulation XXIX of 1802 it had no power to dismiss a karnam in any circumstances, and as that Regulation was still in force in 1803, Section 5 of Regulation I of that year could not give it any such power. Nor could it have it on the passing of Regulation II of 1806 as it then became the sole authority by which a karnam could be dismissed. It could only possibly have it after the passing of Regulation VI of 1831 when its power over karnams in ryotwari tracts was transferred to Collectors and, for it to have it then, these would have to be read with Section 5 of Regulation I of 1803, an implication that was not there when the Regulation was first passed. Such an idea cannot be seriously entertained. I have no doubt but that the order of the Board now under consideration was passed without jurisdiction and was ultra vires.