VENKATANARAYANA AYYAR Vs. RAMCHANDRA AYYAR

JUDGEMENT

(1.) Two revision petitions and one civil miscellaneous petition are before me. As to C.R.P. 1531, which is. a petition asking for a revision of the order made by the Collector in this matter, it is not pressed. C.R.P. No. 1515 of 1932 is a petition asking for a revision of the order passed by the Board of Revenue No. 5602 of 15 October 1931 which is in the following terms: The Board sees no reason to interfere on behalf of the appellant. The appeal is dismissed.

(2.) That appeal was taken before the Board of Revenue from the decision of the Collector passed on 7 June 1931 which order was in turn passed on appeal against the decision of the Revenue; Divisional Officer dated 5 January 1931. The C.M.P. 5311 is for the issue of a writ of certiorari to the Board of Revenue for the purpose of bringing up-the order passed in appeal as above stated and for the said order to be quashed. The respondent raises a preliminary objection founded upon a decision of a Bench of this High Court reported in Kumaraswami Mudali V/s. Muniratna Mudali 1932 Mad 529 which in turn follows a decision of a Bench reported in In Re Chinnayya Gounder V/s. The Board of Revenue Madras 1932 Mad 33. Kumaraswami Mudali V/s. Muniratna Mudali 1932 Mad 529 decides that the High Court has no revisional powers other the Board of Revenue when the Board of Revenue acts in purauance of the powers given it by the Madras Hereditary Village Officers Act in respect of a claim to one of the offices; under Section 3 of the Act, the High Court's jurisdiction to do so being expressly excluded by Section 21 of the Act. It is said that there is doubt thrown upon this decision in Muniswami Chetty V/s. The Board of Revenue, but the observations there are far too general to justify me in thinking that any doubt is expressed on In Re Chinnayya Gounder 1922 Mad 337. Kumarswami Mudali V/s. Muniratna Mudali 1932 Mad 529 had not on that day been reported. In Muniswami Chetty V/s. The Board of Revenue Madras 1932 Mad 33 what the learned Judge at p. 487 is considering is whether a Collector and not; the Board of Revenue is a Court or not a Court. 2. The point however now under discussion does not turn upon whether the tribunal is a Court or not, but upon ?whether it is a Court subordinate to the High Court for the particular matter entrusted to it by a particular Act. That matter has been fully considered in the two Bench decisions that I have cited which are not only binding on me but with which I respectfully agree. That disposes of the revisional powers. It leaves outstanding the question whether the writ of certiorari should issue. As to that, the learned Chief Justice in the case reported in Kumaras Mudali V/s. Muniratna Mudali 1932 Mad 529 did not refuse the writ because the Board of Revenue, for this purpose, was not a Court, nor did he refuse the writ because it was not a Court subordinate to the High Court, but the reason for refusing the writ is to be found in the sentence printed in Kumaras Mudali V/s. Muniratna Mudali 1932 Mad 529. 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. Now it is said here that the Board has failed to exercise the jurisdiction, and reliance is placed upon a case reported in Zamindarini of Mandasa V/s. Ryots of Mandasa Zamindari 1934 Mad 231, at p. 601, Ramesam, J., there says: If the question arose as to whether certain lands are Pannai, the fact must, be found whether they are so or not, and if they are found to be pannai they ought to be excluded from the Record-of-rights. Failure to enquire into this question is failure to exercise jurisdiction vested under Oh. 11 which justifies the issue of a writ according to all the English cases.

(3.) I apprehend that the learned Judge is there saying that the failure to exercise the jurisdiction justified the issue of a writ and not that a failure to enquire into a question of fact is a failure to to exercise the jurisdiction. I will assume out of respect for my learned brother without expressing any conclusion on it myself that failure so to enquire would be failure to exercise the jurisdiction. It is said that there has been a failure to inquire in this case. The contest centred round the meaning of 8, 10, Madras Hereditary Village Officers Act. That Act was amended by an Act passed in 1930 and the contest before the Collector and the Revenue Divisional Officer, seems to have raged not so much round the meaning of Section 10 but round the question of whether the Act of 1930 is an amending or a declaratory Act. For it is said that if it is a declaratory Act it is as though the old Act, the true meaning of which is declared, had always read as it now reads since the amendment and consequently the Declaratory Act has retrospective effect. If on the other hand it is an amending Act, it has no retrospective effect and the old Section 10 carries the meaning that before the Act of 1930 it was commonly thought to carry.