KANHAILAL BADRIDAS Vs. ISMAILBHAI KASAMBHAI

JUDGEMENT

(1.) (Having dealt with the questions of fast his Lordship proceeded.) Both parties had appealed to it and, in the ordinary course, it would have been for the Court to adjudicate between them as to their respective rights to this green land. But later on the Khot applied to the Court for leave to have the boundary disputes settled under the Bombay Land Revenue Code, and I gather also to have a commissioner appointed under Order 26, Rule 9, of the Civil Procedure Code. That application was opposed by the purchaser, but at was nevertheless granted and eventually another survey was made by a particular individual who was the commissioner appointed by the Judge and was also the survey officer appointed by the local authorities under the Bombay Land Revenue Code. He proceeded to investigate the matter and made his award in 1923, and he found in favour of this black line and consequently in favour of the vendor. When his award or survey was laid before the Court, the purchaser once more objected to it, but notwithstanding that it was accepted by the learned Judge as evidence in the case.

(2.) Now, before us, this has led to an argument on behalf of the vendor that our jurisdiction to determine this matter is wholly ousted by the decision of this gentleman under the Bombay Land Revenue Code. We have been referred to Secs.119, 120 and 121 of the Bombay Land Revenue Code and to another section of the Bombay Revenue Act to show that the jurisdiction of the Court is ousted. It is argued that it makes no difference in this respect, whether the award of the officer appointed by the Collector is made before or during or, I suppose, after the suit; and that these questions of boundaries are solely a matter for the Collector or his surveyor under the Land Revenue Code. Now, this raises, to my mind, a most important and far-reaching question of jurisdiction and principle, because it must be remembered that the Acts in question are not Acts of the English Parliament, nor are they Acts passed by the Legislative Council of the Empire of India. They are Acts passed by the local Legislature, and, moreover, they are Acts not passed under the jurisdiction at present given to them by the recent Act of 1920, but under the jurisdiction of past days, when the Legislative bodies were of a very different character from what they are to-day. I, accordingly, put it to counsel for the vendor whether he contended it was within the jurisdiction of the Bombay Legislature to pass an Act saving that the High Court should have no jurisdiction to decide any case relating to land and that all disputes relating to land should be decided by the Collector and behinding on all parties. Counsel replied that that was going too far, but that the local Government can legislate regarding boundaries. But that is a compendious phrase. A boundary does not merely mean a line on the map, or through a field or along a fence. In a disputed case it involves the question whether certain lands belong to A or belong to B.

(3.) It is unfortunate; I think, that in the decisions which have been hitherto given in this Court, the broad question as to whether these particular Acts were not, in this respect, ultra vires of the Bombay Legislature, has never been expressly raised. But if the contention raised by the vendor is correct, then, why should our Courts in the past have determined boundary disputes between the parties, when the whole of their labours were liable to be upset at some future date by an executive officer, who in no sense represents a law Court ? I may say that we do not propose to determine that point to-day. We have not heard sufficient arguments to enable us to-day to give a proper opinion on the subject. I only mention it to show that the point has not been overlooked by us, and that if a similar argument to that advanced in this case is raised in others, then the question of ultra vires will have to be seriously considered. To my mind, it is not sufficient to deal with this class of case piece-meal, as has been done in some of the cases cited to us. If really at the bottom there is a question of principle involving a direct challenge to the jurisdiction of this Court, then I say that the matter should be grasped-and grasped firmly-and that the point should not be evaded and loft to puzzled practitioners to find distinctions between this case and that. I would, therefore, much prefer to thrash this point out once and for all. And I only regret that the way in which it has been laid before us prevents us from giving a decided opinion on this important point.