PARVATIBAI UTAMLAL VANI Vs. RUPA KESHAV TAMBOLI

JUDGEMENT

(1.) The following question has been referred to this bench:- Whether an order made by the Collector under Section 24 of the Bombay Tenancy Act, 1939), is subject to the revisional jurisdiction of this Court?

(2.) Weston J., who has referred this question, has expressed the following opinions. (1) The Mamlatdar and Collector, when administering the Act, are Courts within the definition of the Indian Evidence Act, and the Mamlatdar when acting under Section 12 of the Bombay Tenancy Act for the determination of the reasonable rent is a revenue Court within the definition of Section 5(2) of the Civil P. C.. (2) There seems to be some distinction as regards the appellate authority between Section 12 of the Act, under which appeals lie to a Civil Judge, on the one hand and on the other hand Secs.13, 19 and 24, under which appeals lie to the Collector; but that of itself does not make much difference in view of the decision in Purshottam Janardan V/s. Mahadu Pandu (1912) I.L.R. 37 Bom. 114 where it was held that the Collector when exercising a judicial function is subject to the superintendence and control of the High Court and is, therefore, a Court subordinate to the High Court. (3) But for the provisions of Section 28 of the Tenancy Act he would be prepared to extend the power of revision of this Court which may be said (on the analogy of the decisions under the Mamlatdars Courts Act) to exist in respect of orders made under Section 12 of the Bombay Tenancy Act to decisions made under Secs.13, 19 and 24 of the said Act. Section 28 of the Act is in these terms: Except in cases provided in Section 12, in all matters connected with this Act, the Provincial Government shall have and exercise the same authority and control over the Collectors and Mamlatdars as they have and exercise over them in the general and revenue administration. 2. No doubt the Legislature has deliberately drawn a distinction between questions to be determined under Section 12 of the Act by the Mamlatdar, appeals from whose decisions under that section lie to a Civil Judge, and questions to be determined under Secs.13, 19 and 24 by the Mamlatdar, appeals from whose decisions under those sections lie to the Collector; and this distinction again appears in Section 28 of the Act. The provision in Sub-section (5) of Secs.13, 19 and 24 that the orders passed by the Mamlatdar and the Collector shall be deemed to be decrees of a civil Court and shall be executable as such has, in my opinion, reference merely to the manner in which such orders are to be carried out or given effect to and not to the question under consideration. In Bhaishankar V/s. The Municipal Corporation of Bombay (1907) I.L.R. 31 Bom. 604 which was a case arising under the City of Bombay Municipal Act, 1888, it was held that where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. If we were to hold that principle applied to the present case, this Court would clearly have no jurisdiction. But there are a large number of decisions of this Court and other High Courts in which the view has been taken that decisions affecting civil rights by Courts or authorities which are not subject to the Civil P. C., are subject to the revisional jurisdiction of the High Court. Those decisions raise the question whether by analogy a similar jurisdiction may not exist in this Court in the present case, in spite of Section 28 of the Bombay Tenancy Act. In the earliest of the cases arising out of the Mamlatdars Courts Act, Mahadaji Govind V/s. Sonu bin Davlata (1872) 9 B.H.C.R. 249, this Court, after holding that the Mamlatdars Courts constituted under Bombay Act V of 1864 were subordinate civil Courts within the meaning of Section 5 of Regulation II of 1827, took the view that the High Court had the power, in exercise of its extraordinary jurisdiction, to set aside an order made by a Mamlatdar under the said Act. Though that Act conferred upon the Mamlatdars Courts new jurisdiction, it expressly declared them to be Courts which were referred to in Regulation VI of 1830, which Regulation provided that an appeal should lie from the decisions of those Courts to the Collector or Sub-Collector, and from that officer to the Sudder Dewanee Adawlut, whose powers had been transferred to the High Court. In Bai Jamna V/s. Bai Jadav (1879) I.L.R. 4 Bom. 168, F.B. it was held that the effect of Bombay Act III of 1876, under which the Mamlatdars Courts had been reconstituted, was not to divest the High Court of the power of superintendence and revision which, as held in Mahadaji's case, it could exercise over such Courts prior to the passing of that Act (p. 170):- If we had more doubt than we have on this question, it would be removed by the consideration of the very great improbability that the Legislature, in giving largely increased powers to the Mamlatdars Courts, would at the same time have exempted them from all supervision and control. Mahadaji's case was decided at a time when the procedure of civil Courts was regulated by Act VIII of 1859, under Section 3 of which all revisions of the judgments of the civil Courts were barred otherwise than by those Courts and by the constituted Courts of appellate jurisdiction. When Bai Jamna's case was decided by this Court, Act X of 1877 had come into force; and Section 622 of the said Act corresponded mainly to Section 115 of the present Code. Yet in neither of the two cases recourse was had to the ordinary revisional powers of the High Court. In Purshottam Janardan V/s. Mahadu Pandu, however, it was held that the Collector acting under the Mamlatdars Courts Act was a Court and as such surbordinate to the High Court within the meaning of Section 115 of the Civil Procedure Code. This was because under Section 23(3) of that Act it is provided that where the Collector takes any proceedings under the Act he shall be deemed to be a Court under the Act and because of the ruling in The Collector of Thana V/s. Bhaskar Mahadev Sheth (1884) I.L.R. 8 Bom. 264 that being a case under the Bombay Hereditary Offices Act III of 1874, that the Collector when exercising judicial functions is subject to the superintendence and control of the High Court. In Bhaskar Mahadev's case it was said that the statute constituting this High Court and the Letters Patent gave to the Court such jurisdiction as was possessed by the Supreme and Sudder Courts together with a general power of appeal and superintendence over the Civil Courts of the Presidency of Bombay (Letters Patent Clause 16, statute 24 & 25 Vic. c. 104, Secs.9 and 15), and that any Act, therefore, of the local Legislature which should propose to cut down this jurisdiction would so far be ultra vires and inoperative.

(3.) In the present case reliance is placed not only on Section 115 of the Civil Procedure Code but on the powers of this Court as given by Regulation II of 1827, Section 5 (preserved by the repealing Act XII of 1873) and also on the general powers of superintendence of the Sudder Dewanee Adawlut. (See Shiva Nathaji V/s. Joma Kashinath (1883) I.L.R. 7 Bom. 341, F.B.). By the Indian High Courts Act, 1861 (24 & 25 Vic. c. 104, Section 9) the jurisdiction originally granted to the Sudder Dewanee Adawlut and the Supreme Court was vested in the High Court that was constituted in 1861; and that jurisdiction has been preserved by the Indian High Courts Act (28 & 29 Vic. c. 15), the Government of India Act, 1915 ( Section 106) and the Government of India Act, 1935 ( Section 223).