MOHONA PONDA Vs. RAGHUNADHA DAS

JUDGEMENT

(1.) This appeal raises questions relating to the powers of the proprietor and the Revenue Divisional Officer in making appointments under Section 15 of the Madras Proprietary Estates Village-Service Act (IIofl894) in a case of re-grouping of existing villages. The plaintiff was a karnam of one of the villages affected by the re-grouping. In the new group the proprietor appointed the plaintiff, not as karnam, but as headman. He did not actually take office owing to the fact that when the report of the appointment was received, after some correspondence, the Revenue Divisional Officer set aside the appointment and, purporting to act under Section 11(2) of the Act, appointed the first defendant who admittedly was qualified for the appointment. The plaintiff filed the suit for a declaration that the appointment of the first defendant was illegal. The suit was decreed in the trial Court. But before the appeal against this decision was heard, the proprietor on the basis of the decision of the District Munsif, treating the office as vacant by reason of that decision, made a fresh appointment and this time he appointed the first defendant, that is, the person actually substituted for his own first nominee by the original order of the Revenue Divisional Officer which had been declared illegal by the District Munsif. The Revenue Divisional Officer accepted this appointment; so that when the suit came before the District Judge in appeal the plaintiff was confronted, not by the order of the Revenue Divisional Officer which had been found to be illegal, but by a subsequent order of the Revenue Divisional Officer confirming an apparently legal appointment of the first defendant by the proprietor. The learned District Judge dismissed the suit. Hence this appeal.

(2.) Now, when there is a re-grouping of villages, the powers of appointment to village offices in the new group are governed by Section 15 of the Act which lays down that, by reason of re- grouping, new hereditary offices shall be created in the new village and in choosing persons to fill such new offices the proprietor shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished and shall report his action to the Revenue Officer in charge of the division. By a rule framed under the Act, embodied, in Appendix V of Board's Standing Order 147, it has been laid down that the proprietor should select a person from among the incumbents of the previously existing offices of the same class as that constituted; and it seems to me that this rule undoubtedly interprets the spirit of Section 15(1), the wording of which is not so specific, though I have no doubt that it was not the intention of the legislature to give incumbents of the talayari's office which has been abolished a right to claim that they should be considered for the appointment to the new headman's office and vice versa. It must have been the intention of the section that incumbents of each office abolished, should have a right to have their claims considered to the new office of the same class created and not to an office of a different class for which they might well be entirely unqualified. It follows that the order of the proprietor appointing the plaintiff as headman of the suit village was not in accordance with the powers conferred upon him by Section 15 of the Act.

(3.) The scheme of the Act provides no remedy for an appointment by the proprietor purporting to be made under Section 15 but not complying with the provisions of that section. There is no right of appeal laid down in the Act nor is there any right of suit similar to that given to an aggrieved person when the question is one of succession to an existing office. It would in my opinion be in accordance with the spirit of the Act for the Board of Revenue to exercise its rule-making power under Section 32 and to provide for the contingency of the proprietor making appointments in excess of his powers under Section 15. But so far as I can gather, no such rule has been framed. The rules under the Act are embodied in Appendix V to Board's Standing Order 147. Board's Standing Order 149 contains what appear to be executive instructions for the working of the Act and there is nothing in the form of this order to suggest that it embodies statutory rules. Sub-section 3(2) of that order as it stood at the time of the present suit, contained a direction to the Revenue Divisional Officer to make a selection himself if the proprietor should select a person other than a member of the families of the last holder. That provision was deleted in 1935, but in any case it is not shown to be part of any rule framed under the statutory rule-making power conferred by Section 32 of the Act.