Laxman Purshottam Pimputkar Vs. State of
Bombay & Ors [1962] INSC 371 (13 December 1962)
MUDHOLKAR, J.R.
IMAM, SYED JAFFER SUBBARAO, K.
AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 436 1964 SCR (1) 200
CITATOR INFO :
R 1965 SC1767 (4,17) R 1974 SC 111 (2)
ACT:
Watan Lands-Resumption-Government's order
directing resumption-If can be reviewed by Government-Bombay Hereditary Offices
Act, 1874 (Bom. 3 of 1874) ss. 12, 74, 79.
HEADNOTE:
In 1944, the plaintiff moved the Government
for resumption of Watan Lands which were in the possession of defendants 2 to 4
and for making them over to him. The Government, after causingsome enquiry to
be made, resumed those lands by its order dated October 9, 1946, and directed
their restoration to the plaintiff. Thereafter, the defendants moved the
Government for reconsideration of that order, and the Government modified its
previous order by directing that the defendants who were in possession of the
lands, should continue to retain them but they should pay such rent as may be
fixed by the Government from time to time.
The plaintiff instituted a suit for a
declaration that the order of the Government modifying the order of October 9,
1946, was null and void and inoperative. It was contended that the order made
by Government on October 9, 1946, was a judicial order passed by the Government
in exercise of its revisional jurisdiction under s.;79 of the Watan Act, and it
was not competent for the Government to revise or review that order in the absence
of a provision in the Act empowering the Government to do so. The suit was
decreed by the trial court, but the District Judge set aside the decree and the
High Court confirmed his decision. The plaintiff came to this Court by Special
leave.
Held, that the decision of the trial court
was correct and the Government was not competent to modify the order dated
October 9, 1946. The scheme of certain sections of Part II of the Bombay
Hereditary Offices Act, 1874, including ss.
II and 12, discloses that a judicial or quasi-judicial
duty is imposed on the Collector to decide what is in effect a lis or quasi-lis
between the, Watandar and the alience of the Watan land. The whole process,
including the order made under s. 3 of the Act, is quasi-judicial and not
administrative. As the order made by 201 the Collector under S. 12 is not ;in
administrative order but a quasi-judicial order, it can be rectified or
modified or set aside by the Commissioner in appeal or by the State Government
in revision under S. 79 and not otherwise.
When an authority exercises its provisional
powers, it necessarily acts in a judicial or quasi-judicial capacity.
Hence, the order of the Government dated
October 9, 1956, must be deemed to be a judicial or quasi-judicial order.
Such an order cannot be set aside or revised
or modified just as an administrative order can be revised or modified under S.
74. Finality attaches to the Government's order under S. 79 and in the absence
of any express provision empowering it to review the order, the subsequent
order passed by the Government was ultra vires and beyond its jurisdiction.
An order will be deemed to be of
quasi-judicial character not only when there is a contest between one
individual and another but also when the contest is between an authority
purporting to do an act and a person opposing it, provided the statute imposes
a duty oil the authority to act judicially.
No period of limitation is specified in the
Watan Act for preferring an application for revision. Normally, the Government
would not interfere unless moved within a reasonable time. What should be
considered as a reasonable time in a particular case, is a matter entirely for
the Government to consider. In this case, the Government thought that it had
strong reasons for interfering even after a Ion, lapse of time, and that is why
it interfered.
It is settled law that civil courts have the
power and jurisdiction to consider and decide whether a tribunal of limited
jurisdiction has acted within the ambit of the powers conferred upon it by the
statute to which it owes its existence or whether it has transgressed the
limits placed on those powers by the legislature.
Gullapalli Nageswara Rao v. Andhra Pradesh
Road Transport Corporation, [1959] 1 S. C. R. 319, Board of High School and
Intermediate Education, U.P. Allahabad v. Ghanshyam Das Gupta, [1962] Supp.3 S.
C. R. 36, Robinson v.Minister of Town & Country Planning,[1947] I All.
E. R.851, Franklin v. Minister of Town and A.
C. 87, Ramrao Jankiram Kadam v. State of Bombay, [1963] Supp. I S. C. R. 322,
Shrimant Sardan Bhujangarao Daulatrao Ghorpade v. Shrimant Malojirao Daulatrao
Ghorpade, [1952] S.C. R. 402, Province of Bombay v. Hormusji Manekji,(1947) 202
L. R. 74 I. A. 103 and The Secretary of State v. Musk & Co. I. L. R. 1940
Mad. 599, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 206 of 1960.
Appeal by special leave from the judgment and
decree dated February 17, 1955, of the Bombay High Court in Second Appeal No.
1533 of 1952.
P. K. Chakravarti for B. C. Misra, for the
appellant.
N. S. Bindra, S. B. Jathar and P.D. Menon for
R.H.Dhebar, for respondent No. 1.
K. V. Joshi and Ganpat Rai, for respondents
Nos. 2--4.
1962. December 13. The judgment of the Court
was delivered by MUDHOLKAR, J.-This is an appeal by special leave from the
judgment of the High Court of Bombay affirming the decree of the District
judge, Thana, setting aside the decree in favour of the Plaintiff-appellant.
The relevant facts which are no longer in
dispute are these : Tile plaintiff's family are grantees of the Patilki Watan
of some villages in Umbergaon taluka of the Thana District of Maharashtra,
including the villages of Solsumblha, Maroli and Vavji. Defendants 2 to 4 also
belong to the family of the plaintiff. The plaintiff represents the senior most
branch of the family while the defendants 2 to 4 represent other branches. The
dispute with which we are concerned in this appeal relates to the Patilki of
Solsumbha. Under the Bombay Hereditary Offices Act, 1874 (111 of 1874) the person
who actually performs the duty of a hereditary Office for the time being is
called an Officiator. It is common ground 203 that the Officiator had been
selected from the branch of the plaintiff from the year 1870 in which year the
proposit us Krishna Rao Pimputkar died. After his death he was succeeded by his
eldest son Vasudev, upon whose death in 1893 his eldest son Sadashiv was the
Officiator. Sadashiv died in 1901 and was succeeded by Purshottam, who was
Officiator till the year 1921 when, because of the disqualification incurred by
him, a deputy was appointed in his place. After the death of Pursliottam in
1940 his son the plaintiff-appellant Laxman became the Officiator.
In the year 1914 the descendents of
Krishnarao, who were till then joint, effected a partition of the family
property which consisted of inam and Watan lands in various villages including
the villages of Solsumbha, Maroli and Vavji.The document embodying the
partition is Ex. 49.Under that partition lands which had so far been assigned
for remuneration of the Patilki of Solsumbha were allotted to the branch of the
defendants while some other lands were given to the branch of the plaintiff. It
would appear that Purshottam had not subscribed to the partition deed in the
beginning but later on he appears to have acquiesced in it and apparently for
this reason it has been held by the Courts below that he was a party to the
partition. It may be mentioned that after Purshottam bad incurred a
disqualification, the deputies who acted for him were not allowed to take
possession of the lands of Solsumbha which are now in dispute inspite of the
objections raised by these persons. They were instead allowed a remuneration of
Rs. 240/-per annum which was to be paid by the members of the family in possession
of the Watan lands. This position continued till 1946.
It maybe mentioned that after the death of
purshottam the plaintiff was initially appointed Patil 204 for five years. But
eventually he was appointed officiator for life.
In the year 1944 the plaintiff moved the
Government, vide Ex. 47, for the resumption of the Watan lands which were in
the possession of defendants 2 to 4 and for making them over to him. The
Government, after causing some enquiry to be made, resumed those lands by its
order dated October 9, 1916, Ex. 36, and directed their restoration to the
plaintiff. The defendants thereafter moved the Government for reconsideration
of that order. The Government eventually modified its previous order by
directing that the defendants 2 to 4, who were in possession of the lands,
should continue to retain it but that they should pay such amount of rent as
may be fixed by Government from time to time. This order was passed on May 2,
1947, and by virtue of that order the rent payable by defendants 2 to 4 was
raised from Rs. 240/to Rs. 1,000/-. The plaintiff thereupon instituted the suit
out of which this appeal arises for a declaration that the order of the
Government dated May, 2,1949, and an ancillary order dated March, 1, 1 94-9,
are null and void and inoperative; that the defendants should remove "all
obstruction,, and hindrances caused to the property acquired by the plaintiff
as Watan grant......... and that they should give the same into the plaintiff's
Possession"; that the defendants should render to the plaintiff the
account of the income from his property and pay him the costs of the suit.
The suit was resisted by the defendants, the
first of whom was the State of Bombay, (now Maharashtra) on various grounds.
The main grounds were that the orders complained of were administrative orders
and no suit lies to set them aside, that the suit was barred by the provisions
of s. 4 (b) of the Bombay Act 10 of 1876 and that the suit was barred by
limitations It may, however, be mentioned that 205 when the defendants
preferred an appeal before the District judge they confined their attack to the
decree to one ground only and that was about the competance of Government to
reconsider the order of 1946.
The plaintiff's contention that the order
made by Government on October 9, 1946, was a judicial order passed by the
Government in exercise of its revisional jurisdiction under s. 79 of tile Watan
Act and that it was not competent to the Government to revise or review that
order in the absence of a provision in the Act empowering the Government to do
so.
It is not disputed that alienation of Watan
lands without the sanction of the Government is prohibited by s. 5 of the Watan
Act. Similarly the alienation of Watan lands assigned as remuneration without the
sanction of the Government is prohibited by s. 7 of the Act. Section 11
empowers the Collector, after recording his reasons in writing, to declare
certain types of alienations to be null and void.
Section 12 provides that it shall be lawful
for the Collector whenever it may be necessary in carrying out the provisions
of certain sections, including s. 11 (a) to summarily evict any person
wrongfully in possession of any land or (b) to levy any rent due by any person
in tile manner that may be prescribed in any law for the time being in force
for the levy of a revenue demand. According to the defendants the discretion
conferred upon the Collector by s.
12 -either to evict a person in wrongful
possession of any land or to require him to pay rent with respect to it is of
an administrative nature and, therefore, the order of the Collector made under
s. 12 can be varied from time to time by the Collector or can be challenged by
the party aggrieved only in the manner provided by the Act, that is, by
preferring an appeal or an application in revision and in no other manner.
Undoubtedly, if the order is of an administrative nature it would be beyond the
purview of the juris206 diction of the civil court. The first question to be
considered is whether the order of a Collector under s. 1' is administrative in
character. It has to be borne in mind that before action is taken under s. 12,
the collector has to make a declaration under s.11. This declaration has to be
supported by reasons in writing and, therefore, it follows that it can be made
only after holding an enquiry which means that the Collector has to hear both
the parties and consider such evidence, oral and documentary, as may be adduced
by them before him. So far, therefore, the procedure must be considered as
quasi-judicial in character.
This Court has held in Gullapalli Nageswara
Rao v. Andhra Pradesh Road Transport Corporation(1), as well as recently in
Board of High School and Intermediate Education U.P. v.
Ghanshyam Das Gupta(2), that an order will be
deemed to be of quasi-judicial character not only when there is a contest
between one individual and another but also when the contest is between an
authority purporting to do an act and a person opposing it provided the statute
imposes a duty on the authority to act judicially. Section 12 undoubtedly
confers discretion on the Collector to make an order of one of two kinds, after
he declares that an alienation is null and void. The order of the Collector in
exercise of his discretion affects the rights of parties to property and is
further open to challenge before the Commissioner and the State Government
under sections 77 and 79 of the Watan Act respectively. It is therefore
difficult to appreciate how the order can be regarded as administrative. Mr.
Bindra who appears for the State, however, contends that though the enquiry
contemplated bys. I I may be regarded as a quasi-judicial proceeding the
ultimate decision of the Collector either to restore the property to the
Watandar or to confirm the possession of the person in actual possession
thereof and make him liable to pay rent is not the exercise of a quasi-judicial
function but is purely an administrative function. He contends that the (1)
[1959] Supp, 1 S C.R 319.
(2) [1962] Supp. 2 S.C.R. 36.
207 Collector has to exercise his discretion
one way or the other in the light of the policy of the Government and refers in
this connection to the provisions of s. 74 of the Watan Act. That section
provides that the proceedings of the Collector shall be under the general
control of the Commissioner and of the State Government. It may be borne in
mind, however, that the collector has been given various kinds of powers and is
required to perform numerous duties under the Act, some of which are
administrative in character. Since the decision taken by the Collector cannot
properly be reached by exercising the appellate jurisdiction of the
Commissioner and of the State Government, as the case may be, it was necessary
to incorporate a general provision of this kind. The right of appeal conferred
by s. 77 extends only to decisions of the Collector or other authorities
inferior to the Collector only in respect of decisions rendered by them after
investigation recorded in writing and not against each and every decision rendered
by them.
Section 73 of the Act requires investigation
to be recorded in writing in respect of orders made under certain parts of the
Act. But apart from that provision there are other provisions like s. 11 which
provide for recording of reasons in writing which by implication also require
investigation by the Collector. These provisions do not represent the totality
of the Collector's power under the Act. Section 74 is thus clearly a provision
which relates to orders made by the Collector without making any investigation
in writing.
This provision, therefore, does riot assist
the defendants.
Relying upon the decision in Robinson v.
Minister of Town and Country Planning(1), and other decisions in that category
Mr. Bindra contended that the Collector's quasi-judicial function ended with
the declaration that the alienation wits null and void and the decision
pursuant to it which he took under s. 12 thereof was purely administrative.
Apart from the (1)[1947] 1 All. E.R. 851.
208 fact that the decision in Robinson's case
(1), and other decisions taking similar view have been criticised in England
(see Griffith and Street, Principles of Administrative Law, p. 168 and Robson, Justice
and Administrative Law, p. 533) we may point out that the scheme of the statute
which was considered in those decisions is different from that of Part II of
the Watan Act which contains ss. 11 and
12. The Town and Country Planning Act, 1944,
with which Robinson's case(1), deals confers a discretion on the Minister to
accept wholly or with modification or reject a scheme prepared by a local
authority. For a certain purpose that Act requires that the Minister has to
cause an enquiry to be made by the Inspector or to make an enquiry himself and
it has been held that such an enquiry is quasi-judicial in nature. After the
enquiry is made it is for the Minister to exercise his authority under the Act
and to accept wholly or in a modified form or reject the scheme. The Courts in
England have held that proceedings under the Act are administrative in nature
except to the limited extent that the enquiry is to be made in consonance with
the principles of natural justice. Whether the view taken by the Courts in
England is right or wrong it is sufficient to say that the nature of
proceedings as well as what is required to be done under the English Act is
something quite different from the nature of proceedings or what is required to
be done under the relevant provisions of the Watan Act. Here, as Mr.
Bindra himself concedes, the whole of the enquiry
is not administrative in character. In fact its foundation is a lis between two
parties: it Watandar out of possession and an alienee in possession of Watan
property. When the final order is made by the Collector under s. 12 this lis
comes to an end and, therefore, there is no scope for the contention that any
part of the proceeding is administrative in character. Even in an ordinary suit
there are matters which are in the discretion of the court, as for instance,
awarding costs or (1) [1947] 1 All. E.R. 851.
209 fixing the rate of interest or of
granting one relief instead of another. But merely because discretion is
conferred on it in dealing with a particular matter, it cannot be contended
that while exercising that discretion the Court acts otherwise than in the
exercise of its judicial function. The proceedings before the Collector are of
course not judicial but they are certainly quasi-judicial and where the
Collecter has to exercise a discretion for giving effect to his decision that a
certain alienation is null and void it would not be permissible to say that all
of a sudden his act ceases to be a quasi-judicial act and becomes an
administrative one. The declaration made by him under s. I I that an alienation
is null and void is by itself of little help to the Watandar and can be
effectuated only after an order is made by the Collector under s. The
provisions of these two sections are thus interlinked and it is difficult to
conceive that as the proceedings progress their quasi-judicial nature degenerates
into an administrative one, We may recapitulate that the Collector's order
under s. 12 is appealable but not so the order of the Minister. This, in our
opinion, is an important distinction between the class of cases of which
Robinson's case, (1) is representative, and the present case.
We may refer to the decision in Gullapalli
Nageswara Rao's case(2), where this Court has considered the decision in
Robinson's case (1), as also that in Franklin v. Minister of Town, and Country
Planning (3). While dealing with the argument advanced before it that the
Government, in considering a scheme provided for road transport service unders.
68(c) of the Motor Vehicles Act, was
discharging an administrative function, one of us (Subba Rao, J.) speaking for
the majority of the Court has observed as follows :"A comparison of the
procedural steps under both the Acts brings out in bold relief the (1) [1947] 1
All. E.R. 851.
(2) [1959] Supp. 1 S.C.R. 319.
(3) [1948] A.C, 87.
210 nature of the enquiries contemplated
under the two statutes. There, there is no lis, no personal hearing and even
the public enquiry contemplated by a third party is presumably confined to the
question of statutory requirements, or at any rate was for eliciting further
information for the Minister. Here, there is a clear dispute between the two
parties. The dispute comprehends not only objections raised on public grounds,
but also in vindication of private rights and it is required to be decided by
the State Government after giving a personal hearing and following the rules of
judicial procedure. Though there may be sonic justification for holding, on the
facts of the case before the House of Lords that that Act did not contemplate a
judicial act-on that question we do not propose to express our opinion-there is
absolutely none for holding in the present case that the Government is not
performing a judicial act.
Robson in 'Justice and Administrative Law',
commenting upon the aforesaid decision, makes the following observation at
p.533:
`It should have been obvious from a cursory
glance at the New Towns Act that the rules of natural justice could not apply
to the Minister's action in making an order, for the simple reason that the
intiative lies wholly with him. His role is not to consider whether an order
made by a local authority should be confirmed, nor does he has to determine a
controversy between a public authority and private interests. The
responsibility of seeing that the intention of Parliament is carried out is
placed on him'." The aforesaid observations explain the principles
underlying that decision and that principle cannot have any -application to the
facts of this case. In 'Principles of Administrative law' by Griffith and 211
Street, the following comment is found on the aforesaid decision: After
considering the provision of s. 1 of the New Towns Act, 1946, the authors say' Like
the town-planning legislation, this differs from the Housing Acts in that the
Minister is a party throughout. Further, the Minister is not statutorily
required to consider the objections. It is obvious, as the statute itself
states that the creation of new towns is of national interest.' (pp. 34950).
After concluding the above passage he
observed:
"It is therefore clear that Franklin's
case is based upon the interpretation of the provisions of that Act and
particularly on the ground that the object of the enquiry is to further inform
the mind of the Minister and not to consider any issue between the Minister and
the objectors. The decision in that case is not of any help to decide the
present case which turns upon the construction of the provisions of the Act.
For the aforesaid reasons, we hold that the State Government's order under s.
68-D is a judicial Act." As we have already said the scheme of certain
sections of Part II of the Watan Act, including ss. 11 and 12 also discloses
that a judicial or quasi-judicial duty is imposed on the Collector to decide
what is in effect a lis or quasi lis between the Watandar and the alience of
the Watan land.
We must, therefore, hold that the whole
process, including the order made under s. 3 of the Act, is a quasi-judicial
one and not administrative as contended for' by the defendants-respondents.
Since the order made by the Collector under
s. 12 is not an administrative order but a quasi-Judicial order it can be
rectified or modified or set aside 212 by the Commissioner in appeal or by the
State Government in revision under s. 79. It is not a kind of order which can
be reached tinder s. 74. Section 79 provides that the State Government may call
for and examine the record of the proceedings of any officer for the purpose of
satisfying itself as to the legality or propriety of any order passed and may
reverse or modify the order as it seem fit or if it seems necessary may order a
new enquiry. Now, in the year 1944 when the plaintiff moved the State
Government by petition it returned the petition to him on November 28, 1944,
with the remark that he should apply to the Collector of Thana in the first
instance and then if' necessary to the Commissioner, Northern Division. The
plaintiff was also informed that if he was not satisfied with the orders
passed, he may approach the Government, presumably by preferring an application
for revision. At the foot of the letter r. 11 of the Petition Rules was set
out. the relevant portion of which runs thus :
"Government, however, will not receive a
Petition on any matter, unless it shall appear that the petitioner has already
applied to the Chief Local Authority, and where such exists, to the controlling
authority. The petitions to the chief local and to the controlling authorities
or copies of them and the answers to or orders upon those petitions in
original, or copies of them, must be annexed to all petitions addressed to
Government........." The plaintiff sent a reply to the aforesaid letter of
the Government on December 15, 1944, and enclosed with it a copy of the
application made by him to the Collector, Thana, together with his order of
March 20, 1925, and said :
"In 1924 a revision application to the
Collector of Thana was preferred. The Collector in his reply informed us on the
authority of the 213 Commissioner's decision that our case could not be
considered (order No. W. T. N. No. 5 of 1925--Copy enclosed Ex. 7). It is
against this order that the present appeal is being submitted. As the Collector
has informed us on the authority of the Commissioner we think it is no use
approaching the Commissioner again against the very decision already confirmed
by him.
I, therefore, approach Government with a
request that a full and proper justice be done to my case which both on the
question of facts and of law deserves careful consideration.
With reference to paragraph 2 of your letter
it may be mentioned that we have already approached the Collector of Thana and
copy of his order was attached to my previous petition also. It is being
resubmitted for your kind consideration." After receiving this letter the
Government caused a thorough enquiry to be made by the revenue officials in the
presence of the parties and after giving them opportunity to adduce such
evidence as they wished to. The proceedings of the subordinate officers, along
with their reports, were in due course submitted to the Government and it was
on the basis of this report that the Government made an order in October, 1946,
restoring possession of the Watan lands to the plaintiff. It is true that the
order does not say that it was passed under s. 12 (a) of the Act read with s.
79 thereof, but since both these provisions taken together give power to the
Government to make an order of the kind Which it -made in October, 1946, its
order must be held to have been made under those provisions. When an authority
exercises its revisional powers it necessarily acts in a judicial or
quasi-judicial capacity. Therefore, 214 the Government's order of October,
1946, must be deemed to be a judicial or a quasi-judicial order. Such an order
cannot be set aside or revised or modified just as an administrative order can
be under s. 74. Finality attaches to the Government's order under s. 79 and in
the absence of any express provision empowering it to review the order we are
clear that the subsequent order made by the Government on May 2, 1947 is ultra
vires and beyond its jurisdiction.
We must, however, notice the contention
raised, though faintly, by Mr. Bindra that the Government could not be deemed
to have dealt with the matter in a quasi-judicial capacity under s. 79 because
the order revised by it was more than 20 years old. It is sufficient to say
that no period of limitation is specified in the Act for preferring an
application for revision. of course, normally the Government would not
interfere unless moved within reasonable time. But, what should be considered
as a reasonable time in a particular case would be a matter entirely for the
Government to consider. Apparently in this case the Government thought that it
had strong reasons for interfering even after a long lapse of time and that is
why it interfered.
Mr. Joshi who appears for the defendants 2 to
4 sought to support the decision of the High Court by resort to the provisions
of s. 4 (a) of the Bombay Revenue Jurisdiction Act, 1876. That section reads
thus :
" Subject to the exceptions hereinafter
appearing, no Civil Court shall exercise jurisdiction as to any of the
following matters :
(a) claims against the Government relating to
any property appertaining to the office of any hereditary officer appointed or
recoganised under Bombay Act No.1874 or any other law for the time being in
force,...." 215 He points out that in the plaint, the plaintiff has
specifically sought relief against the State Government and in this connection
referred to prayers 1 and 2 of the plaint. In prayer No. 1 the plaintiff sought
a declaration to the effect that the orders passed by the Government on May 2,
1947, and March 1, 1949, are null and void and inoperative. In prayer No. 2 he
asked that all the defendants be ordered to remove "their obstructions and
hindrances" to the possession of the property which is the plaintiff's
Watan property, and further ordered to deliver the possession of the property
to him. It seems to us, however, that prayer No. 1 was really redundant because
if the orders referred to therein were without .jurisdiction and thus null and
void it was not necessary to set them aside. Therefore, by making a prayer of
that kind it cannot be said that the plaintiff had sought any relief against
the State Government. As regards the second prayer it seems to us that the
inclusion of the State Government therein was a slip because it is nobody's
case that the Government is in possession of the lands or is actively
obstructing the plaintiff in getting back its possession. We would, therefore,
read the second prayer as referring to defendants 2 to 4 only. Reference was
also made by learned counsel to the third prayer in which the plaintiff has
asked for the accounts to be taken of the income obtained by the defendants
from January 6,1942 till the date of suit and subsequently. Here again, though
the defendants generally have been referred to, the plaintiff must be deemed to
have meant only those defendants who were in actual physical, possession of the
property and earning income therefrom and enjoying it. It was., however,
represented to us that during the period of possession defendants 2 to 4 have
been crediting certain amounts to the treasury for paying the remuneration of
the officiator and since they will be entitled to the credit for these amounts
the Government was a necessary party. In our opinion 216 that question has no
relevance to prayer No. 3 made by the plaintiff. What he wants is the accounts
of rents and profits and he is not concerned with any claim which defendants 2
to 4 may have against the Government.
Therefore, considering all these prayers
together we are of opinion that no relief was in fact sought against the
Government and it was made only a formal party to the suit.
If that view is correct the provisions of s.
4 (a)of the Bombay Revenue jurisdiction Act, 1876 will not stand in the way.
This Court, while dealing with an objection
that the suit was barred by the provisions of s. 4 (c) of the Bombay Revenue
jurisdiction Act has observed recently in Ramrao Jankiram Kadam v. The State of
Bombay (1), as follows :
"As to the applicability of s. 4 (c), it
would be noticed that resort to the Civil Courts is barred only as regards
certain specified classes of suits in which the validity of sales for arrears
Land Revenue are impugned.
The classes so specified are those in which
the plaintiff seeks to set aside sales on account of irregularities etc. other
than fraud. The provision obviously assumes that there is in existence a sale
though irregular under which title has passed to the purchaser and that that
sale has to be set aside, on grounds other than fraud, before the plaintiff can
obtain relief. Where however there is only a purported sale which does not pass
title and the suit is for recovery of possession of property ignoring such a
sale, the provision and the bar that it creates have no application." Thus
it would be clear that where something done or an order made is no act or order
in law at all because it is without jurisdiction and null and void, (1) [1963]
Supp. 1 S.C.R. 322, 217 the provisions of s. 4 are not attracted. We may,
however, refer to a decision of this court in Bhujangtao Daulatrao v. Malojirao
Daulatrao (1), which is claimed to support the contention of the defendants. In
that case a suit was instituted by a Saraniamdar in which the representatives
of two other 'branches of the Saranjam family and the province of Bombay were
impleaded as defendants. It was alleged by the plaintiff that a certain
resolution passed by the Government in the year 1936 modifying the previous
resolution passed by the Government in the years 189-1 and 1932 by declaring
that the portion of the estate held by the branches shall be entered as de
facto shares and that each share shall be continual hereditarily as if it were
a separate saranjam estate was ultra vires and for a further declaration that
the plaintiff had the sole right to all privileges appertaining to the post of
saranjamdar and also sought in injunction restraining the defendants from doing
any act in contravention of the plaintiff's right. The suit was held by this
court to be barred by s. 4 of the Bombay Revenue jurisdiction Act. This court
held that the suit was a suit against the Crown and also a suit relating to
lands held as Saranjam within the meaning of s. 4 of the Bombay Revenue
jurisdiction Act and that civil courts had no jurisdiction to entertain it.
Further this court held that the plaintiff could not be given reliefs against
defendants I and 2 alone as the right claimed against these defendants could
not be divorced from the claim against the Government and considered
separately. The decision in The Province of Bombay v. Hormusji(2) was cited
before this court in support of the contention that civil courts have
jurisdiction to decide whether the Government acted in excess of its powers.
Bose, J., who delivered the judgment of the
court, however, expressed the opinion that that decision would not apply and
then he observed is follows :"As pointed out by Strangman, K.C., on behalf
(1) [1952] S.C.R. 402. (2) (1947) L.R. 74 I.A. 103.
218 of the plaintiff-respondent 'authorised'
must mean 'duly authorised', and in that particular case the impugned
assessment would not be duly authorised if the Government Resolution of'
11-4-1930 purporting to treat the agreement relied on by the respondent as cancelled
and aurhorising the levy of the full assessment was ultra vires under section
211 of the Land Revenue Code. Thus, before the exclusion of the Civil Court's
jurisdiction under section 4 (b) could come into play, the Court had to
determine the issue of ultra vires. Consequently, their Lordships held that
that question was outside the scope of the bar.
But the position here is different. We are
concerned here with section 4 (a) and under that no question about an
authorised act of Government arises. The section is general and bars (ill
'claims against the Crown relating to lands......... held as Saranjam.' That is
to' say, even if the Government's act in relation to such lands was ultra,
vires, a claim impugning the validity of such an act would fall within the
scope of the exclusion in clause (a) provided it relates to such land." It
is settled law that the civil courts have the power and jurisdiction to
consider and decide whether a tribunal of Iimited jurisdiction has acted within
the ambit of the powers conferred upon it by the statute to which it owes its
existence or whether it has transgressed the limits placed on those powers by
the legislature. The decision in Hormusiji Maneklal's case (1), proceeds on the
basis of this rule. There are a number of decisions in the books in which this
principle has been stated and followed. One such decision is The Secretary of
State v. Musk & Co.(2), in which the judicial Committee has observed thus :
It is settled law that the exclusion of the
Civil Courts is not to be readily inferred, but that (1) (1947) L.R. 74 I.A.
103. (2) I.L.R. 1940 Mad,_599 219 such exclusion must either be explicity
expressed or clearly implied. It is also well-settled that even if jurisdiction
is so excluded, the Civil Courts have jurisdiction to examine into cases where
the provisions of the Act have not been complied with, or the statutory
tribunal has not acted in conformity with the fundamental principles of
judicial procedure." (p. 614).
We do not think that it was the intention of
this court to over-rule a rule which has been firmly established. Had that been
the intention, we would have found a fuller discussion of the question.
In the course of the judgment Bose, J.,
pointed out that there was difference of opinion in the Bombay High Court as to
whether s. 4 is attracted if the only relief sought against the Government is a
declaration and expressed agreement with the view that s. 4 applies even where
the relief sought against Government is only a declaration. As we have pointed
out this part of the judgment does not help the defendants' case because no
declaration against the Government was at all necessary. Indeed the plaintiff
could ignore the two orders complained of by him as being without jurisdiction
and null and void and proceed to seek the relief of possession on the strength
of the earlier order made by the Government in October, 1946.
For these reasons we reverse the decision of
the High Court which affirmed that of the District Court and restore the
decision of the trial court. Costs throughout will be borne by the defendants.
Appeal allowed.
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