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Judgment
William Watkins Phillips, J.—The question that has been referred to us is as follows:
Has the High Court in the exercise of its re visional jurisdiction either u/s 115 of the CPC or Section 107 of the Government of India Act of 1919 power to revise orders passed by the Board of Revenue, under Chap. XI or Section 205 of the Estates Land Act?
It is admitted that the petitions in which this reference has been made relate only to Section 205 of the Estates Land Act and not to Chap. XI of the same. So far, therefore, as orders passed under the latter are concerned, the question is one of academic importance but it will probably be necessary to deal with it in considering the other portion of the reference. Although this reference deals only with orders passed by the Board of Revenue under the Estates Land Act, a great deal of the argument has been directed to the power of revision possessed by the High Court in proceedings generally under the Act, for it is only in three reported cases of this Court that the question of revising an order of the Board of Revenue has arisen, namely, Burla Appanna v. Anala Latchayya 79 Ind. Cas 372 : 47 M. 250 : 1924 45 M.L.J. 735 : 33 M.L.T. 92 : 18 L.W. 849 : AIR 1924 Mad. 119 where the learned Judge''s differed in opinion, The Zamindar of Kallikote and Atagada Estates Vs. Mongolopur and Others, where the Full Bench held that the question need not be decided in those proceedings, and (Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, where Devadoss and Waller, JJ., held that the High Court had such jurisdiction. It is sought to establish the jurisdiction of this Court on two grounds, (1) the powers of the Court u/s 107 of the Government of India Act and Section 16 of the Letters Patent, and (2) the powers u/s 115 of the Civil Procedure Code. So far as proceedings before a Collector are concerned, it was held in Paramaswami Ayyangar v. Natchiar Ammal 49 Ind. Cas. 11 : 42 M. 76 : 35 M.L.J. 632 : 9 L.W. 26 : (1919) M.W.N. 107 that the High Court was competent to revise an order passed by a Collector u/s 35 of the Estates Land Act, Ayling, J., held that an order u/s 35 was not an order contemplated by Section 205 and that, therefore, revision lay to the High Court, whereas Krishnan, J., was apparently of the same opinion but also held that there was no reason why the High Court and the Board of Revenue should not have concurrent jurisdiction in revising such proceedings. Again in Ramaswami Goundan v. Kali Goundan 52 Ind. Cas. 634 : 42 M. 310 : 36 M.L.J. 571 the same Bench held that the High Court had power to revise an order on an application u/s 131 of the Estates Land Act, an order to which Section 205 was clearly applicable. Ayling, J., in that case agreed with the opinion of Krishnan, J., in the prior case holding that the grant of the power of revision to the High Court under the provisions of Section 192 of the Estates Land Act was not inconsistent with the concurrent jurisdiction of the Collector and the Board of Revenue u/s 205, This latter decision was followed by Kumaraswami Sastri, J., in Gopala Mannadiar v. Palani Goundan 96 Ind. Cas. 768 : (1925) M.W.N. 489 and by Ramesam, J., in Maharaja of Jeypore v. Sobha Sundar Dalai 91 Ind. Cas. 576 : 49 M.L.J. 540 : AIR 1926 Mad. 149 but their judgments do not add anything to the decision already quoted.
There is a long series of decisions in the Calcutta High Court, one of the earliest being Gobind Coomar Chowdhry v. Kristo Coomar Chowdhry 7 W.R. 520 : B.L.R. Sup. 714 in which it was held that that High Court has revisional jurisdiction over the rent Courts under Bengal Act X of 1859, and this was affirmed by the Privy Council in Nilmoni Singh Deo v. Taranath Mukerjee 9 C. 295 : 12 C.L.R. 361 : 9 I.A. 174 : 5 Shome L.R. 130 : 4 Sar. P.C.J. 392 : 6 Ind. Jur. 547 where their Lordships accept without discussion the finding of the Calcutta High Court that it had jurisdiction. This view was also taken in Chaiton Patjosi v. Kunja Behari 11 Ind. Cas. 207 : 38 C. 832 : 15 C.W.N. 863 : 14 CRI.L.J. 284 but all these cases can, I think, be differentiated. When the High Court Charter Act was passed, the Bengal Act X of 1859 was in force and the Saddar Court had jurisdiction over these Revenue Courts. The jurisdiction of the Saddar Court was passed on unchanged to the High Court and it is apparently on that ground that the Calcutta High Court has always assumed revisional jurisdiction in these revenue proceedings. This was not the basis of the decision in KartikChandra Ojha v. Gora Chand Mahto 20 Ind. Cas. 420 : 40 C. 518 : 17 CRI.L.J. 593 but there it was held that even under the Chota Nagpur Tenancy Act VI of 1908 the High Court still possessed jurisdiction on the ground that u/s 224(2) of that Act a second appeal was allowed in certain cases to the High Court and, therefore, the Courts were subject to the appellate jurisdiction of the High Court. In another case decided in the same year, Uma Charan Mandal v. Midnapore Zemindary Co. 23 Ind. Cas. 896 : 18 C.W.N. 782 : 19 CRI.L.J. 300 it was held that the High Court had no power to revise certain proceedings under the Chota Nagpur Tenancy Act on the ground that the Revenue Officer was not a Court subordinate to the appellate jurisdiction of the High Court nor subject to its powers of superintendence. In this judgment it was also pointed out that all the cases under Act, X of 1859 were clearly distinguishable. With all respect the judgment in this case appears to me to be based on more satisfactory grounds than that in Kartik Chandra Ojha v. Gora Chand Mahto 20 Ind. Cas. 420 : 40 C. 518 : 17 Cri.L.J. 593 where the question of whether the Courts were or were not in all respects subject to the appellate jurisdiction of the High Court was not fully discussed. Kartik Chandra Ojha v. Gora Chand Mahto 20 Ind. Cas. 420 : 17 Cri.L.J. 593 can also be distinguished in this Court on the ground that the Estates Land Act does not in terms provide for an appeal to the High Court and its appellate jurisdiction can only be invoked u/s 192 which makes certain portions of the CPC applicable. As these Calcutta cases appear to be inapplicable to this Presidency, the question that remains is whether (Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, was rightly decided. The further question of whether Paramasivami Ayyangar v. Natchiar Ammal 49 Ind. Cas. 11 : 42 M. 76 : 35 M.L.J. 632 : 9 L.W. 26 : (1919) M.W.N. 107 and Ramaswami Goundan v. Kali Goundan 52 Ind. Cas. 634 : 42 M. 310 : 36 M.L.J. 571 were rightly decided does not, strictly speaking, arise for decision.
Before discussing the question, reference may be made to certain portions of the Estates Land Act throwing light on the question before us. I will deal first of all with Chap. XI. u/s 171 an appeal lies to such superior Revenue Authority as the Local Government may prescribe, and the Board of Revenue has been prescribed as such. u/s 172 the Board of Revenue has the power of revision. These powers are in respect of orders passed in framing a Record of Rights and these orders are passed by the Revenue Officer under Sections 166, 168 and 170. Up to this point in the Act no mention has been made of Revenue Courts, the reference being in all cases either to the Collector or to the Revenue Officer. u/s 76 of the prior Rent Act VIII of 1865, the powers of the High Court were expressly excluded; and unless there is something in the Act itself which gives the power of revision to the High Court there is no reason to suppose that the Legislature intended to confer such powers. Assuming that the High Court has got the power to revise all orders under Chap. XI, it would have concurrent jurisdiction with the Board of Revenue unless the Board is a Court subordinate to it and the latter''s orders could also be revised, but even so it is somewhat anomalous to give revisional powers to one authority and to allow the orders passed in revision to be again revised. Supposing that the High Court did revise an order u/s 172, that order is at once liable to be upset by a suit in a District Munsif''s Court u/s 173 and the High Court''s order would not be final; consequently there is no real ground for presuming that any revisional powers are conferred on the High Court. In Section 189 we get the first reference to Revenue Courts," for it provides that a Collector or other Revenue Officer shall hear and determine as a Revenue Court all suits and applications of the nature specified in parts A and B of the Schedule. It is noticeable that the Board of Revenue is not specified as an authority to hear and determine as a Revenue Court. u/s 190 a second appeal lies to the Board of Revenue against certain orders passed on appeal by a District Collector, but it does not give such power in the case of orders passed on appeal by the District Court, and against the latter orders a second appeal would lie to the High Court. In Ravi Veeraraghvula Vs. Raja Bomma Devara Venkata Narsinha and Naidu Bahadur Zemindar Garu, the Judicial Committee accepted the uniform practice of allowing such second appeals without deciding the question of law involved. When the right of second appeal from orders passed on an application u/s 15 or in a suit u/s 40 is specifically given to the Board of Revenue, it seems a legitimate inference that no second appeal would lie in such cases to the High Court unless such right is clearly implied and it is nowhere laid down that orders passed by the Board of Revenue will be subject to the revision of the High Court. Coming now to Section 205, the Board of Revenue or the District Collector is given the power of revision in cases where no appeal lies and where circumstances are practically identical with the requirements of Section 115 of the Civil Procedure Code; but the powers are given only in a limited number of cases, namely, cases where no appeal lies from the original order of the Revenue Officer. Unless then the Board of Revenue is subordinate to the High Court, the decision of this Court in Ramaswami Goundan v. Kali Goundan 52 Ind. Cas. 634 : 42 M. 310 : 36 M.L.J. 571 would have the effect of giving concurrent jurisdiction to the Board of Revenue and the High Court. That decision is based on the provisions of Section 192 which makes a portion of the CPC applicable to all suits, appeals and other proceedings under this Act. There is, however, a limitation in the section which says "subject to the other provisions of this Act" and "so far as they are not inconsistent therewith". It is recognized in both the cases in 42 Madras that there would be an anomaly in the existence of this concurrent jurisdiction, and although Ayling, J., says in Ramaswami Goundan v. Kali Goundan 52 Ind. Cas. 634 : 42 M. 310 : 36 M.L.J. 571: "it is impossible to say that the grant of the power of revision to this Court is inconsistent with the grant of similar power to the Collector and Board of Revenue", with all respect, it appears to me that if the application of Section 115 gives rise to an anomalous position it must be inconsistent with the provisions of the Act. The very fact that two Courts would have co-ordinate jurisdiction and would be in a position to pass conflicting orders, both of which would be final, is sufficient to show that the importation of Section 115 is inconsistent with the Act so far as the provisions of Section 205 are concerned. I think, therefore, that any argument based upon Section 115 must fail unless we premise the argument by a finding that the Board of Revenue is a Court subordinate to the High Court, and even then it would be anomalous to have a power of revision, which is itself subject to revision.
In order to establish this latter point the Government of India Act, Section 107, and Clause 16 of the Letters Patent are relied upon, u/s 107 each High Court has superintendence over all Courts for the time being subject to its appellate jurisdiction, and under Clause 16 of the Letters Patent the High Court shall be the Court of Appeal from the Civil Courts and from all other Courts subject to its superintendence. It is, therefore, necessary to determine whether the Board of Revenue is a Court subject to the appellate jurisdiction of the High Court or whether it is a Court subject to the superintendence of the same. So far as the subordination of the Board of Revenue to the appellate jurisdiction of the High Court is concerned, there is no statutory provision for an appeal against its orders to the High Court, but Davadoss, J., both in Burla Appanna v. Anala Latchayya 79 Ind. Cas 372 : 47 M. 250 : 45 M.L.J. 735 : 33 M.L.T. 92 : 18 L.W. 849 : AIR 1924 Mad. 119 and in Velluri Narasinha Rao v. Ryois of Pedamamidipalli 94 Ind. Cas. 164 : (1926) M.W.N. 131 : 23 L.W. 320 : AIR 1926 Mad. 480 holds that the Board of Revenue is a Civil Court because it is a Court governed by the CPC and, therefore,underthe superintendence of the High Court. The mere fact that the CPC is made applicable to proceedings under the Act including presumably the proceedings of the Board of Revenue cannot by itself convert the Board of Revenue into a Civil Court subordinate to the High Court unless for some other reason it is a Civil Court subordinate to the High Court such as is referred to in Section 3 of the Civil Procedure Code. In the first place it is by no means clear that the Board of Revenue exercising the functions allotted to it under the Estates Land Act is a Court at all, and certainly it cannot be deemed to be a Civil Court within the meaning of Section 3 of the Civil Procedure Code, for in Section 5, Revenue Courts are clearly distinguished from Civil Courts having original jurisdiction under the Code to try such suits or proceedings as being suits or proceedings of a civil nature and it is apparently Courts of this latter nature that are Civil Courts within the meaning of Section 3, Civil Procedure Code. If it is a Court, the Board of Revenue is a Revenue Court and not a Civil Court within the meaning of Section 3. No doubt in Nilmoni Singh Deo v. Taranath Mukerjee 12 Cri.L.R. 361 : 9 I.A. 174 : 5 Shome L.R. 130 : 4 Sar. P.C.J. 392 : 6 Ind. Jur. 547 their Lordships observe:
The Civil Courts referred to in Section 77 and the kindred sections, mean Civil Courts exercising all the powers of Civil Courts, as distinguished from the Rent Courts, which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights, and whether, being a Civil Court in that sense, it does not fall within the provisions of Act VIII of 1859.
Their Lordships were dealing with Rent Courts under Act X of 1859 which were recognized as being subordinate to the High Court but that pronouncement is hardly an authority for saying that the Board of Revenue, with which the Privy Council were not at that time concerned, is a Civil Court within the meaning of Section 3 of the CPC of 1908 which has now replaced Act VIII of 1859. Section 3 is, no doubt, not exhaustive and Courts not specified therein may be sub-ordinate to the High Court, but such subordination must be declared by some enactment or they must be deemed to be subordinate for some sufficient reason. As I have already pointed out, there is no-statutory provision making the Board of Revenue a Court subordinate to the High Court, nor any provision providing for appellate jurisdiction in the latter over the former. Unless, therefore, it can be said that the Board of Revenue is subject to the superintendence of the High Court when acting under the provisions of Section 205 it is impossible to hold that it is a Court subordinate to the High Court.
In considering the question of superintendence reliance is placed upon two circumstances: (1) under Order XLVI, Rule 1, Civil Procedure Code, which is made applicable under the Act, the Board of Revenue can make a reference to the High Court on a question of law, and (2) u/s 202 "the High Court may, with the approval of the Local Government, make rules consistent with this Act, declaring that any portions of the CPC shall not apply, etc...."
This power of making rules is subject to the approval of the Local Government and can hardly be deemed to give power of superintendence to the authority that drafts the rules--an authority which has no power to enforce them without reference to the Local Government. Secondly, the fact that the Board of Revenue can refer a question of law for the opinion of the High Court cannot render it subject to the superintendence of that Court, for the latter has no power to order the Board of Revenue to make a reference which lies entirely within the will and pleasure of the Board of Revenue. The cases relied on by Mr. Krishnaswami Ayyar, Abdul Karim Fateh Mahomed v. Municipal Officer, Aden 5 Bom. L.R. 562 and Municipal Officer, Aden v. Hajee Ismail Hajee Allana 30 B. 216 : 3 CRI.L.J. 5 : 10 C.W.N. 165 : 8 Bom L.R. 4 : 1 M.L.T. 1 : 16 M.L.J. 73 : 34 I.A. 38 : 8 Sar. P.C.J. 901 relate to the Resident''s Court at Aden from which a reference both on a question of fact and of law lay to the High Court of Bombay, and that High Court had power to make rules binding upon the Court at Aden. In those circumstances the Aden Court was held to be subject to the superintendence of the Bombay High Court, but those circumstances are very different from the present and a decision based thereon cannot be treated as an authority in this case.
We see then that the Estates Land Act does not expressly give any power of superintendence to the High Court over the Board of Revenue nor does it provide for an appeal to the former against the decision of the latter. The ground upon which Devadoss, J., based his decision in (Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, appears to be that because the CPC is applicable to its proceedings the Board of Revenue must be a Civil Court and all Civil Courts are subject to the superintendence of the High Court. This is a very simple proposition, and it was discussed by Rankin, J., in. Allen Bros. & Co. v. Bando & Co. 70 Ind. Cas. 371 : 26 C.W.N. 845 : AIR 1923 Cal. 169 and was rejected as there was no ground for inferring appellate jurisdiction in the High Court over Courts constituted after the date of the Charter Act unless some provision to that effect can be established. In order to show that the High Court is an Appellate Court in this respect, we must start with some relation of superior and inferior tribunal--vide Birendra Kishore Manikya v. Secretary of State for India 61 Ind. Cas. 112 : 25 C.W.N. 80 : 32 CRI.L.J. 433. In its ordinary aspect the Board of Revenue cannot be held to be a tribunal inferior to the High Court, for its ordinary work is not that of a Court and its powers are mainly executive. In proceedings under the Estates Land Act it may be said that the Board of Revenue exercises judicial powers and is in that sense a Court as pointed out in Nilmoni Singh Deo v. Taranam Mukerjee 9 C. 295 : 12 C.L.R. 361 : 9 I.A. 174 : 5 Shome L.R. 130 : 4 Sar. P.C.J. 392 : 6 Ind. Jur. 547 but that does not necessarily make it an inferior Court subject to the High Court as a superior Court. In the absence of any provision declaring the Board of Revenue to be subject to the appellate jurisdiction of the High Court it must be held that it is not so subject.
Taking the Act as a whole the scheme would appear to be that in certain matters the decision is left to the Revenue Courts and an appeal lies to the District Court and thence to the High Court, whereas in other matters the appeal lies to the District Collector as such and not as a Revenue Court, and from him to the Board of Revenue. A similar scheme was held to exist in the Chota Nagpur Tenancy Act in Uma Charan Mandal v. Midnapore Zemin-dary Co. 23 Ind. Cas. 896 : 18 C.W.N. 782 : 19 Cri.L.J. 300; and an interpretation of the Estates Land Act on these lines would certainly obviate some of the anomalies which arise in any other view, and, therefore, it is possible to hold that though in certain respects the High Court has revisional powers over the Revenue tribunals, yet in other respects, it may not have the same power, and certainly has not that power so far as the Board of Revenue is concerned. As shown above there is no definite constitution of the Board of Revenue as a Court and if it is deemed to be a Court in "that it arrives at a judicial decision, yet there is no authority for holding that it is a Civil Court within the meaning of Section 3, Civil Procedure Code, or that it is a Court subject to the appellate jurisdiction or under the superintendence of the High Court. Although, as I have pointed out above, the first part of the question referred to us does not really arise I think that it may be disposed of as it is so intimately connected with the latter part of the question. I would answer the whole of the question in the negative.
It follows that Velluri Narasinha Rao v. Ryots of Pedamamidipalli 94 Ind. Cas. 164 : 49 M. 499 : (1926) M.W.N. 131 : 23 L.W. 320 : AIR 1926 Mad. 480 must be held to have been wrongly decided.
Odgers, J,
The question referred to us is: "Has the High Court in the exercise of its revisional jurisdiction either u/s 115 of the CPC or Section 107 of the Government of India Act of 1919 power to revise orders passed by the Board of Revenue under Chap. XI or Section 205 of the Estates Land Act?"
It may at once be said that the consideration of the point as regards Chap. XI of the Madras Estates Land Act did not actually arise on the cases before the Bench; the provisions of the Chapter will, however, have to be examined and as in my view the discussion as to Chap. XI and Section 205 imports the same principle in both, I think the question may be answered as a whole. It may be premised that no revisional power is given to this Court as far as the Board of Revenue is concerned directly by the Estates Land Act nor does the Board of Revenue appear in the Schedules of the Act as a Court of Appeal. It is sought to infer the revisional power of the High Court over the Board of Revenue in two ways: (1) That the High Court is a Court of Appeal under the Act, e.g., from a District Court which is made the Court of Appeal for certain purposes under the Act and from which a second appeal would lie to this Court as a matter of long standing practice [according to the judgment of the Privy Council in Ravi Veeraraghvula Vs. Raja Bomma Devara Venkata Narsinha and Naidu Bahadur Zemindar Garu, ] Consequently it is contended the Board of Revenue is subject to its superintendence under Clause 16 of the Letters Patent; also u/s 107 of the Government of India Act, the High Court has superintendence over all Courts subject to its appellate jurisdiction. It is contended that once a right of appeal is given, however limited, it attracts all the provisions of Clause 16 of the Letters Patent and Section 107 of the Government of India Act. (2) As Section 192 of the Madras Estates Land Act makes Section 115 of the CPC applicable to proceedings under that Act, the Board of Revenue must be deemed to be a subordinate Court to the High Court.
Chapter XI of the Act has to do with surveys, Records of Rights and settlement of rents. u/s 169, the Revenue Officer making the settlement of rent must hear objections thereto and an appeal lies from his decision (Section 171) to the prescribed superior Revenue Authority. By Section 172, the Board of Revenue may revise any Record of Rights. This is said to give the Board of Revenue a co-ordinate revisional power with the High Court. It will be noticed that Section 192 incorporates the provisions of Section 115 of the CPC only "subject to the other provisions of the Act" so far as they are not inconsistent therewith and it may be questioned whether this does not afford an example of such inconsistency especially as the right of suit in a Civil Court given by Section 173 might involve the consequence of the High Court''s order in revision if it exists being overruled by the decree of a District Munsif. This is to my mind a strong point in favour of the argument that the previous steps detailed in the Chapter are non-judicial in character.
The point was considered by Devadoss, J. in (Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, a case under this Chap. XI. He points out that under the Rent Recovery Act of 1865, the High Court had no revisional jurisdiction over the Revenue Courts. He held that the High Court has revisional powers over the Board of Revenue and dismissed the dilemma pointed out by Straight, J., in Ram Dayal v. Ramadhin 12 A. 198 : A.W.N. (1890) 59 by saying that it would be a question for consideration in each case whether the High Court should exercise its power or not. I may remark that Devadoss, J., seems to have fallen into error in thinking that everything is appealable to the District Court. He says: "In all cases in which the rights of the landholder or the ryot are affected an appeal is given to the District Court." This is not so--of., for example, Schedule Part A No. 4(a). The decision was concurred in by Waller, J., and both learned Judges based their opinion on Ramaswami Goundan v. Kali Goundan 52 Ind. Cas. 634 : 42 M. 310 : 36 M.L.J. 571. The question, therefore, arises, " Was (Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, rightly decided"? It may here be noticed that, u/s 203(1) and (2), the Records of Rights prepared under the provisions of Chap. XI are to be considered by the Court trying a suit; (i.e., a civil suit in the ordinary Sense) but it may be proved incorrect. This seems to be another argument in favour of the non-judicial character of the steps detailed in Chap. XI. These steps appear to me to amount really to proceedings in a department of Government as to which the Board of Revenue is constituted the final authority as head of that department and given a power of revision. Section 173 gives an aggrieved party an ordinary right of suit. With regard to Chap. XI,therefore, lam prepared to say that the Board of Revenue is not a Court and its proceedings are not open to revision by the High Court. There are two other ways in the Act in which the Board of Revenue acts as a final authority�apart from the question of revisional power in the High Court which as stated above nowhere appears in the Act itself, (a) Section 189--A Collector or other Revenue Officer is authorized to hear and determine as a Reveune Court all suits and applications in Parts A and B of the Schedule and no Civil Court is to take cognizance of such. This is the first reference to a "Revenue Court" in the Act. These decrees are subject to appeal either to the Collector or to the District Court as provided for in the Schedules. By Section 190 a second appeal is to lie to the Board of Revenue from a Collector in two special matters--as to improvements (Section 15) or commutation of rent (Section 40). This seems to indicate a different line of appeal and as if the Board of Revenue were the final authority as under Chap XI, (b) u/s 205--where a general revisional power is given to the Board of Revenue or Collector in respect of proceedings of Revenue Officers from whose decision no appeal lies.
It is plain that the Board of Revenue can only be a Court subordinate to the High Court if it is made so, for if it is not, Section 115, Code of Civil Procedure, which applies to subordinate Courts will have no application. It is clearly not expressly made so, and it is difficult to see how it can be made so by implication as in none of the Schedules is it described as the Court of Appeal in any revenue matter. However the view has been taken that it is a ''Court'' and must, therefore, be subordinate to the High Court. The cases fall into three groups--Madras, Calcutta and Bombay--and I will deal with them in that order.
(Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, has already been referred to. As stated it adopts previous decision in Ramaswami Goundan v. Kali Goundan 52 Ind. Cas. 634 : 36 M.L.J. 571 a revision petition against an order of the Collector u/s 131, Madras Estates Land Act. Ayling, J., held that Section 192 vests the High Court with the power of revision, that power vested in both the Board of Revenue and the High Court and that this was undesirable. "It is impossible to say," said the learned Judge, "that the grant of the power of revision to this Court is inconsistent with the grant of similar power to the Collector and Board of Revenue: and I think it must be held that Section 192 vests this Court with the power of revision, which petitioner invokes," The learned Judge does not seem to have adverted to the words in Section 192 "so far as they are not inconsistent therewith."
Krishnan, J., adhered to his judgment in Paramaswami Ayyangarv. Natchiar Ammal 49 Ind. Cas. 11 : 42 M. 76 : 1919 35 M.L.J. 632 : 9 L.W. 26 : (1919) M.W.N. 107 which was an earlier decision of the same Bench. This case was a revision petition to revise an order of a Collector as to adding a legal representative of a deceased plaintiff. Ayling, J., invoked Section 115 of the CPC as made applicable by Section 192 of the Madras-Estates Laud Act Krishnan, J.,pointed out that Section 115 did not of itself apply to Revenue Courts as denned in Section 5 of the CPC but that Section 205 of the Madras Estates Land Act did not apply to proceedings in rent suits and so Section 115 remained unaffected. The learned Judge clearly contemplated a co ordinate jurisdiction in the High Court and the Revenue Authorities. Again in Maharaja of Jeypore v. Sobha Sundar Dalai 91 Ind. Cas. 576 : 1926 49 M.L.J. 540 : AIR 1926 Mad. 149 Ramesam, J., followed these two cases and held that the: Revenue Divisional Officer was a Court subordinate to the High Court. In all these cases it will be noticed that the question before us did not arise, viz, the subordination of the Board of Revenue. In Burla Appanna v. Anala Latchayya, 79 Ind. Cas 372 : 45 M.L.J. 735 : 33 M.L.T. 92 : 18 L.W. 849 : AIR 1924 Mad. 119 the learned Judges refused to interfere with an order of the Board of Revenue as the petitioner had a separate remedy by suit u/s 173. Spencer, J., held that the orders of the Board of Revenue were not judicial proceedings of a Court subordinate to High Court, but Devadoss, J.,held that the Board of Revenue was a Civil Court when it acts judicially under Sections 171, 172 or any other section of the Madras Estates Land Act and was subject to the revisional jurisdiction of the High Court. The difference of opinion of the two Judges, of course, made no difference under the circumstances and their remarks as to jurisdiction are, therefore, obiter In Gopala Mannadiar v. Palani Goundan 96 Ind. Cas. 768 : (1925) M.W.N. 489 Mr. Justice Kumaraswami Sastri sitting alone decided that this Court could interfere with an order of the District Collector with which the Board of Revenue had refused to interfere. He followed Ramaswami Goundan v. Kali Goundan 52 Ind. Cas. 634 : 36 M.L.J. 571. In (Mempu) Ramayya and Others Vs. Zamindar of Mandasa, . Waller and Madhavan Nair, JJ, stated but did not decide the point. In the Pull Bench case in The Zamindar of Kallikote and Atagada Estates Vs. Mongolopur and Others, the point is raised but left undecided. The only case, therefore, really relevant to the present, except Gopala Mannadiar v. Palani Goundan 96 Ind. Cas. 768 : (1925) M.W.N. 489, cited above, is (Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, , already referred to. In Ramaswami Naicker v. Subbarayulu Naicker 32 Ind. Cas. 567 : 3 L.W. 158 Sadasive Ayyar and Moore, J J., without deciding the point were of opinion that it would be difficult to hold that the Board of Revenue is a Court subordinate to the High Court or subject to the appellate jurisdiction of the High Court. They foresaw the difficulty of a conflict of jurisdiction if the revisional power of the High Court were deemed to exist. In Re: Palanikumara Chinnayya Gounder, Ayling, J., and myself held that the proceedings of a Revenue Divisional Officer who had framed charges against a village Munsif was not subject to the superintendence of the High Court.
Reliance was placed upon a current of authority in Calcutta. These rest primarily on the provisions of the Bengal Rent Act of 1859. Under it, e.g. Collectors and Deputy Collectors are to be Courts controlled by the Board of Revenue (Section 151); a decision of a Collector may be tested by suit (Section 77 and Section 103); execution is to be regulated by rules in force in Civil Courts (Section 92). By our Regulation V of 1802 (Section 9) the High Court had authority over the Board of Revenue. This was abrogated in 1803 and it is important to remember that at the time of our Charter (1861) there existed in Madras no Revenue Courts as there did in Calcutta. Nor by Section 76 of Act VIII of 1865 was there any revisional power over the orders of a Collector save by regular appeal to the Zillah Court. As Rankin., J., points out in Allen Bros & Co. v. Bando & Co. 70 Ind. Cas. 371 : 49 C. 931 : 26 C.W.N. 845 : AIR 1923 Cal. 169: "In 1861, therefore, the Sadar Court possessed appellate jurisdiction over the Collector''s Court by the terms of the Act of 1859 itself and the High Court inherited therewith a power of superintendence. The cases were fully discussed in Chaiton Potjosi v. Kunja Behari 11 Ind. Cas. 207 : 38 C. 832 : 15 C.W.N. 863 : 14 CRI.L.J. 284. They show that a right of appeal, however limited, will let in the full general power of superintendence, but the right of appeal in those cases is clearly given by the special Code itself and applies to cases within the special jurisdiction conferred thereby." The earliest case is in the matter of the petition of Gobind Coomar Chowdhry v. Kristo Coomar Chowdhry 7 W.R. 520 : B.L.R. Sup. 714 a decision of the Full Bench of the year 1867. The suit was brought under the Act of 1859 and the Deputy Collector refused to order restitution for excess execution. There was no appeal and the Full Bench held that the Deputy Collector was wrong in refusing the application for restitution. It also held that in pursuance of its general power of superintendence the High Court could interfere and direct the Deputy Collector to enforce restitution.
Then came Nilmoni Singh Deo v. Taranath Mukerji 9 C. 295 : 12 C.L.R. 361 : 9 I.A. 174 : 5 Shome L.R. 130 : 4 Sar. P.C.J. 392 : 6 Ind. Jur. 547. The Collector acted under Act X of i859 and transferred a decree for rent, the respondent petitioned the High Court to interfere and it stayed proceedings u/s 15 of the Charter Act relying on Gobind Coomar Chowdhry v. Kristo Coomar Chowdhry 7 W.R. 520 : B.L.R. Sup. 714 and thus regarding the Collecttor as a Court over which the High Court had power of superintendence. The Privy Council simply agreed with the view taken by the High Court without discussion as to jurisdiction. Chation Patjosi v. Kunja Behari 11 Ind. Cas. 207 : 38 C. 832 : 15 C.W.N. 863 : 14 Cri.L.J. 284 held that the High Court had power to interfere with the orders of Collectors passed under Act X of 1859 and that except as expressly provided by that Act the procedure of Revenue Courts is governed by the Code of Civil Procedure. The Judges cited Bhyrub Chunder v. Shama Soonderee 6 W.R. Act X Rul. 68 in which Norman, J., observed: "It is clear that the Collector''s Court is a Court over which, at the time of the passing of the Charter Act, the Sudder Court possessed appellate jurisdiction, and, therefore, it is clear that the 15 th section of the Charter Act gives us a superintendence over such Courts for the purpose to which I have already alluded." Chaiton Patjosi v. Kunja Behari 11 Ind. Cas. 207 : 38 C. 832 : 15 C.W.N. 863 : 14 Cri.L.J. 284. This seems to indicate that the right of appeal to the High Court at Calcutta is based on its inherited jurisdiction from the Sudder Court over Courts of the Collector. If so, this and the other Calcutta cases are distinguishable on this ground. In Kartik Chandra Ojha v. Gora Chand Mahto 20 Ind. Cas. 420 : 40 C. 518 : 17 Cri.L.J. 593 the Court held that the High Court could revise proceedings of Courts of Collectors under the Chota Nagpur Tenancy Act. The Court thought that the proceedings under the Act were judicial in character and as Section 224(2) thereof allowed a second appeal to the High Court the Courts of Collectors were subject to the appellate jurisdiction of the High Court. The case turned on the wording of the special Act.
In H.D. Chatterjee v. L.B. Tribedi 68 Ind. Cas. 274 : 49 C. 528 : 26 C.W.N. 78 : AIR 1922 Cal. 427 it was held that the Calcutta Rent Controller was a Court of civil jurisdiction under rules framed under the Calcutta Rent Act and that, therefore the High Court had power to revise his proceedings u/s 107 of the Government of India Act. Here again the decision turned on special provisions. Rankin, J., in an elaborate judgment in Allen Bros. & Co. v. Bando & Co. 70 Ind. Cas. 371 : 49 C. 931 : 26 C.W.N. 845 : AIR 1923 Cal. 169 considers the same question. He held that the Controller and President of the Tribunal act as Courts of Justice--"Civil Courts in the general sense" (page 938 Pages of 49 C.--[Ea.]). "As neither the Rent Controller nor the President of the Tribunal were Courts known in 1861, a right of superintendence can only be made out under the Letters Patent in one or other of two ways : by establishing that it or some other form of appellate jurisdiction has been since granted with reference to the Rent Controller or, the President; or, secondly, by establishing that the High Court inherited a general jurisdiction over all Courts of civil jurisdiction established or to be established."
The learned Judge combats the suggestion that all other Courts of civil jurisdiction are subordinate to the High Court. "As a general proposition applicable to Bengal it seems to me that on the face of the Act of 1861 and the Letters Patent no proposition so simple and wide can possibly be correct. It is nowhere expressed and the several jurisdictions carefully defined and conferred are not to be extended or enlarged indefinitely upon general principles to the rigour of which His Majesty is in no way committed", (page 940 Pages of 49 C.--[Ea.]). As to whether the Calcutta Rent Controller is a Court over which appellate jurisdiction can be exercised, after stating the jurisdiction as it stood in 1861 as set out above, the learned Judge points out that "An actual relationship to this Court must be established; an existing thread of connecting authority must be disclosed." The learned Judge finally agreed with the view of the Division Bench reported as H.D. Chatterjee v. L.B. Tribedi 68 Ind. Cas. 274 : 49 C. 528 : 26 C.W.N. 78 : AIR 1922 Cal. 427. In the words of the learned Judge I must say I fail to see any actual relationship to this Court established by the Madras Estates Land Act between the Board of Revenue and the High Court either on the ground that the Board of Revenue is a Court or by reason of the application of Section 116 of the CPC in the restricted sense.
Certain Bombay decisions were quoted to us. In Abdul Karim Fateh Mahomed v. Municipal Officer, Aden 27 B. 575 : 5 Bom. L.R. 562 and in Municipal Officer, Aden v. Hajee Ismail Hajee Allana 30 B. 216 : 3 Cri.L.J. 5 : 3 A.L.J. 53 : 10 C.W.N. 165 : 8 Bom L.R. 4 : 1 M.L.T. 1 : 16 M.L.J. 73 : 34 I.A. 38 : 8 Sar. P.C.J. 901 the same case in the Privy Council, it was decided that the Aden Resident''s Court was subject to the superintendence of the Bombay High Court to which by Act II of 1864 a reference was provided both on fact and law. Purshotam J anardhan v. Mahadu Pandu 17 Ind. Cas. 676 : 37 B. 114 : 14 Bom. L.L. 947 held that a Collector under the Mamlatdars Courts Act was a Court subject to the superintendence of the High Court and that a Collector who granted a certificate u/s 10 of the Hereditary Offices Act exercised a judicial function and was, therefore, subject to the superintendence of the Bombay High Court. [The Collector of Thana v. Bhasker Mahadev Seth 8 B. 264.] All these cases turned on the provisions of special Acts. In Abdul Rahman Vs. Abdul Rahman the Full Bench of the Allahabad High Court pointed out that as there was no right of appeal from the Commissioner sitting in an Election Court there could be no power of superintendence u/s 107 of the Government of India Act. The Collector acting u/s 18 of the Land Acquisition Act, 1894 is not a "Court" Balkrishna Daji Gupte Vs. The Collector Bombay Suburban, and the Court of a Registrar is not a Court for our present purposes.
Reference must be made to Uma Charan Mandal v. Midnapore Zemindary Co. 23 Ind. Cas. 896 : 18 C.W.N. 782 : 19 CRI.L.J. 300 a case under the Nagpur Tenancy Act. The learned Judges distinguished the cases under the Bengal Rent Act of 1859 and added "It would, in our opinion, be anomalous to hold that where, by Statute, superintendence over a Revenue Officer is vested, in a particular matter, in the Commissioner and the Board of Revenue, the Revenue Officer should be deemed even for the purposes of that particular proceeding a Court subordinate to the appellate jurisdiction of this High Court." Also Darbari Panjiara v. Bhatti Ray 23 Ind. Cas. 883 : 41 C. 915 : 18 C.W.N. 575 : 19 CRI.L.J. 294 affords an instance of two entirely distinct series of Courts referred toby Rankin, J., in Allen Bros & Co. v. Bando do Co. 70 Ind. Cas. 371 : 49 C. 931 : 26 C.W.N. 845 : AIR 1923 Cal. 169. The Commissioner was constituted by the Regulation of the High Court to which the application in question should have been made. In Ram Dayal v. Ramadhin 12 A. 198 : A.W.N. (1890) 59 the learned Judges held that if the Board of Revenue and the High Court both exercised powers of revision a grave inconvenience and confusion of authorities must ensue. This they said could never have been intended. They thought the Board of Revenue had exclusive jurisdiction to deal with certain cases, but where an appeal to the Civil Court Judge is allowed it followed that the High Court had jurisdiction. They held then that the two jurisdictions were separate and distinct? Finally it is sought to infer the power of superintendence from the provisions of Order XLVI, Rule 1, Civil Procedure Code, which are made applicable by Section 192, Madras Estate Land Act. The fact that a point of law may be referred to the High Court for its opinion is a matter entirely within the discretion of the Board of Revenue and the Board cannot from this fact alone be compelled to submit a question for the opinion of this Court, Again, u/s 202, the High Court has power to make rules as to the applicability of the CPC in suits under the Act. This power is, however, subject to the approval of the Local Government and it is difficult to infer an independent power of superintendence under these circumstances from this section.
From these considerations it appears to me that it could not have been the intention of the Legislature that the Board of Revenue which is itself invested with certain revisional powers over the proceedings of its own officers under the Act, should be subject in its turn to the revisional jurisdiction of the High Court. It seems to me that convenience is strongly against it and there is no judicial authority for it save that of (Valluri Srivat) Sanka Rao Vs. The Ryots of Kalagampudi, which must be considered to have been wrongly decided for the reasons given above. The Calcutta rulings turned on the special circumstances existing in the Bengal at the time of the establishment of the High Court. The scheme of the Madras Estates Land Act seems to me to give two distinct series of appellate and, therefore, of revisional authorities--the Collector and the Board of Revenue for one class of cases and the District Court and the High Court for another. I would, therefore, as regards the Board of Revenue answer the question referred to us in the negative.
Venkatasubba Rao, J.
I regret I cannot agree. The question that has been referred to us runs thus:
Has the High Court in the exercise of its revisional jurisdiction either u/s 115 of the CPC or Section 107 of the Government of India Act of 1919 power to revise orders passed by the Board of Revenue under Chap. XI or Section 205 of the Estates Land Act?
Under this reference, the position of the Board of Revenue has to be determined in regard to Sections 171, 172, 190 and 205. In Chap. XI of the Act occur Sections 171 and 172, and in Chap. XV, Sections 190 and 205. Chapter XI deals generally with the framing of the Record of Rights. u/s 171, appeals of a certain kind lie to such authority as may be prescribed by the Local Government; and the Board of Revenue has been constituted the appellate authority under this section. Certain revisional powers are conferred on the Board u/s 172, and as I have said, matters dealt with by these two sections fall within Chap. XI.
Sections 189, the first section in Chap. XV, contains a very important provision. It says that Revenue Officers shall hear suits and applications specified in parts (a) and (b) of the Schedule to the Act, as Revenue Courts. It goes on to say that decrees and orders passed by the Revenue Courts, shall be subject to appeal as provided in the sixth column of parts (a) and (b). Section 190 provides for second appeals to the Board in two sets of cases against appellate orders of a District Collector in applications u/s 15 and against similar orders in suits u/s 40.
What is important to bear in mind in this connexion is that both these matters fall within parts (a) and (b) of the Schedule. The last of the relevant sections is Section 205, It confers concurrent powers of revision on the Board and the District Collector in respect of any proceeding under the Act before a Revenue Officer, from whose decision no appeal lies.
At the very outset, I desire to point out that the position and functions of the Board must be carefully distinguished with reference to these various provisions. Whether the Board is subordinate to the High Court is not a point to be dealt with in the abstract. The question in each case is, while performing certain specific functions, is it so subordinate? It is for this reason that I wish to stress the point, that the character of the Board must be separately considered under each of these sections.
At least two different sets of functions emerge upon an analysis of these provisions.
(1)The powers of the Board to deal u/s 205, with matters arising from decisions of Revenue Officers constituted Revenue Courts by the express words of the Act.
Of a kindred nature are the powers of the Board to hear second appeals u/s 190.
(2) The powers of the Board to deal with other matters; firstly, its powers u/s 205 in regard to matters not covered by (1); secondly, its powers under Chap. XI.
Though the reference made to us is comprehensive and includes these various aspects, we have been told, that the point that has arisen before the referring Bench for actual decision is of a very limited character, namely, that covered by (1).
Section 192 makes Section 115. Civil Procedure Code, a part of the Act. It is as if the later section is written out, or explicitly re-enacted, in the Act itself. The material part of Section 115 reads thus:
The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and may... make such order in the case as it thinks fit.
Before Section 115 can apply, the primary condition must be satisfied, namely, that the Court concerned is subordinate to the High Court.
One of the Courts mentioned in the Act is the District Court and the test is clearly satisfied in that case--(see Section 3 of the Code, which provides that the District Court is subordinate to the High Court ?
Then let us take the Revenue Courts mentioned in Section 189 of the Act. Are they subordinate to the High Court?
There is no definition of subordination in the Civil Procedure Code, although certain concrete instances are given in Section 3, as illustrating the rule of subordination.
Clause 16 of the Letters Patent says, (it must be clearly noted that I am not here concerned with the other parts of this clause) that every Civil Court of the Presidency is subject to the appellate jurisdiction of the High Court. Section 15 of the Charter Act (replaced by Section 107 of the Government of India Act) provides that every Court subject to the appellate jurisdiction of the High Court is subject to its power of superintendence.
Reading these two provisions together, every Civil Court in the Presidency is subject to the High Court''s right of superintendence, in other words, is subordinate to that Court.
Without even invoking the aid of Section 15 (Charter Act) one finds sufficient indication in Clause 16 (Letters Patent) itself, that all Civil Courts are subject to the High Court''s superintendence; for, Clause 16 provides that the High Court shall be a Court of Appeal:
(1) from Civil Courts of the Presidency;
(2) from all other Courts subject to its superintendence. The word "other" in this context implies that the Civil Courts are subject to the High Court.
The question then is--Are the Courts mentioned in Section 189 of the Estates Land Act Civil Courts? If they are, Section 115, Civil Procedure Code, applies. Nilmoni Singh Deo v. Taranath Mukerjee 9 C. 295 : 12 Cri.L.R. 361 : 9 I.A. 174 : 5 Shome L.R. 130 : 4 Sar. P.C.J. 392 : 6 Ind. Jur. 547 is, in my opinion, decisive of the point, that Revenue Courts are, for the present purpose, Civil Courts. The question arose with reference to Rent Courts in Bengal, under Act X of 1859. That Act makes a clear distinction between Rant Courts and Civil Courts. A decree-holder in a Rent Court in a certain district applied for a transfer of his decree to another district. Section 284 of the CPC then in force (Act VIII of 1859) provides, that a decree of any Civil Court in British India may be executed within the jurisdiction of any other such Civil Court. The point to be decided was, did this section apply to the Rent Courts? Its answer depended upon, whether such Courts were or were not Civil Courts and the Privy Council held that they were. The reason given for that view is of far-reaching importance. It is true that Act X makes a certain distinction between Civil and Rent Court; but their Lordships explain that Civil Courts are Courts exercising all the power of Civil Courts, as distinguished from Rent Courts, which only exercise powers over suits of a limited class. In a sense, of course, there is a distinction between these two terms but a Rent Court does nonetheless remain a Civil Court, as it does decide purely civil questions between persons seeking their civil rights. By this reasoning, their Lordships came to the conclusion, that the Rent Courts under Act X were Civil Courts within the Code of Civil Procedure.
This case is, in my opinion, of the utmost importance in deciding the present point; but I want to make it perfectly clear, that I am relying upon Nilmoni Singh Deo v. Taranath Mukerjee 9 C. 295 : 12 C.L.R. 361 : 9 I.A. 174 : 5 Shome L.R. 130 : 4 Sar. P.C.J. 392 : 6 Ind. Jur. 547 for this purpose alone. I say advisedly "for this purpose alone" for, in the argument there was a tendency to overlook that this case decides two entirely unconnected questions, the other point decided being that the High Court had jurisdiction u/s 15 of the Charter Act, to interfere, with the orders of the Rant Courts. On what ground this jurisdiction was assumed to exist (there is no discussion either in the judgment of the High Court or in that of the Privy Council), it is immaterial to enquire. To come back to the main point, Nilmoni Singh Deo v. Taranath Mukerjee 12 C.L.R. 361 : 9 I.A. 174 : 5 Shome L.R. 130 : 4 Sar. P.C.J. 392 : 6 Ind. Jur. 547 clearly affirms that Revenue Courts although so designated on account of their more limited jurisdiction, are nevertheless, properly understood, Civil Courts.
This decision of the Judicial Committee throws a flood of light upon the subsequent legislation on this point. The Indian Legislature realized that the moment, Revenue Courts were established, if nothing was said regarding their procedure, the provisions of the CPC would automatically apply to them. Section 5 of Act V of 1908 (the present Code of Civil Procedure), for instance, owes its origin to this fact. That section says, that where any special enactment applicable to Revenue Courts is silent in regard to rules of procedure, it shall be open to the Local Government, to declare that any portions of the Code shall not apply to those Revenue Courts, or, shall apply subject to such modifications as may be prescribed. It was again with the same object that Section 192 was enacted in the Madras Estates Land Act. It was inserted in order to regulate the applicability of the CPC to proceedings under that Act, for, the Legislature was aware that, if nothing was said in regard to the procedure, the whole of the Code would apply. From what I have said, it follows that what are termed Revenue Courts under the Act, are subject to the High Court''s power of superintendence.
Next, if these Courts are subordinate to the High Court, is the position of the Board different in this respect, when it deals with appeals or revisions pertaining to orders of Revenue Officers, u/s 189? This depends upon another question, is the Board while performing those functions, a Court at all? The Revenue Officers having been by the very terms of the Act, constituted Courts, when hearing certain suits or applications, it is a necessary corollary, in my opinion, that the Board, governed as it is by the same rules of procedure, should also be deemed a Court, when dealing with the same matters at a later stage. An appeal is but a continuation of the suit and the order of an appellate tribunal is in truth the final decision, in the proceeding initiated in the Court of the first instance. It is, therefore, difficult to regard an appellate or revisional authority (made expressly subject to the same rules of procedure) which deals with another stage of the same case, as anything but a Court. If the Board is a Court, it matters little whether you call it a Revenue or a Civil Court, for, as I have shown above, every Revenue Court in common parlance, is a Civil Court in the wider sense of that term. If this conclusion is correct, the Board is a Court subordinate to the High Court u/s 115, Civil Procedure Court.
Let me take another line of argument. Are the Courts mentioned in Section 189, subject to the High Court''s appellate jurisdiction? If they are so subject, the High Court has right of superintendence over them. (Section 15 of the Charter Act or Section 107 of the Government of India Act