K.M. Duraiswami Reddiar vs The Secretary of State for India in Council and Others

Wadsworth, J.—This appeal is preferred by the plaintiff in a suit brought by him for a declaration that he is the legal holder of the office of

village headman in a Government village and that the appointment of the second defendant in pursuance of the order of the Board of Revenue is

illegal and for restraining the Government and the second defendant from interfering with his enjoyment of the office.

The facts are not in dispute. When the vacancy to the office occurred, the plaintiff was actually doing the work as a deputy. The second

defendant is the son of a former dismissed occupant of the office and a cousin of the last actual holder of it. Both the Revenue Divisional Officer

and the District Collector held that the plaintiff had a better claim to the office and the plaintiff was accordingly appointed and entered upon the

duties of the office. I am informed that he is still the incumbent of the office getting the work done through a deputy. Against the Collector''s order,

the second defendant preferred what was called a second appeal to the Board of Revenue and the Board of Revenue passed an order, Ex. D, to

the effect that it was in accordance with the spirit, if not with the letter of the Act, that the second defendant''s claims should be preferred to those

of the plaintiff who, if not an absolute stranger, had very much weaker connection with the office. The Board proceeded to make a reference to the

plaintiff as one not likely to do the work himself and observed:

The Board does not want a man of the plaintiff''s type and considers it equitable to appoint the second defendant to the office.

The second defendant was accordingly appointed.

It has been held by both the Courts below that this is a suit relating to a claim to succeed to an office covered by the provisions of Section 13

and therefore u/s 21 of the Madras Act III of 1895, the jurisdiction of the Civil Court is ousted. It seems to me that this view of the case is

erroneous. If the order passed by the Board of Revenue was one which the Board was legally competent to pass, then undoubtedly there would

be an appointment of the second defendant to the office and a claim by any one else would be one which should have been brought by a suit u/s

13 in the Revenue Court. But the position taken up by the plaintiff in the present suit is that he is the legally appointed Village Munsif, that there has

been no legal appointment of the second defendant and that the act of the Board of Revenue in trying to turn out the plaintiff from the office which

he still holds and to put the second defendant into his place is an unwarranted invasion of the plaintiff''s legal rights. If that case is made out, it is

certainly not a case in which the plaintiff sued to establish his right to succeed to an office or to get the emoluments of an office. He already

occupies the office and is still drawing its emoluments through his deputy. In fact the plaintiff''s case is that having legal possession of the office, he

seeks to avert a threat to that possession by the unlawful act of a powerful body. That, in my opinion, is a suit which the Civil Courts have

jurisdiction to entertain.

The only question therefore is whether the order of the Board of Revenue on this so-called second appeal by the second defendant is a legal

order which would have the effect of putting the plaintiff in the position of one seeking to establish his right to succeed to an office, or is it an

unlawful attempt to invade the established rights which the plaintiff has already acquired. The scheme of Act III of 1895 is that when there is a

vacancy to an hereditary office, the Collector shall fill that vacancy in accordance with the rules of primogeniture and that any dissatisfied claimant

shall have the remedy of a suit before the Collector to establish that he has a better right. The powers of the Collector are in fact wielded in the first

instance by the Revenue Divisional Officer by virtue of a delegation under the Subordinate Collectors'' Regulation VII of 1828, which expressly

provides that the orders of the Subordinate Collector under the powers so delegated shall be subject to a revision by the Collector and that the

Collector shall have the power to confirm or modify or annul those orders. It has been held in T.V. Srinivasa Aiyangar Vs. V. Jagannatha Aiyangar

and Another, , that this power of the Collector to modify the order of a Subordinate Collector is not in conflict with the machinery of Act III of

1895; so that in effect there is a right of appeal to the District Collector from the order of the Subordinate Collector passed u/s 10 of that Act.

The only power which can be claimed by the Board of Revenue is based on Section 5 of the Board of Revenue Regulation (I of 1803),

whereby the Board is given authority to superintend and control all persons employed in the executive administration of the public revenue. It is

contended on the analogy of decisions relating to the High Court''s powers of superintendence u/s 15 of the Charter Act and Section 107 of the

Government of India Act, 1919, that this power conferred on the Board by Section 5 of the Board of Revenue Regulation includes a power to set

aside orders of a subordinate authority, passed under statutory powers, which, in the Board''s opinion, are erroneous. In the first place I must

observe that I am not aware of any decision which has gone so far as to say, u/s 15 of the Charter Act or Section 107 of the Government of India

Act, 1919, that the High Court had the power in revision to set aside an order, which could be modified by another machinery prescribed by

statute, merely because that order was, in the High Court''s opinion, ill-advised or erroneous. Decisions relating to the High Court''s powers under

its general power of superintendence have, so far as I am aware, always restricted the exercise of that power in judicial matters to interference in

cases of grave dereliction of duty for which no other remedy is available and which would have serious consequences if not remedied. There is no

suggestion in the Board''s order in this case that the grounds for its decision are any more than a difference of opinion with the Collector as to the

legal rights of the two rival claimants and the desirability of one rather than the other as a village officer. I do not wish to say anything which might

be taken as indicating that in no circumstances can the Board of Revenue by virtue of its powers u/s 5 of the Board of Revenue Regulation set

aside a statutory order of its subordinate in the case of a gross error attended by serious consequences for which no other remedy is provided by

law. But I am emphatically of opinion that these general powers of superintendence did not authorise the Board of Revenue to arrogate to itself a

power of interference in revision or in second appeal from a statutory order, when machinery of the statute itself confers no such power and

contemplates the utilisation of another remedy which is accessible to the person aggrieved, more especially in a case in which the consequences of

any error are purely personal to the rival claimants. So far as I am aware, there is no decided case in which it has been recognised that Section 5 of

the Board of Revenue Regulation gives to the Board of Revenue the power to set aside a statutory order passed by one of its subordinates in

cases where the statute provides a different machinery for rectifying any error. The decisions in Subba Rao v. Secretary of State (1929) 58 M.L.J.

698 and The Secretary of State for India in Council Vs. Kocherlakota Subba Rao, , though not precisely on this point, do at least indicate that the

powers of the Board of Revenue u/s 5 of this Regulation must be read subject to the statutory delimitation of their subordinates'' powers found in

other laws. Authority for the view that when a village officer lawfully appointed, has been unlawfully threatened with ejection by an official act, he

can maintain a suit to protect his right-of office, may be found in the case reported in Venkataraghaviah v. Chenchu Subbaiah (1930) 33 L.W.

In my opinion, the order of the Board of Revenue purporting to act in second appeal or revision and to decide a matter which according to

the machinery of the Act should have been decided by a suit u/s 13 of Act III of 1895, was an illegal attempt to invade the vested rights of the

plaintiff and the plaintiff has a remedy by way of a suit for a declaration of his right to the office and for an injunction restraining the defendants from

interfering therewith.

The appeal is therefore allowed with costs throughout and there will be a declaration declaring that the plaintiff is the legal holder of the suit

office and restraining the defendants by a permanent injunction from interfering with the plaintiff''s enjoyment of that office, except in accordance

with the law.

Leave to appeal refused.