Ottakara Samban vs Palmuthiah Kudumban and Others

M.M. Ismail, J.—The plaintiff in O.S. No, 207 of 1961 on the file of the Court of the District Munsif of Srivilliputtur, who lost before the

trial Court as well as before the first appellate Court is the appellant before this Court. He instituted the suit for a declaration that he was the

Nirganti of Azhuthakanniratrinan tank in inam Chettikulam village and hence entitled to be in possession of the suit property and for the

consequential relief of a permanent injunction restraining the defendants (respondents herein) from interfering with the plaintiff''s possession of the

suit property. The facts are not in controversy. In 1938 under Exhibit A-1 dated 26th January, 1938 the appellant herein was appointed as the

Nirganti of the tank in question by the inamdars of the village. Subsequently defendants 1 to 3, who were impleaded as respondents 1 to 3 herein,

approached the Revenue Divisional Officer and. the District Collector for ousting the appellant from the office and for appointing them to that

office, on the ground that they were hereditarily entitled to the office. They were referred to a civil suit by the Revenue Authorities, and the fourth

defendant as the Senior Proprietor, under Exhibit B-1 dated 20th January, 1959 passed orders removing the appellant from the office of Nirganti

and appointing respondents 1 to 3 herein in his place. Some representations appear to have been made by the appellant to the Revenue

Authorities, but they being of no avail, he instituted the suit for a declaration and injunction as mentioned above.

The suit was dismissed by the learned District Munsiff on 11th June, 1964. He came to the conclusion that the appointment of respondents 1 to

3 by the fourth defendant under Exhibit B-1 was not valid for two reasons; one was that the same had been done without notice to the appellant

herein, and, secondly, they were appointed solely on the basis of their claim that they were hereditarily entitled to the office and the hereditary

principle has been declared to be unconstitutional by the Supreme Court in Gazula Dasaratha Rama Rao Vs. The State of Andhra Pradesh and

Others, . Notwithstanding this conclusion arrived at by the learned District Munsiff, he still declined to grant any relief to the appellant on the basis

that even the appointment of the appellant under Exhibit A-1 in 1938 was illegal, because at the time of his appointment the hereditary claims of

other persons were not taken into account. It is in view of this conclusion of the learned District Munsiff that the original appointment of the

appellant himself Was not valid, that the relief of declaration as well as the consequential injunction was denied to the appellant. Against this

judgment and decree of the learned District Munsiff the appellant preferred an appeal to the learned District Judge of Ramanathapuram at

Madurai, and the same was disposed of by the learned Additional District Judge on 22nd February, 1966 in A.S. No. 181 of 1964. The learned

Additional District Judge appeared to agree with the conclusion of the learned District Munsiff that the appointment of respondents 1 to 3 herein by

the fourth defendant under Exhibit B-1 was invalid for the same reasons on which the learned District Munsiff had rested his conclusion. He also

came to the same conclusion as the learned District Munsiff that the appointment of the appellant in 1938 was invalid, since the validity of that

appointment had to be tested in the light of the law as it then stood and that, if so tested, it was clear that the appointment Was made without

considering the hereditary claims of the other persons to the office. There was yet another reason recorded by the learned Additional District Judge

for denying relief to the appellant and that was that Section 13 of Madras Act III of 1895 barred the suit in a civil Court. I may also mention one

further consideration, namely, whether the appointment of the appellant in 1938 Was a permanent one or a temporary one. The order Exhibit A-1

itself does not say that the said appointment was a temporary one. But the fourth defendant was examined as P.W. 1 and he stated that the

appointment was only temporary. Accepting this evidence of the fourth defendant, who gave evidence on behalf of the appellant himself, the

learned District Judge came to the conclusion that the appointment of the appellant in 1938 was only temporary. However, the suit was dismissed

for the reasons mentioned already. Hence, the present second appeal by the plaintiff in the suit.

Mr. R. Alagar, the learned Counsel for the appellant, contends: (1) that the learned Additional District Judge is wrong in coming to the

conclusion that the suit is barred by Sections 13 and 21 of Madras Act III of 1895, (ii) that the conclusion of the learned District Judge that the

appointment of the appellant in 1938 was only temporary is not warranted by the terms of Exhibit A-1 and that the evidence of the fourth

defendant ought not to have been accepted in order to construe the appointment made in 1938 as a temporary one, and (iii) that, in any event, the

order of the fourth defendant under Exhibit B-1 cannot be supported, since it was passed without giving any opportunity to the appellant herein,

and that that order is without jurisdiction for another reason as well, namely, that the remedy of respondents 1 to 3 was to file a suit u/s 13 of

Madras Act III of 1895 and not to approach the fourth defendant for the removal of the appellant and for their appointment in his place.

The learned Counsel for the respondents, in addition to supporting the conclusions of the Courts below and the reason given for dismissing the

appellant''s suit contended that the principle of the decision of the Supreme Court in Gazula Dasaratha Rama Rao Vs. The State of Andhra

Pradesh and Others, . had no application to the present appointment, because it was an appointment made by the Senior Proprietor of the inam

village and the emoluments of the office were only in the form of enjoyment of certain land and not payment of any salary.

I shall now consider the validity and correctness of these rival submissions made by the counsel on both sides. Let me first consider the validity

of the order passed by the fourth defendant under Exhibit B-1. I am of the opinion that the Courts below were perfectly justified in coming to the

conclusion that the said order was not a valid one. There is absolutely no evidence to show that any notice or opportunity was given to the

appellant herein before he was removed by the fourth defendant by virtue of his order under Exhibit B-1 and respondents to 3 herein were

appointed in his place. Whether the appellant Was originally appointed temporarily or permanently, from 1938 to 1959 for a period of twenty-one

years he had been holding that office and before such a person could be removed from the office, whatever the ground of removal may be, he must

have been given an opportunity to show cause before the order could be passed. No such opportunity has been given in this case, and the Courts

below have come to the conclusion that such an opportunity was not given. Hence, Exhibit B-1 insofar as it purported to remove the appellant

from service, is totally invalid and without jurisdiction.

The said order is illegal and without jurisdiction for another reason as well. I have already referred to the fact that respondents 1 to 3 put

forward their claim solely on the basis of their hereditary rights and they were appointed only on the basis of that right. The office of Nirganti is one

of the offices expressly enumerated in Section 3 of Madras Act III of 1895. It is Section 11 of Madras Act III of 1895 which deals with the rules

of succession to the office in question and it is this Section which confers the power on the proprietor to make appointments to fill up vacancies in

offices forming Class (3) in Section 3. Section 13 of the Act provides:

Any person may sue before the Collector for any of the village offices specified in Section 3 or for recovery of the emoluments of any such

office, on the ground that he is entitled under Sub-section (2) or (3) of Section 10 of the Madras Proprietary Estates Village Service Act, 1894, or

under Sub-section (2) or (3) of Section 11 or Section 12 of this Act, as the case may be, to hold such office and enjoy such emoluments; or, being

a minor, may sue before the Collector to be registered as heir of the last holder of any such office. This Section exclusively deals with the

investigation into the claims based upon the hereditary right to succeed to the office referred to therein. It is in view of this provision contained in

Section 13 (1) of the Act, that Section 23, dealing with appeals against orders, does not make any provision for an appeal against an order

recognizing a particular individual as entitled to succeed to the office hereditarily. Section 23 (1) says that from every order passed by a Collector

u/s 6 or 7, and from every decree or order passed by a Collector in a suit preferred u/s 13, an appeal shall lie, within one month, to the District

Collector, or if the said order or decree was passed by a District Collector, an appeal shall lie, within three months, to the Board of Revenue.

Section 6 deals with the grouping of villages or division of villages and the consequential appointments, and Section 7 deals with disciplinary

proceedings that may be taken against village officers, and it is Section 13 which contemplates the filing of a suit, as referred to already. Therefore,

Section 23 contemplates an appeal only against orders under these three Sections and it does not contemplate any appeal against an order u/s 10

or 11 or 12 in relation to the succession to the various offices. The reason for not providing for an appeal against any of these orders is that with

reference to such orders the remedy of a suit u/s 13 is available. In view of this express provision contained in the statute itself, if respondents 1 to

3 herein were aggrieved by the appointment of the appellant as the Nirganti and they wanted to claim the office for themselves on the basis of their

hereditary right, the only remedy available to them was to follow the procedure contemplated by Section 13 and not to approach the fourth

defendant for the removal of the appellant herein and for their appointment in his place. This view of mine is supported by a decision of this Court

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

The third reason is relevant to the contention of the learned Counsel for the respondent that the decision of the Supreme Court in Gazula

Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, . has no application to the appointment made by the Senior Proprietor in this

case. I may straightaway mention that Exhibit B-1 refers to Madras Act II of 1894 and the Board''s Standing Orders. Notwithstanding this, the

learned Counsel on both sides argued before me on the basis that it was Section 11 of Madras Act III of 1895 that applied to the appointment in

question. The argument of the learned Counsel for the respondents is that when the proprietor made an appointment and the emoluments of the

office are not in the form of payment of salary, but merely enjoyment of some lands, the office will not be one to which Article 16 of the

Constitution will apply. I am of the opinion that this argument is really misconceived. Article 16(1) of the Constitution applies to any office or

appointment under the State. So long as the office is under the State, it is wholly immaterial who mikes the appointment and what is the form of

remuneration or emoluments that is paid to the officeholder. In this case it is admitted that one of the functions of the Nirganti is to perform what is

called the kulam kaval services, i.e., distribution of the water in the tank for irrigation among the ayacutdars. Undoubtedly, this is a function Which

is discharged by the officers of the State in the ryotwari villages and in inam villages is certainly discharged by those officers who can very

appropriately be considered to be holding office under the State. The fact that the appointments ''are to be made by the Senior Proprietor or the

inamdar concerned, pursuant to the specific provision contained in Section 11 of Midras Art III of 1895, will not rob the office of its character as

an office under the State. As a matter of fact, against any disciplinary action that may be taken against the officer by the proprietor an appeal lies to

the Revenue Officers u/s 23(2) and Section 13, to which I have already made reference includes a claim to such an office. In view of these

features, I am unable to accept the contention of the learned Counsel for the respondents that the decision of the Supreme Court in Gazula

Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, . will have no application to the appointment of a person to the office of

Nirganti.

For all these three reasons the order of the fourth defendant under Exhibit B-1 removing the appellant from the office of Nirganti and appointing

respondents 1 to 3 to that office is illegal and without jurisdiction.

Then the next question for consideration is whether, notwithstanding the invalidity of the appointment of respondents 1 to 3 herein by the fourth

defendant under Exhibit B-1, can relief be denied to-the appellant herein. I have already pointed out that the sole ground on which relief was

denied to the appellant by the learned District Munsif was that his appointment was invalid, because the claims of other persons having hereditary

rights were not considered. To this ground the learned Additional District Judge added yet another ground, namely, that the suit itself was barred

u/s 13 read with Section 21 of Madras Act III of 1895. I am of the opinion that, whether the appointment of the appellant in 1938 was valid or

not, is Wholly irrelevant for considering the question whether his removal was valid or not. Even if the 4th defendant was of the view that the

appointment of the appellant in 1938 was not valid, that does not automatically empower him to remove him from office after twenty-one years

without giving him an opportunity to put forward his defence. The failure of the fourth defendant to give notice or an opportunity to the appellant

herein to put forward his case vitiates the order of removal, and once the order of removal goes, the appellant will continue to be in office until he is

removed from office in accordance with law. Therefore, the Courts below were not justified in denying relief to the appellant herein on the basis

that his original appointment was not valid.

As far as the additional ground given by the learned Additional District Judge is concerned, 1 do not have the slightest hesitation is coming to

the conclusion that that ground is untenable in law. I have already referred to the scope of Section 13. It applies only to cases where a person

claiming the office bases his claim on the hereditary right which has been provided for in the statute in question. In this particular case the appellant

herein has not come forward with the present suit to establish his hereditary right, but he has come forward with the suit to the civil Court only for

the purpose of protecting the appointment which has been already made in his favour. That appointment ex facie had not been made on the basis

of the hereditary right, but according to the findings of the Courts below ignoring the hereditary rights of the other people. Under such

circumstances Section 13 cannot be a bar to the present suit.

As far as Section 21 is concerned, it will have application only in regard to a claim to succeed to the office. The language of Section 21 itself

makes it abundantly clear, when it states.

No civil Court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in Section 3 or any

question to the rate or amount of the emoluments of any such office or except as provided in proviso (ii) to Sub-section (i) of Section 13, any claim

to recover the emoluments of any such office.

Therefore, Section 21 will apply only when it involves an investigation into a claim to succeed to the office, but can have no application whatever,

when a plaintiff comes to the Court to protect the office which he is holding under an order of appointment already made, not on the basis of any

hereditary right. The result of this will be that Sections 13 and 21 of Madras Act III of 1895 will have to be read together and Section 21 bars only

such a such suit as will fall within the scope of Section 13 of the Act. Otherwise, it will lead to the anomalous result that Section 21 prevents the

institution of suits in a civil Court without providing for an adequate remedy for the aggrieved party. The justification for Section 21 is that the party

whose suits are barred by that Section has got an alternative remedy of filing a suit u/s 13 and it is because of that remedy being available, the right

of moving the civil Court is barred. Hence, it is the combined operation of Sections 13 and 21 that will determine whether the jurisdiction of the

civil Court is barred or not. The same view has been taken in Thangutoori Kodandaramayya v. Tkangutoori Ramalingayya and Anr. (1970) 12

LI.W. 663 and Ramaswami Iyer Vs. Thandavam Pillai (died) and Others, .

Apart from this, there is the general principle that the exclusion of the jurisdiction of the civil Court is not to be readily inferred and has to be

provided for expressly or by necessary implication by the statute. If this principle is applied to the facts of this case, there is no doubt whatever that

the present suit is not barred u/s 13 read with Section 21, since the claim of the appellant is not to succeed to the office, on the basis of any

hereditary right. Consequently I am clearly of the opinion that the learned Additional District Judge came to a wrong conclusion in law when he

held that the present suit was barred by the provisions of Sections 13 and 21 of Madras Act III of 1895.

Under these circumstances, the second appeal succeeds and is allowed, and the judgments and decrees of the Courts below are set aside, and

the suit of the appellant will stand decreed as pray, ed for with costs throughout. No leave