The Secretary of State for India in Council vs Kocherlakota Subba Rao

Bardswell, J.—The appellant is the Secretary of State. The respondent was the karnam of a village in the Kistna District. He was dismissed

on 4th October, 1921, by the Revenue Divisional Officer of Ellore for having got appointed as talayari, a young boy, whom he made use of as his

own servant. On appeal the District Collector, on 2nd December, 1921, modified his punishment to one of suspension for a year. He then, very ill-

advisedly, presented a second appeal to the Board of Revenue. He had, in fact, no right of appeal as under the proviso to Section 23(1) of

Madras Act III of 1895 there can be a second appeal to the Board, on a matter of punishment, only in the case of a dismissal of a Village Officer.

None the less the appeal was entertained by the Board which, apparently without hearing the present respondent, set aside the Collector''s order

of suspension and restored the original order of dismissal. The respondent then filed O.S. No. 699 of 1922 in the Court of the District Munsif of

Kovvur praying for a declaration that the order of the Board of Revenue was invalid and ultra vires. The District Munsif, granted a decree as

prayed for, but on appeal the Principal Subordinate Judge of Masulipatam dismissed the suit, holding that the Board of Revenue had acted in the

legitimate exercise of revisional powers which it derived from Section 5 of Madras Regulation I of 1803. On Second Appeal (No. 202 of 1926)

58 M.L.J. 698 Wallace, J. has restored the decision of the District Munsif, holding that Section 5 of Regulation I of 1803 did not give to the Board

the power of revision which the first appellate Court had found that it possessed thereunder, neither did the Board have any inherent power,

outside the Acts and Regulations, to interfere with and enhance the order of suspension which had been passed by the District Collector in this

case. He has also held, in agreement with the two lower Courts, that the suit was maintainable.

That there was no right of appeal is conceded and cannot, indeed, be disputed in the face of the plain language of the proviso to Section 23(1)

of Madras Act III of 1895. The Board of Revenue should not, therefore, have entertained the respondent''s appeal. It is, however, contended by

the learned Government Pleader that the Board was in fact acting in the exercise of its revisional powers, though it did not in any way indicate that

it was so doing, and that it got such powers from Section 5 of Regulation I of 1803 which section has never been abolished. Wallace, J. has dealt

with this contention in his judgment and I would, with all respect, express myself as in entire agreement both with the conclusion which he has come

to and the reasons that he has given therefor. Section 5 of Regulation I of 1803 runs thus:

The Board of Revenue have had, and are hereby declared to have, authority to superintend and control all persons employed in the executive

administration of the public revenue; all Zamindars or proprietors of land paying revenue, and all farmers, securities, ryots or other persons

concerned, in, or responsible for, any part of the revenue of Government as far as the said superintendence and control may relate to the executive

administration of the revenue under the regulations now enacted, or to be hereafter enacted.

As has been pointed out by Wallace, J., the section gives to the Board no punitive powers over village officers but such power is given to it by

Section 33 of the same Regulation, which empowers it to ""punish neglect in the Subordinate Officers of Revenue according to the powers vested in

them for that purpose"". Under Regulation XXIX of 1802 it was laid down that karnams could only be dismissed from their offices by the sentence

of a Court of Judicature. Power to dismiss karnams was given to the Board of Revenue by Section 7(3) of Regulation II of 1806, while by

Regulation VI of 1831 the power theretofore exercised by the Board of Revenue over karnams in ryotwari tracts was transferred to Collectors

subject to the approval of the Board, and by Act II of 1869, Section 7(3) of Regulation II of 1806 was repealed. Finally there came Madras Act

III of 1895, in which there is no mention of any revisional power being vested in the Board of Revenue, while its appellate powers in matters of

punishment are stated as being those of hearing first appeals against punitive orders passed by the District Collector in the first instance and second

appeals in the circumstances already noted. It is argued for the appellant that, though there have been express provisions as to the powers of the

Board in matters of punishment, yet it still has authority to deal with questions of punishment in revision u/s 5 of Regulation I of 1803, though such

authority is not expressly given to it by that section. That contention, however, is not justified by the wording of the section itself, while the fact that

powers of punishment have always been given by specific provision indicates that such powers belonged to a separate category from those of

general superintendence and control. The learned Government Pleader has referred byway of analogy to Section 107 of the Government of India

Act and has quoted Chinnayya Gounder In Re: Palanikumara Chinnayya Gounder, which, in agreement with what was stated in a previous

decision of this Court, points out that the two things required to constitute appellate jurisdiction, in which revisional jurisdiction is included, are the

existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. But the same

decision holds that a Collector, when passing a punitive order u/s 7 of Act III of 1895, is not a Court subject to the High Court''s jurisdiction. He

cannot, indeed, when he passes a punitive order against a village officer be taken as acting as a Court at all. He is acting then departmentally as an

executive officer as is, indeed, pointed out in Chinnayya Gounder In Re: Palanikumara Chinnayya Gounder, and so too the Board of Revenue,

when it deals on appeal with such orders, is an executive authority and not a Court. And so the analogy of Section 107 cannot apply. Especially is

it impossible to hold that the Board can have the authority which it claims to dismiss a karnam in revision in circumstances such as those in the

present case. Under Regulation XXIX of 1802 it had no power to dismiss a karnam in any circumstances, and as that Regulation was still in force

in 1803, Section 5 of Regulation I of that year could not give it any such power. Nor could it have it on the passing of Regulation II of 1806 as it

then became the sole authority by which a karnam could be dismissed. It could only possibly have it after the passing of Regulation VI of 1831

when its power over karnams in ryotwari tracts was transferred to Collectors and, for it to have it then, these would have to be read with Section 5

of Regulation I of 1803, an implication that was not there when the Regulation was first passed. Such an idea cannot be seriously entertained. I

have no doubt but that the order of the Board now under consideration was passed without jurisdiction and was ultra vires.

The next question that arises is that of whether the suit is maintainable. The respondent sued for a mere declaration without any consequential

relief and it would appear that he could not at the time of suing ask for any such relief. The argument for the appellant is that his case does not

come u/s 42 of the Specific Relief Act and that, therefore, the suit did not lie. In the opinion of Wallace, J., the respondent was not suing as a

person entitled to any legal character or to any right as to any property so that, if Section 42 was exhaustive of declaratory suits, the suit would not

lie, but he has followed the view which has generally been taken by this Court that that section is not exhaustive and has, therefore, upheld the

findings of the lower Courts that the suit could be maintained. In this connection reference has first of all to be made to the Privy Council decision in

3 CWN 161 (Privy Council) . That had to do with a suit which was in substance to have the true construction of a statute declared and to have an

act done in contravention of the statute, rightly understood, pronounced void and of no effect. The Privy Council points out that this is not the sort

of declaratory decree which the framers of the Specific Relief Act had in their mind, while at the same time holding that even if that Act applied

there could be no objection, in the circumstances, on the score that further relief was not prayed for. In that case there had been an order, passed

under Madras Act I of 1876, for separate registration and assessment. The Government directed the Collector to cancel this order and it was this

action of Government which was found to be ultra vires. Under Act I of 1876 any person who is aggrieved by an order, whether granting or

refusing separate registration, has to seek his remedy by a suit and it may be noted that the suit is to be one for a declaration that the separate

registration ought or ought not to have been made as the case may be. That point, however, does not seem to have been considered. This ruling

has been followed by this Court as an authority for the proposition that Section 42 is not exhaustive of declaratory suits, in a number of cases

which have been stated by Wallace, J., in his judgment. The latest of these cases is Veeramachaneni Ramaswamy v. Soma Pitchayya I.L.R.(1919)

Mad. 410 : 38 M.L.J. 226. There has, however, to be considered a later decision of the Privy Council in 20 CWN 738 (Privy Council) . The

plaintiffs in that case had prayed for a declaration that a will, probate of which had been granted, was not genuine and the Privy Council pointed

out that u/s 42 a plaintiff has to be entitled to a legal character or to a right as to property and that the plaintiffs could not predicate this of

themselves as they described themselves in the plaint as entitled to the estate in case of an intestacy; whereas, as things stood, there was no

intestacy, since the will had been affirmed by a Court exercising appropriate jurisdiction. The suit was, indeed, nothing more than an attempt to

evade or annul the adjudication in the testamentary suit. The suit was held to fail at the very outset because the plaintiffs were not clothed with a

legal character or title which would authorise them to ask for the declaratory decree sought by their plaint. This decision, which does not consider

3 CWN 161 (Privy Council) and was passed in very different circumstances from those of the earlier decision and of the case now under notice,

has been interpreted by a Bench of this Court in Yellavajhula Surayya Vs. Yellavajhula Subbamma and Others, as having turned on the fact that

the will which was sought to be avoided had been affirmed by a Court exercising appropriate jurisdiction and that, as the propriety of that decision

could not be impeached in the subsequent proceedings, the plaintiffs could not sue, not being reversioners. I would with respect agree with this

view of the decision. In P.C. Thevar v. Samban I.L.R.(1928) Rang. 188 however, it has been held to be quite clear from this later Privy Council

decision that, apart from Section 42, the Courts have no power to grant a merely declaratory decree, and agreement has been expressed with the

view taken as to that by Pollock and Mulla in their commentary. In Maulavi Muhammad Fahimul Huq v. Jagat Ballav Ghosh I.L.R.(1922) Pat. 391

it was held that there was no substance in the contentions that Section 42 was not exhaustive and that apart from statutory authority the general law

entitles the plaintiff to a declaration. That was a case in which a mere declaration was prayed for though consequential relief was clearly available.

This decision though one of 1922, does not refer to 20 CWN 738 (Privy Council) ; neither does it refer to 3 CWN 161 (Privy Council) . In

Bholanath Sankar Das v. Lachmi Narain I.L.R.(1930) All. 316 a Bench stated, without reference to any authorities, that British Indian Courts have

no general powers to make a declaratory decree outside the limits formulated by Section 42. What was asked for was a declaration of what

appeared to be a self-evident proposition. In Kailash Chandra Dutt v. Jogesh Chandra Majumdar (1928) 32 Cal. W.N. 1084 the Calcutta High

Court quoted from the decision in 20 CWN 738 (Privy Council) :

A plaintiff coming under this section (42) must...be entitled to a legal character or to a right to property.

and held that as the then plaintiff did not correspond to this description his suit was not maintainable. He was the shareholder of a company who

sued for a declaration that certain persons were no longer directors. In this case the decision in 3 CWN 161 (Privy Council) was not considered.

In Bai Shri Vaktuba v. Thakore Agarsinghji Raisinghji I.L.R.(1910) 34 Bom. 676 a decision of 1910, it is stated as having been long established

that the general power vested in the Courts in India under the CPC to entertain all suits of a civil nature, excepting suits of which cognizance is

barred by any enactment for the time being in force, does not carry with it the general power of making declarations except in so far as such power

is expressly conferred by statute, but it was held that Section 42 applied to the particular case then under notice. Reference was made to 3 CWN

161 (Privy Council) but the only comment on it was that the Judicial Committee were not considering exhaustively in it the different cases in which

declaratory decrees might be passed. From all these decisions it would appear that 3 CWN 161 (Privy Council) has never been overruled neither

has any different interpretation being given to it from that which it has always had in this Court. That decision, in that it is one of the Privy Council,

has to be followed here in any case to which it can apply. As pointed out by Wallace, J,, it is similar to the case now under consideration. As

already noted it was held to be in substance one to have the true construction of a statute declared and to have an act done in contravention of the

statute, rightly understood, pronounced void and of no effect. Here it is a question of the right interpretation of a Regulation (I of 1803) and of an

Act (III of 1895). Wallace, J., has held it to be clear that the respondent-plaintiff''s case must in the nature of the case be purely a declaratory one,

and the appellant has not taken the point that it was open to him to ask for any further relief. He has unquestionably the hereditary right to be

karnam and that right has only been taken from him by the-order which he seeks to have declared invalid and he has not been barred from it by the

decision of any Court. He has set out the fact that he is hereditary karnam in the first paragraph of his plaint and so I would be disposed to hold

that he is suing as a person entitled to a legal character. In my opinion it has been rightly held that the suit is maintainable and I would, therefore,

dismiss this appeal with costs.

Horace Owen Compton Beasley, C.J.

I agree.