Venkatanarayana Ayyar vs Ramchandra Ayyar

Stone, J.—Two revision petitions and one civil miscellaneous petition are before me. As to C.R.P. 1531, which is. a petition asking for a

revision of the order made by the Collector in this matter, it is not pressed. C.R.P. No. 1515 of 1932 is a petition asking for a revision of the order

passed by the Board of Revenue No. 5602 of 15th October 1931 which is in the following terms:

The Board sees no reason to interfere on behalf of the appellant. The appeal is dismissed.

That appeal was taken before the Board of Revenue from the decision of the Collector passed on 7th June 1931 which order was in turn

passed on appeal against the decision of the Revenue; Divisional Officer dated 5th January 1931. The C.M.P. 5311 is for the issue of a writ of

certiorari to the Board of Revenue for the purpose of bringing up-the order passed in appeal as above stated and for the said order to be quashed.

The respondent raises a preliminary objection founded upon a decision of a Bench of this High Court reported in Kumaraswami Mudali v.

Muniratna Mudali 1932 Mad 529 which in turn follows a decision of a Bench reported in In Re Chinnayya Gounder v. The Board of Revenue

Madras 1932 Mad 33. Kumaraswami Mudali v. Muniratna Mudali 1932 Mad 529 decides that the High Court has no revisional powers other the

Board of Revenue when the Board of Revenue acts in purauance of the powers given it by the Madras Hereditary Village Officers Act in respect

of a claim to one of the offices; u/s 3 of the Act, the High Court''s jurisdiction to do so being expressly excluded by Section 21 of the Act. It is said

that there is doubt thrown upon this decision in Muniswami Chetty v. The Board of Revenue, but the observations there are far too general to

justify me in thinking that any doubt is expressed on In Re Chinnayya Gounder 1922 Mad 337. Kumarswami Mudali v. Muniratna Mudali 1932

Mad 529 had not on that day been reported. In Muniswami Chetty v. The Board of Revenue Madras 1932 Mad 33 what the learned Judge at p.

487 is considering is whether a Collector and not;'' the Board of Revenue is a Court or not a Court.

The point however now under discussion does not turn upon whether the tribunal is a Court or not, but upon ?whether it is a Court subordinate

to the High Court for the particular matter entrusted to it by a particular Act. That matter has been fully considered in the two Bench decisions that

I have cited which are not only binding on me but with which I respectfully agree. That disposes of the revisional powers. It leaves outstanding the

question whether the writ of certiorari should issue. As to that, the learned Chief Justice in the case reported in Kumaras Mudali v. Muniratna

Mudali 1932 Mad 529 did not refuse the writ because the Board of Revenue, for this purpose, was not a Court, nor did he refuse the writ

because it was not a Court subordinate to the High Court, but the reason for refusing the writ is to be found in the sentence printed in Kumaras

Mudali v. Muniratna Mudali 1932 Mad 529. With regard to the issue of a writ of certiorari it has been laid down by this Court following the

decisions of the English Courts that a writ of certiorari will only issue where it is shown that the Court whose order is sought to be made the subject

of the writ has acted either without jurisdiction or in excess of it. Now it is said here that the Board has failed to exercise the jurisdiction, and

reliance is placed upon a case reported in Zamindarini of Mandasa v. Ryots of Mandasa Zamindari 1934 Mad 231, Ramesam, J., there says:

If the question arose as to whether certain lands are Pannai, the fact must, be found whether they are so or not, and if they are found to be pannai

they ought to be excluded from the Record-of-rights. Failure to enquire into this question is failure to exercise jurisdiction vested under Oh. 11

which justifies the issue of a writ according to all the English cases.

I apprehend that the learned Judge is there saying that the failure to exercise the jurisdiction justified the issue of a writ and not that a failure to

enquire into a question of fact is a failure to to exercise the jurisdiction. I will assume out of respect for my learned brother without expressing any

conclusion on it myself that failure so to enquire would be failure to exercise the jurisdiction. It is said that there has been a failure to inquire in this

case. The contest centred round the meaning of 8, 10, Madras Hereditary Village Officers Act. That Act was amended by an Act passed in 1930

and the contest before the Collector and the Revenue Divisional Officer, seems to have raged not so much round the meaning of Section 10 but

round the question of whether the Act of 1930 is an amending or a declaratory Act. For it is said that if it is a declaratory Act it is as though the old

Act, the true meaning of which is declared, had always read as it now reads since the amendment and consequently the Declaratory Act has

retrospective effect. If on the other hand it is an amending Act, it has no retrospective effect and the old Section 10 carries the meaning that before

the Act of 1930 it was commonly thought to carry.

The dispute raged round that point and it is said that both the lower Courts failed to consider the construction of Section 10 as it was. Even

assuming that the Madras Village Officers Amending Act of 1930, was an amending and not a Declaratory. Act, so that Section 10, Madras

Hereditary Village Officers'' Act stood as it always stood, still, it is urged, if that Section 10 is properly construed the plaintiff is entitled to succeed.

I have heard a very ingenious argument on the true construction of Section 10, concerning which section there was only one point of contact that I

could discern between the plaintiff and the defendant and that was that it is badly drafted. I must say that I think there is a great deal to be said for

the plaintiff''s argument that, on the true construction of Section 10, when one minor dies and another minor is the next in succession the

appropriate authority should, as directed by Sub-section 5, go back to Sub-section 3 and having gone back to Sub-section 3, then, a minor being

in question, should go again to Sub-section 5, register that minor as the heir, and appoint an adult to discharge the duties of the office. That would

be sufficient, if that is a correct construction of this section, to enable the plaintiff to succeed. It is not the construction that has hitherto been

favoured and it is to avoid the doubt raised by this section, probably, that the Act of 1930 was passed.

I am not however concerned at all with the merits of this case. I am merely concerned to see whether within the words used by Ramesam, J.,

there has been such failure to inquire into the question as amounts to a refusal to exercise jurisdiction. It is said that as yrne first Court that heard

the matter concentrated on the question whether the Act of 1930 was a Declaratory or Amending Act, and the Court that heard the appeal from

the first Court also concentrated on that question, therefore it must be assumed that the Board of Revenue concentrated on that question to the

exclusion of the consideration of the. true meaning of Section 10.. Then, it is said, their failure to construe Section 10 is a refusal to exercise

jurisdiction vested in them. I assume that for the purpose of what I am going to say that the above argument is sound. Accepting, it as correct, I

have not got anything on the record to show that the Board of Revenue refused to consider Section 10 or any other section. All that I have before

me is that ""the Board sees no reason to interfere on behalf of the appellant."" I must assume that the Board of Revenue does its work properly in

accordance with law unless there is something to show that it has done otherwise.

Looking as I do at the judgment appealed against I see stress is laid upon the Amending Act of 1930, but the question is also raised as to the

interpretation of Section 10. The Board of Revenue must be presumed to have read Section 10. My present impression is that the Board of

Revenue has arrived at a conclusion on the true interpretation of Section 10 different from what I have arrived at. That however is not what I have

to consider. I have to consider whether the tribunal has exceeded its jurisdiction or refused to exercise the jurisdiction vested in it. In my opinion it

has done neither of these two things. I have no reason to think that it did not bear in mind all the relevant things that it ought to have borne in mind.

It clearly entertained this appeal and it clearly was authorized by the statute to entertain the appeal. I therefore uphold the preliminary objection

which would make it undesirable to go into the merits of the case beyond indicating my view that it is possible that on a true construction of Section

10 the effect of that section is as I have above indicated. I only consider it proper to express my opinion to that extent because of course if I had

not entertained a doubt as to the accuracy of the conclusion arrived at, I should have refused to issue the writ of certiorari, in my discretion, on the

ground that no error had occurred.

I wish to add that it does not follow from the decision of the Board of Revenue in my opinion - I say nothing as to it one way or the other - that

the office has been taken permanently away from the family that formerly had it. That point can be disposed of when it arises. The C.E.Ps. and the

C.M.P. are dismissed with costs one set.