V.S. Ratnaswami Padayachi vs P. Mani Pillai and Another

P.V. Rajamannar, C.J.—This is an appeal from the judgment of BALAKRISHNA AYYAR J., disposing of Writ Petition No. 3254 of

1956, which was filed under Article 226 of the Constitution of India by the first Respondent herein who will be referred to hereafter in this

judgment as the Respondent, for the issue of a writ of certiorari to quash the order of the Government of Madras, G.O. Ms. No. 2822, dated 16th

July 1956, passed in the following circumstances. The matter relates to the office of the permanent headman of the village of Keelamandur in

Kumbakonam taluk. One Vaidyalingam Pillai, who was the permanent headman of the village died on 9th October 1954, without leaving any lineal

descendants. There were two candidates for this office which had thus become vacant, namely, the Appellant, Ratnaswami Padayachi, and the

Respondent, Mani Pillai. The Revenue Divisional Officer, Kumbakonam, passed an order appointing the Appellant to be the permanent headman

of the village. The Respondent preferred an appeal against this order to the Collector of Tanjore. On 7th June 1955, the Collector set aside the

order of the Revenue Divisional Officer and directed him to dispose of the matter afresh, mainly on the ground that the Revenue Divisional Officer

had not subjected the Appellant to an oral test as regards his literacy. The Collector also observed that the Revenue Divisional Officer had not

given full consideration to the Respondent''s claim. On 6th August 1955, the Revenue Divisional Officer, Kumbakonam, again passed an order

appointing the Appellant to the post. He examined the comparative qualifications of the two candidates. He rejected the claim of the Respondent

who, according to him, had certain factors in his favour, namely, relationship to the last office holder and better property qualifications, on two

grounds, namely, (i) that he had miserably failed in the oral test which he had conducted in order to assess the general knowledge and capacity of

the two candidates and (ii) that the Respondent was the younger brother of the headman of the adjoining village of Pandanallur and there were

frequent disturbances between the kisans and the mirasdars in the locality. The Respondent again went up on appeal to the Collector who pointed

out that the Revenue Divisional Officer did not confine, as he ought to have confined, the oral test merely to the question of sufficient literacy but

had also examined the candidates with regard to their general knowledge which was not contemplated. He also disagreed with the view of the

Revenue Divisional Officer that because of kisan trouble it was inexpedient to appoint the Respondent as his brother was the headman of

Pandanallur. After overruling these two grounds on which mainly the Revenue Divisional Officer had rejected the claim of the Respondent, the

Collector concluded by holding that practically from every point of view the Respondent was a better candidate than the Appellant. The appeal

was allowed. The Appellant thereupon went up in second appeal to the Board of Revenue. The Board concurred with the Collector. They gave

weight to the fact that the Respondent was related to the last office holder. They also held that there was no material enough to show that the

interests of the administration were likely to suffer by the appointment of the Respondent to the office by reason of his brother being the village

headman of the adjacent village of Pandanallur. The appeal was dismissed and the order of the Collector confirmed. The Appellant then took the

matter in revision to the Government. The Government finally passed an order allowing the revision petition and set aside the order of the Collector

which had been confirmed by the Board of Revenue. The material portion of this order which was sought to be quashed by the Respondent runs

thus:

Government, after examination of the case with reference to the records, observed that Sri V.S. Ratnaswami Padayachi was better qualified for the

office than Sri P. Mani Pillai, the Respondent, who had miserably failed in the oral test conducted by the Revenue Divisional Officer,

Kumbakonam. They also observed that the Respondent was a direct blood brother of the headman of the adjoining village Pandanallur and that

under the rules, village officers of adjacent villages should not be close relatives. The Government, therefore, provisionally concluded that the

orders of the Collector of Tanjore in his R.C.A. 34573|35, dated 9th October 1955, appointing the Respondent as headman of the village which

were confirmed by the Board of Revenue should be set aside and that the orders of the Revenue Divisional Officer, Kumbakonam, appointing the

Petitioner (Appellant herein) should be restored.

The Respondent filed the writ petition as aforesaid to quash this order of the Government (Writ Petition No. 1254 of 1956). BALAKRISHNA

AYYAR J., allowed the Respondent''s petition and quashed the order of the Government on the ground that the Government had exceeded the

jurisdiction conferred on them to interfere with the order of the Collector and the Board of Revenue. The learned Judge overruled the objection

taken on behalf of the Appellant that this Court cannot interfere with the order of the Government and issue a writ of certiorari because the

impugned order of the Government was a mere administrative, executive act and the order was not a quasi-judicial order which could be properly

quashed by a writ of certiorari. The learned Judge, therefore, quashed the order of the Government. Hence this appeal.

It is common ground that the office to which this appeal relates is outside the two enactments dealing with village officers, namely, Madras Act

III of 1895 and Madras Act II of 1894. The provisions relating to this office are to be found in the Board''s Standing Order No. 156. Board''s

Standing Order No. 156 (3) ""provides for appeals against orders of appointments. Claimants are allowed a single appeal against a departmental

order of appointment; but where the order of the Revenue Divisional Officer appointing a particular person is set aside by the Collector and

another person is appointed, an appeal to the Board by the person prejudicially affected by the Collector''s order is allowed. Board''s Standing

Order No. 156-A defines the powers of the Government in revision against orders passed by any authority subordinate to it and a similar power of

revision in the Board of Revenue. It may be incidentally pointed out that this order was newly added by G.O. Ms. No. 780, Revenue, dated 19th

February 1957, in view of the expression of opinion by a Full Bench of this Court in Nagarathnammal v. Ibrahim Sahib ILR [1955] Mad. 460

(F.B.). This order in so far as it is material for the purpose of the present appeal runs thus:

Notwithstanding anything contained in Standing Order No. 156(3) and (4), the Government in respect of an order passed by the Board of

Revenue and the Board of Revenue in respect of an order passed by any authority subordinate to it, may either suo motu, or on the application of

an aggrieved party and for reasons to be recorded in writing, annul, modify, reverse or remit for reconsideration such order on any of the following

grounds, namely:

(i) that the order is vitiated by illegality, material irregularity, obvious error resulting in miscarriage of justice or want of jurisdiction ; or

(ii) that the Board of Revenue or any authority subordinate to it, as the case may be, has acted in contravention of any existing instructions on the

subject or has failed to exercise jurisdiction vested in it; . . .

Provided further that no order prejudicial to any party shall be passed unless he has had a reasonable opportunity of making his representations;

Board''s Standing Order No. 156-A (3) lays down that:

An application which does not satisfy any of the grounds specified in items (i) to (iv) of Clause (1) or which is made more than sixty days after the

date of the receipt of the order against which it is made shall be rejected in limine.

It is obvious that, wide as the powers are, the Government has not been vested with the power to interfere with findings of fact except in the

special circumstances mentioned in the several clauses in Board''s Standing Order No. 156-A (1). It was not suggested by Mr. Jagadeesa Ayyar,

learned Counsel for the Appellant, that the order of the Collector or the Board of Revenue was vitiated by any illegality, or material irregularity; nor

was our attention drawn to any obvious error resulting in miscarriage of justice. Equally it was not contended that there was either want of

jurisdiction or failure to exercise jurisdiction vested in the Government. It is clear, therefore, that the Government travelled beyond the limits of their

jurisdiction in holding that on the merits the Appellant was better qualified for the office than the Respondent. We entirely agree with the learned

Judge, BALAKRISHNA AYYAR J., that it was not open to the Government to make a comparative estimate of the qualifications of the

candidates and to decide in favour of the candidate who, according to them, was the best qualified. Indeed Mr. Jagadisa Ayyar did not defend this

part of the order of the Government.

That leaves us with the only other ground, namely, that the appointment of the Respondent was against the rule which laid down that village

officers of adjacent villages should not be close relatives. It was admitted before us that the only provision in the Board''s Standing Orders which

contains any instruction in this matter is Board''s Standing Order No. 155 (12)(ii). Board''s Standing Order No. 155, Rule 12(i) provides that two

offices cannot be held by the same person permanently, and the principle that the headman and the karnam should not be related closely to each

other should be followed as far as is consistent with recognition of legal claims. Clause (ii) is the relevant provision. It runs thus:

In areas to which the Act does not apply, the principles laid down in sub-paragraph (i) above may be followed in regard to the appointment of

village officers in adjacent villages and the appointing authority may, for reasons to be recorded in writing, overlook the claims of persons on the

ground that they are closely related to village officers in adjacent villages to such a degree that their appointment is likely to interfere with the

administration.

There can be no two opinions as to the meaning of this provision and the interpretation placed on the provision by the Collector and the Board

of Revenue was, in our view, right. The rule does not certainly prohibit the appointment of closely related persons to village officers in adjacent

villages, as the Government appear to think. The relationship with a village officer in a neighbouring village is not per se a disqualification. All that

the rule provides is that the claims of an otherwise qualified person can be overlooked on the ground that the appointment is likely to interfere with

the administration. This confers powers on the appointing authority for sound reasons, and reasons to be recorded in writing, discretion to

overlook the claim of a qualified person. But before there can be such overlooking it is incumbent that there should be a finding that the

appointment is likely to interfere with the administration. Mr. Jagadisa Ayyar wanted to read the provision in a different way. According to him, a

person closely related to a village officer in any of the neighbouring villages cannot be appointed to any village office unless the appointing authority

is satisfied that such appointment was not likely to interfere with the administration. This construction is opposed to the plain language of the

provision and, therefore, cannot prevail. Whether in a particular case the appointment is or is not likely to interfere with the administration is a

matter entirely for the authorities on the spot like the Revenue Divisional Officer or the Collector to decide. Both the Collector and the Board of

Revenue are clearly of opinion that there is no material on which it could be held that the appointment of the Respondent was likely to interfere with

the administration because his brother was the village headman of the adjoining village of Pandanallur. The Government did not differ from their

view but they proceeded on an entire misconception of this rule, namely, that the rule prohibited the appointment of a near relation. We entirely

agree with the following observations of BALAKRISHNA AYYAB J:

Now, if we read the order carefully it will be found that it does not prohibit the appointment of relations as village officers of adjacent villages. It

only permits the appointing authority to overlook the claim of persons on the ground that they are closely related and when the appointing authority

proposes to overlook the claims of any person on such a ground it is required to record in writing its reasons for doing so. The appointing authority

has to be satisfied that the relationship is likely to interfere with the administration. It is clear that this paragraph confers a discretion on the

appointing authority. When an order issued to a person gives his discretion to act in one or either of the two different ways and he chooses one and

not the other, it will certainly not be correct to say that he has contravened his instructions. An examination of the Government Order which is

sought to be quashed shows that Government were under a misapprehension about the scope of this order. They say ''under the rules, village

officers of adjacent villages should not be close relatives''. The order of Government proceeds on the footing that there is an absolute prohibition

whereas it is not so.

We, therefore, hold that the Government were not warranted in interfering with the orders of the Collector and the Board of Revenue on either

of the grounds set out in their order.

Mr. Jagadisa Ayyar, learned Counsel for the, Appellant, once more pressed before us the objection which he pressed before BALAKRISHNA

AYYAR J., namely, that the appointment of a village headman was in the nature of an administrative act and the fact that there were provisions for

appeals would not make it any the less an administrative act, and, therefore, there was no duty on the part of the Tribunals to act judicially. It was

further contended that the mere fact that appeals have been provided from one authority to another would not make the proceedings judicial or

quasi-judicial. In support of his contention Mr. Jagadisa Ayyar relied on two decisions of the Assam High Court and a decision of the Madhya

Bharat High Court. Both Hanumanbax v. S.D.O., Sibsagar AIR 1952 gau 119 and The Assam Company Ltd. Vs. The State of Assam and

Others, relate to requisition of property under the Assam Land (Requisition and Acquisition) Act (XXV of .1948), as amended in 1949. The

relevant provision of the Act is Section 3 which inter alia laid down:

If in the opinion of the Provincial Government or any person authorised in this behalf by the Provincial Government, it is necessary so to do for

maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport,

communication, irrigation, or drainage or for providing land individually or in groups to landless, flood-affected or displaced persons, or to a

society registered under the Indian Co-operative Societies. Act, 1912 ... the Provincial Government, or the person so authorised, as the case may

be, may by order in writing, requisition any land and may make such further orders as appear to it or to him to be necessary or expedient in

connection with the requisitioning.

Sub-Section 3 of the section provides that when the order for acquisition is made by any authority other than the Provincial Government, any

person interested in the land may appeal to the Provincial Government. The learned Judges of the Assam High Court held that an order passed by

the officer authorised in this behalf and the order passed by the Provincial Government were administrative and, therefore, could not be the

subject-matter of a petition under Article 226, unless it was established that the authorities had exceeded their jurisdiction or the orders were made

mala fide. The learned Judges (it was the same division Bench which decided both the cases) were of the opinion that both the Provincial

Government and the officer who may be authorised u/s 3(1) to act, have an administrative function to perform and the decision of either body must

be in the exercise of their subjective discretion. RAM LABHAYA Ag. C.J., observed:

The language used in Section 3(1) indicates that a judicial approach was not contemplated. A judicial or quasi-judicial authority has to give its

decision on the question of rights involved objectively. No such approach is expected from administrative authorities. This is one of the

distinguishing features. Section 3(1) leaves the decision of the question whether requisitioning of land is necessary for certain purposes to the

determination of the Provincial Government or any other officer authorising to act under that clause. They are left to form the opinion that

requisitioning is necessary for some purpose specified in Clause (1) of Section 3 of the Act. Both the existence of a recognised purpose and also

the need for requisitioning are matters to be decided by the authorities acting u/s 3(1): Hanumanbux v. S.D.O., Sibsagar AIR 1952 Gau 115, 117.

Now these two decisions are based entirely on the nature of the power conferred on the Provincial Government or its Officer to pass an order

of requisition. It is true an appeal was provided, but it was an appeal from the Officer to whom the Provincial Government had itself delegated its

function and the appeal was to the Provincial Government. The several provisions of the Board''s Standing Orders, which relate to the appointment

of the village headman are not analogous to the provision conferring a power of requisition on the Government or its delegate. In Lilawati v. State

of Madhya Bharat AIR 1952 M.B. 105 it was held that an order terminating the services of a civil servant cannot be quashed on certiorari. There

is no analogy between the disciplinary proceedings taken by the Government against a servant and the appointment of village officers, such as we

have in the case before us. If it were necessary, we think that the decision was to be examined further before it can be followed.

Reference was made by Mr. Jagadisa Ayyar to Maqbool Hussain v. The State of Bombay [1958] S.C.R. 730 and the observations of

BAGWATI J., at page 742. All that was decided in that case was that the Sea Customs authorities are not judicial Tribunals and the adjudging of

confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or

judicial Tribunal necessary for the purpose of supporting a plea of double jeopardy. The scope of the decision does not cover the present case. On

the other hand, there is ample authority in decisions of the Supreme Court which directly bear on the question now before us. It is sufficient to refer

to two of them. In Nagendra Nath v. Commr. of Hills Division AIR 1058 S.C. 398, it was held that whether or not an administrative body or

authority functions as purely administrative one or in a quasi-judicial capacity, must be determined in each case, on an examination of the relevant

statute and rules framed thereunder. SINHA J., who delivered the judgment of the Court, referred with approval to the statement of the law in

Halsbury''s Laws of England, third edition, vol. XI at pages 55 and 56. For the present case it is sufficient to refer to the following observations of

the learned Judge:

If the choice had rested in the hands of only one authority like the District Collector on his subjective satisfaction as to the fitness of a particular

candidate without his orders being amenable to an appeal or appeals or revision, the position may have been different. But Section 9 of the Act has

laid down a regular hierarchy of authorities, one above the other, with the right of hearing appeals or revisions. Though the Act and the rules do

not, in express terms, require reasoned orders to be recorded, yet, in the context of the subject-matter of the rules, it becomes necessary for the

several authorities to pass what are called speaking orders. Where there is a right vested in an authority created by statute, be it administrative or

quasi-judicial, to hear appeals and revisions, it becomes its duty to hear judicially, that is to say, in an objective manner, impartially and after giving

reasonable opportunity to the parties concerned in the dispute, to place their respective cases before it.

We may in this connection refer to the fact that Board''s Standing Order No. 156-A(1) requires that the Government should record the

reasons in writing for their interference with the order of the subordinate authorities. In Shewpujanrai Indrasanrai Ltd. Vs. The Collector of

Customs and Others, , it was held that an order of confiscation or penalty under the Sea Customs Act is not a mere administrative or executive act

but is really a quasi-judicial act and, therefore, an application for a writ of certiorari lies in respect of such order. S.K. DAS J., refers to the point

under discussion as concluded by recent decisions of that Court as in F.N. Roy Vs. Collector of Customs, Calcutta, , which held that the

imposition of a fine u/s 167(8) of the Sea Customs Act was really a quasi-judicial act. The learned Judge also referred to the latest decision in Leo

Roy Frey Vs. The Superintendent, District Jail, Amritsar and Another, where it has been held that in imposing confiscation and penalties under the

Sea Customs Act, the Collector acts judicially. The view that an order of confiscation or penalty under the Sea Customs Act is a mere

administrative or executive act is no longer tenable. In view of such direct authority reliance cannot be placed by Mr. Jagadisa Ayyar on the

observations of BHAGWATI, J., in Maqbool Hussain Vs. The State of Bombay, , which, as we have mentioned above, dealt with quite a different

point. Mr. Jagadisa Ayyar contended that none of the ingredients mentioned in the leading case of Rex v. Electricity Commissioners [1924] 1 K.B.

171 was present in this case and so the order of the Government was not amenable to a writ of certiorari For reasons already given, we do not

agree with him. There may be an administrative body, but in discharging certain functions it may have to act judicially. In this case the Revenue

Divisional Officer, the Collector, the Board of Revenue and the Government are all such administrative officers or bodies. Whatever may be said

of the stage at which the Revenue Divisional Officer originally makes the appointment, certainly when an appeal or a revision petition is preferred,

there is a duty cast on the authority concerned to act judicially. Mr. Jagadisa Ayyar was unable to say that any of the appellate or revisional

authorities could set aside an order made in favour of a party without notice to the party and without giving the party an opportunity to maintain the

order in his favour. We are clearly of opinion that all the aforesaid authorities, and certainly the Government act judicially when disposing of

appeals and revisions respectively. Their orders, therefore, can be quashed by appropriate writs under Article 226 of the Constitution. We agree

with BALAKRISHNA AYYAR J., on this point also. In the result the appeal is dismissed with costs.

Mr. Jagadisa Ayyar submitted that in case we agreed with BALAKRISHNA AYYAR, J., in quashing the order of the Government, then the

position would be that the Government could take up the revision on its file and proceed to dispose it of afresh. It is true that in certain cases the

result of an order of this Court quashing an order of an inferior Tribunal would be to set the matter at large and may lead to a fresh disposal of the

matter which had been once concluded by the order quashed by this Court. In such cases generally this Court does give a direction to that effect,

namely, that the matter be heard afresh. But this is not the result which invariably should follow. In a case like the present for instance, such a result

cannot follow. The order of the Government has been quashed because in the opinion of BALAKRISHNA AYYAR, J., with which opinion we

entirely agree, none of the grounds mentioned in Board''s Standing Order No. 156-A is present in this case, which would justify interference by the

Government with the orders of the Collector and the Board of Revenue. If any of the grounds had existed, then undoubtedly the Government order

could not have been quashed even if we happen to disagree with any of the reasons. It is because we have held that there is neither illegality nor

lack nor excess of jurisdiction nor material irregularity nor any contravention of instructions that we have held that the Government order cannot

stand. In such circumstances we fail to see how the Government can again be called upon to deal with the matter afresh.