http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 12

Vs.

RESPONDENT:
STATE OF BOMBAY AND OTHERS

DATE OF JUDGMENT:
13/12/1962

BENCH:
MUDHOLKAR, J.R.
BENCH:
MUDHOLKAR, J.R.
IMAM, SYED JAFFER
SUBBARAO, K.
AYYANGAR, N. RAJAGOPALA

CITATION:
1964 AIR 436 1964 SCR (1) 200
CITATOR INFO :
R 1965 SC1767 (4,17)
R 1974 SC 111 (2)

ACT:
Watan Lands-Resumption-Government’s order directing
resumption-If can be reviewed by Government-Bombay Heredi-
tary Offices Act, 1874 (Bom. 3 of 1874) ss. 12, 74, 79.

HEADNOTE:
In 1944, the plaintiff moved the Government for resumption
of Watan Lands which were in the possession of defendants 2
to 4 and for making them over to him. The Government, after
causingsome enquiry to be made, resumed those lands by
its orderdated October 9, 1946, and directed their
restoration to the plaintiff. Thereafter, the defendants
moved the Government for reconsideration of that order, and
the Government modified its previous order by directing that
the defendants who were in possession of the lands, should
continue to retain them but they should pay such rent as may
be fixed by the Government from time to time.
The plaintiff instituted a suit for a declaration that the
order of the Government modifying the order of October 9,
1946, was null and void and inoperative. It was contended
that the order made by Government on October 9, 1946, was a
judicial order passed by the Government in exercise of its
revisional jurisdiction under s.;79 of the Watan Act, and it
was not competent for the Government to revise or review
that order in the absence of a provision in the Act
empowering the Government to do so. The suit was decreed by
the trial court, but the District Judge set aside the decree
and the High Court confirmed his decision. The plaintiff
came to this Court by Special leave.
Held, that the decision of the trial court was correct and
the Government was not competent to modify the order dated
October 9, 1946. The scheme of certain sections of Part II
of the Bombay Hereditary Offices Act, 1874, including ss.
II and 12, discloses that a judicial or quasi- judicial duty
is imposed on the Collector to decide what is in effect a
lis or quasi-lis between the, Watandar and the alience of
the Watan land. The whole process, including the order made
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under s. 3 of the Act, is quasi-judicial and not
administrative. As the order made by
201
the Collector under S. 12 is not ;in administrative order
but a quasi-judicial order, it can be rectified or modified
or set aside by the Commissioner in appeal or by the State
Government in revision under S. 79 and not otherwise.
When an authority exercises its revisional powers, it nece-
ssarily acts in a judicial or quasi-judicial capacity.
Hence, the order of the Government dated October 9, 1956,
must be deemed to be a judicial or quasi-judicial order.
Such an order cannot be set aside or revised or modified
just as an administrative order can be revised or modified
under S. 74. Finality attaches to the Government’s order
under S. 79 and in the absence of any express provision
empowering it to review the order, the subsequent order
passed by the Government was ultra vires and beyond its
jurisdiction.
An order will be deemed to be of quasi-judicial character
not only when there is a contest between one individual and
another but also when the contest is between an authority
purporting to do an act and a person opposing it, provided
the statute imposes a duty oil the authority to act
judicially.
No period of limitation is specified in the Watan Act for
preferring an application for revision. Normally, the
Government would not interfere unless moved within a
reasonable time. What should be considered as a reasonable
time in a particular case, is a matter entirely for the
Government to consider. In this case, the Government
thought that it had strong reasons for interfering even
after a Ion, lapse of time, and that is why it interfered.
It is settled law that civil courts have the power and
jurisdiction to consider and decide whether a tribunal of
limited jurisdiction has acted within the ambit of the
powers conferred upon it by the statute to which it owes its
existence or whether it has transgressed the limits placed
on those powers by the legislature.
Gullapalli Nageswara Rao v. Andhra Pradesh Road
Transport Corporation, [1959] 1 S. C. R. 319, Board of High
School and Intermediate Education, U.P. Allahabad
v.Ghanshyam Das Gupta, [1962] Supp.3 S. C. R. 36,
Robinson v.Minister of Town & Country Planning,[1947] I All.
E. R.851, Franklin v. Minister of Town and A. C. 87, Ramrao
Jankiram Kadam v. State of Bombay, [1963] Supp. I S. C. R.
322, Shrimant Sardan Bhujangarao Daulatrao Ghorpade v.
Shrimant Malojirao Daulatrao Ghorpade, [1952] S.C. R. 402,
Province of Bombay v. Hormusji Manekji,(1947)
202
L. R. 74 I. A. 103 and The Secretary of State v.
Musk & Co. I. L. R. 1940 Mad. 599, referred to.

JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 206 of 1960.
Appeal by special leave from the judgment and decree dated
February 17, 1955, of the Bombay High Court in Second Appeal
No. 1533 of 1952.
P. K. Chakravarti for B. C. Misra, for the appellant.
N. S. Bindra, S. B. Jathar and P.D. Menon for R.H.Dhebar,
for respondent No. 1.
K. V. Joshi and Ganpat Rai, for respondents Nos. 2--4.
1962. December 13. The judgment of the Court was
delivered by
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MUDHOLKAR, J.-This is an appeal by special leave from the
judgment of the High Court of Bombay affirming the decree of
the District judge, Thana, setting aside the decree in
favour of the Plaintiff-appellant.
The relevant facts which are no longer in dispute are these
: Tile plaintiff’s family are grantees of the Patilki Watan
of some villages in Umbergaon taluka of the Thana District
of Maharashtra, including the villages of Solsumblha, Maroli
and Vavji. Defendants 2 to 4 also belong to the family of
the plaintiff. The plaintiff represents the seniormost
branch of the family while the defendants 2 to 4 represent
other branches. The dispute with which we are concerned in
this appeal relates to the Patilki of Solsumbha. Under the
Bombay Hereditary Offices Act, 1874 (111 of 1874) the person
who actually performs the duty of a hereditary Office for
the time being is called an Officiator. It is common ground
203
that the Officiator had been selected from the branch of the
plaintiff from the year 1870 in which year the propositus
Krishna Rao Pimputkar died. After his death he was
succeeded by his eldest son Vasudev, upon whose death in
1893 his eldest son Sadashiv was the Officiator. Sadashiv
died in 1901 and was succeeded by Purshottam, who was
Officiator till the year 1921 when, because of the
disqualification incurred by him, a deputy was appointed in
his place. After the death of Pursliottam in 1940 his son
the plaintiff-appellant Laxman became the Officiator.
In the year 1914 the descendents of Krishnarao, who were
till then joint, effected a partition of the family property
which consisted of inam and Watan lands in various villages
including the villages of Solsumbha, Maroli and Vavji.The
document embodying the partition is Ex. 49.Under that
partition lands which had so far beenassigned for
remuneration of the Patilki of Solsumbha were allotted to
the branch of the defendants while some other lands were
given to the branch of the plaintiff. It would appear that
Purshottam had not subscribed to the partition deed in the
beginning but later on he appears to have acquiesced in it
and apparently for this reason it has been held by the
Courts below that he was a party to the partition. It may
be mentioned that after Purshottam bad incurred a
disqualification, the deputies who acted for him were not
allowed to take possession of the lands of Solsumbha which
are now in dispute inspite of the objections raised by these
persons. They were instead allowed a remuneration of Rs.
240/-per annum which was to be paid by the members of the
family in possession of the Watan lands. This position
continued till 1946.
It maybe mentioned that after the death of purshottam the
plaintiff was initially appointed Patil
204
for five years. But eventually he was appointed officiator
for life.
In the year 1944 the plaintiff moved the Government, vide
Ex. 47, for the resumption of the Watan lands which were in
the possession of defendants 2 to 4 and for making them over
to him. The Government, after causing some enquiry to be
made, resumed those lands by its order dated October 9,
1916, Ex. 36, and directed their restoration to the
plaintiff. The defendants thereafter moved the Government
for reconsideration of that order. The Government
eventually modified its previous order by directing that the
defendants 2 to 4, who were in possession of the lands,
should continue to retain it but that they should pay such
amount of rent as may be fixed by Government from time to
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time. This order was passed on May 2, 1947, and by virtue
of that order the rent payable by defendants 2 to 4 was
raised from Rs. 240/- to Rs. 1,000/-. The plaintiff
thereupon instituted the suit out of which this appeal
arises for a declaration that the order of the Government
dated May, 2,1949, and an ancillary order dated March, 1, 1
94-9, are null and void and inoperative; that the defendants
should remove "all obstruction,, and hindrances caused to
the property acquired by the plaintiff as Watan
grant......... and that they should give the same into the
plaintiff’s Possession"; that the defendants should render
to the plaintiff the account of the income from his property
and pay him the costs of the suit.
The suit was resisted by the defendants, the first of whom
was the State of Bombay, (now Maharashtra) on various
grounds. The main grounds were that the orders complained
of were administrative orders and no suit lies to set them
aside, that the suit was barred by the provisions of s. 4
(b) of the Bombay Act 10 of 1876 and that the suit was
barred by limitations It may, however, be mentioned that
205
when the defendants preferred an appeal before the District
judge they confined their attack to the decree to one ground
only and that was about the competance of Government to
reconsider the order of 1946.
The plaintiff’s contention that the order made by Government
on October 9, 1946, was a judicial order passed by the
Government in exercise of its revisional jurisdiction under
s. 79 of tile Watan Act and that it was not competent to the
Government to revise or review that order in the absence of
a provision in the Act empowering the Government to do so.
It is not disputed that alienation of Watan lands without
the sanction of the Government is prohibited by s. 5 of the
Watan Act. Similarly the alienation of Watan lands assigned
as remuneration without the sanction of the Government is
prohibited by s. 7 of the Act. Section 11 empowers the
Collector, after recording his reasons in writing, to
declare certain types of alienations to be null and void.
Section 12 provides that it shall be lawful for the
Collector whenever it may be necessary in carrying out the
provisions of certain sections, including s. 11 (a) to
summarily evict any person wrongfully in possession of any
land or (b) to levy any rent due by any person in tile
manner that may be prescribed in any law for the time being
in force for the levy of a revenue demand. According to the
defendants the discretion conferred upon the Collector by s.
12 -either to evict a person in wrongful possession of any
land or to require him to pay rent with respect to it is of
an administrative nature and, therefore, the order of the
Collector made under s. 12 can be varied from time to time
by the Collector or can be challenged by the party aggrieved
only in the manner provided by the Act, that is, by
preferring an appeal or an application in revision and in no
other manner. Undoubtedly, if the order is of an
administrative nature it would be beyond the purview of the
juris-
206
diction of the civil court. The first question to be
considered is whether the order of a Collector under s. 1’
is administrative in character. It has to be borne in mind
that before action is taken under s. 12, the collector has
to make a declaration under s.11. This declaration has to be
supported by reasons in writing and, therefore, it follows
that it can be made only after holding an enquiry which
means that the Collector has to hear both the parties and
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consider such evidence, oral and documentary, as may be
adduced by them before him. So far, therefore, the
procedure must be considered as quasi-judicial in character.
This Court has held in Gullapalli Nageswara Rao v. Andhra
Pradesh Road Transport Corporation(1), as well as recently
in Board of High School and Intermediate Education U.P. v.
Ghanshyam Das Gupta(2), that an order will be deemed to be
of quasi-judicial character not only when there is a contest
between one individual and another but also when the contest
is between an authority purporting to do an act and a person
opposing it provided the statute imposes a duty on the
authority to act judicially. Section 12 undoubtedly confers
discretion on the Collector to make an order of one of two
kinds, after he declares that an alienation is null and
void. The order of the Collector in exercise of his
discretion affects the rights of parties to property and is
further open to challenge before the Commissioner and the
State Government under sections 77 and 79 of the Watan Act
respectively. It is therefore difficult to appreciate how
the order can be regarded as administrative. Mr. Bindra
who appears for the State,however,contends that though the
enquiry contemplated bys. I I may be regarded as a quasi-
judicial proceeding the ultimate decision of the Collector
either to restore the property to the Watandar or to confirm
the possession of the person in actual possession thereof
and make him liable to pay rent is not the exercise of a
quasi-judicial function but is purely an administrative
function. He contends that the
(1) [1959] Supp, 1 S C.R 319.
(2) [1962] Supp. 2 S.C.R. 36.
207
Collector has to exercise his discretion one way or the
other in the light of the policy of the Government and
refers in this connection to the provisions of s. 74 of the
Watan Act. That section provides that the proceedings of
the Collector shall be under the general control of the
Commissioner and of the State Government. It may be borne
in mind, however, that the collector has been given various
kinds of powers and is required to perform numerous duties
under the Act, some of which are administrative in
character. Since the decision taken by the Collector cannot
properly be reached by exercising the appellate jurisdiction
of the Commissioner and of the State Government, as the case
may be, it was necessary to incorporate a general provision
of this kind. The right of appeal conferred by s. 77 extends
only to decisions of the Collector or other authorities
inferior to the Collector only in respect of decisions
rendered by them after investigation recorded in writing and
not against each and every decision rendered by them.
Section 73 of the Act requires investigation to be recorded
in writing in respect of orders made under certain parts of
the Act. But apart from that provision there are other
provisions like s. 11 which provide for recording of reasons
in writing which by implication also require investigation
by the Collector. These provisions do not represent the
totality of the Collector’s power under the Act. Section 74
is thus clearly a provision which relates to orders made by
the Collector without making any investigation in writing.
This provision, therefore, does riot assist the defendants.
Relying upon the decision in Robinson v. Minister of Town
and Country Planning(1), and other decisions in that
category Mr. Bindra contended that the Collector’s quasi-
judicial function ended with the declaration that the
alienation wits null and void and the decision pursuant to
it which he took under s. 12 thereof was purely
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administrative. Apart from the
(1)[1947] 1 All. E.R. 851.
208
fact that the decision in Robinson’s case (1), and other
decisions taking similar view have been criticised in
England (see Griffith and Street, Principles of Admi-
nistrative Law, p. 168 and Robson,Justice and Administrative
Law, p. 533) we may point out that the scheme of the statute
which was considered in those decisions is different from
that of Part II of the Watan Act which contains ss. 11 and
12. The Town and Country Planning Act, 1944, with which
Robinson’s case(1), deals confers a discretion on the
Minister to accept wholly or with modification or reject a
scheme prepared by a local authority. For a certain purpose
that Act requires that the Minister has to cause an enquiry
to be made by the Inspector or to make an enquiry himself
and it has been held that such an enquiry is quasi-judicial
in nature. After the enquiry is made it is for the Minister
to exercise his authority under the Act and to accept wholly
or in a modified form or reject the scheme. The Courts in
England have held that proceedings under the Act are
administrative in nature except to the limited extent that
the enquiry is to be made in consonance with the principles
of natural justice. Whether the view taken by the Courts in
England is right or wrong it is sufficient to say that the
nature of proceedings as well as what is required to be done
under the English Act is something quite different from the
nature of proceedings or what is required to be done under
the relevant provisions of the Watan Act. Here, as Mr.
Bindra himself concedes, the whole of the enquiry is not
administrative in charactcr. In fact its foundation is a
lis between two parties: it Watandar out of possession and
an alienee in possession of Watan property. When the final
order is made by the Collector under s. 12 this lis comes to
an end and, therefore, there is no scope for the contention
that any part of the proceeding is administrative in
character. Even in an ordinary suit there are matters which
are in the discretion of the court, as for instance,
awarding costs or
(1) [1947] 1 All. E.R. 851.
209
fixing the rate of interest or of granting one relief
instead of another. But merely because discretion is
conferred on it in dealing with a particular matter, it
cannot be contended that while exercising that discretion
the Court acts otherwise than in the exercise of its
judicial function. The proceedings before the Collector are
of course not judicial but they are certainly quasi-judicial
and where the Collecter has to exercise a discretion for
giving effect to his decision that a certain alienation is
null and void it would not be permissible to say that all of
a sudden his act ceases to be a quasi-judicial act and
becomes an administrative one. The declaration made by him
under s. I I that an alienation is null and void is by
itself of little help to the Watandar and can be effectuated
only after an order is made by the Collector under s. The
provisions of these two sections are thus interlinked and it
is difficult to conceive that as the proceedings progress
their quasi-judicial nature degenerates into an
administrative one, We may recapitulate that the Collector’s
order under s. 12 is appealable but not so the order of the
Minister. This, in our opinion, is an important distinction
between the class of cases of which Robinson’s case, (1) is
representative, and the present case.
We may refer to the decision in Gullapalli Nageswara Rao’s
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case(2), where this Court has considered the decision in
Robinson’s case (1), as also that in Franklin v. Minister of
Town, and Country Planning (3). While dealing with the
argument advanced before it that the Government, in conside-
ring a scheme provided for road transport service under- s.
68(c) of the Motor Vehicles Act, was discharging an
administrative function, one of us (Subba Rao, J.) speaking
for the majority of the Court has observed as follows :-
"A comparison of the procedural steps under
both the Acts brings out in bold relief the
(1) [1947] 1 All. E.R. 851.
(2) [1959] Supp. 1 S.C.R. 319.
(3) [1948] A.C, 87.
210
nature of the enquiries contemplated under the
two statutes. There, there is no lis, no
personal hearing and even the public enquiry
contemplated by a third party is presumably
confined to the question of statutory
requirements, or at any rate was for eliciting
further information for the Minister. Here,
there is a clear dispute between the two
parties. The dispute comprehends not only
objections raised on public grounds, but also
in vindication of private rights and it is
required to be decided by the State Government
after giving a personal hearing and following
the rules of judicial procedure. Though there
may be sonic justification for holding, on the
facts of the case before the House of Lords
that that Act did not contemplate a judicial
act-on that question we do not propose to
express our opinion-there is absolutely none
for holding in the present case
that the
Government is not performing a judicial act.
Robson in ’Justice and Administrative Law’,
commenting upon the aforesaid decision, makes
the following observation at p.533:
‘It should have been obvious from a cursory
glance at the New Towns Act that the rules of
natural justice could not apply to the
Minister’s action in making an order, for the
simple reason that the intiative lies wholly
with him. His role is not to consider whether
an order made by a local authority should be
confirmed, nor does he has to determine a
controversy between a public authority and
private interests. The responsibility of
seeing that the intention of Parliament is
carried out is placed on him’."
The aforesaid observations explain the
principles underlying that decision and that
principle cannot have any -application to the
facts of this case. In ’Principles of
Administrative law’ by Griffith and
211
Street, the following comment is found on the
aforesaid decision: After considering the
provision of s. 1 of the New Towns Act, 1946,
the authors say-
’Like the town-planning legislation, this
differs from the Housing Acts in that the
Minister is a party throughout. Further, the
Minister is not statutorily required to
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consider the objections. It is obvious, as
the statute itself states that the creation of
new towns is of national interest.’ (pp. 349-
50).
After concluding the above passage he
observed:
"It is therefore clear that Franklin’s case is
based upon the interpretation of the
provisions of that Act and particularly on the
ground that the object of the enquiry is to
further inform the mind of the Minister and
not to consider any issue between the Minister
and the objectors. The decision in that case
is not of any help to decide the present case
which turns upon the construction of the pro-
visions of the Act. For the aforesaid
reasons, we hold that the State Government’s
order under s. 68-D is a judicial Act."
As we have already said the scheme of certain sections of
Part II of the Watan Act, including ss. 11 and 12 also
discloses that a judicial or quasi-judicial duty is imposed
on the Collector to decide what is in effect a lis or quasi-
lis between the Watandar and the alience of the Watan land.
We must, therefore, hold that the whole process, including
the order made under s. 3 of the Act, is a quasi-judicial
one and not administrative as contended for’ by the defen-
dants-respondents.
Since the order made by the Collector under s. 12 is not an
administrative order but a quasi-Judicial order it can be
rectified or modified or set aside
212
by the Commissioner in appeal or by the State Government in
revision under s. 79. It is not a kind of order which can
be reached tinder s. 74. Section 79 provides that the State
Government may call for and examine the record of the
proceedings of any officer for the purpose of satisfying
itself as to the legality or propriety of any order passed
and may reverse or modify the order as it seem fit or if it
seems necessary may order a new enquiry. Now, in the year
1944 when the plaintiff moved the State Government by
petition it returned the petition to him on November 28,
1944, with the remark that he should apply to the Collector
of Thana in the first instance and then if’ necessary to the
Commissioner, Northern Division. The plaintiff was also
informed that if he was not satisfied with the orders
passed, he may approach the Government, presumably by
preferring an application for revision. At the foot of the
letter r. 11 of the Petition Rules was set out. the relevant
portion of which runs thus :
"Government, however, will not receive a Petition on any
matter, unless it shall appear that the petitioner has
already applied to the Chief Local Authority, and where such
exists, to the controlling authority. The petitions to the
chief local and to the controlling authorities or copies of
them and the answers to or orders upon those petitions in
original, or copies of them, must be annexed to all
petitions addressed to Government........."
The plaintiff sent a reply to the aforesaid letter of the
Government on December 15, 1944, and enclosed with it a copy
of the application made by him to the Collector, Thana,
together with his order of March 20, 1925, and said :
"In 1924 a revision application to the Collector of Thana
was preferred. The Collector in his reply informed us on
the authority of the
213
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Commissioner’s decision that our case could not be
considered (order No. W. T. N. No. 5 of 1925--Copy enclosed
Ex. 7). It is against this order that the present appeal is
being submitted. As the Collector has informed us on the
authority of the Commissioner we think it is no use
approaching the Commissioner again against the very decision
already confirmed by him.
I, therefore, approach Government with a request that a full
and proper justice be done to my case which both on the
question of facts and of law deserves careful consideration.
With reference to paragraph 2 of your letter it may be
mentioned that we have already approached the Collector of
Thana and copy of his order was attached to my previous peti-
tion also. It is being resubmitted for your kind
consideration."
After receiving this letter the Government caused a thorough
enquiry to be made by the revenue officials in the presence
of the parties and after giving them opportunity to adduce
such evidence as they wished to. The proceedings of the
subordinate officers, along with their reports, were in due
course submitted to the Government and it was on the basis
of this report that the Government made an order in October,
1946, restoring possession of the Watan lands to the
plaintiff. It is true that the order does not say that it
was passed under s. 12 (a) of the Act read with s. 79
thereof, but since both these provisions taken together give
power to the Government to make an order of the kind Which
it -made in October, 1946, its order must be held to have
been made under those provisions. When an authority
exercises its revisional powers it necessarily acts in a
judicial or quasi-judicial capacity. Therefore,
214
the Government’s order of October, 1946, must be deemed to
be a judicial or a quasi-judicial order. Such an order
cannot be set aside or revised or modified just as an
administrative order can be under s. 74. Finality attaches
to the Government’s order under s. 79 and in the absence of
any express provision empowering it to review the order we
are clear that the subsequent order made by the Government
on May 2, 1947 is ultra vires and beyond its jurisdiction.
We must, however, notice the contention raised, though
faintly, by Mr. Bindra that the Government could not be
deemed to have dealt with the matter in a quasi-judicial
capacity under s. 79 because the order revised by it was
more than 20 years old. It is sufficient to say that no
period of limitation is specified in the Act for preferring
an application for revision. of course, normally the
Government would not interfere unless moved within
reasonable time. But, what should be considered as a
reasonable time in a particular case would be a matter
entirely for the Government to consider. Apparently in this
case the Government thought that it had strong reasons for
interfering even after a long lapse of time and that is why
it interfered.
Mr. Joshi who appears for the defendants 2 to 4 sought to
support the decision of the High Court by resort to the
provisions of s. 4 (a) of the Bombay Revenue Jurisdiction
Act, 1876. That section reads thus :
" Subject to the exceptions hereinafter appea-
ring, no Civil Court shall exercise
jurisdiction as to any of the following
matters :
(a) claims against the Government relating
to any property appertaining to the office of
any hereditary officer appointed or
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recoganised under Bombay Act No.1874 or any
other law for the time being in force,...."
215
He points out that in the plaint, the plaintiff has
specifically sought relief against the State Government and
in this connection referred to prayers 1 and 2 of the
plaint. In prayer No. 1 the plaintiff sought a declaration
to the effect that the orders passed by the Government on
May 2, 1947, and March 1, 1949, are null and void and
inoperative. In prayer No. 2 he asked that all the
defendants be ordered to remove "their obstructions and
hindrances" to the possession of the property which is the
plaintiff’s Watan property, and further ordered to deliver
the possession of the property to him. It seems to us,
however, that prayer No. 1 was really redundant because if
the orders referred to therein were without .jurisdiction
and thus null and void it was not necessary to set them
aside. Therefore, by making a prayer of that kind it cannot
be said that the plaintiff had sought any relief against the
State Government. As regards the second prayer it seems to
us that the inclusion of the State Government therein was a
slip because it is nobody’s case that the Government is in
possession of the lands or is actively obstructing the
plaintiff in getting back its possession. We would,
therefore, read the second prayer as referring to defendants
2 to 4 only. Reference was also made by learned counsel to
the third prayer in which the plaintiff has asked for the
accounts to be taken of the income obtained by the
defendants from January 6,1942 till the date of suit and
subsequently. Here again, though the defendants generally
have been referred to, the plaintiff must be deemed to have
meant only those defendants who were in actual physical,
possession of the property and earning income therefrom and
enjoying it. It was., however, represented to us that
during the period of possession defendants 2 to 4 have been
crediting certain amounts to the treasury for paying the
remuneration of the officiator and since they will be
entitled to the credit for these amounts the Government was
a necessary party. In our opinion
216
that question has no relevance to prayer No. 3 made by the
plaintiff. What he wants is the accounts of rents and
profits and he is not concerned with any claim which
defendants 2 to 4 may have against the Government.
Therefore, considering all these prayers together we are of
opinion that no relief was in fact sought against the
Government and it was made only a formal party to the suit.
If that view is correct the provisions of s. 4 (a)of the
Bombay Revenue jurisdiction Act, 1876 will not stand in the
way.
This Court, while dealing with an objection that the suit
was barred by the provisions of s. 4 (c) of the Bombay
Revenue jurisdiction Act has observed recently in Ramrao
Jankiram Kadam v. The State of Bombay (1), as follows :
"As to the applicability of s. 4 (c), it would
be noticed that resort to the Civil Courts is
barred only as regards certain specified
classes of suits in which the validity of
sales for arrears Land Revenue are impugned.
The classes so specified are those in which
the plaintiff seeks to set aside sales on
account of irregularities etc. other than
fraud. The provision obviously assumes that
there is in existence a sale though irregular
under which title has passed to the purchaser
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and that that sale has to be set aside, on
grounds other than fraud, before the plaintiff
can obtain relief. Where however there is
only a purported sale which does not pass
title and the suit is for recovery of posse-
ssion of property ignoring such a sale, the
provision and the bar that it creates have no
application."
Thus it would be clear that where something done or an order
made is no act or order in law at all because it is without
jurisdiction and null and void,
(1) [1963] Supp. 1 S.C.R. 322,
217
the provisions of s. 4 are not attracted. We may, however,
refer to a decision of this court in Bhujangtao Daulatrao v.
Malojirao Daulatrao (1), which is claimed to support the
contention of the defendants. In that case a suit was
instituted by a Saraniamdar in which the representatives of
two other ’branches of the Saranjam family and the province
of Bombay were impleaded as defendants. It was alleged by
the plaintiff that a certain resolution passed by the
Government in the year 1936 modifying the previous
resolution passed by the Government in the years 189-1 and
1932 by declaring that the portion of the estate held by the
branches shall be entered as de facto shares and that each
share shall be continuable hereditarily as if it were a
separate saranjam estate was ultra vires and for a further
declaration that the plaintiff had the sole right to all
privileges appertaining to the post of saranjamdar and also
sought in injunction restraining the defendants from doing
any act in contravention of the plaintiff’s right. The suit
was held by this court to be barred by s. 4 of the Bombay
Revenue jurisdiction Act. This court held that the suit was
a suit against the Crown and also a suit relating to lands
held as Saranjam within the meaning of s. 4 of the Bombay
Revenue jurisdiction Act and that civil courts had no
jurisdiction to entertain it. Further this court held that
the plaintiff could not be given reliefs against defendants
I and 2 alone as the right claimed against these defendants
could not be divorced from the claim against the Government
and considered separately. The decision in The Province of
Bombay v. Hormusji(2) was cited before this court in support
of the contention that civil courts have jurisdiction to
decide whether the Government acted in excess of its powers.
Bose, J., who delivered the judgment of the court, however,
expressed the opinion that that decision would not apply and
then he observed ,Is follows :-
"As pointed out by Strangman, K.C., on behalf
(1) [1952] S.C.R. 402. (2) (1947) L.R. 74
I.A. 103.
218
of the plaintiff-respondent ’authorised’ must
mean ’duly authorised’, and in that particular
case the impugned assessment would not be duly
authorised if the Government Resolution of’
11-4-1930 purporting to treat the agreement
relied on by the respondent as cancelled and
aurhorising the levy of the full assessment
was ultra vires under section 211 of the Land
Revenue Code. Thus, before the exclusion of
the Civil Court’s jurisdiction under section 4
(b) could come into play, the Court had to
determine the issue of ultra vires. Conse-
quently, their Lordships held that that
question was outside the scope of the bar.
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But the position here is different. We are
concerned here with section 4 (a) and under
that no question about an authorised act of
Government arises. The section is general and
bars (ill ’claims against the Crown relating
to lands......... held as Saranjam.’ That is
to’ say, even if the Government’s act in
relation to such lands was ultra, vires, a
claim impugning the validity of such an act
would fall within the scope of the exclusion
in clause (a) provided it relates to such
land."
It is settled law that the civil courts have the power and
jurisdiction to consider and decide whether a tribunal of
Iimited jurisdiction has acted within the ambit of the
powers conferred upon it by the statute to which it owes its
existence or whether it has transgressed the limits placed
on those powers by the legislature. The decision in
Hormusiji Maneklal’s case (1), proceeds on the basis of this
rule. There are a number of decisions in the books in which
this principle has been stated and followed. One such
decision is The Secretary of State v. Musk & Co.(2), in
which the judicial Committee has observed thus :
It is settled law that the exclusion of the
Civil Courts is not to be readily inferred,
but that
(1) (1947) L.R. 74 I.A. 103. (2) I.L.R. 1940
Mad,_599
219
such exclusion must either be explicity
expressed or clearly implied. It is also
well-settled that even if jurisdiction is so
excluded, the Civil Courts have jurisdiction
to examine into cases where the provisions of
the Act have not been complied with, or the
statutory tribunal has not acted in conformity
with the fundamental principles of judicial
procedure." (p. 614).
We do not think that it was the intention of this court to
over-rule a rule which has been firmly established. Had
that been the intention, we would have found a fuller
discussion of the question.
In the course of the judgment Bose, J., pointed out that
there was difference of opinion in the Bombay High Court as
to whether s. 4 is attracted if the only relief sought
against the Government is a declaration and expressed
agreement with the view that s. 4 applies even where the
relief sought against Government is only a declaration. As
we have pointed out this part of the judgment does not help
the defendants’ case because no declaration against the
Government was at all necessary. Indeed the plaintiff could
ignore the two orders complained of by him as being without
jurisdiction and null and void and proceed to seek the
relief of possession on the strength of the earlier order
made by the Government in October, 1946.
For these reasons we reverse the decision of the High Court
which affirmed that of the District Court and restore the
decision of the trial court. Costs throughout will be borne
by the defendants.
Appeal allowed.
220