Chandreshwari Prasad Narain Deo And Others v. State Of Bihar And Another Opposite Party.

Ramaswami, J.:— In this case the petitioners Sri Chandreshwari Prasad Narain Deo and seven others have moved the High Court for grant of a writ in the nature of certiorari to quash the order of the Additional Sub divisional Officer of Giridih dated 18-2-1954, acting under Section 4(h) of the Bihar Land Reforms Act (Bihar Act 30 of 1950) and cancelling five khorposh grants made by respondent 2, Maharaj Maheshwari Prasad Narain Deo, in favour of the petitioners in pursuance of a, compromise decree dated 3-4-1948.

2. The petitioners are members of Dhanwar Raj family in the district, of Hazaribagh, Petitioners 1 to 3 are the sons of Raja Iswari Prasad Narain Deo, and petitioners 5 to 8 are the sons of Kumar Harihar Prasad Narain Deo. Petitioner 4 is the widow of Raja Iswari Prasad Narain Deo. In the year 1917 Harihar Prasad Nmain Deo along with his sons brought a suit for partition against Iswari Prasad Narain Deo claiming that he was entitled to half share in Dhanwar Estate. The suit was dismissed on the ground that the estate was impartible and governed by the rule of lineal primogeniture and the junior members of the family were entitled only to maintenance and had no title to a share in the estate. Against the decision of the Subordinate Judge the plaintiffs preferred an appeal to the High Court in First Appeal No. 181 of 1925. The appeal was decided by the High Court on 9-7-1928 and it was held by the High Court that the Dhanwar Raj Estate was impartible but the plaintiffs were entitled to a share of the self-acquired properties of Ran Bahadur Narain Deo.

3. The case was, therefore, remanded by the High Court to the learned Subordinate Judge for a finding as to what were the immoveable properties acquired in the name of Ran Bahadur Narain Deo and whether there was incorporation of these properties with the properties comprised in the impartible estate. The learned Subordinate Judge held on enquiry that a number of villages and other immoveable properties were the self-acquired properties of Ran Bahadur Narain Deo and were not incorporated in the impartible estate.

4. After receipt of the report, the High Court made a direction on 26-9-1931 that these properties should be partitioned. The plaintiffs took an appeal to the Judicial Committee from the judgment of the High. Court, namely Privy Council Appeal No. 87 of 1934. The appeal was heard and allowed by the Judicial Committee in part and it was held that the plaintiffs were entitled to a partition of certain other properties, namely, Telonari and Palangi.

5. The Judicial Committee further ordered that there should be an investigation as to whether some other villages to be specified by the plaintiff's from lists A and B of the plaint were self-acquired properties of Ran Bahadur Narain Deo and were liable to be partitioned. After the case came back on remand, the parties entered into a compromise. It was agreed that the plaintiffs should give up their claims to the partition of villages other than Telonari and Palangi and they should also give up all claims to immoveable and moveable properties which would be held partible in the final decree.

6. In lieu thereof Maharaj Maheshwari Prasad Narain Deo agreed to give Rs. 125/- per month and a Bhandar called Balwagarh as maintenance allowance during the period the estate was managed by the Encumbered Estates Department and on release the Raja Saheb agreed to grant properties yielding an income of Rs. 5,000/- a year and also a Bhandar appertaining thereto. In pursuance of this compromise a petition was filed by the plaintiffs on 16-4-1937 in Court stating that excepting the villages which were up-till then held to De partible, there was no other property liable to be partitioned as self-acquisition of Ran Bahadur Narain Deo.

7. The plaintiffs also accepted the report of the Pleader Commissioner as regards the quantum of the debt as correct. Maharaja Maheshwari Prasad Narain Deo also gave to the petitioners a letter dated 23-4-1937 under his seal and signature embodying the terms of the agreement. The Dhanwar Raj Estate was released from the management of the Court of Wards in the year 1943, and soon after respondent 2 stopped the grant of allowance of Rs. 125/- as maintenance to petitioners 5 to 8.

8. Thereafter all the sons of Harihar Prasad including petitioners 5 to 8 filed a suit for maintenance in the Court of the Subordinate Judge of Hazaribagh. An application was filed for permission to prosecute the suit in forma pauperis. The application was dismissed by the Subordinate Judge. But petitioners 5 to 3 preferred a civil revision in the High Court against the order of the Subordinate Judge. The civil revision application was admitted on 22-4-1948. Meanwhile the parties entered into a compromise and in title suit No. 8 of 1918 the parties filed a compromise petition on 22-3-1948.

9. By the terms of this compromise, respondent 2, Maharaja Maheshwari Prasad Narain Deo, agreed to make khorposh grants in favour of the petitioners in lieu of cash maintenance. The petitioners on their part gave up their claim to the self-acquisition of the late Raja Ran Bahadur Narain Deo. They also gave up their claim in respect of past maintenance. The petitions further declared that they would not demand “Karta's account to any share in the cash balance of Rs. 36,241 and odd as per the preliminary decree”.

10. The petitioners further accepted that the amount of debt found by the pleader commissioner Mr. Nurul Hussain was correct & that it would be a charge not on the impartible estate but on self-acquired properties of Raja Ran Bahadur Narain Deo. The compromise petition was recorded in the Court of the Subordinate Judge and a decree was passed in terms thereof.

11. Thereafter, respondent 2 executed five khorposh grants in pursuance of the terms of compromise. These are: (1) registered deed dated 30-7-1949 in favour of Sidheshwari Prasad Narain Deo in respect of properties mentioned in sell. B(2) of the compromise petition; (2) registered, deed D/- 30-7-49 in favour of Someshwari Prasad Narain Deo in respect of the properties mentioned in Sch. B(1) of the said compromise petitions; (3) registered deed dated 29-10-1949 in favour of Jcgeshwari Prasad Narain Deo, Banarsi Prasad Narain Deo, Rishikeshwari Prasad Narain. Deo, Rameshwari Prasad Narain Deo and Bale shwari Prasad Narain Deo in respect of the properties mentioned in Sch. A of the said compromise petition; (4) registered deed dated 23-12-1949 in favour of Chandreshwari Prasad Narain Deo in respect of certain properties and (5) registered deed dated 23-12-1949 in favour of Raj, Maoa Radhika Kumari with regard to certain properties. By virtue of these khorposh grants the petitioners obtained peaceful possession of the respective properties as mentioned in Sch. B of the application.

12. A notification was subsequently made under Section 3 of the Bihar Land Reforms Act, and as a result of the notification the properties comprised in the Dhanwar Estate vested in the State of Bihar. Subsequently, a proceeding was started by the Sub-divisional officer of Giridih under Section 4(h) of the Bihar Land Reforms Act. In the course of the proceeding the petitioners produced the khorposh deeds and the compromise petition in pursuance of which the khorposh grants were made and also the order of the Subordinate Judge thereon.

13. The Sub-divisional Officer held, after hearing the parties, that respondent 2 had made the Khorposh grants with the object of defeating the provisions of the Bihar Land Reforms Act and also for obtaining higher compensation. On the basis of this finding the Sub-divisional officer annulled the khorposh grants after obtaining previous sanction of the Government. On 5-10-1954 the Sub-divisional officer also issued notice to the petitioners asking them to give up possession of the villages covered by the respective khorposh grants.

14. In support of this application Counsel for the petitioners submitted that the order of the Sub-divisional Officer annulling the khorposh grants was not passed with jurisdiction and should be set aside by the High Court by a writ in the nature of certiorari. The contention put forward on behalf of the petitioners is that there was no material to support the finding of the Sub-Divisional Officer that the khorposh grants were made by respondent 2 with the object of defeating the provisions of the Bihar Land Reforms Act or with the object of obtaining higher compensation.

15. It was submitted by learned Counsel that the finding of the Sub-divisional Officer on this point was entirely speculative. In my opinion, the argument addressed on behalf of the petitioners is well founded. The finding of the Sub-divisional Officer that respondent 2 was actuated with the object of defeating the provisions of the Bihar Land Reforms Act appears to be purely arbitrary and unsupported by any sufficient material.

16. The Sub-divisional Officer has referred to the circumstances that respondent 2 had stopped payment of cash allowance after the Dhanwar Estate was released by the Court of Wards. The Sub-divisional officer pointed out that there was no reason why respondent 2 should execute khorposh grants in favour of the petitioners though they were entitled only to monetary allowance. That is the only circumstance given by the Sub-divisional Officer for reaching the conclusion that the Khorposh grants were effected by respondent 2 with the object of defeating the provisions of the Bihar Land Reforms Act and with the object of obtaining higher compensation.

17. But there is no substance in this reasoning because the case of the petitioners is that the khorposh grants executed by respondent 2 were not merely a substitute for monetary allowance but also because the petitioners relinquished their claim of title to the self-acquired properties of the late Raja Ran Bahadur Narain Deo. Prom the compromise petition, which is annexure A, it also appears that the petitioners recognised the impartible character of Dhanwar Estate and also the title of respondent 2 as proprietor of the estate.

18. It is stated in the compromise petition that the petitioners gave up their claim to past maintenance and also their claim to demand a share of the cash balance of Rs. 36,200/- & odd as per the preliminary decree. The reasoning of the Sub divisional Officer on this point, therefore, is fallacious and I think there is no ground whatever to hold that the compromise petition filed by the parties on 22-3-1948 in Title Suit No. 9 of 1918 is not a genuine or bona fide transaction. I aim also satisfied that respondent, 2 entered into the compromise with a view to settle a long standing dispute between the parties and respondent 2 was not actuated by any intention of defeating the provisions of the Bihar Land Reforms Act or for obtaining a higher compensation.

19. My conclusion is further supported by the letter of respondent 2 dated 23-4-1937 addressed to the petitioners, a copy of which is annexure D to the application. In this letter respondent 2 has said that so long as the estate was managed by the Court of Wards the petitioners would get a sum of Rs. 125/- per month as maintenance allowance and also a Bhandar called Balwagarti and after the estate was released, respondent 2 would give villages yielding an income of Rs. 5,000/- a year and also a Bhandar appertaining thereto.

20. There is no counter-affidavit on behalf of the respondents that his letter of the Maharaja dated the 23rd April, 1937, is not genuine. The case of the petitioners that there was a compromise in 1937 is also corroborated by the circumstance that in the pauper application filed before the Subordinate Judge in 1946 the petitioners expressly referred to the compromise of 1937 and also to the letter of the Maharaja dated 23-4-1937 in paras. 9, 10 and 11.

21. My concluded opinion, therefore, is that the compromise petition dated 22-3-1948 between the parties filed in Title Suit No. 9 of 1918 is a bona fide and genuine transaction and that in making the Khorposh grants in pursuance of the compromise respondent 2 had no intention of seeking higher compensation or defeating any of the provisions of the Bihar Land Reforms Act.

22. It was contended by learned Government Pleader on behalf of the respondents that the finding of the Sub-divisional Officer on this point was a finding of fact and it was not open to the petitioners to challenge a finding of this description in a proceeding under Article 226 of the Constitution before the High Court. I am unable to accept the argument of learned Government Pleader as correct. It is true that the finding of the Sub-divisional Officer is a finding upon an issue of fact, but in my opinion the finding is not upon an issue of pure fact but upon an issue of “jurisdictional fact”.

23. The reason is that the jurisdiction of the Sub-divisional Officer to act under S. 4(h) and to cancel the khorposh grants is dependent upon the preliminary condition that the outgoing proprietor had made the khorposh grants with the object of defeating the provisions of the Bihar Land Reforms Act or for obtaining higher compensation. If in fact the outgoing proprietor had no such intention, the Sub-divisional Officer would have no jurisdiction to annul the khorposh grants or to take possession of the properties comprised in those grants.

24. The condition imposed by S. 4(h), is, therefore, a condition upon which the jurisdiction of the Sub-divisional Officer depends. It is obvious that by wrongly deciding a question as to the fraudulent intention of the outgoing proprietor the Sub divisional Officer cannot give himself jurisdiction to cancel or annul the khorposh grants.

25. It is well established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact, the High Court is entitled in a proceeding for a writ of certiorari to determine upon its independent judgment whether or not that finding of fact is correct. The matter has been very well put by Farwell L.J in — ‘R. v. Shoreditch Assessment Committee’, (1910) 2 KB 859 at p. 879 (A):

“The existence of the provisional list is a condition precedent to their jurisdiction to hear and determine, and as the claimant is entitled to require them to hear and determine, they cannot refuse to take the steps necessary to give ??? to such jurisdiction; if they do, their refusal may be called in question in the High Court, No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction: such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does lot possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which of has and ought to exercise.

26. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it; it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure—such a tribunal would be autocratic, not limited—and it is linimaterial whether the decision of the inferior tribunal on the question of the existence or nonexistence of its own jurisdiction is founded on law or fact; a Court with jurisdiction confined Ito the city of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the ward of Chepe.”

27. The same principle is enunciated by the Court of Appeal in — ‘White and Collins v. Minister of Health’, (1939) 2 KB 833 (B). The question debated in that case was whether the High Court had jurisdiction to review the finding of the administrative authority on a question of fact. It appears that Part V of the Housing Act, 1936, enabled the local authority to acquire land compulsorily for the provision of houses for the working classes, but Section 75 of the Act provided that nothing in the Act was to authorise the compulsory acquisition of land

“which at the date of the compulsory purchase forms part of any part, garden or pleasure ground or is otherwise required for the amenity or convenience of any house”.

28. In accordance with the provision of this part of the Act, the Ripon Borough Council made an order for the compulsory purchase of 23 acres of land, it being part of an estate in Yorkshire called Highfield, consisting of a large house and 35 acres of land surrounding it. The owners served notice of objection to the order as being contrary to S. 75 and the ground of objection was that the land was part of a park and was required for the amenity or convenience of the house.

29. The Minister of Health directed a public inquiry, and, after holding the inquiry and taking evidence, the chairman duly made his report to the Minister, who thereupon confirmed the order. A motion was then brought under Rule of the Supreme Court, O. 55B, R. 71, asking that the order be quashed as being outside the powers of the Act. Charles J. dismissed the motion holding that the question was one of fact and it, was not open to the High Court to interfere by re-hearing the case. The order of Charles J. was, however, reversed by the Court of Appeal on the ground that the High Court had jurisdiction to review the findings of fact and since the land in question was part of the park of Highfield, the order of compulsory purchase was quashed. At page 855 Luxmoore L.J states:

“The first and most important matter to bear in mind is that the jurisdiction to make the order is dependent on a finding of fact; for, unless she land can be held not to be part of a part or not to be required for amenity or convenience, there is no jurisdiction in the borough council to make, or in the Minister to confirm, the order.

In such a case it seems almost self-evident that the Court which has to consider whether there is jurisdiction to make or confirm the order must be entitled to review the vital finding on which the existence of the jurisdiction relied upon depends. If this were not so, the right to apply to the Court would be illusory. There is, however, ample authority that the Court is entitled so to act.”

30. In the course of argument, learned Government Pleader pointed out that under S. 4(h) the Collector may annul any transfer and dispossess the transferee “if he is satisfied” that such transfer was made with the object of defeating any provisions of the Act or for obtaining higher compensation thereunder. It was submitted that the Collector might exercise the power conferred by the section merely if he is satisfied that the transfer was made by the outgoing proprietor with a fraudulent motive, and the finding of the Collector could not be questioned by the High Court in a proceeding under Article 226 of the Constitution.

31. The contention of learned Government Pleader was that the satisfaction of the Collector under S. 4(h) was in the nature of a subjective satisfaction and, therefore, could not be questioned by a Superior Court. I am unable to agree. I think the word “satisfied” in S. 4(h) must be construed to mean “reasonably satisfied”, and, therefore, the finding of the Collector under S. 4(h) cannot be a subjective or arbitrary finding but must be based upon adequate material. I also think that the satisfaction of the Collector under S. 4(h) is not a capricious satisfaction but must be capable of being tested in an objective manner. A similar interpretation was placed upon S. 4(h) by a Division Bench of this Court in — ‘Prem Manjari Devi v. State of Bihar’, AIR 1854 Pat 550 (C).

32. A similar question of construction was elaborately discussed by another Division Bench of this Court in — ‘Ramnath v. Sukumari*’, AIR 1954 Pat 211 (D), with regard to Section 11(2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (Bihar Act 3 of 1947). It was decided by the Division Bench in that case that the “satisfaction” contemplated by S. 11(2) of the Statute was not subjective but an objective satisfaction, and the satisfaction of the controller must be based upon materials placed before him by the parties concerned.

33. Reference should also be made to the decision of the King's Bench in — ‘Rex v. Pulham, Hammersmith and Kensington Rent Tribunal’, (1950) 2 All ER 211 (E), where a similar English statute was the subject matter of interpretation. In that case the assignee of the tenant had made an application to the Rent Tribunal for determination of the standard rent, and the Rent Tribunal accordingly determined the standard rent of the premises and certified that the Landlord and Tenant (Rent Control) Act, 1949, Sch. 1, Part 1, para 1 applied to the two sums of £ 180 and £ 221, and determined the rental equivalent of those two sums at £73s. 2d a quarter.

34. The landlord applied to the High Court for a writ of certiorari to bring up and quash the order of the rent tribunal on the ground that the tribunal had wrongly come to the conclusion that a premium had been paid and as a result had reduced the rent. On behalf of the tenant, reliance was placed upon para 1 of Part I of Sen. 1 of the Landlord and Tenant (Rent Control) Act, 1949, which provided:

“Where on an application under S. 1 of this Act made within twelve months from, the date of the commencement of this Act it appears to the Tribunal that before the commencement of this Act any premium has been paid (whether lawfully required or not) in respect of the grant, continuance or renewal of a tenancy of the dwelling house to which the application relates, whether by the tenant or by a previous tenant of the dwelling house, and has not been fully repaid or recovered the tribunal shall, if the tenant so requires, certify that this part of this Schedule applies, and thereupon (a) except in a case falling within the next following sub-paragraph, the rent payable shall be limited in accordance with para. 2 of this Schedule……”

35. It was held by the High Court that according to Part I of Sch. 1 the fact of payment of premium was a condition precedent to the exercise by the tribunal of its jurisdiction under the first schedule, and before the Tribunal could be said to have jurisdiction, it must not merely appear to the Tribunal that a premium has been paid, but a premium must actually have been paid. In the result, the King's Bench Division consisting of Lord Goddard, C.J and Humphreys and Parker, JJ. granted a writ of certiorari to quash the decision of the Tribunal as the Tribunal had reached an erroneous finding on the question of preliminary fact. For the reasons I have expressed, I hold that the orders of the Additional Sub-divisional Officer of Giridih dated 18-2-1954 and 5-10-1954, cancelling the Khorposh grants and directing the petitioners to give up possession of the villages comprised in the Khorposh grants; are entirely without jurisdiction and null and void. In my opinion, a writ in the nature of certiorari should be issued quashing the two orders of the Additional Sub-divisional Officer of Giridih dated 18-2-1954 and 5-10-1954, made under Section 4(h) of the Bihar Land Reforms Act. I would accordingly allow this application with costs. Hearing fee: Rs. 100/-.

Imam, J.:— I agree.

D.R.R

36. Application allowed.