[Beaumont, C.J:—
It must be an act against which it is possible to appeal. You cannot appeal from nullity.]
An order passed by a Court without jurisdiction is a nullity, but still an appeal is competent from such an order. Suppose, a Judge of the High Court passed an order beyond his jurisdiction, e.g, in a habeas corpus proceeding, the aggrieved party can appeal against the order. The appeal is perfectly competent. Decrees passed by a Court beyond its jurisdiction are nullities, but appeals from them are always preferred. In such cases, the very first ground of appeal would be that the Court had acted beyond its jurisdiction.
The terms of s. 11 are very wide. The question in a case falling under the section, is, is it or is it not possible to present appeals to the revenue authorities from the order complained of.
[Beaumont C.J You cannot appeal against an order which does not exist—which is nothing.]
It may be, when the party is in possession, that he need not appeal against an ultra vires order, but it is certainly open to a party to appeal against an order however invalid it may be. Orders passed without jurisdiction are appealed from every day.
If the view contended for by the other side is correct, then a party aggrieved by an invalid order can obtain no redress by an appeal either to the Collector or the Commissioner, but in every such case he will be compelled to file a suit to get rid of the order. Section 11 refers to “act or omission” of a revenue officer. Such an act or omission would be within the section although the officer might have exceeded his official capacity.
The principle underlying the section is that in matters in which Government acts before the Court is approached the Government must have an opportunity of remedying the grievance if any. In Ranchod v. Secretary of State for India, Farran C.J said (p. 587): “The section in question (s. 11) is not, in my opinion, a complex statute of limitation for the protection of Government. Its object is to prevent Government from being exposed to law suits arising out of the orders of its subordinate officers before its superior officers have been afforded the opportunity of considering, and it may be, of disallowing the executive orders of its subordinate officials.” The object underlying this section is analogous to the object underlying s. 80 of the Civil Procedure Code. It is not the intention of the Legislature to confine the operation of s. 11 to acts within the law. Tho object of the section is that superior officers should have an opportunity of looking into an act before it is brought before a Court. The object is to enable Government to deal with the matter if it chooses to do. The section does not deal with matters in which appeals are necessary, but with cases in which appeals are possible to be presented. It is possible to file a suit to have it declared that an order is a nullity. It would be a suit for declaration.
No Civil Court has jurisdiction in certain revenue matters, e.g, duty paid in respect of stamps: Dewarkhand Cement Company, Limited v. Secretary of State. So long as an act purports to be done under an Act of Legislature it is a bar to the suit. In that case Rangnekar J., in construing s. 106(2) of the Government of India Act, 1919, said (p. 301): “As seems to be clear from the terms of the section, it falls in two parts, and it is clear that under the first part of the section this Court has no jurisdiction to entertain a suit with regard to any matter concerning the revenue, and the second part deals with any act ordered or done in the collection thereof … in accordance with the law for the time being in force. Now, if the action had stopped just before the words ‘the law for the time being in force’, it is quite clear that there would have been an end of this action.”
If the revenue officer has done an act which is not in conformity with an Act of the Legislature but purports to conform with it, the party aggrieved by the act should appeal against it. He is bound to appeal against the order even if it is invalid. The object obviously is to give locus penitentiae to Government before the matter goes before the Court. If the order could be set aside without recourse to the Court of law, then why should the party be compelled to go to a Court of law. Otherwise, it deprives Government of its locus penitentiae and puts hardships on the party. The object of the statute would be defeated. The words of s. 11 are capable of bearing the construction, I am contending for. The Court can construe the section so without militating against the view taken in decisions in art. 14 or s. 4(a)(3).
Section 100 of the Civil Procedure Code gives a right to appeal to the High Court. If a District Judge passes an order clearly without jurisdiction, an appeal from it would be perfectly competent under s. 100. There is an order bearing a certain date and a seal of the Court, and s. 100 applies.
A party is not bound to appeal, but if he wished to appeal, is it or is it not possible to appeal. If so, s. 11 applies. It is possible to appeal, even where the order passed is void.
G.N Thakor, in reply. The Advocate General wants to read “if the order is passed in official capacity” in s. 11, which are not there. He concedes that it is not necessary for the party aggrieved to appeal from an order made ultra vires.
The Privy Council say that a void transaction need not be set aside. Hence, if an order is void-nullity altogether—why should one try to have it set aside in appeal against it.
Section 11 affects my right of suit. It affects my substantive right. It deprives my right to property. It does not at all refer to a question of procedure. If a revenue officer can say in appeal that the order is a nullity, then why cannot the Court say so in a suit.
Beaumont, C.J:—This is a reference made to a full bench by Mr. Justice Broomfield and Mr. Justice Wassoodew by a referring judgment delivered by Mr. Justice Broomfield.
The facts are not in dispute. The appellant claims to be entitled to a lease from Government granted by the Collector of Ahmedabad in 1918. In 1933 the then Collector of Ahmedabad, considering that the grant of the lease of 1918 by his predecessor was invalid, purported to terminate it. Against his order an appeal was made to the Commissioner, Northern Division. The Commissioner held that the lease of 1918 was ultra vires of the Collector, but that the Collector in 1933 had no power to review his predecessor's order. The Commissioner, however, acting as a revising authority under s. 211 of the Bombay Land Revenue Code, purported to terminate the lease of 1918, and directed that the tenancy should be treated as an annual one. Notice of that order was in due course served upon the appellant, and he filed this suit in which he asked for a declaration that the lease of 1918 was binding on Government and for an injunction restraining Government from obstructing the plaintiff's enjoyment and possession of the property. By way of defence, Government relied on the bar constituted by s. 11 of the Bombay Revenue Jurisdiction Act. That section provides:—
“No Civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue-officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.”
So that what has to be proved is that there was an act or omission of a revenue officer from which an appeal was possible, and that such appeal was not presented within due time. Admittedly no appeal was brought in this case from the order of the Commissioner, and I will assume that an appeal lay to the Governor-in-Council.
In his referring judgment Mr. Justice Broomfield has referred to a decision of this Court in Anant Krishnaji v. The Secretary of State for India. That was an appeal heard by myself and Mr. Justice Baker in which we differed as to whether the Commissioner had power in that case to make a particular order, and the question was referred to Mr. Justice Blackwell, as a third Judge, and ultimately went up to the Privy Council. In the course of my judgment I stated in a passage which is sat out in Mr. Justice Broomfield's judgment (p. 171):—
“If, however, the order of the Commissioner and the order of forfeiture founded upon it were invalid, then the appellant was not bound to appeal from them but was entitled, to wait until he was attacked. This has been laid down in many cases the last of which is Laxmanrao Madhavrao v. Shriniwas Lingo.
Mr. Justice Baker said (p. 176):—
“The real question in this appeal is whether the order made by the Commissioner was one which he had power to make under s. 211 of the Land Revenue Code. As has been pointed out by the learned Chief Justice, whose judgment I have had the advantage of perusing, it is settled law that when an order is invalid, it need not be set aside.”
He also referred to Laxmanrao's case. Before Mr. Justice Blackwell the Government Pleader of the day admitted that principle was correct, and Mr. Justice Blackwell acted on that admission. So that the view has been taken by three judges of this Court that an order which is ultra vires does not invoke the bar of s. 11 of the Bombay Revenue Jurisdiction Act. This reference has been mad because the referring Judges doubted the correctness of the proposition.
Laxmanrao's case, so far as material, turned on the construction of art. 14 of the Indian Limitation Act, which, read along with s. 3 of that Act, provides, as Mr. Justice Broomfield points out, that no Court shall entertain a suit to set aside any act or order of an officer of Government which is brought more than one year from the date of the act or order. As Mr. Justice Broomfield also points out, the analogy with s. 11 is very close. Apparently no other cases on the subject were cited to the referring Court, because Mr. Justice Broomfield suggests that the material passage in the Judgment of the Privy Council is the only authority on the point. But we have been referred to a large number of decisions of this Court's including Surannanna v. Secretary of State for India, Malkajeppa v. Secretary of State for India, Rasulknan Hamadknan v. Secretary of State for India, Dhanji v. The Secretary of State, Patdaya v. Secretary of State, Sulleman v. Secretary of State, and Manibhai v. Nadiad City Municipality. Those cases have established the principle that where an authority which purports to pass an order is acting without jurisdiction, the purported order is a mere nullity as Sir Lawrence Jenkins puts it, it is mere waste paper; and it is not necessary for anybody, who objects to that order, to apply to set it aside. He can rely on its invalidity when it is set up against him, although he has not taken steps to set it aside. The Advocate General does not dispute the proposition established by those cases, but he says that the principle does not apply to s. 11 of the Bombay Revenue Jurisdiction Act, which operates when an appeal is possible, and not merely when it is obligatory. I find it difficult to see why the principle should not apply. If the true principle be, as those cases decided, that an order or what purports to be an order, passed without jurisdiction, is a nullity, it cannot give rise to any right whatever, not even to a right of appeal. No doubt in appeal one ground of attack against the order of the lower Court often is that it was passed without jurisdiction. When that question is determined in favour of the appellant, the order of the Court of appeal, if properly framed, declares that the order appealed from was passed without jurisdiction, and determines the rights on that basis, and does not purport to set aside the order. Such a practice does not postulate the existence of any right under an order which is a nullity. In my view the principle decided in the cases under art. 14 of the Indian Limitation Act applies to s. 11 of the Bombay Revenue Jurisdiction Act, and if once the Court holds that what on the face of it purports to be an order of a revenue Court is in fact a nullity, it can give rise to no rights and impose no obligations. I do not think that the consequences of so holding will be as serious as Mr. Justice Broomfield considers. He seems to think that on that view of the matter it will be impossible to determine as a preliminary issue the question whether s. 11 operates as a bar. I do not follow that. The Court can raise as a preliminary issue the question whether the suit is barred by s. 11; and for determining that issue in the affirmative the Court will have to be satisfied that a revenue officer has made a valid order, that such order was appealable, and that no appeal was presented in time. I see no difficulty in determining the validity of the order on a preliminary issue.
In this case the trial Court undoubtedly decided that the order of the Commissioner was a valid order, whether right or wrong, and that s. 11 was a bar. As I read his judgment, the learned District Judge decided the same thing, because he refers to the order of the Commissioner, and says that it may be treated either as an order made in appeal against the order of the Collector, or as an original order made in revision, and that in either case it was appealable. He speaks of the order of the Commissioner, and not of a purported order of the Commissioner. I should myself think that this Court in appeal can decide on the validity of the Commissioner's order, but that is a matter for the referring bench. In my opinion, the view taken by this Court in Anant Krishnaji's case is correct, and if no valid order had been passed by the revenue authority, s. 11 does not come into operation.
The actual question which we are asked to answer is not, I venture to think, very happily expressed. It is:
“Whether the fact that an act or order of a Revenue officer is invalid or ultra vires prevents the operation of s. 11 of the Revenue Jurisdiction Act and gives jurisdiction to the Court to entertain a suit on account of the act or order which would otherwise be barred by that section.”
It is obvious that the existence of an order which is invalid cannot confer jurisdiction on the Court, and on a strict use of language, an order which is invalid is not an order. I would prefer to answer the question by saying that where a revenue officer purports to do an act or pass an order which is invalid his action does not operate to raise a bar under s. 11 of the Bombay Revenue Jurisdiction Act.
Costs will be costs in the appeal. The case will go back to the referring Court.
Wassoodew, J.:—I agree.
Sen, J.:—I agree.
Answer accordingly.
J.G.R