The Court (Wallace J. and Tiruvenkata Achariyar J.) made the following:

Wallace, J.- This Civil Revision Petition is presented against the order of the Board of Revenue revising its own previous decision in a matter of settlement of rent for the purpose of a record-of-rights under Chapter XI of the Madras Estates Land Act. In connection with the preparation of the record-of-rights a Special Revenue Officer settled under section 169 of thethe rents in 21 villages of the Mandasa Estate.. Objections were filed under section 169 against the settlement and disposed of. Appeals were filed under section 171 by the ryots before the Board of Revenue which has been constituted the appellate authority under that section, but they were dismissed as out of time. The ryots petitioned His Excellency the Governor that the settlement should be revised. On that request being forwarded to the Board of Revenue the Board suo motu took up the matter on revision under section 172 and has revised the rates in favour of the ryots, the result being, we are told, an annual loss of Rs.22,000 to the Rajah. It is against that order that the Rajah now moves the High Court in revision.

The first question obviously is whether the High Court has any power of revision over such an order of the Board of Revenue. It is admitted by the petitioners learned counsel that there is a recent Full Bench decision of this Court directly on this point, the ruling in Civil Revision Petitions Nos. 1027 and 1028 of 1924 pronounced on the 12th of April, 19

2

8. The question referred to that Full Bench was,

Has the High Court in the exercise of its revisional jurisdiction either under section 115 of the Civil Procedure Code or section 107 of the Government of India Act of 1919 power to revise orders passed by the Board of Revenue under Chapter XI or section 205 of the Estates Land Act

The Full Bench consisted of three Judges, and two of the three learned Judges decided both the points in the negative. The other learned Judge decided that the High Court has limited powers in certain specified cases to interfere in revision with orders under section 205, and he declined to answer the question as to the High Courts powers to revise orders under Chapter XI, as he considered the point did not arise in the litigation which gave rise to the reference. The other two learned Judges agreed that the question of the power of the High Court to revise orders under Chapter XI did not actually arise in the litigation before them but nevertheless decided the point. The petitioner seeks to avoid this finding of the Full Bench on two grounds, first, that it is not a decision as regards the revisional powers of the High Court in the matter of orders under Chapter XI, since a decision on that point was not necessary for the purpose of the litigation before it and since one of the learned Judges declined to decide the point; and secondly, that, even if it is a decision binding on this Bench, the decision requires further consideration than the Full Bench hasgiven it. He urges that the matters should therefore be referred to a larger Bench to consider the correctness of the Full Bench decision. Even if I agree that the decision of the Full Bench is obiter dictum as regards the High Courts powers of revision of orders under Chapter XI, undoubtedly the decision is entitled to the greatest respect from us, and unless I feel pressed by the other consideration, namely, that the matter does require further consideration, I should not be inclined to direct reference to a fuller Bench but would be content to follow the majority decision on the principle of stare decisis. But having heard the matter argued at length I am led to conclude that there is a strong arguable case on both sides, and that the matter does require more consideration from other points of view than have been dealt with by the Full Bench, and that in view of the obiter nature of the decision, the refusal of one learned Judge to give a ruling, and the importance of the subject it is desirable that the matter be dealt with by a larger Bench of not less than five Judges. It may be that the larger Bench may regard the discussion as to the High Courts powers under Chapter XI as inseparable from discussion as to its powers under section 205, even as the present Full Bench has done, in which case its decision will be applicable to both points though the latter does not directly arise in this litigation.

The questions we have heard argued at the bar are first, whether in the present case there is prima facie an illegal or irregular exercise of jurisdiction by the Board of Revenue, which, if the High Court has power, ought to be set aside by it, secondly, whether prima facie the High Court has power to interfere in revision with such an order of the Board of Revenue, and thirdly, whether, if so, the decision of the Full Bench should not be referred to a larger Bench for further discussion. I will for convenience. in my statement of the case take points 2 and 3 together, and I am endeavouring, since my conclusion is that the whole matter should be fully re-argued before a Full Bench, to limit my discussion here rigidly to the main heads of argument and avoid details.

Before discussing these points I shall deal very shortly with a contention which has been advanced by respondents that this Bench has no power thus to refer a Full Bench decision to a larger Bench. I can see no substance in this objection. The Rules on the Appellate Side permit a Division Bench to refer any matter to a Full Bench, and there are precedents for a Division Bench referring the decision of a Full Bench for consideration by a larger Bench. See Ramaswami Chettiar v. Mallappa Reddiar(43 M. 760=12 L. W. 475 (F.B.)).In a somewhat similar case in Rangoon a Bench of that Court adopted a similar procedure. See K.A.M. Mohideen v. Bakshi Ram. (3 R. 410 (F.B.))

Point 2.-The answer to the question, whether prima facie the High Court has power to interfere in revision with orders of the Board of Revenue under Chapter XI, depends in my view chiefly on a consideration of sections 106 and 107 of the Government of India Act and section 16 of the Letters Patent. The High Court by virtue of section 16 of the Letters Patent is a Court of Appeal (using that word in a wide sense including revision, reference and so on) from Civil Courts in the Presidency and from all other Courts subject to its superintendence. This power is one which is derived from Parliament and cannot be added to or subtracted from by any enactment of a Local Government, but it is subject to the legislative powers of the Governor-General in Council under section 44 of the Letters Patent. The powers of the High Court cannot therefore be affected by any statute passed by the Local Government. Even if such a statute professes to lay down, for example, that a particular tribunal was not a Civil Court or was not a Court subject to the superintendence of the High Court it would be of no effect if the High Court itself decided on a consideration of the case that such tribunal was; a Civil Court or was a Court subject to the superintendence of the High Court. No doubt in deciding whether or not a particular Court established by the Local Government is or is not under the superintendence of the High Court the High Court would consider the nature of the Court as constituted by the Local Government; but the final arbiter as to whether or not it was a Court under the superintendence of the High Court is the High Court and not the Local Government. Hence any contention or conclusion that the Madras Estates Land Act itself does not confer the power of revision on the High Court or even that the Local Government did not intend to confer such powers on the High Court or that under rules framed by the Local Government the Board of Revenue is appointed as the final appellate authority under section 171 or as the final revisional authority under section 172 is neither here nor there. It is for the High Court to decide whether the Board of Revenue in exercising this appellate or revisional power is or is not a Civil Court or a Court subject to the superintendence of the High Court.

The Full Bench has decided that the Board of Revenue in such matters is neither a Civil Court nor a Court subject to the superintendence of the High Court. That decision was vehemently attacked before us and it seems to me there are arguable reasons for holding that the reasons given by the learned concurring Judges as set out by them in their judgments are inadequate to establish that proposition. In discussing whether the Board of Revenue is a Civil Court, e.g., the concurring Judges hold that so far as the term Civil Court is concerned the discussion is concluded when they hold that it is not a Civil Court within the meaning of section 3 of the Code of Civil Procedure. I suggest that it certainly has to be further considered whether the phrase Civil Court, as used in section 16 of the Letters Patent, has any reference to oris circumscribed by the definition in the Civil Procedure Code. Section 3 does not profess to be exhaustive of Civil Courts. It merely defines the position of the various Civil Courts in the hierarchy of Courts. Again section 189 of the Estates Land Act does distinguish between Civil Courts and Revenue Courts for certain purposes, but that does not necessarily mean that a Revenue Court is not a species of the genus of Civil Court. For a definition of a Civil Court generally we cannot do better than go to the Privy Council case in Nilmoni Singh Deo v. Taranath Mukerjee(9 C. 295 at p. 300) which, be it noted, is the only pronouncement of the Judicial Committee cited before us-where their Lordships, recognising that the old Civil Procedure Code did distinguish between Civil Courts and Revenue Courts, went on to say:

It must be allowed that in those sections there is a certain distinction between the Civil Courts there spoken of and the Rent Courts established by the. But it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights.

The definitive definition of Civil Courts is therefore not to be found in the Civil Procedure Code, but in the phrase Courts deciding on purely civil questions between persons seeking their civil rights, and that prima facie is the meaning in my view to be attached to the phrase in section 16 of the Letters Patent.

Mr. Justice Phillips no doubt refers to Nilmoni Singh Deo v. Taranath Mukerjee 3 and explains it by saying that the Privy Council held that the High Court had jurisdiction because the High Court had succeeded to the jurisdiction of the Sudder Court which already had jurisdiction over Revenue Courts when the High Court Charter Act came into force. But it must be confessed that that is not the reason given by their Lordships of the Privy Council. The learned Judge has not considered the question whether apart from section 3 of the Civil Procedure Code and apart from the question of superintendence by the High Court the Board of Revenue is, in the exercise of its function now under consideration, a Civil Court, and the petitioner is justified in contending that Nilmoni Singh Deo v. Taranath Mukerjee (9 C. 295 at p. 300)is a clear ruling in his favour which has not so far been adequately distinguished.

Two methods of interpretation of section 16 of the Letters Patent have been advanced, (1) by the petitioner, that by constituting the High Court a Court of Appeal from all Civil Courts and all other Courts subject to its superintendence, the High Court is thereby empowered to exercise an appellate jurisdiction over such Courts; (2) by the respondents, that the declaration of the High Court as a Court of Appeal does not ipso facto carry with it power to exercise appellate jurisdiction over such Courts and that such power can only be conferred by a provision ad hoc by statute. To apply these theories to the case of any Court which is a CivilCourt, in the former view the appellate jurisdiction of the High Court follows the moment it is decided that the Court is a Civil Court, while in the latter view the jurisdiction of the High Court depends on whether the authority constituting the Court also declared expressly or by implication that it was either a Civil Court or under the superintendence of the High Court. The respondents theoretical contention rests chiefly on the argument that the first part of section 16, declaring that the High Court is a Court of Appeal, merely means that the Legislature cannot declare that any other Court is a Court of Appeal from Civil Courts or from Courts subject to the superintendence of the High Court, and that the phrase shall exercise appellate jurisdiction must mean something different from shall be a Court of Appeal. The distinction they seek to draw is that the phrase shall exercise appellate jurisdiction means shall in fact have conferred on it by statute some power which may be classed under the term appellate jurisdiction. It seems to me however that the exercise of appellate jurisdiction relates to the manner or extent of, i.e., the procedure in, the exercise of appellate jurisdiction rather than to the power of exercising it, that is, it is the manner and extent of the exercise of its appellate jurisdiction that are as laid down by virtue of any laws and regulations now in force. There is this to be said for the respondents argument that our attention has not been called to any reported case where it has been laid down that the High Court has appellate jurisdiction over another Court on the simple ground that it is a Civil Court tout seul, while there are several rulings by learned High Court Judges, wherein they have laboured, even in the case of Courts which are obviously Civil Courts, for example, a Small Cause Court, to find some statutory provision indicating an actual subordination to the High Court or some power in the High Court derived by inheritance at the time of the passing of the Charter Act, in order to decide whether the High Court has appellate jurisdiction or not. For example, B.C. Chunder and others v. S.S. Debea and another(6 W.R. 68)(under the headingRulings), Pirbhai Kimji v. B.B. & C.I. Railway Co.(8 Bom. H.C.R. 59)(referring to the Small Cause Court of Bombay), Bai Jamna v. Bai Jadav, (4 B. 168)Abdul Sattar Sahib (Land Acquisition Court although only section 115 of the Code of Civil Procedure is really considered there), Chaitan Patgosi Mahapatra v. Kunja Behari Patnaik (38 C. 832) and particularly Chatterjee v. Tribedi (49 C. 528) and Allen Bros. & Co. v. Bando & Co. (49 C. 931) On the other hand a Full Bench of five Judges, the Patna High Court in Shivnandan Prasad Singh v. King-Emperor11 has held that section 27 of the Letters Patent, Calcutta, framed in exactly the same language regarding Criminal Courts as section 16 regarding Civil Courts meant prima facie that the High Court exercises appellate jurisdiction over all Criminal Courts unless that power has been expressly taken away by the Governor-General in Council by legislation. And, as already noted, respondents have not been able to adduce any ruling of the Privy Council in favour of the argument. On his side the petitioner argues with force that the constitution of the High Court as a Court of Record with unlimited jurisdiction ipso facto creates it as a Court with superintendence over all Civil Courts of limited or inferior jurisdiction. In the words of Rex v. Shoreditch Assessment Committee: Morgan Ex parte ((1910) 2 Kings Bench, 859 at p. 880):

Subjection 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.

The petitioner of course has also in his favour the decision of a Bench of this Court in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli,(49 M. 499=23 L.W. 320)which was overruled by the Full Bench. The contention of the respondents that in order to decide whether the High Court has appellate jurisdiction over a Court, we must embark on a minute search of the statute constituting that Court in order to find some indication however small that the Legislature intended to put the Court under superintendence of the High Court is far-fetched. One would rather deduce that, where the Legislature intended to subordinate a Court to the High Court but does not make it very clear by the statute which creates the Court, the reason is because the provisions of the Letters Patent make it unnecessary to do so. It is in my view certainly open to considerable argument whether the simpler view of the interpretation of section 16 of the Letters Patent suggested by the petitioner is not after all the correct one.

As to which of these two propositions in this general form is correct, and the decision as to the High Courts jurisdiction over the Board of Revenue will mainly turn upon which is correct-the Full Bench has not devoted its attention. There is some discussion no doubt on the point with reference to the case in Allen Bros. & Co. v. Bando & Co.(49 C. 931)but the Patna case has not at all been mentioned. Both the learned concurring Judges seem to regard the discussion as concluded when they are unable to find any statutory provision in the local Act making the Board of Revenue subordinate to the High Court. But as already observed the intention of the local Legislature cannot deprive the High Court of jurisdiction which it already may possess otherwise.

Another point of attack is that the learned concurring Judges seem to regard the existence of a concurrent power of revision both in the High Court and in the Board of Revenue as an anomaly.

But a concurrent power of revision is already present in certain provisions of the Criminal Procedure Code. In any case the anomaly is resolved if the High Court is held to be the superior Court of revision.

As to the view that the Board of Revenue in matters of its functions under Chapter XI is a Civil Court within the meaning of the phrase as interpreted in Nilmoni Singh Deo v. Taranath Mukerjee(9 C. 295 at p. 300); it seems to me a great deal can be said in favour of it. The essential purpose of the preparation of the record-of-rights is the settlement of a fair and equitable rent between the landholder and the tenant, a matter which would obviously be ordinarily within the jurisdiction of the ordinary Civil Court if it were not taken away by enactment. Whether or not the actual preparation of the record-of-rights under section 165 is in essence a Civil Court matter may be open to doubt; but the settlement of the rent under section 168 and the consequences of that settlement certainly prima facie do appear to be so. In the itself such a settlement between the individual tenant and his landlord is definitely recognized to be a matter for decision by a Revenue Court- (seesections 25 and 189), and is therefore-by force of Nilmoni Singh Deo v. Taranath Mukerjees (9 C. 295 at p. 300) case, a Civil Court matter. It is difficult to see how such a settlement loses that character when it is made between a group of ryots and the landlord, and difficult to refuse to regard it still as a determination of civil rights. The criterion of whether or not certain proceedings are the proceedings of a Civil Court cannot depend on the number of parties to the proceedings.

If I accept respondents contention that the itself and the rules framed under it may be referred to usefully at all on this part of the discussion, these do not assist. Under the rules framed under section 215 , for inquiries into objections which are entertained after the publication of the record-of-rights, the parties are to be arrayed as plaintiff and defendant- seerule 15 -and by Form No. 6 issued to them they are called upon to produce all their evidence, oral and documentary. If we go to the itself, the Civil Court nature of the proceedings seems to me an obvious corrollary of the provisions of sections 178 and 179 , which enact that during the pendency of the preparation of the record-of-rights the cognizance of such matters is taken away from the ordinary Civil Courts, and of section 173 which permits a suit in the ordinary Civil Court to set aside a finally determined entry in the record-of-rights. In this way it seems to me that the Legislature recognized these matters to be essentially of a Civil Court nature to be finally determined by the Civil Court itself. The observations of Devadoss, J., in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli((49 M. 499=23 L.W. 320))may be usefully considered also in this connection.

It may be argued with much cogency that the mere fact that a portion of the ordinary civil jurisdiction of the Civil Court is taken away by the Local Government and given to a special Court called a Revenue Court does not in the first place deprive that Special Court of its real character as a Civil Court or in the second place deprive the High Court of the jurisdiction vested in it by section 16 of the Letters Patent over such Courts which are merely a species of Civil Courts. I find that this aspect of the problem has not been considered at all by the learned concurring Judges in the Full Bench decision.

If on re-consideration the Full Bench again hold that the Board of Revenue is not a Civil Court in these matters it would of course further have to consider the question whether or not it is a Court subject to the superintendence of the High Court. That is not a point into which I feel constrained to go at present as all that need be shown at present is the existence of a prima facie case for consideration by a larger Bench. I answer my Point 3 by saying that I have shown that a prima facie case exists.

Point I.- The next question is, assuming that there is a prima facie case for fresh consideration, should that fresh consideration be ordered now In other words, is there a prima facie case for the interference of the High Court in revision, if it be held that it has power to interfere. Has the Board of Revenue prima facie exercised its jurisdiction illegally or improperly We have heard Counsel on this point also. The petitioner puts his case on two grounds, first, that no Court has jurisdiction to revise its own decision on appeal and secondly, that section 172 gives the Board no jurisdiction to revise on the merits orders passed in appeal under section 171. On the first ground the respondents contend that the word revision here is not used in its ordinary legal sense but has some esoteric meaning peculiar to this Act. This does not seem to me a fruitful line of argument. The word revision has a definite legal meaning as distinct from appeal on the one hand and from review on the other. It means the authority suo motu or on motion by party to scrutinize the proceedings of inferior and subordinate tribunals and to correct these if necessary in the interests of justice. It does not ordinarily connote authority to rehear and alter decisions of the revising authority itself. Even the High Court has not got that power. Hence the conferment by section 172 of the power of revision on the Board of Revenue does not to my mind prima facie connote authority to rehear cases and alter its own decision, nor does it seem to me that any power of review is what has been conferred by section 1

72. Further a Court has no inherent power to review except as to matters of clerical or formal errors. It is true that Order 47 , Code of Civil Procedure, is not excluded from section 192 of the Estates Land Act. But the present reversal by the Board of Revenue on the merits of its own decision on appeal is not based on any of the grounds set out under Order 47. It is in effect a re-hearing ofthe appeal or rather a hearing of an appeal against its own decision in appeal. Such a power is not inherent in a Court and it is open to grave doubt whether it is possessed by the Board of Revenue when it acts as a Civil Court. The fact that the order revised was of a particular nature, namely, an order dismissing the appeals as out of time, will not suffice to create such a power when it is not conferred by statute.

As to the second ground it is certainly arguable that section 172 as it stands does not contemplate revision by the Board of an appellate order under section 171, since the date of the appellate order is not fixed as a terminus a quo for the application of a motion for revision. Prima facie then section 172 is not intended to give the Board power to revise orders under section 171 , and this is not strange since it may be the Boards own order which is passed under section 171. A decision on this point is very much hampered by the difficulty which, I think, was shared by Counsel on both sides, to reduce to a logical consistency the provisions of sections 165 to 179 of the Estates Land Act. As I read the sections, the scheme seems as follows:

Section 172 , judging from the periods of limitation fixed in it, empowers the Board of Revenue to revise (a) the original record-of-rights published under section 165 or (b) the record re-published under section 170. I do not forget that section 174 says a note of all decisions under section 171 shall be made in the record-of-rights. But it is also clear from that section that the decisions under section 171 are not to be published; for the final re-publication is under section 170. Section 172 seems to give the Board power to revise only entries in the published or re-published record-of-rights. The language of section 173 (1) might be invoked to indicate that an entry in the settlement record prepared under section 171 shall be incorporated in the record-of-rights finally published under section 170(3). But such incorporation is not contemplated by section 170(3) itself, according to which the republication does not await the disposal of any appeal under section 171. Section 173 is very difficult to understand. For example, a suit may be filed under it to set aside any entry made under clauses (d), (e) and (j) of section 1

65. If this is to be taken as it stands, then the suit lies only against the original entry under section 165 , and not against any amendments to those entries which may have been made under section 169 as a consequence of objections to them or under section 170 by the confirming authority. Respondents press for this extreme view, but it seems to me to make nonsense of the section. To lay down that a person aggrieved by the entries in the record-of-rights made under sections 168 to 171 may not sue to set these aside but has the wholly barren remedy of suing to set aside the original entries under section 165 seems to me an interpretation of the section so opposed to common sense that it must be wrong, and such an interpretation seems also directly contradictory to the express wording of sections 176 and179 which later section clearly implies that a suit lies for the alteration of entries in the record-of-rights of rent settled under sections 168 to 1

72. Therefore I take it that what a party can sue under section 173 to have set aside are the original entries in the record-of-rights or any amended entries of these which have been incorporated in the record-of-rights, so long of course as these are of the classes set out in sub- sections 3 (a) to (f). Though it is not too clear that a suit may be filed against an entry in the record-of-rights of an order passed on appeal under section 171 , since, as shown, such entry is not an entry incorporated in the record-of-rights when finally published, there are other indications in section 173 , notably the fixing of the date of disposal of an appeal under section 171 as a terminus a quo for a suit which show that such a suit may lie. A party aggrieved by the order in appeal under section 171 therefore would seem to have a remedy by way of a suit. But that is really only an additional ground for holding that a remedy by way of revision under section 172 is not given. Certainly a right of suit against an order in revision under section 172 is not conferred by section 173.

A curious point is that neither section 174 nor section 203 lays down that orders in revision under section 172 shall form part of the record-of-rights (although on the contrary section 179 seems to imply that it shall and does), nor is the rent settled by such revision to be deemed under section 176 fair and equitable. The respondent tries to explain these lacunae by suggesting that whole sections of the Bengal Tenancy Act were taken over bodily and that confusion has resulted from making what were mere sub sections in the Bengal Tenancy Act into independent sections in this Act. I do not regard such a line of argument as legitimate or fruitful, and the fact that the jurisdiction of the Board of Revenue has to be supported by such desperate means is another ground for holding that there is a good prima facie case that it does not exist. We have to deal with what the Legislature has put before us and we are not at liberty to turn ourselves into legislative bodies for the purpose of supplying deficiencies in a statute.

Both the learned concurring Judges were, I think, in error in holding that a right of suit lies under section 173 to set aside an order passed under section 1

72. As the statute stands, section 179 where curiously enough section 172 is mentioned by the clause save as provided by section 173 -implies that no suit will lie to alter any order made under section 172 , and yet under section 176 rents settled under section 172 are not deemed to have been correctly settled. We have the astonishing result that the rent determined in appeal Under section 171 is deemed fair and equitable rent, but, if revised under section 172, it is not. It seems to me easier and more sensible to hold that there is no power to revise the rate of rent fixed under section 171 and that such revision as iscontemplated by section 172 is confined as usual to matters of illegal or irregular exercise of jurisdiction by tribunals subordinate to the Board of Revenue. Otherwise the Board of Revenue has unlimited jurisdiction to fix finally a rate of rent which, while cancelling a rate of rent deemed fair and equitable, is not itself deemed fair and equitable, and, more than that, can defeat the successful party under section 171 by deferring this revision until after the six months for a suit to set aside the order under section 171 has expired. That is what has been done in the present case. If the respondents arguments prevail, the unsuccessful party under section 171 can move in two ways, by revision on the merits under section 172 or by a suit under section 173 , while the successful party may be defeated without remedy by a revision under section 172 after the limitation period for a suit under section 173 has expired.

Another possible view of these sections is that the power of the Board of Revenue under section 172 is restricted to directing a revision in the sense of a re-trial of the whole matter, when within the two years experience has shown that the system introduced was unworkable. That view would explain the anomaly that section 176 does not mention section 172, but, needless to say, the Board of Revenue has not in this case directed such a re-trial.

Whatever the true interpretation of these difficult sections may be, it is at least obvious that there is a fair arguable case on both the grounds urged by the petitioner that the Board of Revenue exceeded its jurisdiction in revising its own order under appeal under section 171. I have therefore come to the conclusion, with some diffidence, but with a real sense that the whole matter requires more consideration than it has had at the hands of the Full Bench, that this case should be referred to a larger Bench for decision of the general question whether the High Court has power to interfere with a decision of the Board of Revenue under Chapter XI of the Estates Land Act. In view also of the difficulty of extracting any coherent procedure out of the provisions of that chapter, I would also refer for the decision of that Bench, if its answer to the first question is that the High Court has such power, the question of fact whether the Board of Revenue has in this particular case exceeded the jurisdiction conferred upon it, and would refer for the final decision of that Bench the entire consideration of the final order to be passed in this case.

Tiruvenkata Achariyar, J.- This-is a petition preferred under section 107 of the Government of India Act and section 115 of the Civil Procedure Code against an order of the Board of Revenue purporting to be passed under section 172 of the Madras Estates Land Act. The petitioner is the landholder of the Estate of Mandasa which is situate in the Ganjam District; the respondents are the ryots of 21 villages of that estate. On the application of the ryots of the said villages, the Local Government ordered that a survey be made and a record-of-rights be prepared in respect of those villages. That order was carried out and the final record of such rights was duly published as required by sub- section (2) of section 16

6. The Local Government then, on the application made to them under section 168 by the said ryots, directed a settlement of the rents of those villages. The Revenue Officer deputed for the purpose after holding an enquiry as directed in sections 168 and 169 passed his final order on 18th August, 1923, settling the rents for the said villages. Against that order the ryots preferred an appeal to the Board of Revenue under section 171. That appeal was dismissed on the ground that it was not preferred within the time prescribed in section 171.

Some time afterwards when His Excellency the Governor was touring in the Ganjam District, a deputation of the ryots waited on him and prayed that the settlement of rents made by the Special Revenue Officer should be revised. Their request was communicated to the Board of Revenue who thereupon proposed to exercise their revisional powers under section 172.

On behalf of the landholder, a preliminary objection was taken that it was not competent to the Board to revise the order in this case. That objection was overruled by Mr. T. Raghavayya, the then Commissioner of Land Revenue and Settlement, by his order, dated 27th October, 19

25. The application was then heard on the merits by Mr. MacMichael, the successor in office of Mr. Raghavayya. He came to the conclusion that an all-round reduction of approximately 3 annas in the rupee in the Revenue Officers rates is called for and by his proceedings, dated 17th December, 1925, he ordered that the rates will accordingly be revised as shown in the annexure to that order.

The revision petition before us has been preferred by the landholder against the aforesaid orders of Mr. Raghavayya and Mr. MacMichael. The respondents have filed a memorandum of cross-objections against the final order of Mr. MacMichael contending that he should have still further reduced the rates of rent.

When the petition came on for hearing, the learned advocate for respondents-ryots-raised a preliminary objection that this Court has no power either under section 107 of the Government of India Act, or section 115 of the Civil Procedure Code, to revise the order of the Board of Revenue passed under section 172 of the Estates Land Act. He contended that this point is concluded by the judgment of the majority in the recent Full Bench case in C.R.Ps.Nos.1027 and 1028 of 1924 and 301 of 1925 and that it is not competent to us sitting as a Division Bench to differ from the decision of the Full Bench even though we may be disposed to take a different view on the question ourselves.

With reference to this preliminary objection, the petitioners learned advocate urged that though the question whether the High Court in the exercise of its revisional jurisdiction either under section 115 of the Civil Procedure Code, or section 107 of the Government of India Act, has power to revise the orders passedby the Board of Revenue under Chapter XI, was also one of the questions referred to the Full Bench, yet that question did not actually arise in the case, as pointed out by all the three learned Judges who constituted the Full Bench, and on that ground one of them declined to express his opinion on that question. The other two learned Judges, no doubt, have expressed their opinion on that question also, but in view of their explicit statement that the question did not arise in the cases before them, their opinion can be considered only as obiter dicta and has not the binding force of a decision of a Full Bench.

He further argued that when all the reported cases on the point are considered it will be seen that more Judges of this Court have for different reasons come to the opposite conclusion as regards the powers of this Court to revise the orders of the Board of Revenue and the Subordinate Revenue Officers passed under the Estates Land Act, and the opinion of the majority of the Full Bench even if it were not obiter dicta should not preclude us from further considering the question.

There can be hardly any doubt as to the importance of the question and it is certainly desirable in view of the conflict of authorities to have an authoritative pronouncement on it. Not only did that question as to this Courts power to revise orders passed by the Board of Revenue under Chapter XI not arise in that case, but I may also observe that the question which was referred to the Full Bench is too comprehensive in its terms. Chapter XI deals with orders passed relating to two distinct matters, namely, (1) the preparation and final publication of a record-of-rights, and (2) the settlement of rents in respect of the villages or lands to which the record-of-rights relates. These two are distinct matters, though the settlement of rents is also incorporated in the record-of-rights which is finally re-published under sub section (3) of section 170. In this case we are concerned only with the orders relating to the settlement of rents and not with the entries in the record-of-rights as it stood before settlement of rents was ordered by the Local Government under section 16

8. There is a material distinction between those entries and the entries relating to the settlement of rents which also are to be incorporated in the record-of-rights as finally re-published. An entry in a record-of-rights as finally published under section 167 is under sub- section (3) of the same section evidence of the matter referred to in such entry, and shall be presumed to be correct until the contrary is proved. But as regards the rents settled under sections 168 to 171, section 176 enacts that subject to the provisions of section 173, they shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of this Act, that is, it has the force of a binding adjudication as between the landholder and the ryots concerned. Turning to section 173 , it will be seen that any person aggrieved by an entry in a settlement record prepared under sections 168 to 171 and incorporated in a record-of-rightsfinally published under sub- section (3) of section 170 may institute a suit in the Civil Court on any of the grounds specified in sub- section (3) of that section and on no other. The only ground in sub- section (3) of section 173 which may be considered as having a material bearing on the rate of quantum of rent entered in the settlement record as payable for any holding is that the entry made under clause (e) of section 165 as to the rent lawfully payable at the time the record-of-rights is prepared is incorrect. Section 168, clause (2) enacts that in settling rents under that section the Revenue Officer shall presume until the contrary is proved the existing rent or rate of rent is fair and equitable. This clause, it will be observed, only reiterates the rule laid down in section 28 of the. The existing rent or rate of rent is no doubt the starting point of the investigation for settling a fair and equitable rent and any serious mistake made therein cannot but materially affect the result of that investigation. But although the correctness of such a material entry in the settlement record can be impugned in a suit, the further question as to what is to happen if that entry is shown to be materially incorrect is left untouched by the. The decision of the Court declaring what the correct entry under clause (e) of section 165 ought to be has to be notified to the Collector of the district and a note of that decision has also to be made in the record-of-rights and is to be considered as part of that record. Nevertheless there is no provision in the directing the Revenue Officer or the Collector to revise the rent or rate of rent entered in the settlement record with reference to the correct basis as to the existing rent. Sub- section (4) of section 173 provides only for consequential alterations of the entry as to the fair and equitable rent in the settlement record with reference to the decision of the Civil Court on grounds (a) to (c) of sub- section (3), wherever there is no such provision with regard to these decisions in (d) and (e). It seems therefore tolerably clear that the right of suit which is conferred by section 173 does not avail to obtain any modification as regards the rate or amount of rent settled as fair and equitable by the Revenue Officer and the higher appellate authorities and incorporated in the settlement record and that while the entries made in the record-of-rights which do not relate to the settlement of rent may be shown to be incorrect the entries as to the fair and equitable rent made in the settlement record cannot be effectively questioned by a suit and they must be given effect to in settling disputes which may arise as to the rent payable by the ryots to the landholder. It follows that while the preparation and final publication of the record-of-rights under section 167 may be viewed as administrative acts, the settlement of rents under sections 168 to 171 cannot be so viewed. They are in essence judicial acts as they determine with conclusive effect the rights of the landholder as against his tenants in respect of the rents payable by them for their holdings. The circumstance that in the Full Bench case no question arose under Chapter XI probably accounts for the question with reference to that chapter not being sufficiently specific, and for no separate consideration being given in the Full Bench judgments to the nature of the orders according as they relate to the settlement of rents or to other entries in the record-of-rights. In view of these considerations, we heard arguments on both sides on the questions involved in the case, namely:

(1) Whether the High Court in the exercise of its revisions powers under section 107 of the Government of India Act, or section 115 of the Civil Procedure Code, can revise the order passed by the Board of Revenue in this case purporting to revise the rents settled by the Revenue Officer under section 169;

(2) (a) assuming that the above question should be answered in the affirmative, was it competent to the Board of Revenue under section 172 to revise the said order after it had itself dismissed an appeal preferred to it under section 171 and

(b) whether the Board itself can revise and modify the rents tinder section 172 or it has power under that section only to remit the case back to the subordinate authority for revision in accordance with such directions as it may give.

Both these questions were fully argued before us on both sides, and most of the relevant authorities were also referred to. As regards the powers of the High Court to interfere in revision against the orders of the Board of Revenue and other inferior Revenue authorities passed under the Estates Land Act, there is no doubt a conflict of authority, and it is by no means easy to deduce from those cases any general principle easy of application on which the existence of the power is made to depend.

I do not propose to discuss the several cases cited to us as at the conclusion of the arguments we considered that in the present state of the authorities the question should be referred to a Full Bench. I need therefore only indicate the view to which I am inclined upon a consideration of the authorities. In my opinion, the High Court has in the exercise of its powers of superintendence under section 107 of the Government of India Act the power to revise the orders passed by the Revenue Officers and the Board of Revenue under sections 169 to 172 of the Estates Land Act, if those officers and the Board of Revenue should be deemed to be acting judicially and not merely in an administrative capacity in settling a fair and equitable rent. If the Revenue Officer who in the first instance has to settle a fair and equitable rent under sections 168 and 169 is exercising a judicial function and should therefore be regarded as a Court, the superior Revenue authority be it the District Collector or the Board of Revenue to which an appeal lies from the order of the Revenue Officer passed under section 169 and the Board of Revenue which under section 172 is invested with the power of directing the revision of such rents must also be held to be acting judicially when dealing with that question and to be exercising the function of a Court though they are not designated as such. In the view that the Revenue Officerand the appellate authorities when exercising their functions under sections 168 to 172 are doing so as Courts which I consider to be the right view, I am also of opinion that they are Civil Courts within the meaning of clause 16 of the Letters Patent.

Section 189 of the Estates Land Act which invests a Collector or other Revenue Officer specially authorized in that behalf with exclusive jurisdiction to hear and determine suits and applications, specified in Parts A and B of the Schedule says that they shall act as Revenue Courts as distinguished from Civil Courts, the jurisdiction of which is barred in respect of such suits and applications. Section 5 of the Civil Procedure Code also maintains a similar distinction between Revenue Courts and Civil Courts, Revenue Courts being Courts having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of lands used for agricultural purposes but does not include Civil Courts having original jurisdiction under this Code to try such suits or proceedings of a civil nature. It will be seen that this definition of a Revenue Court concedes that the suits and proceedings which relate to the rent, revenue or profits of land used for agricultural purposes which are to be tried by the Revenue Courts are suits and proceedings of a civil nature which ordinarily would have to be tried by the Civil Courts and that the distinction between Revenue Courts and Civil Courts both in the Estates Land Act and in the Civil Procedure Code is made only to enable the Local Government to prescribe a special procedure for the Revenue Courts differing from that laid down in the Civil Procedure Code for the trial of similar suits and applications by the ordinary Civil Courts. Section 3 of the Civil Procedure Code which declares what Courts are subordinate to the High Court makes no mention of Revenue Courts. It may therefore be open to doubt whether for the purpose of section 115 of the Civil Procedure Code a Revenue Court from whose decisions in suits or other proceedings no appeal lies to any Civil Court can be deemed to be subordinate to the High Court. Such Revenue Courts are placed on a materially different footing from Revenue Courts whose decisions are appealable to the District Courts. If the Appellate or Superior Court is subject to the superintendence of the High Court it would be impossible to contend that the inferior Court is not also subject to its superintendence because it is styled as a Revenue Court. But the question in this case arises with reference to the proceedings of a Revenue Officer from whose decisions no appeal lies to any Civil Court but an appeal lies to a superior Revenue authority and a power of revision is conferred on the Board of Revenue. Therefore it may well be doubted whether such a Court or the superior Revenue Officers who constitute the appellate or revisional authority are Courts subordinate to the High Court within the meaning of section 115 of the Civil Procedure Code. The question has however to be considered with reference to the powers of superintendence vested in the High Courts under section 107 ofthe Government of India Act which re-enacts section 15 of the High Courts Act of 1861. Under section 107 the High Court has superintendence over all Courts for the time being subject to its appellate jurisdiction. Section 106 which corresponds to section 9 of the High Courts Act enacts (to quote only so much as is necessary):

The several High Courts are Courts of Record and have such jurisdiction, original and appellate and all such powers and authority over or in relation to the administration of justice as are vested in them by Letters Patent and subject to the provisions of any such Letters Patent all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act.

We have therefore to turn to the Letters Patent to find out what is the appellate jurisdiction which is vested in the High Court. The clause in the Letters Patent relating thereto so far as Civil Courts are concerned is clause 16 which runs thus:

And We do further ordain that the said High Court of Judicature at Madras shall be a Court of Appeal from the Civil Courts of the Presidency of Madras and from all other Courts subject to its superintendence and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any laws or regulations now in force.

Clause 44 of the Letters Patent ordains

that all the provisions of these (Our Letters Patent) are subject to the legislative powers of the Governor-General in Council, exercised at meetings held for the purposes of making laws and regulations and also of the Governor-General in cases of emergency under the provisions of an Act of the 34th and 25th years of Our reign (Chapter 67) and may be in all respects amended and altered thereby.

It will be convenient to refer also at this place to the powers of the Indian Legislature in so far as they can affect the jurisdiction of the High Court. Under section 65 of the Government of India Act the Indian Legislature which is the supreme legislature for India has power to make laws for all persons, for all Courts and for all places and things within British India but it has not unless expressly so authorised by Act of Parliament power to make any law repealing or affecting any Act of Parliament passed after the year 1860 and extending to British India, or without the previous approval of the Secretary of State in Council abolish any High Court. Under the High Courts Act of 1861, section 9, the jurisdiction to be conferred on the High Court by Her Majestys Letters Patent was made expressly subject and without prejudice to the legislative powers in the matters aforesaid of the Governor-General of India in Council. Clause 44 of the Letters Patent to which reference has already been made contains a similar provision. The powers of the Local Legislatures are set out in section 80-A of the Government of India Act. The Local Legislature of any Province has power to make laws for the peace and good government of the country for the time being, constituting its province. Sub-section

(4) of that section says that it has not the power to make any law affecting any Act of Parliament. So far as the jurisdiction and powers of the High Court for the time being are concerned they rest on the provisions of the Letters Patent which Her Majesty was empowered to issue and on the enactments of the Governor-General in Council who was expressly invested with the authority of amending or altering by legislation all or any of the provisions of the Letters Patent, but no such power was given to the Provincial or Local Legislatures,. They have no power to affect the jurisdiction of the High Court in any manner.

Turning now to clause 16 of the Letters Patent it will be seen that the High Court is a Court of Appeal (1) from the Civil Courts in the Presidency, and (2) from all other Courts subject to its superintendence. The first part proceeds on a territorial basis. The High Court is a Court of Appeal over all the Civil Courts (Original and Appellate) which are. established within the Presidency. The second part which refers to other Courts must be taken to refer to (1) Courts which though within the Presidency are not Civil Courts, and (2) Civil Courts or other Courts which are not within the Presidency. Confining ourselves to Civil Courts the second part relates to such Courts as are not within the Presidency, and the High Court is declared to be a Court of Appeal over such of those Courts as are subject to its superintendence. Clause 26 contains a similar provision as regards the jurisdiction of the High Court over Criminal Courts. This portion of clauses 16 and 26 is the converse of the enactment in section 107 of the Government of India Act which says that the High Court has superintendence over all Courts subject to its appellate jurisdiction. Clause 16 further provides that the High Court as a Court of Appeal shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any laws or regulations now in force. The distinction is here drawn between the status of the High Court as a Court of Appeal from all the Civil Courts in the Presidency and its power to entertain and hear appeals presented to it from the decisions, of those Courts. It can exercise that power only in those cases in which by virtue of any law or regulation in force appeals may be preferred to it. But in virtue of its status as a Court of Appeal it has powers of superintendence over all Courts, Civil and Criminal, subject to its appellate jurisdiction, i.e., irrespective of whether appeals as such lie to it or not from the decisions of those Courts. So far as Civil Courts are concerned the High Court has powers of superintendence over every Civil Court situate within the Presidency but as regards any Civil Court not within the Presidency, it has powers of superintendence only when such powers are expressly conferred on it as, regards that Court. Such a Court can be brought under the superintendence of the High Court only either by Letters Patent of His Majesty or by the legislative authority of the Governor-General in Council. So far as the local Legislature is concerned it has no powerto affect the jurisdiction thus conferred on the High Court. It may no doubt create a new Civil Court (Original or Appellate) within the province and if it does so that Court will automatically become subject to the appellate jurisdiction of the High Court in virtue of clause 16 of the Letters Patent and consequently subject to its powers of superintendence under section 107 of the Government of India Act-but it is not competent to the local Legislature in creating such Courts to enact any provisions with a view to affect to any extent the appellate jurisdiction of the High Court over such Courts as provided in clause 16 of the Letters Patent and consequently its power of superintendence under section 107 of the Government of India Act. Such an enactment will be altogether void and of no effect. If authority were needed for this position I would first refer to the following observations of West, J., in The Collector of Thana v. Bhaskar Mahadev Sheth(8 B. 264 at p. 267):

The. jurisdiction of the High Courts rests on the Statute 23 and 24 Vic, c.101, and the Letters Patent issued under that statute. The legislative power of the Local Government rests on 23 and 24 Vic, c. 67, sections 42 and 43. Under these it cannot interfere with any Act of Parliament. The statute constituting this High Court and the Letters Patent give to the Court such jurisdiction as was possessed by the late Supreme and Sadar Courts, together with a general power of appeal and superintendence over the Civil Courts of the Presidency of Bombay (Letters Patent, clause 16, Statute 24 and 25 Vic, c. 104, sections 9 , 15). Any Act, therefore, of the local Legislature which should propose to cut down the jurisdiction, would so far be ultra vires and inoperative. But, then, it is to be remembered that this restriction of the one authority by the other relates only to matters of jurisdiction-that is, of the exercise of the judicial function and matters ancillary to this.

But the local Legislature has power to change the substantive law and such legislation does not infringe on the authority of the High Court unless the powers of the latter in dealing with the law when made are affected. In Mahadaji Govind v. Sonu bin Davlata(9 Bom. H.C.R. 249 at p. 251)Sargent, C.J., says as follows:

The High Court cannot be deprived of any power vested in it by its Charter over Subordinate Courts by any Act of the Bombay Legislature. In Hari v. Secretary of State for India16where the question arose with regard to the High Courts power of control and supervision over the Bombay Improvement Trust Board created by an Act of the local Legislature, Jenkins, C.J., observes at page 435 as follows:

The first question is whether the tribunal is a Court. If it is, then the local Legislature cannot interfere with the High Courts right of supervision. If it is not a Court, it is merely a body of arbitrators, and there is no appeal to the High Court.

At pages 445 and 446 the learned Chief Justice observed that if the body created is not a Court then the local Legislature cannot confer on the High Court jurisdiction to entertain appeals fromits decisions. On the other hand if the Board should be held to be a Court that would have attached the consequence of superintendence by the High Court which it was manifestly intended to avoid. If the Special Revenue Officer who under sections 68 and 69 of the Estates Land Act is invested with authority to settle rents as between a landholder and his ryots and who is enjoined by the rules framed under the to observe substantially the same procedure as is laid down for suits in the Civil Procedure Code is to be regarded as a tribunal and not merely as an arbitrator then the result will follow that in the exercise of those functions he becomes subject to the powers of superintendence of the High Court notwithstanding any provision to the contrary in the Estates Land Act.

I may here observe that powers of revision and superintendence are equally with the power of entertaining appeals from the decisions of the Subordinate Courts incidence of appellate jurisdiction and that though the power to entertain appeals is restricted under clauses 16 and 26 of the Letters Patent to those cases in which an appeal to the High Court is allowed by statute the powers of superintendence are not so restricted. They can be exercised in respect of all Courts over which the High Court is a Court of Appeal within the meaning of clauses 16 and 2

6. The superintending powers of the High Court to which all the Civil Courts in the province are subject, makes all those Courts subordinate to the High Court. Under its superintending powers the main function of the High Court is to see that the inferior tribunal does not either usurp a jurisdiction which it does not possess whether at all or to the extent claimed or refuse to exercise a jurisdiction which it has and ought to exercise or act illegally in the exercise of its jurisdiction. But it is no part of that function to substitute its own opinion for that of the Court superintended, in matters assigned by the Legislature to the cognizance of the latter; that can be done only when a right of appeal is given to it.

I have dealt on this point at some length because in most of the cases cited to us including the recent Full Bench case the question whether the High Court has powers of superintendence over the tribunals or the revenue authorities created by the Estates Land Act for adjudicating on questions relating to the respective rights of landholders and ryots in regard to the latters holdings has not, as I respectfully think, been considered from the right standpoint, viz., whether the said revenue authorities are judicial tribunals by reason of the jurisdiction conferred on them to determine with conclusive effect the civil rights of the parties concerned and if so whether they do not become subject to the superintending powers of the High Court notwithstanding any provision in the to the contrary, but whether the Local Legislature has in the enactment creating the said Courts and authorities maintained or superseded the jurisdiction of the High Court wholly or to any extent. If, as I have shown, it is not competent to the local Legislature eitherto confer any jurisdiction on the High Court which it does not otherwise possess or to affect to any extent the exercise by it of jurisdiction which it possesses over all Civil Courts in the Province then a detailed examination of the provisions of the Estates Land Act for the purpose of ascertaining the intention of the local Legislature with regard to the powers exercisable by the High Court over the Courts established under the Madras Estates Land Act is not a helpful enquiry and the only substantial question so fas as the point before us is concerned is whether the Revenue Officer in determining a fair and equitable rent under sections 168 and 169 of theis acting judicially or merely in an administrative capacity. In the former case his determination of the fair and equitable rent is that of a Court. It was argued that while the Revenue Officers who are entrusted with the trial of suits and proceedings in Parts A and B of the Schedule are styled as Revenue Courts, the Revenue Officer is not so styled in section 168 and therefore he is not a Court. In my opinion it is not the designation of the authority which matters but it is the nature of the functions which he is required to discharge which is the test and they are clearly judicial functions. As regards orders passed by the Revenue Officer under section 169 , I think it can admit of little doubt that in hearing and disposing of the objections which may be urged either on behalf of the landholder or on behalf of the ryots to the rent he has settled under section 168, he is deciding on purely civil questions between persons seeking their civil rights and he must therefore be deemed to be acting as a Court. His decision on that question is subject to an appeal to a superior Revenue Officer under section 171 ; and the Board of Revenue may also under section 172 direct the revision of the rent so settled. Under section 176 the rent so settled shall be deemed to have been correctly settled and to be a fair and equitable rent within the meaning of this Act.

It is contended on behalf of the ryots that the settlement of rent under sections 169 , 171 or 172 is an administrative and not a judicial act. The question of settling a fair and equitable rent for the ryots holding arises also under sections 25 , 45 and 46 of theand under those sections also the Collector or Revenue Officer has to settle in the first instance a fair and equitable rent. Under the the Revenue Officer when exercising his function under those sections of settling a fair and equitable rent acts as a Revenue Court (seesection 189, sub- section (1) and Part B of the Schedule, Nos. 4, 7 and 8). It would be anomalous to hold that the trial of the very same question is a judicial enquiry by a Court under those sections but that it is only an administrative act under section 16

9. The only arguments advanced in support of that contention are (1) that in sections 168 and 169 the Revenue Officer deals with a group of ryots whereas under the other sections referred to he is dealing with the case of individual ryots, and (2) that section 173 gives a right of suit to a person aggrieved by any entry in a settlement record prepared under sections 168 to

171.I do not think the first ground is a sound distinction. Section 193 shows that in certain circumstances suits for enhancement and reduction of rents can be brought by a landholder against any number of ryots collectively. Moreover though the settlement of rent in section 169 may relate to an entire village the Revenue Officer will have to decide the objection of each individual ryot so far as his holding is concerned.

As regards the second ground, I have already dealt with the scope of the right of suit conferred by section 173 and shown that it does not avail to obtain any modification as regards the rate or amount of rent settled as fair and equitable by the Revenue Officer and the higher appellate authorities and incorporated in the settlement record. I need only add that an order which is otherwise judicial does not cease to be so merely because its validity may be questioned in a suit. If then the correct view to take is that in exercising his function, under sections 168 and 169 , the Revenue Officer is acting as a Court of judicial tribunal that Court is a Civil Court within the meaning of clause 16 of the Letters Patent even though according to the nomenclature of the Estates Land Act it should be called a Revenue Court. This point is, I respectfully think, concluded by the decision of their Lordships of the Privy Council in Nilmoni Singh Deo v. Taranath Alukerjee.3In. that case their Lordships in overruling the contention that the Courts which were designated as Rent Courts under the Bengal Tenancy Act were not Civil Courts for the purposes of applying the provisions of Act VIII of 1859 observed as follows:

It must be allowed that in those sections there is a certain distinction between the Civil Courts there spoken of and the Rent Courts established by the and that the Civil Courts referred to in section 77 and the kindred sections mean Civil Courts exercising all the powers of Civil Courts as distinguished from the Rent Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights and whether being a Civil Court in that sense, it does not fall within the provisions of Act VIII of 185

9. It is hardly necessary to refer to those provisions in detail because there is no dispute but that if the Rent Court is a Civil Court within -Act VIII of 1859 , the Collector has under section 286 the power of transferring his decrees for execution into another district. In another place in the same judgment referring to the contention based on the definition of the word judgment in Act XXXIII of 1852 their Lordships say:

It is true that in this Act the word judgment means a judgment in a civil suit or proceedings. But suits for the recovery of rent are civil suits or proceedings.

A Rent Court or a Revenue Court is a Court of civil jurisdiction and in virtue of section 141, Civil Procedure Code, the procedure prescribed for suits will apply to proceedings in the Courts which are in the nature of original suits subject of course to any special procedure which may be prescribed for them under the specialenactment applicable to them or under the notifications of the Local Government made under section 5(1) of the Civil Procedure Code. In the view that the decision of a Revenue Officer settling a fair and equitable rent under section 169 must be deemed to be a decision of a Civil Court it must follow that the decision passed in appeal under section 171 or in revision under section 172 by the Board of Revenue must also be deemed to be a decision of Appellate Civil Court and for the reasons already stated the High Court will have superintendence over the Revenue Board in such cases by force of section 107 of the Government of India Act and clause 16 of the Letters Patent.

I need hardly observe that the conclusions reached by me while in accord with the opinion of Venkatasubba Rao, J. In the Full Bench case are in conflict with the opinions of Phillips and Odgers, JJ. who form the majority in that case. It is pressed on us that as the question whether the orders passed by the Board of Revenue under section 205 of theare revisable by the High Court either under section 107 of the Government of India Act or under section 115 of the Civil Procedure Code, directly arose in the cases referred to the Full Bench the opinion of the majority is binding on us as a decision of a Full Bench though it was dissented from by Venkatasubba Rao, J. in that case and it is also opposed to the view taken by Devadoss and Waller, JJ. in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli(49 M. 499=23 L.W. 320)and that (without overruling the opinions of the majority in the Full Bench) it is not possible to come to a different conclusion with regard to the orders passed by the Board of Revenue under section 172 of the. I may at once say I agree with the contention that no real distinction can be drawn between the orders passed by the Board of Revenue in the exercise of its revisional powers under section 205 and the orders passed by it under section 172 and that if the opinion of the majority in the Full Bench case is right, that the High Court has no power to revise the orders passed by the Board of Revenue under section 205 , the same view must prevail as regards the orders passed by it under section 1

72. But I respectfully think that the soundness of the view of the majority in the Full Bench case, as regards section 205, is open to question. Both the learned Judges proceed on the view, first, that it is doubtful if the Board of Revenue is a Court at all, even when acting under section 205 and secondly, if it should be held to be a Court because it exercises judicial functions, it is not a Civil Court but a Revenue Court inasmuch as it is in respect of the decision passed by the Revenue Courts constituted under section 189 and in appeal from those decisions by the District Collector that the revisional power under section 205 can be exercised. No doubt section 189 draws a distinction between Revenue Courts and Civil Courts. It enacts that the suits and proceedings in Parts A and B of the Schedule are not cognizable by the Civil Courts. But in the Schedule itself appeals lie in the case of some suits and proceedings to the District Court which is a Civil Court and in other cases to the District Collector who is not a Civil Court. It is conceded as it cannot but be that in those cases where the appeal lies to the District Court, the Revenue Court must be held to be subordinate to the High Court inasmuch as the Appellate Court is directly subordinate to the High Court. But it is argued that in those cases where the appeal from the very same Revenue Court lies to the District Collector and from him an appeal or revision lies only to the Board of Revenue, the jurisdiction of the Civil Courts is completely taken away and the Board of Revenue is placed in the same position with regard to those Revenue Courts as the High Court occupies with reference to the Civil Courts and the High Court cannot therefore exercise any supervision over the Board of Revenue in such cases unless the Board of Revenue is expressly declared to be subject to the appellate jurisdiction or to the superintending powers of the High Court. As no such provisions are to be found in the, the Board of Revenue even if it is a Court cannot be held to be subject to the revisional powers of the High Court. If the powers of the High Court over the Board of Revenue had to be decided with reference to section 115, Code of Civil Procedure alone, I should think, as I have already stated, that there is much force in this contention. But as regards the powers of the High Court under section 107 of the Government of India Act, it is not in my opinion a correct view. The view that the Revenue Court, constituted under section 189, and the appellate tribunals are not Civil Courts (in the absence of their being made subject to a Civil Court or expressly declared to be Civil Courts) seems to me to be directly opposed to the decision of their Lordships of the Privy Council in Nilmoni Singh Deo v. Taranath Mukerjee, (9 C. 295 (P.C.)) and I respectfully think that the view taken by Venkatasubba Rao, J., in his dissenting judgment is the sounder view. The material passage from their Lordships judgments has already been quoted above. It seems to me with all respect that the expressionCivil Court in clause 16 of the Letters Patent means a Court which decides a civil question between persons seeking their civil rights as explained by their Lordships in Nilmoni Singh Deo v. Taranath Mukerjee, (9 C. 295 (P.C.)) and in that view the Board of Revenue which exercises appellate or revisional jurisdiction over those Courts must also be held to be Civil Courts and as such they all equally come under the appellate jurisdiction of the High Court; see also Veeraswamy v. Manager, Pittapur Estate. (26 M. 518 at p. 520) It is only if the Board of Revenue cannot be regarded as a Civil Court that it will be a Court under the second part of clause 16 and then it has to be shown that it is made subject to its superintendence. If the decision of that question depended upon the provisions of the Estates Land Act, I should be inclined to agree with the majority of the Full Bench. But if as I have shown the local Legislature has no power to affect the jurisdiction of the High Court to any extent, any attempt made in the Estates Land Act to confer powers of superintendence over a Court which is not a Civil Court will be of no avail.

I do not therefore consider it necessary to deal with the arguments advanced on both sides with reference to the implications involved in section 192 of theas supporting or negativing the position taken up by either side, or the arguments based upon the power to frame rules conferred under section 202 of the. For the reasons stated, I am of opinion that the point decided in the Full Bench case should be further considered by a Special Bench. In the case in Chandra Binode Kundu v. Ala Bux Dewan(48 C. 184)a similar procedure was adopted The next question which is raised before us is that the order of the Board of Revenue sought to be revised was passed without jurisdiction. This contention is based on the following grounds:

(1) That under section 172 the Board cannot direct the revision of any entry in the settlement record but it can do so only with regard to the entries in the record-of-rights finally published under section 166.

(2) That the Board cannot revise the decision passed in appeal under section 171.

(3) That the Board has no power under section 172 to direct a revision of its own order passed in an appeal preferred to it regarding the very same matters; and lastly

(4) That under section 172 the Board cannot itself decide and settle what the rent should be, but it has power only to remit the case back to the Lower Court for reconsideration in the light of its directions.

With reference to the aforesaid objections elaborate arguments were addressed to us on both sides based upon the wording of several sections in this part of the. I may, at once, observe that the drafting of many of the sections referred to is by no means happy and the intention of the Legislature as it may be inferred from one section seems to be repelled by the language of other sections relating to the same subject-matter. For instance, in section 172 , under which the Board derives its powers of revision, the reference is only to settlement of rent under section 16

8. Under section 173 a right of suit is conferred upon the aggrieved party in respect of any entry in the settlement record prepared under sections 168 to 171. The difference in the wording of this section would indicate that the scope of section 173 is wider than that of section 172 , as under the former section not only the rents settled under section 168 but also those settled under sections 169 , 170and 171 may also be questioned in a suit. Section 176 enacts that (subject to the provisions of section 173 ) all rents settled under sections 168 to 170 , or settled under section 171 shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of this Act. There is no reference in this section also to any rent settled under section 172 , nor is there any reference in section 173 to any rent settled under section 1

72. It is not easy to understand what the different wordings in the several sections referred to are intended to signify. It has to be said on the other hand that if the Board of Revenue cannot, under section 172 , revise the order passed by the Revenue Officer under section 169 , or by the confirming authority under section 170 , why the starting point for the two years period within which alone the powers of revision under that section can be exercised by the Revenue Board should be made to run from the date of re-publication of the record-of-rights under sub- section (3) of section 170. Further, while section 172 does not refer to the orders passed under section 171 , section 173 refers to section 171 and provides the date of the order passed in appeal under that section as one of the starting points for limitation for a suit under that section. Is it open to the Board to entertain a petition under section 172 when an appeal has been preferred under section 171, and is still pending If when that appeal is disposed of more than two years have elapsed from the date of final re-publication of the record-of-rights under section 170 can the Board of Revenue revise the appellate decision under section 172 The terms of the section are clear on that point; the power to direct revision cannot be exercised after the expiry of the two years period. I do not think that the Legislature could have intended that a revision petition can be entertained by the Board while an appeal in the very same matter is pending either before it or some other authority. The contrary view may result in conflicting decisions regarding the very same matter being passed by the appellate authority and the revisional authority. It will therefore be proper to assume that the revisional power is to be exercised only if no appeal is preferred or after the appeal is disposed of. But the circumstance that the date of the disposal of the appeal under section 171 is not also one of the starting points for limitation under section 172 , as it is under section 173, tends to support the view that the order passed in appeal cannot be revised. In the present case, the appeal was to the Board of Revenue itself and it dismissed the appeal on the ground of limitation with the result that the Revenue Officers decision stood confirmed. The subsequent action of the Board of Revenue purporting to be taken sua motu under section 172 really amounts to the Board reviewing its own judgment. The power to review its own judgment is not inherent in a Court and must be conferred on it by express enactment. In the absence of such a power a Court cannot revise its own judgment. The power which is conferred under section 172 on the Board of Revenue is not apower to review its own judgment, but to direct the revision of any entry in the record-of-rights as settled by a subordinate authority. The section does not say on what ground it can direct the revision of any such entry. The revision may presumably be ordered on any ground which it may consider proper, whether it is one of law or of fact, or it merely relates to the exercise of discretion. But the expression direct the revision seems to indicate that the Board of Revenue as the revising authority cannot itself pass an order settling the rent as it could do when disposing of an appeal preferred to it, but that it has to remit the case back to the subordinate authority for revision or reconsideration in the light of its order and the actual revision of the rent is to be made by the subordinate authority. In this view the non-mention of section 172 in sections 173 and. 176 is explicable as no rent is settled under section 1

72. If in cases in which an appeal lies to the Board of Revenue and is preferred the Board has also a concurrent power of revision, as contended, can it dismiss the appeal and at the same time exercise the powers of revision Suppose it had in appeal modified the decision of the subordinate authority to some extent could it thereafter either suo motu or on the application of any party exercise its powers of revision and modify the order it had already passed All these considerations seem to me to go a long way to support the objections taken by the petitioner to the validity of the order sought to be revised.

I think that the question whether the order passed by the Board of Revenue in this case was within its powers under section 172 is a question which, having regard to the difficulties pointed out above as to the right interpretation of that section, may also be referred to the same Bench.

I therefore concur in the order of reference to a Full Bench of this case as proposed by my learned brother.

The Court delivered the following.

Reilly, J.

[1] The questions referred to us are

(1) whether the High Court has power to interfere with a decision of the Board of Revenue under Chapter XI of the Madras Estates Land Act,

(2) whether the Board of Revenue has in this particular case exceeded the jurisdiction conferred upon it, and

(3) what should be "the final order to be passed in this case," i.e., on this revision petition.

[2] It appears that under Section 164 of the Estates Land Act the Local Government ordered that a survey should be made and a record-of-rights should be prepared for 21 villages in the Mandasa Zamindari in the Ganjam district, which was done. On an application made by the ryots of the villages the Local Government afterwards ordered under Section 168 of thethat a settlement of rent should be made for the villages. The Revenue Officer appointed for the purpose settled the rents for the villages. The ryots being dissatisfied, appealed against his orders to the Board of Revenue, which had been appointed by the Local Government to be the appellate authority for the purpose under Section 171 of the. Their appeal was dismissed as time-barred. Later on however the Board of Revenue in consequence of representations made on behalf of the ryots to His Excellency the Governor took the matter up in revision, purporting to proceed under Section 172 of the Act, and ordered a general reduction of the rents settled by approximately 3 annas in the rupee. The Zamindar has presented this petition to this Court for the exercise of revisional powers under Section 115 of the Code of Civil Procedure or Section 107 of the Government of India Act in respect of that order of the Board of Revenue.

[3] The petition came on before Wallace and Tiruveukata Achariyar, JJ., and it was contended before them for the ryots that this Court has no power to revise such an order of the Board of Revenue either under the Code of Civil Procedure or under the Government of India Act. It was not necessary for the ryots to contend that this Court had no power to revise any order made by the Board of Revenue under the Estates Land Act. Their contention was, I understand, that an order made by the Board of Revenue under Section 172 of the Estates Land Act, which is part of Chapter XI of the, was not subject to revision by this Court. In Appanna v. Latchayya (1923) I.L.R. 47 M. 250 : 45 M.L.J. 735 Spencer, J., was of opinion that the Board of Revenue, when acting under Section 171 or 172 of the Estates Land Act, was not a Court subject to the revisional jurisdiction of this Court. Devadoss, J., in that case appears to have been of opinion that the Board of Revenue when making an order under Section 171 or 172 of the Estates Land Act was a Court and that its proceedings were subject to revision by this Court. But the learned Judges agreed in disposing of the case before them on another point. In Valluri Narasimha Rao v. The Ryots of Peddamamidipalli (1925) I.L.R. 49 M. 49 Devadoss and Waller, JJ., decided that the High Court had power to revise an order made by the Board of Revenue on appeal under Section 171 of the Estates Land Act, and Devadoss, J., expressed the opinion that the High Court had also power to revise an order made by the Board under Section 172 of the. In Raghunadha Patro v. Govinda Patro the following question was referred to a Full Bench, viz.:

Has the High Court in the exercise of its revisional jurisdiction either under Section 115 of the Civil Procedure Code or Section 107 of the Government of India Act of 1919 power to revise orders passed by the Board of Revenue under Chapter XI or Section 205 of the Estates Land Act

[4] Phillips and Odgers, JJ., answered the whole question in the negative and so declared that the decision in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli (1925) I.L.R. 49 M. 499 was wrong. But the remaining member of the Bench, Venkatasubba Rao, J., declined to answer the question so far as it referred to Chapter XI of the, because, as all the learned Judges agreed, that part of the question did not arise in the case in connection with which the reference to the Full Bench had been made. He was of opinion that the Board of Revenue when proceeding under Section 205 of the Estates Land Act was subject to the revisional jurisdiction of this Court. It will be seen that the majority of the Full Bench answered the first question which has been referred to us. But Wallace and Tiruvenkata Achariyar, JJ., refused to be bound by that answer partly because they regarded it as obiter dictum and partly because they doubted its correctness. With great respect I do not think the learned Judges were justified in treating the answer given by Phillips and Odgers, JJ., in respect of Chapter XI of the as obiter dictum. No doubt the members of a Full Bench may in the course of their opinions express obiter dicta. And no doubt they may decline to answer part of a question referred to them or one or more of a series of questions, if they think it unnecessary for the purpose of the case out of which the reference has arisen. But, when a question of law has been referred to a Full Bench and the Chief Justice has constituted a Full Bench to answer that question and the -Bench or the majority of the Bench has answered the question, in my opinion no Judge sitting alone and no Bench of two Judges is at liberty to disregard that answer or to treat it as not binding on them as if it was an opinion expressed obiter in disposing of an ordinary case and unnecessary for the disposal of that case. And perhaps I may also venture to say that the very unusual procedure adopted in this case, by which a Bench of two Judges has referred a question already decided by a Full Bench to "a larger Bench" than the previous Full Bench because they do not agree with the decision, does not appear to me to be correct. I have no doubt that the Chief Justice of his own motion or on the suggestion of another Judge has power to constitute a larger Full Bench to answer a question already answered by a Full Bench. But it is obvious that there will be something more than inconvenience if a Bench of two Judges can refer a question already decided by a Full Bench to larger and larger Full Benches because they do not agree with the answer or answers already given. However, this perhaps is a matter which would be more properly dealt with by my Lord the Chief Justice.

[5] The first question referred to us is "whether the High Court has power to interfere with a decision of the Board of Revenue under Chapter XI of the Estates Land Act" Interference in that question obviously means interference in revision under Section 115 of the Code of Civil Procedure or under Section 107 of the Government of India Act, and it is in that sense that the question has been argued before us. Under either of those provisions the High Court can interfere in revision only with the proceedings of a Court. If the Board of Revenue in proceeding under any provision of Chapter XI of the Estates Land Act is not acting as a Court of law, then the High Court cannot revise its orders under that chapter of the. That is not disputed. We have therefore to decide whether the Board of Revenue when acting under that chapter is a Court of law. We are not concerned with the question whether the Board of Revenue acts as a Court under other provisions of the. The only section of Chapter XI which refers explicitly to the Board of Revenue is Section 172, though it appears that the Local Government has appointed the Board of Revenue also to be the appellate authority under Section 171 in some cases, including the "settlement" out of which this reference has arisen. We need not on this occasion trouble ourselves with the distinction between Revenue Courts and other Civil Courts, and in speaking of Civil "Courts I shall include Revenue Courts. Chapter XI of the deals with the making of a survey or record-of-rights and a settlement of rents. These functions are to be performed by a Revenue Officer. The Board of Revenue acts under the chapter only as the authority which can give orders for the revision of the Revenue Officer s work under Section 172 of theor, if so appointed by the Local Government, as the authority to dispose under Section 171 of appeals against the Revenue Officer s orders made under Section 169 of the chapter. It has been admitted before us--and indeed it cannot be disputed - that the Board of Revenue in exercising these revisional or appellate powers will only be a Court of law, if the Revenue Officer in making the orders so dealt with by the Board is himself a Court of law. If the Revenue Officer acts as a Court, then the Board of Revenue in disposing of appeals from his orders or revising those orders must have been intended by the Legislature to act as a Court. If, on the other hand, the Revenue Officer performs under the chapter only executive or administrative functions, then the authority to dispose of appeals from his orders or to revise them will also perform executive or administrative functions and so will be exempt from the revisional authority of this Court either under Section 115 of the Code of Civil Procedure or under Section 107 of the Government of India Act. The proper way therefore to approach the question before us appears to me to be to examine the functions of the Revenue Officer under the chapter and in particular his functions in the settlement of rent in order to ascertain whether the Legislature intended him in discharging those functions to do so as an executive officer or as a Court. I venture to think that in the cases I have mentioned and in the orders of the referring Judges in this case too little attention has been paid to this aspect of the matter.

[6] In many of his functions under the a Revenue Officer acts as a Civil Court. Section 189 provides that he shall hear and determine as a Revenue Court suits and applications of the nature specified in Parts A and B of the Schedule and shuts out the jurisdiction of other Civil Courts in those matters. They include suits to obtain pattas, suits to enforce acceptance of pattas, suits for the recovery of arrears of rent, suits for the enhancement or reduction of money rent or for the commutation of rent in kind and for a variety of other reliefs. It is to be noticed that none of the functions of Revenue Officer under Chapter XI of the is included in Part A or Part B of the Schedule or is referred to in Section 18

9. The reason becomes apparent when we examine the provisions of Chapter XI. The first section of that chapter provides that the Local Government may order a survey and record-of-rights to be made by a Revenue Officer in respect of an estate or portion of an estate (a) where the landholder or ryots or not less than half of the total number of landholders or not less than a fourth of the total number of ryots apply for it, or (b) where "in the opinion of the Local Government the preparation of such a record is required to secure either the ryots generally or the landholder of an estate or portion of an estate in enjoyment as such of their or his legal rights or is calculated to settle or avoid a serious dispute existing or likely to arise between the ryots generally and their landholder," or (c) where the estate is managed by the Government or is under the superintendence of the Court of Wards. It will be seen that the making of a survey and a record-of-rights for the whole area may be ordered when only a quarter of the ryots apply for it or when no one applies for it but the Government thinks it desirable. The making of this order by the Government is clearly an executive matter. Section 165 sets out the particulars, some or all of which must be included in the record-of-rights, the selection of the particulars being left to the Government. Among these particulars are the name of the landholder, the name of the ryot and whether he has occupancy right, the situation, extent and at least one boundary of the land held by the ryot as shown in the survey map, whether the land is irrigated, unirrigated or garden, the rent lawfully payable at the time the record is being prepared and whether it has been permanently fixed, and how the rent has been fixed, whether by decree or under the provisions of the or otherwise. The particulars I have mentioned will probably be prescribed for every record-of-rights, as such a record would be of little use without them. Section 166 provides that the Revenue Officer shall prepare a draft record showing the particulars prescribed "after making such inquiry as he sees fit," shall publish the draft, receive and consider any objection to it and after disposing of the objections according to such rules as the Government may prescribe "shall finally frame the record and cause it to be locally published". Section 167(3) provides that "every entry in a record of rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until the contrary is proved". Now in all this the Revenue Officer is not only carrying out the executive orders of the Government but is himself acting as an executive officer. That has not been disputed before us. When the Government has ordered him to make the record-of-rights, he must make it and must include in it the prescribed particulars even if neither the landholder nor any ryot appears before him or takes any interest in the proceedings. That concludes the first part of the chapter.

[7] We next come to Sections 168 - 171, which deal with the settlement of rent. Here Mr. Varadachariar for the petitioner contends a sudden change comes over the scene: the Revenue Officer, who so far has been no more than an executive official, becomes a Civil Court. Section 168 provides that, if within two months of the final publication of the record-of-rights the landholder or ryots holding not less than a quarter of the extent of the village concerned apply for a settlement of rent and the Local Government so directs, the Revenue Officer "shall settle a fair and equitable rent in respect of the land". Sub-section (2) provides that in settling rents he shall presume until the contrary is proved that the existing rent or rate of rent is fair and equitable and shall have regard to the provisions of the for determining the rates of rent payable by a ryot. That is the only explicit indication in the on what principles he is to make his settlement. There is no definition of "settlement of rent". Wallace, J., in his referring order says that the settlement of a fair and equitable rent is "a matter which would obviously be ordinarily within the jurisdiction of the ordinary Civil Court if it were not taken away by enactment"; and he refers to the remark of their Lordships of the Priviy Council in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 C. 295 (P.C.) that a Rent Court may be a "Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights". And Tiruvenkata Achariyar, J., has expressed the same opinion. But with respect this appears to me to rest on an entire misconception of what it is which the Revenue Officer does in settling rents. The lawful rent payable by each ryot for his holding and the way in which it has been fixed, by decree or otherwise, he has already entered in the record-of-rights. There would be no object in either the landholder or the ryot asking that he should fix that rent over again. And yet, if either the landholder or the ryot went to a Civil Court in the absence of fair rent legislation or some special provision in this Act, no Court could make a decree for the recovery of more than the lawful rent or a declaration for the ryot that less than the lawful rent was due from him. Obviously by the intention and provisions of this section the Revenue Officer is not tied to the lawful rent already established and recorded but has a duty to fix a fair and equitable rent for each holding. In some cases he may find that the lawful rent already recorded is fair and equitable, and under the section he must presume that it is so; but it is open to him to find that either a higher or a lower rent is fair and equitable and to "settle" that. No Court without special legislation - and there is none outside this Act in force in this Presidency - could give that relief to a landholder or a ryot; and in asking for it neither the landholder nor the ryot would be seeking his civil rights within the words used by their Lordships of the Privy Council in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 91 A. 174 : I.L.R. 9 C. 295 (P.C.) in describing some of the characteristics of a Civil Court. In the Estates Land Act nowhere else is there any provision for such enhancement or reduction or moderation of rents. Under Section 40, when an occupancy ryot pays rent in kind or on the estimated value of part of his crop, either the ryot or the landholder may sue to have the rent commuted to a money rent. In such a suit no question whether the lawful rent which is to be commuted is fair or equitable can arise. Under Section 30 a landholder may sue any ryot for the enhancement of money rent within certain limits on the ground of a rise of prices or on the ground of an improvement made by the landholder or by the Government or on account of the productive powers of the land having been increased by fluvial action. But he has no cause of action in such a suit on the ground that the lawful rent or share of produce represented by the money rent when that was last fixed was not fair or equitable. Under Section 38 an occupancy ryot who pays a money rent may sue for reduction of rent on the ground of a fall of prices or a permanent deterioration of the land or a permanent failure of water for irrigation. But again no question whether the lawful rent was fair and equitable when its money equivalent was fixed or last fixed can arise. Under Section 42 either the landholder or the ryot may apply to raise or reduce the rent because it is proved that the ryot is in possession of a larger area or a smaller area than that for which he has been paying rent. But again no question whether the lawful rent for the area the ryot was supposed to hold is fair pr equitable can arise. Except in Chapter XI there is no provision in the for enhancing or reducing the lawful rent on any land other than a money rent, and apart from special circumstances a money rent can only be altered under Section 30 or 38 on the ground of a change in prices which has made the money rent for the time being cease to represent the lawful share of the produce due to the landholder. If the lawful rent in kind or the lawful share of the produce which the money rent is supposed to represent is to be changed upwards or downwards on the ground that it is not fair and equitable, that can be done only by a settlement under Chapter XI. And in doing that we are certainly not in the sphere of ordinary civil rights which can be pursued in the absence of special legislation in a Civil Court.

[8] "Settlement," as I have mentioned, is not defined in the - perhaps because it is a word well understood in this country. In interpreting the I think it is legitimate to remember that it was made by the Legislative Council when that body, then very small in numbers, was dominated and controlled by the Executive Government acting under the orders of the Government of India and the Secretary of State. And there is no doubt that the theory of revenue administration held by the Government was that what the Zamindar in a permanently settled estate had a right to collect from the ryot was the rajabhagam or Government s share of the produce of his land. By the permanent settlement of 1802 the Government had left to the Zamindar on condition that he paid his fixed peshcash the right to collect the rajabhagam from the ryot. The right of the Government, which is recognized in the, to interfere and "settle" the amount of the rajabhagam when the lawful rate of rent fixed by contract, decree or otherwise is not fair or equitable depends ultimately on the theory that it is proper for the Government to see that the Zamindar gets from the ryot the fair and equitable rajabhagam, no more and no less. I have no doubt that it was on that well-understood theory that the Government took power by this legislation to "settle" rents at something which might - and often would if there was to be any object in these provisions - vary from what had come to be the lawful rent recoverable in a Court of law. Under Section 215 of thethe Local Government has power to make rules for the preparation of a settlement record of rent, and not long after the came into force such rules were made. I do not suggest that these rules can be used for the interpretation of the, and they do not become under the of the same force as if they had been part of the. But I think it is of some interest to notice how the Local Government, which by its dominating and controlling voice had made this Act in the Legislative Council, itself interpreted the provisions of the. The rules give power to the Revenue Officer "to cut and thresh crops on any land and to weigh or measure produce with a view to estimating the capabilities of the soil" - obviously to assist him in ascertaining how far the fair and equitable rent differs from the lawful rent already recorded. One rule directs that in preparing the rent roll attention should be paid to the condition of the land, the nature of the soil and the prevailing rates of rent both in the village under settlement and in the adjoining villages as well as to the provisions of Chapter III of the. The rules also provide for what is to be done when the fair and equitable rent settled is more than 25 per cent, above the lawful rent already recorded, a percentage of increase impossible in a suit for the enhancement of money rent. These rules have been in force for more than 20 years, and I do not think that their validity has ever been questioned. There are several other ways in which the settling officer may find it necessary to vary the lawful rent. In some cases, where rent has been collected in a lump sum for a whole village, settlement involves the distribution of the rent among the individual holdings. In some cases it may involve equalization or levelling of rents, in others, where there has been rack renting, reduction. At one time rents may have been low in particular villages in consideration of their unhealthiness or lack of communications or exposure to the ravages of wild animals. At a later stage, if those drawbacks have been removed, it may be just and equitable to raise the rents, which were low in consideration of them. Where the settling officer has to deal only with such questions as would arise in a suit for commutation or for enhancement or reduction of money rent, under Section 168(2) he must be guided by the appropriate principles as set out in the. But there is no doubt that his settlement may embrace a much wider field of questions, and, whenever he has not merely to adjust the lawful rent but to fix what is fair and equitable in variation from the lawful rent, which could be exacted in a suit, his settlement is clearly something which no Civil Court could do unless specially empowered.

[9] Next it must be noticed that, apart from the fact that by applying for a settlement of rent the landholder or ryot is often asking for something which no Civil Court could give him. Section 168 provides that the settlement of rent shall be made only "if the Local Government so direct". This does not mean, as was suggested at one stage by Mr. Varadachariar, that the Government is to set up a special temporary Court when required for the disposal of such matters, but that the Executive Government may refuse to have a settlement made at all. The relief which the landholder or the ryots hope to get by such a settlement can be refused by the Executive Government. That being so, how is it possible to regard the relief to be given by this section as a civil right to be sought in a Civil Court

[10] More important still is it to notice that, if the Government consents and gives the necessary order, the settlement of rents can be made for a whole village, though neither the landholder nor more than a quarter of the ryots have applied for it. In that case as between the remaining three-quarters of the ryots and the landholder the Revenue Officer will have to settle fair and equitable rents at the suit of neither. Here we are far removed from any possible conception of a Civil Court. Not only are those who apply for the settlement seeking something other than their civil rights but the supposed Court is deciding questions between parties neither of whom has sought its aid.

[11] It might perhaps be thought hardly worth while to look further for this supposed Civil Court represented by the settling officer in these provisions. But I may mention several indications in the procedure to be followed which are incompatible with that of a Civil Court. The Revenue Officer has the duty of making the settlement whether any parties appear before him or not, and whether they produce before him any evidence or not. If nobody in the village moves a finger in the matter after the Government has directed that the settlement be made, he must investigate the matter himself. He can use the presumption that the existing rent is fair and equitable; but, if something comes to his notice or is disclosed by his experiments which proves that it is not so, he must proceed on such material as he may find available. If some ryots prove that their rents are inequitable, he cannot refuse to apply the result to other similar cases merely because the ryots concerned take no part in the proceedings. And, as the settlement is between each individual ryot and the landholder, it must be remembered that one ryot cannot represent another unless authorized to do so. Under Section 169, when the Revenue Officer has made up his mind what are the fair and equitable rents to be fixed, he must publish a record of his results and wait for objections to be preferred. That is the supposed Civil Judge, as Mr. Varadachariar represents him to be, is to publish a draft judgment and invite objections. If objections are received, he must consider them and modify his judgment in accordance with the results. And under Section 169(2) he may revise his draft judgment without being moved to do so by any one else. More remarkable still the draft judgment cannot be finally pronounced until it has been submitted under Section 170 to a sanctioning authority. Could anything be more repugnant to ideas of propriety in Civil Courts than that the Judge should have to get the sanction of a confirming authority before pronouncing his own judgment And under Section 170(2) the confirming authority may sanction the judgment, which has to be submitted to him with a summary of the objections received, without hearing any of the objectors. The confirming authority, whose sanction gives the judgment validity and who thereby is in a sense himself the Judge, may sit in his office hundreds of miles away and confirm the judgment without giving any of the objectors of whom he is informed any opportunity of being heard. When all this procedure, so foreign to that of any Civil Court, has been completed, the Revenue Officer is finally to pronounce his judgment by incorporating it in the record-of-rights already published, and "the record-of-rights so amended shall be finally re-published." So the end of the work of the supposed Court is that its judgment or decree is incorporated in the record-of-rights, a document admittedly prepared by an executive officer under executive orders. Section 171 provides for an appeal to such authority as the Government may appoint - in this case it happens to be the Board of Revenue - against any order passed by the Revenue Officer on an objection received by him under Section 16

9. Then we come to Section 172, under which the Board of Revenue may direct the revision of any record-of-rights or any part of a record-of-rights, including the settlement of rents. That section is interesting for our present purpose, because it makes no distinction between the power or method of the Board in directing the revision of a settlement of rents, which the petitioner represents to be the decree of a Civil Court, and the revision of any other part of the record-of-rights, which is admittedly nothing more than the work of an executive officer. By one stroke of his pen the member of the Board of Revenue in charge can set aside or refuse to set aside the settlement of rents and the rest of the record-of-rights, acting at the same moment according to the contention of the petitioner as a Civil Court of revision and as an executive authority. Is it at all likely that the Legislature intended such an unheard of combination of functions Under Section 175 any Revenue Officer specially empowered by the Local Government may correct bona fide mistakes in the settlement record made by the settlement officer, an astonishing way of dealing with the record of a Court. And finally at the end of the chapter we find Section 180, which provides for the costs of the proceedings. There is no provision for the payment of costs by a party to his opponent. But there are provisions for the recovery of the cost to the Government corresponding in a way with the Court-fee collected by the Government in a civil suit. But it will be noticed that the Judge of this supposed Civil Court has no voice whatever in deciding who is to pay those costs. It is the Executive Government which decides who is to pay the costs and in what proportions. And the Government may decide that ryots who have taken no part in the proceedings, who have never asked for relief and against whom no relief has been asked, must contribute to the costs. And all costs so imposed by the Government can be recovered as if they were arrears of land revenue. Was ever a Civil Court so treated by the Executive Government

[12] This examination of the provisions of Chapter XI of the shows, I think, that neither in the preparation of the record-of-rights nor in the settlement of rents is the Revenue Officer acting as a Civil Court. The reliefs which can be sought and given in a settlement of rents include reliefs which no Civil Court could grant; they can be refused by order of the Executive Government; they can be imposed between parties neither of whom has moved the supposed Court for any relief; the procedure prescribed is wholly inappropriate to, and in some particulars would be nothing less than scandalous in, a Civil Court. I find it impossible to believe that by these provisions the Legislature intended to create a Civil Court of any kind. Such a creation would have been a unique monstrosity - not a kind of Civil Court, but a travesty of a Court. On the other hand, if the work of the settlement officer is done as an executive officer, there is nothing really surprising or unnatural or unreasonable in the procedure prescribed, which provides many safeguards against arbitrary orders.

[13] However it has been urged before us that the settlement of rents involves decisions of great importance between the landholder and the ryots, which undoubtedly affect their civil rights; and it is pointed out that under Section 176 of thethe rents finally settled "shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of this Act" and so are binding on the parties. It is argued for the petitioner that the rents so settled cannot be contested thereafter in any Civil Court and that it can hardly be supposed that decisions so important, affecting civil rights, should have been entirely excluded at every stage from the jurisdiction of Civil Courts. We are asked to say therefore that, however extraordinarily different from a Civil Court, as we know such Courts, the Revenue Officer may appear in his jurisdiction, duties and procedure when making a settlement of rents, we must treat him as a Civil Court because otherwise these important questions decided by him will never come before a Civil Court at all, a result which it is represented is unthinkable. The contention that the rents finally settled by the Revenue Officer cannot be questioned afterwards by suit in any Civil Court rests on this - Section 176 provides that subject to the provisions of Section 173 the rents so settled shall be deemed to have been correctly settled: Section 173 provides that any person aggrieved by an entry in a settlement record prepared under Sections 168 - 171 and incorporated in a record-of-rights finally published may institute a suit in an ordinary Civil Court on certain specified grounds and on no others: that the rent settled has not been correctly settled or is not fair and equitable or has not been correctly entered is not one of those grounds: therefore it is contended that no remedy by suit in a Civil Court is open to a landholder or ryot aggrieved by the rent settled by the Revenue Officer. Personally I am not satisfied that this chain of argument is sound, though I may remark that it happened that both parties before us took up the position that no suit is available under Section 173 to contest the correctness of any rent settled by the Revenue Officer, and therefore this question was not fully argued before us. But it is worth while to examine the question shortly, as, if the chain of argument is unsound, the petitioner s supposed grievance in being shut out from a Civil Court, if we find, as I have no doubt we must, that the settlement of rents is not the work of a Civil Court, will evaporate. One of the grounds on which a suit under Section 173 may be brought is that an entry made under Clause (e) of Section 165 is incorrect. There is no other ground mentioned in Section 173 on which the recorded or settled rent of an ordinary ryot s holding can be questioned. Section 165 deals with the particulars to be included in the record-of-rights, which is to be made before any question of settlement of rents arises. Clause (e) of Section 165 is "the rent lawfully payable at the time the record is being prepared and whether the ryot is entitled to the benefit of proviso (a) to Clause (1) of Section 30" (i.e., pays a permanently fixed rent). It is contended that the result of these provisions is that the record of rent lawfully payable, which is made in the record-of-rights before the settlement of rents is begun, can be questioned by a suit under Section 173, but that the entry of rent finally settled by the Revenue Officer can never be so questioned. That is a very curious result, and it cannot be suggested that any very useful purpose can be served by questioning the lawfully payable rent entered in the record-of-rights after that rent has been superseded by the settled rent, which must thereafter be treated as correct. And it must be remembered that there is no right of suit at all under Section 173, if only a record-of-rights is made but no settlement of rents: it is only after a settlement of rents has been completed that the right of suit under Section 173 arises. Moreover it is only a person who is "aggrieved by an entry in a settlement record prepared under Sections 168 to 171" who can bring such a suit, and those are the sections which relate to the settlement of rent. And what could aggrieve either a landholder or a ryot more in respect of such a settlement than the settling of a rent which he feels sure he can prove is not fair and equitable But it is suggested that we are tied to the letter of Section 173, which gives a right of suit in respect of an entry of rent lawfully payable in the record-of-rights but not in respect of the rent finally settled. It appears to me not improbable that there is a misconception here about the meaning of Section 173. Section 170 provides that, when the settlement of rent has been sanctioned by the confirming authority, the settled rent shall be incorporated in the record-of-rights prepared under the earlier part of the chapter "and the record-of-rights as so amended shall be finally re-published". Does not "so amended" imply that the rent entered as lawfully payable in the record-of-rights as already prepared is struck out and the rent finally settled is substituted for it If that is the right interpretation, then a suit under Section 173 can be brought on the ground that the entry of the substituted rent is not correct. That interpretation not only gives a reasonable and natural meaning to the opening words of Section 173, but it is supported, I think, by a good many other indications in the. In Section 192(d)(ii) it is provided that, when a suit is brought for the recovery of rent for any land within an area for which a record-of-rights has been published, the plaint shall contain a statement of the rent of the holding according to the record-of-rights. Now it would be useless for such a suit to show in the plaint the lawful rent entered in the record-of-rights before the settlement of rent but not the settled rent, when rent has been settled, as it is the settled rent which must be taken to be correct and which alone the landlord is entitled to recover. And it will be noticed that there is no suggestion in Section 192(d)(ii) that two different rents will be found in the record-of-rights, viz., the lawful rent first entered and the settled rent afterwards entered. The implication is, I think, that there will be only one entry of rent in respect of the holding in the record-of-rights, viz., the lawful rent entered before there is a settlement or, if there has been a settlement, the settled rent which has been substituted for the lawful rent as it previously stood. Under Section 175 the officer empowered to correct mistakes in the settlement officer s orders or decisions under Sections 168 and 169, that is in settling rents, cannot make a correction so as to affect any decree made under Section 173, which implies that a decree in a suit under Section 173 can affect an order settling rent. And the proviso to Section 175 lays down that no order or decision of the settlement officer shall be so corrected if "an appeal from it" is pending or has been disposed of under Section 173. "Appeal" is apparently used loosely there in the sense in which a claim suit under Order 21, Rule 63 of the Code of Civil Procedure, is sometimes spoken of as in effect an appeal against an order on a claim preferred under Order 21, Rule 5

8. But the important point is that this proviso to Section 175 clearly implies that a suit may be brought to dispute the settlement officer s decision regarding rent made tinder Section 168 or Section 16

9. Then Section 176 makes the rent settled final "subject to the provisions of Section 173". And Section 179 provides that no suit shall be brought in any Civil Court "save as provided in Section 173 for the alteration of any entry in such a record of a rent settled under Sections 168 to 172". If only the entry made under Clause (e) of Section 165, which is mentioned in Section 173, is understood as the entry amended by the substitution of the settled rent, then all these references to Section 173 become consistent and intelligible, and under Sub-section (4) of Section 173 the decision what the entry shall be will serve some practical purpose. It cannot be suggested that the words "the rent lawfully payable at the time the record is being prepared," which describe what can be disputed in a suit under Section 173, necessarily exclude the settled rent, because when once settled the settled rent becomes the lawful rent, and, if there is a settlement, "the time the record is being prepared" goes on until the record-of-rights is finally re-published after amendment under Section 170. All this appears to me to make it probable that, with whatever intention the was originally drafted, as finally framed it does give both the landholder and the ryot a right to question by a suit under Section 173 in an ordinary Civil Court the correctness of the rent settled by the settlement officer as fair and equitable. However I do not wish to express a definite opinion on this question on the present occasion, as that is unnecessary for this reference and as the question was not fully argued before us. But I am not yet satisfied that, assuming, as Mr. Varadachariar for the petitioner would have us assume, that the Legislature must have intended to make it possible that the important question what rent is due on a particular holding should come before a Civil Court at some stage or other, there is any need for us to twist and torture our ideas of a Civil Court in order to bring within them the Revenue Officer when settling rent under Sections 168 - 170 of the.

[14] But are we justified in making the assumption I have just mentioned Why must we assume that the Legislature of the day could not have intended that the settlement of rents under Chapter XI of the should be kept entirely outside the jurisdiction of Civil Courts of any kind, Revenue or otherwise When we are asked to make assumptions about what the Legislature must or cannot have intended, it is not unprofitable to remember that the Legislature of the day was in effect only the Executive Government in another guise, a Government which, it cannot be denied, reflected the ideas of revenue history and policy which had been traditional in this Presidency. According to those ideas the rajabhagam which the Zamindar of a permanently settled estate has the right to collect from the ryots represents the traditional Government s share of the produce of the land, which, if there were no Zamindar, would be collected by the Government direct. The Government by the permanent settlement had left the right to collect this rajabhagam to the Zamindar but had not thereby divested itself of the moral obligation to protect the ryot from undue exactions. It was ultimately this theory which underlay that most important feature of the Estates Land Act, the recognition that every ryot in possession of ryot land other than old waste when the came into force had a permanent right of occupancy in his holding as complete as the right of a ryot in a Government ryotwari tract. But occupancy right is of no use to any tenant if there is no limit to the rent which can be exacted from him. The Government was morally bound to protect the ryot in a Zamindari from exaction by the Zamindar or his officials, as it was to protect the ryot in a ryotwari tract from its own subordinate officials. And in regulating the amount of the rajabhagam to be collected the Government might well take power to settle rents in a Zamindari in something the same way in which land revenue is settled in a ryotwari tract and in each case assert its right to make the settlement as something entirely outside the jurisdiction of any Civil Court. We are not concerned on this occasion to discuss the legal basis of that theory, still less its justice or political wisdom. But, if it is asserted that the Government represented by the Legislature of the day, could not have intended to keep the settlement of rents made under Chapter XI of the entirely outside the jurisdiction of Civil Courts, that appears to me an entirely unwarranted assumption. To proceed from that assumption to the conclusion that the Legislature therefore must have intended in these provisions for the settlement of rent to create a travesty of a Civil Court with jurisdiction and procedure, not only unlike those of any Civil Court ever heard of, but foreign to the very conception of a Civil Court, is to my mind with all respect fantastic aud unjustifiable.

[15] A subsidiary argument urged by Mr. Varadachariar is that under Section 178 of the Act, when a settlement of rents is proceeding, no suit for enhancement of money rent under Section 30 or reduction of money rent under Section 38 or for commutation of rent under Section 40 shall be commenced or continued with the result that, if the settlement of rents is not the work of a Civil Court, we find suits legitimately instituted held up by executive proceedings and the questions of rent raised in them eventually to be determined in accordance with the decisions of an executive officer as to what is the fair and equitable rent. That may seem at first sight a little strange. But there is nothing really unnatural in the Legislature taking the view that such questions will be better settled by the Revenue Officer, who will have already gained experience when making the record-of-rights and whose decisions are subject to the control of so many other officers of experience by way of confirmation, appeal, revision and correction. In my opinion the fact that under Section 178 suits of the natures mentioned are to be stayed or prohibited while a settlement of rents is in progress is no sufficient reason for inferring in the face of what appear to me to be insuperable difficulties that the settlement must be the work of a Civil Court.

[16] My conclusion therefore is that the Revenue Officer when making a settlement of rents under Chapter XI of the is not a Civil Court. From this it follows, as is not disputed, that the Board of Revenue when directing the revision of his proceedings under Section 172 is also not a Civil Court, and therefore that this Court cannot either under Section 115 of the Code of Civil Procedure or under Section 107 of the Government of India Act revise an order made, or purporting to be made, by the Board of Revenue under Section 172 of the Estates Land Act. My answer to the first question referred to us is in the negative. That being so, the second question in my opinion requires no answer. On the third question my opinion is that C.R.P. No. 192 of 1926 should be dismissed with costs.

Anantakrishna Aiyar, J.

[17] The question that has been referred to the decision of the Full Bench is whether the High Court has power to interfere with a decision of the Board of Revenue under Chapter XI of the Estates Land Act; but in fact, the learned referring Judges have referred for the final decision of the Full Bench the entire consideration of the final order to be passed in the Civil Revision Petition.

[18] Under Section 168 of the Madras Estates Land Act, the Local Government directed a settlement of the rents of Sarangapuram and 20 other villages of the Mandasa Estate, Ganjam District. The Special Revenue Officer in due course settled the rents under the provisions of Chapter XI of the. Appeals were preferred by the ryots under Section 171 of theto the Board of Revenue which was constituted by the Local Government as the superior revenue authority to which appeals would lie under that section. As the appeals were however not presented within two months from the date of the order appealed against as provided by that section, they were dismissed as being out of time. Subsequently, the ryots of the villages in question went on deputation to His Excellency the Governor of Madras during his tour in the Ganjam District, and represented that the Special Revenue Officer s order should be revised. The request of the ryots was forwarded to the Board of Revenue, and the Board proposed to exercise its revisional powers suo motu under Section 172 of the Act, as two years had not expired from the date of the re-publication under Sub-section (3) of Section 170 of the. The result of the Board s order is an all round reduction of approximately three annas in the rupee in the Revenue Officer s rates.

[19] The landholder has preferred the revision petition to the High Court against the

orders passed by the Board of Revenue. The two learned Judges before whom the revision petition came on for hearing, after going into the relevant provisions of the Estates Land Act, found that the decisions of this Court about the High Court s power to revise orders passed by the Board of Revenue under the provisions of the Estates Land Act were not uniform. They were of opinion that the High Court has revisional jurisdiction over orders passed by the Board of Revenue under Section 205 of theand also over orders passed by the Board under Chapter XI of the. As however the opinion of the majority of the Judges who took part in an earlier Full Bench decision reported in Raghunadha Patro v. Govinda Patro was against the existence of any such power of revision in the High Court, the learned Judges before whom the present revision petition came on for hearing, for reasons mentioned in their order of reference to the Full Bench, dated 21st of September, 1928, were of opinion that the whole question should be considered by a larger Bench, and the case has now come before the present Bench.

[20] The High Court s powers of revision have been invoked in the present case both under Section 115 of the Code of Civil Procedure and Section 107 of the Government of India Act. Under Section 115 of the Code of Civil Procedure, the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and make such order as it thinks fit, if any of the conditions (a), (b) and (c) mentioned in the section should exist. It is therefore clear that before Section 115 could be invoked, it must be shown that the orders sought to be revised are decisions of (a) a Court, and (b) that the Court is subordinate to the High Court.

[21] Section 107 of the Government of India Act gives this High Court "superintendence over all Courts for the time being subject to its appellate jurisdiction". See also Section 16 of the Letters Patent. The provisions of Section 107 of the Government of India Act are thus wider than the provisions of Section 115 of the Code of Civil Procedure, though it may be noted that the power exists in both cases only with reference to orders passed by "Courts".

[22] Under Section 5 of the Code of Civil Procedure, "Revenue Court" mean a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under the Code to try such suits or proceedings as being suits or proceedings of a civil nature.

[23] In Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 C. 295 at 300 (P.C.) the Privy Council observed that there is a certain distinction between the Civil Courts there spoken of and the Rent Courts established by the, and that the Civil Courts referred to in Section 77 (of Act X of 1859) and the kindred sections mean Civil Courts exercising all the powers of Civil Courts, as distinguished from the Rent Courts which only exercise powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights, and whether being a Civil Court in that sense, it does not fall within the provisions of Act VIII of 185

9. It is hardly necessary to refer to those provisions in detail, because there is no dispute but that, if the Rent Court is a Civil Court within Act VIII of 1859, the Collector has, under Section 284, the powers of transferring his decrees for execution into another district.

[24] Their Lordships accordingly held that a decree for rent, under Act X of 1859, made in one district could be transferred to another for execution; and that such a question could be decided by the High Court in the exercise of its "superintendence over all Courts subject to its appellate jurisdiction".

[25] In the Schedule attached to the Estates Land Act, Part A speaks of "Suits triable by a Collector"; and Part B of "Applications to be disposed of by a District Collector, Collector, or other Revenue Officer". Column 6 specifies "the Court, if any, to which an appeal lies". It will be seen that an appeal lies to the District Court in several cases under Part A; and even when an appeal does not lie under Part B to the District Court, but to the District Collector, the latter officer (District Collector) is designated "Court" to which an appeal lies. It was held by the Privy Council in Ravi Veeraraghavulu v. Venkata Narasimha Naidu Bahadur (1914) L.R. 41 I.A. 258 : I.L.R. 37 M. 443 : 27 M.L.J. 451 (P.C.) that "when an appeal lies to the District Court, a second appeal lies to the High Court from the decree passed by the District Court". That was the view held by this High Court in cases arising under the prior Rent Recovery Act VIII of 1865; and that view was upheld by the Privy Council in Ravi Veeraraghavalu v. Venkata Narasimha Naidu Bahadur (1914) L.R. 41 I.A. 258 : I.L.R. 37 M. 443 : 27 M.L.J. 451 (P.C.). The Estates Land Act has not made any difference in this respect.

[26] Having regard to the preamble to the Code of Civil Procedure and to Section 3 which enumerates the Courts which are subordinate to the High Court, Section 192 of the Estates Land Act has expressly made Section 115 of the Code of Civil Procedure applicable to proceedings in Revenue Courts. Several learned Judges of this Court have accordingly held that the High Court is competent to revise under Section 115 of the Code of Civil Procedure orders of the Revenue Court in cases falling under Parts A and B of the Schedule attached to the Estates Land Act. See Paramaswamy Aiyangar v. Alamelu Natchiar Animal (1918) I.L.R. 42 M. 76 : 35 M.L.J. 632 (Ayling and Krishnan, JJ.); Ramasami Goundan v. Kali Goundan (1918) I.L.R. 42 M. 310 : 36 M.L.J. 571 (Ayling and Krishnan, JJ.); Maharajah of Jeypore v. Sobha Sundar Dalai (Ramesam, J.); Appanna v. Latchayya (1923) I.L.R. 47 M. 250 : 45 M.L.J. 735 at page 252 (Spencer, J.) and at page 260 (Devadoss, J.).

[27] The question of the High Court s power of revision over orders passed by the Board of Revenue in proceedings under the Estates Land Act other than proceedings under Chapters XI and XII of the has been discussed in detail by Venkatasubba Rao, J. in Raghunadha Patro v. Govinda Patro and by the learned referring Judges in the present order of reference, and I do not think it therefore necessary to go into that question elaborately here, as I agree generally with the views expressed by those learned Judges with reference to this matter.

[28] The extreme view that the High Court has no power of revision, either under Section 115 of the Code of Civil Procedure or under Section 107 of the Government of India Act, over any orders passed by the Board of Revenue under the Madras Estates Land Act is, in my opinion, unsustainable. I very respectfully differ from the opinions of the learned Judges, Phillips and Odgers, JJ., in Raghunadha Patro v. Govinda Patro (1958) 55 M.L.J. 798 (F.B.).

[29] We have accordingly to consider the further question whether such powers of revision exist in respect of orders passed by the Board of Revenue in proceedings under Chapter XI of the. As observed by Venkatasubba Rao, J., in Raghunadha Patro v. Govinda Patro (1928) 5 M.L.J. 798 (F.B.) at page 818:

Whether the Board of Revenue is subordinate to the High Court is not a point to be dealt with in the abstract. The question in each case is, while performing certain specific functions, is it so subordinate It is for this reason that I wish to stress the point that the character of the Board of Revenue must be separately considered under each of the sections of the.

[30] I respectfully agree that that is the standpoint from which the question has to be approached.

[31] I now proceed to consider briefly the provisions of Chapter XI of the Madras Estates Land Act. I may note that Chapter XI provides for two distinct matters - (1) Record-of-rights, and (2) Settlement of rents. So far as record-of-rights is concerned, Sections 164 to 167 make it clear that the proceeding is really a survey made under the provisions of the Madras Survey and Boundaries Act, though the Local Government is given power to direct that a record be made of the rights and obligations of each ryot and landholder in respect of particular matters specified in the sections. The proceedings consist only in recording the existing state of things including rent lawfully payable at the time, and under Section 167(3), every entry in a record-of-rights duly published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until the contrary is proved. The record is only a presumptive piece of evidence when the question arises for decision subsequently, and it is open to the parties interested to show that the entry is incorrect. It was decided in Avasarala Venkata Hanumantha Rao v. Achanna that a Revenue Officer preparing a record-of-rights under Sections 164 to 167 of the Madras Estates Land Act is only an executive officer discharging the function of Government and is not a Court within the meaning of Section 476 of the Code of Criminal Procedure.

[32] The question as to what is the exact legal nature of the proceedings relating to "settlement of rents" under Sections 168, etc., of Chapter XI, is by no means an easy one to answer.

[33] It would be convenient first to consider the main provisions relating to settlement of rents contained in that chapter.

[34] Within two months from the date of the final publication of the record-of-rights under Section 166 either the landholder or a specified proportion of the ryots may apply for a settlement of the rents; but it is only if the Local Government so direct that the Revenue Officer should settle the rents. The Revenue Officer should settle "a fair and equitable rent" in respect of the land. He shall presume that the existing rent is fair and equitable and shall have regard to the provisions of the for determining the rate of rent payable by a ryot. It is open to the Revenue Officer to propose to the parties such rent or rate of rent as he considers fair and equitable, and if accepted by the parties the same may be recorded as the fair and equitable rent and shall be deemed to have been duly settled under the. Even when parties agree among themselves by compromise or otherwise as to the amount of the rent, the Revenue Officer should satisfy himself that the amount agreed upon is fair and equitable, and if so satisfied - but not otherwise -, he should record the amount so agreed upon as the fair and equitable rent; otherwise he has himself to settle a fair and equitable rent (Section 168).

[35] Parties interested could file objections to any entry in the preliminary settlement record that may be prepared by the Revenue Officer. The objections should be disposed of according to the rules which the Local Government may prescribe, and the Revenue Officer may of his own motion, or on the application of any party aggrieved--at any time before the record is submitted to the confirming authority - revise any rent entered therein, after giving reasonable notice to the parties concerned (Section 169).

[36] The settlement record should be submitted by the Revenue Officer to the "confirming authority" appointed by the Local Government, with a full statement of the grounds of his proposals and a summary of the objections, if any, which he has received. The "confirming authority" may sanction the settlement with or without amendment, or may return it for revision, provided that no entry shall be amended or omission supplied until reasonable notice has been given to the parties concerned to appear and be heard in the matter. After it has been sanctioned by the "confirming authority," the settlement record shall be incorporated in the record-of-rights published under Section 166, and the record-of-rights as so amended shall be finally published (Section 170).

An appeal shall lie from every order passed by a Revenue Officer on any objection made under Section 169 to such superior revenue authority as the Local Government may prescribe or to an officer specially empowered by the Local Government in this behalf (Section 171).

[37] The Board of Revenue may, in any case, on application, or, of its own motion, direct the revision of any record-of-rights or any portion thereof at any time within two years from the date of the final publication under Sub-section (2) of Section 166, and in case of settlement of rent, within two years from the date of republication under Section 170, provided that no such direction shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter (Section 172).

[38] Under Section 173, a right of suit in the Civil Court is given with reference to specific matters. Such suit may be instituted on any of the grounds specified in Clauses (a) to (f), and on no others. Sub-section (4) mentions the relief s which the Civil Courts could grant in such suits.

[39] Section 174 directs that a note of all the decisions passed on appeal under Section 171, and of all the decrees passed by Civil Courts under Section 173, shall be made in the amalgamated record-of-rights. Correction of bona fide mistakes, whether made by the Revenue Officer or by any other Revenue Officer not superior in grade to himself, could be made within 12 months on application or of his own motion (Section 175).

[40] Section 176 is important. It enacts "subject to the provisions of Section 173, all rents settled under Sections 168 to 170 and entered in a record-of-rights finally published under Section 166 or settled under Section 177 shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of this Act." Any rent settled under the chapter shall not thereafter be enhanced for a period of 20 years, except on grounds specified in Section 177. When an application for settlement of rents has been made, no suit or proceeding shall be commenced or continued in any Civil or Revenue Court under Sections 30, 38 and 40 till after the final publication of the record-of-rights under Section 170; nor could any Civil or Revenue Court entertain or proceed with any suit or application for the alteration of the rent in the area to which the record-of-rights applies till after the final publication of such record-of-rights (Section 178).

[41] No suit shall lie in any Civil Court for "the alteration of any entry in a record of a rent settled under Sections 168 to 172, save as otherwise provided in Section 173". Certain declaratory suits are saved by Section 17

9. Power is given to the Local Government regarding the apportionment of expenses incurred by the Government in carrying out the provisions of the chapter, and the Revenue Officer has no right or duty in that matter.

[42] Rules have been framed by the Local Government under Sections 169 and 215 of the.

Rule 1. - Every Revenue Officer appointed for making a record-of-rights or a settlement of rents is invested with all the powers exercised by a Civil Court in the trial of suits.

2. The proceeding shall be summary and shall be governed, so far as may be practicable, by the provisions of the Code of Civil Procedure, having regard to-

(a) the issue and service of summons;

(b) the examination of parties and witnesses;

(c) the production of documents.

[43] Rule 13 provides for production of evidence in support of objections to an entry in the record-of-rights. Rule 16 relates to applications for settlement of rents. Under Rule 17, the Revenue Officer is to publish a notice by beat of drum, etc., setting forth that the Revenue Officer, will proceed to settle fair rents in respect of the lands in the said village. Notice need not be affixed to the holding of each pattadar or ryot, nor served personally on the ryots.

[44] Under Rule 18, in preparing the preliminary rent roll, and in giving such particulars as the Local Government may specify, attention should be paid to the condition of the land, nature of the soil, the prevailing rates of rent both in the village under settlement and in the adjoining villages, and to the provisions of Chapter III of the.

[45] Under Rule 19, when objections are made, notice should be given to the parties interested and the Revenue Officer should inquire into the objections and dispose of the same. The Revenue Officer may carry on his proceedings ex parte if he be Satisfied that notice of the objection has been duly served upon the absent individuals. The Collector of the district is constituted the confirming authority of the settlement record under Section 170 of the(Rule 20).

[46] Appeals against the decision of the Revenue Officer lie to the Board of Revenue. Provision is made by Rule 22 to allow enhancement of rent to be spread over a number of years in particular cases.

[47] Certain forms are provided by the Rules:

Form 8 prescribes the notice to persons interested to attend at the place and time specified, giving intimation to the persons concerned that the Revenue Officer, or a duly authorized subordinate of his, will proceed to fix fair and equitable rents for all the lands of the village.

Form 10 relates to notice to individual ryots giving details of rent proposed for the holdings in the name of each ryot.

[48] There is no doubt some resemblance between the settlement of the rents under Chapter XI of the, and proceedings taken under Section 30 (enhancement of rent by suit), Section 38 (reduction of rent by suit), and Section 40 (commutation of rent payable in kind by suit). But it seems to me on a careful examination of the provisions of Chapter XI of the, that there is no real analogy between the essential nature of the proceedings taken under Sections 30, 38 and 40 of theon the one hand, and those taken under the provisions of Chapter XI on the other. Suits under Sections 30, 38 and 40 are tried by the Revenue Court and could be carried to the District Court on appeal and to the High Court on second appeal--see Part A of the Schedule attached to the Estates Land Act. Courts are bound by the specific rules mentioned in Sections 30, 38 and 40 in deciding those suits. Those suits have to be decided on legal evidence placed by the parties before the Courts. In fact, they are judicial decisions passed by Courts in accordance with law and based on legal evidence. Rights of parties are denned and Courts power is restricted by the directions contained in those sections. The case seems to me to be entirely different in the case of a settlement of rents under Chapter XL The Revenue Officer settling the rents under Chapter XI is no doubt to presume, until the contrary is proved, that the existing rent or rate of rent is fair and equitable, and he shall have "regard" to the provisions of the for determining the rates of rent payable by a ryot. But under Rule 18 attention should be paid to the condition of land, the nature of the soil, the prevailing rates of rent both in the village under settlement and in the adjoining villages, and to the provisions of Chapter III of the. In fact, very much is left to the executive and revenue experience of the office concerned in determining what is to be the fair and equitable rent. While he shall have regard to the provisions of the in determining the rates of rent payable by a ryot, he is entitled to travel outside the provisions of Sections 30, 38, 40, etc. A Court cannot reduce the cash rent of a holding on the ground that the rate paid is above the prevailing rates. A ryot could not sue for abatement of rent simply because the lands which he held were rated higher than those of the same description and similar advantages held by ryots of the same class in the vicinity. Babun Mundle v. Shib Koomaree Burmonee (1874) 21 W.R. 404. The Revenue Officer settling rents under Chapter XI is not bound by any such restrictions; his hands are more free to do what he considers to be the justice of the case. He is the best judge of economic facts under the chapter.

[49] While he is invested with the powers exercised by a Civil Court in the trial of suits (Rule 1), his discretion in fixing the fair and equitable rent is unfettered. He is not bound to proceed on the sole basis of legal evidence, legally adduced before him, as the ordinary Courts are. If this is so, then it is a very important point. I should not forget that the policy which induced the Legislature to enact these provisions is not open to question or examination by the Courts. Evidently, the Legislature considered it expedient or necessary to enact these - apparently drastic provisions - in the interests of public order or of the local welfare. Again, settlement of rent proceedings concern the whole estate or a portion of an estate; and though there may be hundreds of ryots concerned, the case of each ryot is not kept distinct from the case of the others. No doubt under Section 193 of the Estates Land Act, joinder of ryots in suits relating to enhancement or reduction of rent is permitted. But power is given by Section 198 to order separate trials in cases of such joinder of ryots, if it appears to the Collector before whom the suit for enhancement or reduction of rent has been instituted that the suit cannot be conveniently tried or disposed of as one suit, in which case, the Collector could order separate trial of the suit regarding each ryot. No such provision is made with reference to proceedings under Chapter XL On the other hand, the very object of the proceedings under Chapter XI would seem to be that the Revenue Officer should consider the cases of all the ryots concerned, and should acquaint himself with the details concerning the whole of the lands, before fixing a "fair and equitable rent". Again, it is a matter for consideration whether individual contracts entered into between particular ryots and the landholder, or even decisions binding on particular ryots only regarding the amount or rates of rent, would bind and conclude the Revenue Officer absolutely in the matter of fixing a fair and equitable rent as regards those particular ryots. In the trial of batches of suits, agreed by parties to be tried together, some of the ryots are likely to be prejudiced by reason of special circumstances affecting some other ryots only. Courts have often expressed regret that in the state of the record, and having regard to the agreement of parties to have a batch of suits tried together, Courts are often not able to do full justice to individual ryots whose cases might otherwise seem to require different considerations. But the officer who has to settle rents under Chapter, XI works under no such disadvantages; and--as already remarked - he has got a free hand to mete out such justice to any and all of the ryots concerned as he should think fit. It has been decided in this Court that the Revenue Officer is not bound by the restrictions imposed by Sections 30, 38 or 40 of the in proceedings under Chapter XI.

[50] In Valluri Narasimha Rao v. The Ryots of Peddamamidipalli (1925) I.L.R. 49 M. 499 this is what Mr. Justice Devadoss says at page 507:

In making a record-of-rights the Revenue Officer has to be guided by considerations which are not necessarily the same as those arising under Section 30...Whatever may be the rate of rent, if he considers that it is not fair and equitable, he is entitled to alter it, and in doing so he is not bound by the rule in Section 30 under which the increase cannot be more than two annas in the rupee. Under Chapter XI the Revenue Officer may reduce 4he rent and may settle different rates of rent for land of different value and different fertility, having regard to the facilities of irrigation and other circumstances which would enable him to settle what is a fair and equitable rent.

[51] At page 508 this is what Mr. Justice Waller says:

I agree that the Revenue Officer in settling a fair and equitable rent is not bound by the provisions of Section 30 of the.

[52] The provisions of Section 170 deserve special notice. The Revenue Officer is to submit the settlement record prepared by him to the confirming authority appointed by the Local Government. Can this be reconciled with our ideas of a Court of law which has to decide on its own responsibility on the legal evidence before it One is reminded of the provisions of Section 31 of the Code of Criminal Procedure that.

while a Sessions Judge could convict an accused of the offence of murder and sentence him to death, the sentence of death passed by him shall be subject to confirmation by the High Court.

But the provision for submitting the settlement record to the confirming authority is surely a peculiar one, and there is nothing corresponding to the same in the law applicable to a Court, as ordinarily understood. There is, again, power given to the Revenue Officer, of his own motion or on the application of any party aggrieved, at any time before the settlement record is submitted to the confirming authority, to revise any rent entered therein.

[53] Again, under Section 172, the Board of Revenue may direct the revision of the entries in the settlement record within two years from the date of publication of the same under Section 170. In the case of a Civil Court such provisions would seem to be, to say the least, very startling.

[54] Again, under Sub-section (3) of Section 168, the Revenue Officer may propose to the parties such rent or rate of rent as he considers fair and equitable. Could it be said that a Court of Justice could act in such a way It would at once be said that the Court - if it proposed such things to a party to a litigation before it - has pre-judged the rights of the parties; it would even afford ground for transferring the case to some other Court. This provision in Section 168 is rather important as indicating the real nature of the functions of the Revenue Officer in such proceedings under Chapter XI.

[55] Section 173 specifies cases in which entries in settlement record are open to question in a Civil Court; and Section 176 enacts that otherwise all rents settled under Sections 168 to 170 or settled under Section 171 shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of the.

[56] There was some discussion before us as to whether it is open to the Civil Court to question the rate of fair and equitable rent settled under Chapter XL Having regard to the limited nature of the provisions of Sub-section (4) of Section 173, it is open to question whether it is competent to the Civil Court to do so. The whole policy of the in this respect would seem to be to make the rent fixed under Chapter IX conclusive and binding in Civil Courts. In cases where a right of suit is given, relating to certain matters, viz., when the Revenue Officer had not settled the rent, if the Civil Court should be of opinion that the relationship of the landholder and ryot existed between parties and that the ryot is liable to pay rent, then the Civil Court could only direct that the Collector should fix a fair and equitable rent; it would seem that the Civil Court could not itself fix the rent. This would seem to be the opinion of both Devadoss and Waller, JJ., in the case reported in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli (1925) I.L.R. 49 M. 49

9. See page 507 of Mr. Justice Devadoss judgment where the learned Judge says that "the parties have no right of suit in such a case"; and at page 508, where the other learned Judge, Waller, J., also says that "there is no right of suit in regard to such a question". These were the arguments available to support the contention that the rate of rent fixed is binding on the Civil Court.

[57] I should have been glad to be able to arrive at the conclusion that the rate of rent fixed under Chapter XI could be challenged in the Civil Courts. But it is not however necessary for me to give a decided opinion now on this point. If the Civil Courts have no jurisdiction to question the rate of rent fixed by the Revenue Officer under Chapter XI, then that circumstance would undoubtedly increase the gravity of the situation; for, there is nothing more vital either to the landholder or to the ryot than the question of the rate of rent; and if that question is taken to be finally decided by the Revenue Officer, then a most valuable legal right is prejudicially affected by proceedings under Chapter XI. Very clear indications would then be necessary to enable us to say that proceedings which have such serious effect are not subject to the superintendence of the High Court.

[58] These considerations have given me great anxiety in the decision of this case.

[59] I have tried to examine the provisions of the, bearing all these considerations in mind.

[60] I shall proceed to refer to one or two more considerations that arise from the other provisions of the.

[61] Regarding the expenses incurred in the preparation of the record-of-rights, Section 180 enacts that

the Local Government may direct that the landholders and ryots shall defray the same in such proportion as the Government may fix, and that such expenses incurred by Government may be recovered as arrear of land revenue under the provisions of the Revenue Recovery Act.

[62] One can understand the costs of the proceedings in Court being determined by the Court inquiring into the case. This provision that the Government, and not the Revenue Officer who conducted the proceedings, (the Government of course not having heard any part of the case) should fix the expenses incurred in connexion therewith and apportion the same between the landholder and ryots, is rather inconsistent with the notion that the tribunal set up under Chapter XI of the is a Court as ordinarily understood.

[63] It is no doubt true that under Section 139, cost of repairs of irrigation works, payable by the ryot or the landholder as the case may be, may be recovered as an arrear of land revenue; but, there, the Collector enquires into the matter and passes orders regarding the amount payable by each ryot in proportion to the rent of the land held by him.

[64] Proceedings under Chapter XI relating to settlement of rent are very important as they undoubtedly affect valuable legal rights of the landholder and the ryots. It is only when the landholder or a specified portion of the ryots make an application to the Local Government that the Local Government could direct the settlement of rents under Chapter XL So far, we have got a case of dispute between private persons as regards their legal rights. I have already noticed the provisions of Chapter XI which preclude certain questions from being contested in Civil Courts. If the amount or rate of "fair and equitable rent" be one of such questions, then it is a matter of very great importance to both the landholder and the ryot that they should not be prejudiced in respect of such important rights. But, if anything is clear from Chapter XI (which by the way - in my opinion - is very obscure and difficult to construe, as regards several of its provisions), it would seem to be this: that the Legislature - probably in the interests of public order or of the local welfare and as a matter of policy - wanted to make a departure from the ordinary mode of settling disputes between the landholders and the ryots regarding rent and other incidents connected with the holdings. It wanted to provide specially for cases where particular estates or portions of the estate were concerned, which, in their view, demanded a different treatment. If it was the intention that the Revenue Officer mentioned in Chapter XI should have the exact status occupied by the Revenue Officer to whom determination of questions relating to rent, etc., were entrusted under Sections 30, 38, 40, etc., of the, then nothing would have been easier than to include in the Schedule annexed to the, specific sections of Chapter XI, and provide for appeals to particular Courts. That would have made matters absolutely clear. In fact, the Revenue Officer proceeding under Chapter XI of the is nowhere referred to in that Act as a Court, just as the Collectors and other Revenue Officers who hear suits and applications specified in the Schedule are described in Section 189 and the Schedule attached to the, and elsewhere, as Courts.

[65] On the other hand, the Legislature has not only - purposely - omitted to do so, but has dealt with the question of settlement of rents in a separate chapter - apparently self-contained - as regards forum of appeal, limitation, and procedure. The Local Government have also been given special power to frame rules to guide the Revenue Officers in the discharge of their duties under Chapter XI.

[66] It is true that the legal rights of the landholder and the ryots are affected materially by the proceedings taken to settle rent under Chapter XI. Again, certain provisions of the Code of Civil Procedure are made applicable to settlement of rent under Chapter XI, in so far as they are not inconsistent with the provisions of that "chapter. Further, under the rules, the Revenue Officer is invested with all the powers exercised by a Civil Court in the trial of suits, among various other powers conferred upon him by the rules.

[67] On the other hand, there are the various other circumstances pointed out above which are not quite consistent with one s ordinary notions of a Court of law adjudicating judicially on the legal rights of litigants.

[68] What then is the inference to be drawn from all the circumstances in deciding whether the officer mentioned in Chapter XI is constituted a Court No doubt it is not by the mere appellation given to an officer that one has to decide whether he is a Court or not, but rather by the functions that he is directed to discharge and the mode by which he is to discharge the same, the effect of his proceedings on legal rights of parties, and by the other circumstances connected with the exercise of his jurisdiction.

[69] I must admit that this portion of the case has given me great anxiety, and I felt it very difficult to make up my mind in the matter; but after giving the best consideration I can to the case, I have come to the conclusion that neither the Revenue Officer nor the confirming authority, nor the Board of Revenue, when exercising jurisdiction under Chapter XI of the Estates Land Act in relation to settlement of rents, is a "Court subject to the appellate jurisdiction of the High Court".

[70] There has been no general definition of "Court of law" - so far as I am aware. The word "Court" has been defined for the purpose of specific enactments. See the Indian Evidence Act, Section 3 and the Indian Penal Code, Section 20 - (Court of Justice). I am glad, however, in having been able to get some help from some of the decided cases. In Manavala Goundan v. Kumarappa Reddy (1907) I.L.R. 30 M. 326 : 17 I.L.R. 313 the question arose whether a District Registrar exercising powers in an appeal presented under Section 73 of the Registration Act is not a "Court" within the meaning of Section 622 of the Code of Civil Procedure, 1882 (corresponding to Section 115 of the present Code), Mr. Justice Subrahmania Aiyar observed at page 327 of the report as follows:

The word Court in Section 622 of the Code of Civil Procedure should be understood in its ordinary legal sense, a place where justice is judicially administered - see Stroud.

[71] Again, at the bottom of the page, the learned Judge observed:

Assuming that the functions which the Registrar exercises in a case such as was before him in the present instance were altogether judicial, that would not warrant the conclusion that his decision was that of a Court.

[72] The learned Judge dismissed the revision petition and upheld the preliminary objection, and held that the High Court could not in such a case interfere under Section 622 of the Code of 1882.

[73] In Krishnamal v. Krishnaiyangar a decision of a Full Bench composed of Sir Charles Arnold White, C. J., and Sankaran Nair and Ayling, JJ., the decision in Manavala Goundan v. Kumarappa Reddy (1907) I.L.R. 30 M. 326 : 17 M.L.J. 313 was referred to with approval.

[74] A decision of the Privy Council reported in Shell Company of Australia, Limited v. Federal Commissioner of Taxation (1931) A.C. 275 was relied upon, each side relying on the said decision in support of its own contention. In the case reported in British Imperial Oil Co. v. Federal Commissioner of Taxation (1925) 35 C.L.R. 422 the High Court of Australia decided that "the Board of Appeal created by Section 41 of the Income-tax Assessment Act, 1922, exercised part of the judicial power of the Commonwealth and was therefore a tribunal contrary to Sections 71 and 72 of the Constitution of Australia, in that its members were to be appointed not for life but for a period of seven years": and the High Court quashed the assessment made by the Board of Appeal in, that case. By a reference to page 286 of the report, it would be seen what the functions of the Board of Appeal in that case were. One of the provisions of the was that an appeal shall lie to the High Court in its appellate jurisdiction from any order passed under Sub-section (1) of Section 51, except a decision by the Board on a question of fact. The provision that an appeal would lie to the High Court in its appellate jurisdiction from the decision of the Board of Appeal on a question of law, would, ordinarily, make the Board of Appeal, having regard to its functions, prima facie a judicial tribunal subordinate to the High Court. The Board of Appeal was subsequently replaced by a Board of Review whose powers were different from the powers of the Board of Appeal. The members of the Board of Review were also appointed for a period of seven years. A similar objection having been taken to the constitution of the Board of Review, the Privy Council held that the Board of Review was not a judicial tribunal, but was only an administrative body, having regard to its functions. It must be noticed that a right of appeal to the High Court was given under the, both to the Commissioner as well as to the taxpayer, from any decision of the Board which in the opinion of the High Court involves a question of law; and in spite of such a provision, the Board of Review was held to be not a Court or a judicial tribunal; it was held that even a right of appeal, by itself, would not establish the vesting of the judicial power either in the Commissioner or in the Board of Review since the Parliament may have imposed upon the Court the duties of reviewing administrative determination (page 295). Of course, no tribunal could be held to be a judicial tribunal unless it had power to give a binding and authoritative decision, whether subject to appeal or not, in a dispute arising between the State and its subjects, or, between the subjects inter se, whether the dispute relates to life, liberty or property. Our attention was also drawn to the following observations at pages 296 and 297 of the report:

The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. It is conceded in the present case that the Commissioner himself exercised no judicial power. The exercise of such power in connection with an assessment commenced, it was said, with the Board of Review, which was in truth a Court.

In that connection it may be useful to enumerate some negative propositions on this subject : (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision

. (2) Nor because it hears witnesses on oath. (3) Nor because two or more contending parties appear before it between whom it has to decide. (4) Nor because it gives decisions which affect the rights of subjects

. (5) Nor because there is an appeal to a Court

. (6) Nor because it is a body to which a matter is referred by another body. See Rex v. Electricity Commissioners (1924) 1 K.B. 171.

[75] As it was admitted in that case that the Commissioner was not acting in a judicial capacity, but only in an administrative capacity, the present question had not to be decided in that case. The contention that the Board of Review should be held to be a Court exercising judicial power - (1) because its jurisdiction arose only if set in motion by the taxpayer, and (2) because the matter for its decision was a lis between the taxpayer and the Commissioner affecting legal rights, and (3) because his decision was conclusive, subject to an appeal to the High Court,--was not accepted by the Privy Council.

[76] Having carefully considered the decision in Shell Co. of Australia, Limited v. Federal Commissioner of Taxation (1931) A.C. 275 I am not able to see that the functions exercised by the Board of Revenue in proceedings to settle rents tinder Chapter XI of the Estates Land Act show that it is a Court in the ordinary acceptation of that term.

[77] Decisions relating to writ of certiorari are not of any direct use here. I am not here concerned with the question whether a writ of certiorari would lie only against proceedings of a Court of Justice. It would seem that the category of bodies against which a writ of certiorari can be issued is wider than that of Courts of Justice. See Rex v. Electricity Commissioners (1924) 1 K.B. 171 at 205, per Atkin, L.J.) The learned Lord Justice there observed as follows:

It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King s Bench Division exercised in these writs.

[78] In the above view, it is not necessary to consider the other arguments advanced by the learned advocate for the petitioner, viz., that an appeal need not lie to the High Court in every matter but that it would be enough if appeals lie from the decisions of the Court to the High Court in respect of its decisions ordinarily, whatever might be the restricted scope of such appeals. Reference was made to the Bengal Tenancy Act; but its provisions in this respect would seem to be different substantially from the provisions of Chapter XI of the Madras Estates Land Act in this respect. See Section 104(j).

[79] Under Section 104(h) of the Bengal Tenancy Act, a right of suit in the Civil Court is available to any persons aggrieved on any of the grounds mentioned in Clause (3) of that section; and under Sub-clause (4), the Civil Court is given the right to "settle a fair rent". See also Section 104 (A), Sub-clauses (6) and (7). No doubt, as mentioned already, it is not quite clear whether it is or it is not open to the Civil Courts to consider the correctness or otherwise of rate or amount of fair and equitable rent settled under Chapter XI of the Madras Estates Land Act. This point has already been discussed by me.

[80] A decision of the Calcutta High Court in the case reported in Uma Charan Mondal v. Midnapur Zemindari Co. (1914) 19 C.L.J. 300 : 18 C.W.N. 782 was brought to our notice, as being a very similar case. While holding that for the purposes of attracting the power of superintendence vested in the High Court under Section 15 of the Indian High Courts Act, it is not necessary that an appeal should lie to the High Court in the very proceeding in which the power of superintendence is involved, the learned Judges - Sir Asutosh Mookerjee and Beachcroft, JJ. - held that as the superintendence vested in the High Court by Section 15 of the Indian High Courts Act can be exercised only over "Courts which are subject to the appellate jurisdiction of the High Court", the High Court had no jurisdiction to exercise its powers of superintendence over the Revenue Officer before whom a proceeding for settlement of fair rent was instituted under Section 85 of the Chota Nagpur Tenancy Act, as that officer was not "a Court subject to the appellate jurisdiction of the High Court", but was subordinate to the Commissioner.

[81] Even if the Revenue Officer be "a Court", the learned Judges held that he was not a "Court subject to the appellate jurisdiction of the High Court". The decision in Kartik Chandra Ojha v. Gora Chand Mahto (1913) I.L.R. 40 Cc. 518 was distinguished on the ground that proceedings on applications for enhancement of rent under the provisions of Sections 27 to 30 of the Chota Nagpur Tenancy Act are judicial proceedings before the Deputy Commissioner, who was, for this purpose, "a Court subordinate to the appellate jurisdiction of the High Court". The learned Judges observed:

It would in our opinion be anomalous to hold that where, by statute, superintendence over a Revenue Officer is vested in a particular matter in the Commissioner and the Board of Revenue, the Revenue Officer should be deemed even for the purposes of that particular proceeding a Court subordinate to the appellate jurisdiction of this High Court. In our opinion, Section 15 of the Indian High Courts A ct, 1861, has no application to proceedings for settlement of fair rents instituted before a Revenue Officer under Section 85 of the Chota Nagpur Tenancy Act, 190

8. In this view the rule must be discharged.

[82] Prima facie, that decision would seem to support the view urged on behalf of the respondents in the present case; it points out the difference between the nature of proceedings on applications for enhancement, reduction or commutation of rent, and proceedings settling fair and equitable rent. But, before one relies on a decision passed on a special Act of another Legislature relating to a different Province, it would be necessary to consider all the material provisions of that Act before one could confidently apply that decision to a case arising under a different - though an analogous - Act, passed by a different Legislature relating to another Province.

For the above reasons, holding that the Board of Revenue should not be taken to be a "Court of law" when exercising powers under Chapter XI of the Madras Estates Land Act, at any rate not "a Court subordinate to or subject to the appellate jurisdiction of the High Court," I am inclined to hold (though not without hesitation), that the present Civil Revision Petition is not maintainable; and I would accordingly dismiss the Civil Revision Petition with costs.

Horace Owen Compton Beasley, Kt. C.J.,

[83] I agree with the answers of my learned brothers, Reilly and Anantakrishna Aiyar, JJ., to the first question referred to us; and as it has been dealt with at length by them, I propose to address myself only very briefly to this matter.

[84] I wish, first of all, to observe that the procedure adopted by the referring Judges is, in my opinion, incorrect. They have taken the view that the answer in the negative given by Phillips and Odgers, JJ., in Raghunadha Patro v. Govinda Patro (1928) 5 M.L.J. 798 (F.B.) to the question, "Has the High Court in the exercise of its revisional jurisdiction either under Section 115 of the Civil Procedure Code or Section 107 of the Government of India Act of 1919 power to revise orders passed by the Board of Revenue under Chapter XI or Section 205 of the Estates Land Act" is obiter dictum and they have also doubted the correctness of that answer. The question is precisely the same as the first question that has been referred to us and it has been answered in the negative by the majority of that Full Bench. It being a question referred to that Full Bench, it seems to me that it was not open to the referring Judges to regard the answer to it either as obiter dictum or to refer the matter to a larger Bench because they doubted its correctness. The proper procedure in such cases, in my opinion, is to refer the matter to the Chief Justice and it is then for him to consider whether the question should be reconsidered by a larger Bench.

[85] In considering the first question, it is not necessary to say whether Section 115 of the Code of Civil Procedure or Section 107 of the Government of India Act gives power of revision over orders passed by the Board of Revenue under the generally as the only question here relates to orders passed in proceedings under Chapter XI of the. That question is whether the proceedings of a Revenue Officer under that chapter are proceedings by him as a Civil Court or not. If they are not, then orders passed by the Board of Revenue under that chapter, it is conceded, cannot be. In making the survey and the record-of-rights under Sections 164 to 167, the Revenue Officer is acting only as an executive officer. It remains to be considered whether what is done subsequently is done by the Revenue Officer as a Civil Court. As has been pointed out in their answers by Reilly and Anantakrishna Aiyar, JJ., the procedure adopted is certainly not that found in other Civil Courts; and amongst these, there is, in my view, the very important one that, in settling the rent under Chapter XI, the personal and local experience of the Revenue Officer plays a large part. It seems to me that he has an unlimited discretion and that he can, if he so chooses, or in the absence of any other evidence, act solely upon his own experience. If he can be said to be acting as a Civil Court, then he must be deemed to be both a witness and judge. I agree that the scheme of the seems to be to keep the proceedings under Chapter XI entirely separate and apart from the other proceedings in the. It is true that in other sections of the relating to rent a right of suit is given; and those proceedings are clearly proceedings of a Civil Court. Such are suits under Section 30 for enhancement of rent, Section 38 for reduction of rent and Section 40 for commutation of rent. But in all those cases it is expressly provided that there is an appeal from the Collector to the District Court, in the case of Section 40 so far as the decree determines the sum to be paid as money rent or the time from which commutation shall take effect. There being an appeal to the District Court, there is a second appeal to the High Court. The fact that such a right of appeal is omitted in Chapter XI, in my opinion, supports the view that it was intended by the Legislature to draw a distinction between those proceedings and the other proceedings under the. It is to be observed also that, in the proceedings under Sections 30, 38 and 40 of the Act, the Collector must have regard to the very definite materials set out in those sections, all of which seem to me to be matters of evidence, whereas in Chapter XI the Revenue Officer can act entirely or partly on his own experience. I agree to the answer proposed by my learned brothers Reilly and Anantakrishna Aiyar, JJ. Civil Revision Petition No. 192 of 1926 will be dismissed with costs.

Ramesam, J.

[86] The facts out of which this revision petition arises are stated in the referring judgments and also in the judgments of my learned brothers, Reilly and Anantakrishna Aiyar, JJ., which I have had the advantage of perusing. It is, therefore, unnecessary to set forth the facts again.

[87] The first question referred to us is, whether an order of the Board of Revenue under Section 172 of the Estates Land Act is subject to revision by the High Court or not. The reference lias become necessary by a decision of a Full Bench of this Court in Raghunadha Patro v. Govinda Patro (1928) 5 M.L.J. 798 (F.B.). One of the three learned Judges who decided that case, Venkatasubba Rao, J., observed that, so far as Chapter XI of the was concerned, the point did not actually arise before them and abstained from expressing his opinion on that matter. But the other two learned Judges, Phillips and Odgers, JJ., considered the question whether the High Court had power to revise orders of the Board of Revenue both under Section 205 and under Chapter XI of the Estates Land Act and it was because of their opinion that with reference to both kinds of orders no revision lay that the learned Judges who made the present reference thought it necessary to refer the question to a larger Bench.

[88] Mr. Varadachari, the learned advocate for the petitioner, in questioning the correctness of the decision in Raghunadha Patro v. Govinda Patro sought to establish two propositions before us, first, that the Board of Revenue when acting under Section 205 or under Chapter XI of the acts as a Court and, secondly, if it is a Court, though it may be a Revenue Court, it is still a Civil Court for the purposes of Section 115 of the Code of Civil Procedure and the High Court has, therefore, power to revise its orders. I do not propose to deal with his arguments with reference to Section 205 elaborately. Some of them are noticed by my brother Anantakrishna Aiyar, J., and some by the referring Judges. In my opinion, the arguments of Mr. Varadachari have made out a prima facie case for considering that the orders of the Board of Revenue under Section 205 are liable to revision by the High Court and this is also the opinion of my learned brother, Anantakrishna Aiyar, J., and the two referring Judges, Wallace and Tiruvenkata Achariyar, JJ. Though we have heard the arguments of the learned advocate for the respondents only on the second point, namely, whether the Board of Revenue, when acting under Chapter XI of the, can be considered as a Court at all, I am unable to agree with the opinion of the majority of the Judges in Raghunadha Patro v. Govinda Patro so far as it relates to Section 205 of the Estates Land Act and I think that portion of the case requires further consideration when a suitable opportunity arises.

[89] The actual point that arises before us is, whether the Board of Revenue, acting under Section 172 of Chapter XI, can be regarded as a Court. On this point I agree in the main with the judgments of Reilly and Anantakrishna Aiyar, JJ. My brother Reilly, J., observes in his judgment: "There is no doubt that the theory of revenue administration held by the Government was that what the Zamindar in a permanently settled estate had a right to collect from the ryot was the rajabhagmn or Government share of the produce of his land. By the permanent settlement of 1802 the Government had left to the Zamindar on condition that he paid his fixed peshcash the right to collect the rajabhagam from the ryot. The right of the Government, which is recognized in the to interfere and settle the amount of the rajabhagam when the lawful rate of rent fixed by contract, decree or otherwise is not fair or equitable depends ultimately on the theory that it is proper for the Government to see that the Zamindar gets from the ryot the fair and equitable rajabhagam, no more and no less." Later on he also observes that the Government reflected the ideas of the revenue history and policy which had been traditional in this Presidency. I agree with the learned Judge that at the time when the Estates Land Act was passed these were the ideas which influenced the Government in undertaking that legislation. So far as the Courts are concerned, there was no such tradition until some time after 1890. It was expressly negatived by the decision of Scotland, C.J., and another learned Judge in Chockalinga Pillai v. Vythealinga Pundara Sunnady (1871) 6 M.H.C.R. 164. The tradition began to show itself in Appa Rao v. Ratnam (1889) I.L.R. 13 M. 249, Vencata Mahalakshmamnia v. Ramajogi (1892) I.L.R. 16 M. 271 and Venkata Narasimha Ndidu v. Ramasami (1894) I.L.R. 18 M. 21

6. It definitely shaped itself only in Venkatanarasimha Naidu v. Dandamudi Kotayya (1897) I.L.R. 20 M. 299 : 7 M.L.J. 251 and Cheekati Zamindar v. Ranasooru Dhora (1899) I.L.R. 23 M. 318 and undoubtedly it is on the theory so definitely shaped by the last two decisions that the legislation of the Estates Land Act was based. But as that theory relates only to permanently settled estates, it does not apply to inams and is, therefore, strictly not applicable to estates of the kind defined in Section 3, Clause (2)(d) of the Estates Land Act. But I see that Chapter XI is not confined to permanently settled estates only. It is therefore unsafe to rely upon any theory underlying the legislation contained in Chapter XI; and the safest method would be to examine the provisions of the chapter itself. On this matter I agree with the reasons of Reilly and Anantakrishna Aiyar, JJ., and have nothing to add. It is possible that as a result of this construction the landholders have a grievance as to the scope and application of Section 173 of thein relation to Section 165(e) but the remedy is to get the section amended.

[90] I agree with the order proposed by my Lord the Chief Justice. The memorandum of cross-objections is also dismissed.

Sundaram Chetty, J.

[91] I regret, I have to come to a different conclusion.

[92] This is a petition filed by the Rajah of Mandasa invoking the revisional jurisdiction of the High Court for the purpose of revising an order of the Board of Revenue passed under Section 172 of the Madras Estates Land Act in exercise of its powers of revision under that section. In connection with the preparation of the record-of-rights under Chapter XI of the, a Special Revenue Officer was deputed to settle fair and equitable rents under Section 168 of thein respect of the holdings of ryots in a number of villages appertaining to the Mandasa Estate. Objections were filed under Section 169 against the settlement and were disposed of by that officer. It is said that appeals were filed by the ryots under Section 171 to the Board of Revenue, but those appeals were dismissed by the Board as out of time. Subsequently, when a petition presented by the ryots to His Excellency the Governor was forwarded to the Board of Revenue, the latter took up the matter on revision suo motu, under Section 172, and passed orders revising the rates of rent in favour of the ryots. By reason of this order passed in revision, it is said that the Rajah would suffer an annual loss of Rs. 22,000.

[93] The first and the most important question arising for determination is whether the High Court has jurisdiction to revise the order of the Board of Revenue above referred to. This question has been considered at some length by the learned referring Judges and the trend of their opinion clearly seems to be that the High Court has jurisdiction to exercise its powers of revision under Clause 16 of the Letters Patent as also Section 107 of the Government of India Act. In the first place, what we have to determine is whether the Revenue Officer who settles the rates of rent payable by the ryots to the landholder under Sections 168 and 169 of theshould be deemed to be a Court exercising judicial powers or only an executive officer exercising administrative powers. The Board of Revenue being constituted the appellate authority to deal with an appeal presented against the decision of the Revenue Officer under Section 171, and being also the revisional authority under Section 172, it must also be deemed to function as an appellate or revisional authority in a matter of this kind in the same character in which the Revenue Officer is deemed to function. If the Revenue Officer is held to be a Court exercising judicial powers, the Revenue Board also must be taken to be a Court when it deals with an appeal or an application for revision in connection with an order passed by the Revenue Officer. The determination of this question is beset with some difficulties and the opinion of some of the learned Judges of this High Court is also conflicting.

[94] A brief outline of the scheme of the with respect to the settlement of rents under Chapter XI is necessary in order to understand the real nature of the functions exercised by the Revenue Officer in this respect. Sections 164 to 167 deal with the procedure to be adopted in the preparation of a record-of-rights.

[95] The entries made in such a record-of-rights would be evidence of the matter referred to therein and should be presumed to be correct until the contrary is proved. The Act provides for a settlement of the rents also, if within two months from the date of the final publication of the record-of-rights, the landholder or the ryots apply for a settlement of the rents. In case the application is made by the ryots, they should be holders of not less than one-fourth of the total extent of the lands in the village. If the Local Government so direct, the Revenue Officer shall settle a fair and equitable rent in respect of those holdings. In settling rents under Section 168, the Revenue Officer shall presume, until the contrary is proved, that the existing rates of rent are fair and equitable and shall have also regard to the provisions of the for determining the rates of rent payable by the ryot. When settlement has been completed under Section 168, the Revenue Officer should cause a record thereof to be prepared and published in the prescribed manner. He should receive and consider any objections made to any entry in such record or omission therefrom and dispose of those objections according to such rules as the Local Government may prescribe. Until reasonable notice is given to the parties concerned to appear and be heard in the matter, no such entry shall be revised by him. When all objections have been disposed of, the Revenue Officer has to submit the settlement record to the confirming authority appointed by the Local Government. The confirming authority may sanction the settlement of rents with or without amendment, but no amendments or alterations can be made by it without giving reasonable notice to the parties concerned and hearing their representations. After sanction by the confirming authority, the settlement record should be incorporated in the record-of-rights which will have a final publication in the prescribed manner. An appeal shall lie from every order passed by a Revenue Officer on any objection made under Section 16

9. The appellate authority would be the one constituted by the Local Government. Under Section 172 the Board of Revenue may on application or of its own motion direct the revision of any record-of-rights within a period of two years as specified in the section. In passing orders by way of revision, the Board should not affect any order passed by a Civil Court under Section 173. No orders can be passed by the Board under this section until reasonable opportunity is given to the parties concerned to appear and be heard in the matter. A right of suit in a Civil Court to any per son. aggrieved is provided for in Section 173, but subject to the restrictions imposed by Sub-section (3). A note of all decisions on appeal under Section 171 and of all orders of a Civil Court notified to the Collector should be made in the record-of-rights with which the settlement record is incorporated under Section 170. The rents finally settled in the aforesaid manner are not liable to be enhanced for a period of twenty years except on some of the grounds specified in Sections 30 and 3

8. During the pendency of an application for the settlement of rents under Section 168, no suit or proceeding shall be commenced or continued in any Civil or Revenue Court under Sections 30, 38 and 40 until after the final publication of the record-of-rights under Sub-section (3) of Section 170. Under the Rules framed by the Local Government by virtue of the powers vested in them under Section 215 of the Act, the Revenue Officer, who has got to make a settlement of rents under Chapter XI, has all the powers exercised by the Civil Court in the trial of suits. In respect of the application for settlement of fair rents the applicant or applicants shall be considered as plaintiffs and the opposite party as defendants for the purpose of procedure in the enquiries to be made by the Revenue Officer. The Revenue Officer shall be governed, so far as may be practicable, by the provisions of the Code of Civil Procedure.

[96] Having regard to the functions of the Revenue Officer, who has to decide on the application of either the landholder or the ryots what the fair and equitable rents payable for the holdings are, is he to be deemed a Court acting judicially or only an executive officer acting in an administrative capacity If regard be had to some other provisions of the under which the Revenue Officers exercise almost similar functions and decide disputes of almost the same nature, it is clear that those officers are deemed to be Revenue Courts. Section 189 of themakes the Collector or other Revenue Officer specially authorized under the to hear and determine suits and applications of the nature specified in Parts A and B of the Schedule distinctively a Revenue Court. Though the application for settlement of fair and equitable rents made under Section 168 is not one of the applications specified in Part B of the Schedule, there seems to my mind no doubt the nature of the subject-matter of the dispute involved in such an application is almost the same as the nature of the suits under Sections 30, 38 and 40 of the. Section 30 relates to a suit by the landholder before the Collector for enhancement of rent on one or other of the grounds specified therein. The rise in the average local prices may also be a ground for claiming enhancement. The fact that the productive powers of the land held by the ryot have been increased by fluvial action may also be taken as a ground for that relief. An occupancy ryot may also institute a suit before the Collector for the reduction of his rent on one or other of the grounds set forth in Section 3

8. The permanent deterioration of the soil of the holding by a deposit of sand or by other specific cause would be a ground for claiming reduction of rent. The fall in prices may also be urged as a ground. Similarly, either the ryot or the landholder may sue before the Collector for the commutation of rent under Section 40. It is open to the Collector to decide whether commutation should be allowed or not and, if he allows commutation, he can pass a decree declaring the same to be paid as money rent in lieu of rent in kind. In making the determination, the Collector should have regard to the considerations set forth in Clauses (a), (b) and (c) to Sub-section (3). Section 193 of theprovides for a suit for enhancement or reduction of rent by or against any number of ryots collectively. The decisions in suits for enhancement and reduction of rent and also for commutation of rent will ordinarily have a binding force for twenty years as provided by Sections 37, 39 and 41. There is no doubt that the Revenue Officer who decides the aforesaid suit is a Revenue Court within the meaning of Section 189 of the. The decisions of such Revenue Officer, as also of an appellate or revisional authority, will have the binding force as res judicata in any suit or proceeding in a Civil Court in which the same matter may be in issue between the parties. In certain cases a ryot may apply to the Collector under Section 25 to fix a fair and equitable rent for his holding. An appeal against that decision lies to the District Collector; whereas appeals against the decisions of the Revenue Officer in suits under Sections 30 and 38 lie to the District Court. In a proceeding for commutation of rent under Section 40, the appeal lies to the District Collector in case the decree allows or refuses commutation. In so far as the decree determines the same to be paid as money rent, the appeal must be to the District Court.

[97] Chapter VII of the seems to bear close analogy to that portion of Chapter XI which deals with the settlement of fair and equitable rents. Section 135 deals with an application by any ryot or ryots holding irrigated land under a landholder and paying not less than one-fourth of the rent of the ayacut or holding not less than one-fourth of the extent of the ayacut for the purpose of getting an irrigation work repaired. On receipt of such an application, the District Collector by himself or by an officer subordinate to him to whom he may depute the enquiry, cause to be served on the landholder a copy of the application and a notice to show cause why the order prayed for should not issue. If an enquiry is made by an officer other than the District Collector, such officer should make a report thereon to the District Collector. Under Section 137, the District Collector may pass the necessary orders as a result of the enquiry. The landholder may apply to the District Collector to set aside his order by way of review and, if he is dissatisfied with the order made, he may appeal to the District Court. As against the Collector s order determining the rates under Section 141, an appeal lies to the District Collector. Section 142 provides for an appeal to the Board of Revenue unless otherwise provided for in Part B of the Schedule. There is no doubt that the Revenue Officer exercising the functions in connection with applications made under Chapter VII is a Revenue Court.

[98] Now in the matter of settling fair and equitable rents under Chapter XI, the nature of the subject-matter in dispute as also of the functions of the Revenue Officer, who has to enquire and decide the rates of rent properly payable by the ryots to the landholder, seems to be almost similar to the nature of the questions involved in proceedings under Sections 25, 30, 38 and 40 of theand of the functions exercised by the Revenue Officer in connection with such proceedings. That being so, it is extremely difficult to view the Revenue Officer having the authority to settle fair and equitable rents on an application presented under Section 168 not as a Revenue Court but only as an administrative officer. The circumstance that there is some similarity between the procedure prescribed in Chapter XI of the for the settlement of fair and equitable rents and the procedure adopted by the Government in effecting periodical revision of assessment payable by the ryots in ryotwari holdings may cause a doubt as to whether the Revenue Officer in question could not also be deemed to function as an administrative officer only. In the matter of the periodical revision of assessments by the Government in the course of re-settlement, the Government by way of exercising their sovereign rights depute some special officers as their agents for the purpose of revising the rates of assessment payable by the ryots and settling the same. The Government can do so suo motu and no application by any of the ryots is necessary. The collection of revenue due to the Government being one of the functions to be exercised as part of the sovereign rights, a machinery is constituted by Government for that purpose purely as an administrative body. But in the matter of settlement of rents contemplated in Chapter XI of the, unless an application is made for such settlement either by the landholder or by a certain number of ryots, no such enquiry could be directed by the Government by appointing a Revenue Officer for the purpose. In such a case, the Revenue Officer is constituted by the Government, if they like, as a tribunal for the purpose of determining a fair and equitable rent. It is in view of a dispute between private parties in respect of their civil rights that the application itself is made to the Government under Section 16

8. The tribunal so constituted deals necessarily with the civil rights of parties and finally determines the rates of rent payable by the ryots to the landholder. Though certain forms of procedure prescribed for such determination may not be quite the same as those ordinarily adopted in Courts, the nature of the subject-matter dealt with by the Revenue Officer functioning as a tribunal for the purpose of settlement of rent and the finality attached to his determination as to the rights of parties inter se are the fundamental tests to determine the character of that tribunal. In a recent decision of the Privy Council in the case of Shell Company of Australia, Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275 their Lordships have elaborately dealt with the question whether a tribunal constituted as the Board of Review for dealing with income-tax assessment should be deemed to be a judicial or administrative tribunal. For that purpose, there was an elaborate review of the several sections in the Income-tax Assessment Act and the Commonwealth of Australia Constitution Act, 1900. As to what is "judicial power" which would make the officer exercising it a Court, their Lordships have adopted a definition given by Griffith, C.J., as one of the best definitions. That learned Judge has stated thus:

I am of opinion that the words judicial power as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. (Vide page 295.)

[99] In the present case, is not the Revenue Officer empowered by the Government to decide an application under Section 168 for the settlement of rent exercising judicial power within the meaning of the above definition A dispute or controversy between the landholder and the ryots as to the y rates of rent properly leviable has to be decided by the Revenue Officer functioning as a tribunal. Such dispute does relate to property. The tribunal has got the power to give a binding and authoritative decision. I include in the word "tribunal" the appellate and revisional authorities also. The special grounds which existed in the case dealt with by their Lordships for holding that the Board of Review was not a judicial but only an administrative tribunal do not exist in the present case. On page 294, their Lordships observe that by an alteration in the law the nature of the old tribunal was transformed. The section which previously applied sections creating judicial powers to the Board was absolutely transformed in the new Act. Instead of assimilating the Board to the Court as in the old section the Board in the new section was assimilated to the Commissioner. Instead of the Board being given the powers and functions of the Court, it was given the powers and functions of the Commissioner who exercised no judicial power as was conceded in that case (vide pages 294 and 297). Their Lordships have also laid down some negative propositions on this subject as affording no conclusive tests. As I have already pointed out, the subject-matter in dispute to be decided by the Revenue Officer in connection with an application for settlement of rent under Section 168 is almost the same as the subject-matter of the proceedings under Sections 25, 30, 38 and 40 and if the Revenue Officer deciding the proceedings of the latter kind should be deemed to hear and determine those suits and applications as a Revenue Court, why should the Revenue Officer giving his decision as a result of the enquiries made by him on an application under Section 168 be deemed to be not a Revenue Court but only an administrative functionary In this connection, the decision of the Privy Council in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 c. 295 at 300 (P.C.) may be referred to, as it contains a very clear pronouncement as to what would make a tribunal a Civil Court. Their Lordships had to deal with the question whether a Rent Court established by a special Act should be deemed to be also a Civil Court for certain purposes. The observation of their Lordships is as follows:

It must be allowed that in those sections there is a certain distinction between the Civil

Courts there spoken of and the Rent Courts established by the...But it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights.

[100] According to this definition, even if a Court is designated as a Revenue Court, it must be deemed to be a Civil Court, if it decides on purely civil questions between the persons seeking their civil rights. Applying this test, the Revenue Officer constituted as a tribunal by the Local Government under Section 168 of thefor the purpose of deciding the dispute between the landholder and ryots and settling fair and equitable rents payable by one party to the other, must be taken to be virtually deciding questions relating to property which are civil questions as between persons seeking their civil rights (who are arrayed as plaintiffs and defendants). In the light of the definitions given in both the decisions of the Privy Council above referred to, I have to come to the conclusion that the Revenue Officer who settles the rates of rent as fair and equitable as also the appellate and revisional authorities in connection with that matter could not be properly deemed to be functioning in an executive or administrative capacity. On the other hand, they are virtually Revenue Courts within the spirit of Section 189 of the. The fact that the Revenue Officer in connection with that application has to deal with groups of individuals and also groups of holdings comprised in a village does not furnish an indication of his functions being only administrative and not judicial. Even a suit for enhancement or reduction of rent may be instituted against or by any number of ryots collectively (vide Section 193) and an application under Section 135 may also be made by a group of individuals. This feature does not militate against the character of the tribunal being a judicial one. According to Sub-section (4) of Section 168, even where the parties agree among themselves by way of compromise or otherwise as to the amount of rent payable, the Revenue Officer is not bound to decide in terms of the compromise unless he is also satisfied that the amount agreed upon is fair and equitable. Does this restriction necessarily indicate that the officer is not meant to deal with the application judicially but only in his administrative capacity If we turn to Section 199 of the Act, it is clear that the provisions of the Code of Civil Procedure relating to compromise of suits do not apply to any suit or application between the landholder and ryot. By reason of this restriction, the Revenue Court dealing with a suit or application between the landholder and the ryot cannot be deemed to be not a Court but an administrative authority. Even in civil suits properly so called, a compromise between parties, of whom some are minors, cannot be acted upon unless the Court thinks fit to sanction the compromise on behalf of the minors.

[101] It is true that the Revenue Officer, constituted as a tribunal for the settlement of fair and equitable rents, is given, in the matter of arriving at his decisions, wider powers, larger discretion, and greater scope for making alterations in the existing rates of rent, by way of enhancement or reduction, than the Revenue Officers who have to decide suits or applications under Sections 25, 30, 38 and 40 of the. The Revenue Officer settling fair and equitable rents should by virtue of Section 168(2) have regard to the provisions of the, for determining the rates of rent payable by the ryot. This means that he should apply the principles laid down in other sections, for enhancing or reducing the existing rents in force as lawful rents, but he is not restricted to those considerations alone in deciding what is the fair and equitable rent. If by means of special legislation in Chapter XI of the, a Revenue Officer is invested with larger powers than the Revenue Officers exercising functions under some other sections of the, and has more freedom in making inquiries and investigations, and is less bound by the restrictions observed by ordinary Civil and Revenue Courts, in matters of procedure, is such an officer to be regarded as acting not in a judicial capacity, but only as an executive or administrative officer The Legislature may exempt some Courts dealing with a particular kind of litigation, from the observance of the ordinary procedure prescribed for Courts, and invest them with some extraordinary and even summary powers of disposal. They do not, for that reason, cease to be Courts. There are, no doubt, some peculiar features in the exercise of the functions by the Revenue Officer appointed under Chapter XI of the for the settlement of rents. Are they really repugnant to the idea of his being a Court exercising judicial power (as defined in the Privy Council decision above referred to) It seems that though an application is made under Section 168(1) by the ryots owning not less than one-fourth of the total extent of the holdings in the village, the Revenue Officer, if appointed by the Government, for the purpose of settlement of rent, may settle fair and equitable rents for the whole village. There is provision even in the Code of Civil Procedure, enabling one or more persons to sue on behalf of numerous persons having the same interest, with the Court s permission. In such a suit, if a decision is given, it affects even persons who are not actually parties to the suit or who take no part in the conduct of the suit. Section 170(3) of theprovides for the incorporation of the rates settled, after sanction by the confirming authority, in the record-of-rights published under Sub-section (2) of Section 166 (which may be deemed to be a document prepared by an executive officer). But even all orders or decrees of Civil Courts passed in suits under Section 173 should be similarly incorporated in the said record-of-rights (vide Section 174). I am therefore constrained to observe that the decisions of the Revenue, Officer, in the matter of settlement of rents, which seem to be not open to question as regards the correctness of the rates finally fixed, by means of a civil suit under Section 173 of the Act, and which have, therefore, the force of res judicata in any subsequent proceeding between the landholder and the ryots in a Civil or Revenue Court, cannot be easily distinguished from those given by Courts, as between parties seeking their civil rights.

[102] On a due consideration of the provisions in Chapter XI relating to the settlement of rent as compared with other provisions in the and also of certain fundamental principles which serve as indicia for determining the character of the tribunal, I am of opinion that the Revenue Officer settling fair and equitable rents on an application under Section 168 of thecannot be deemed to be an executive or administrative functionary. I am inclined to hold that such an officer as also the appellate or revisional authority in the same matter must be deemed to be a Revenue Court and in the sense in which their Lordships of the Privy Council have defined a Civil Court in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 C. 295 (P.C.), it should be viewed also as a Civil Court.

[103] If the Revenue Board in deciding an appeal under Section 171 or exercising the powers of revision under Section 172 be deemed to be acting as a judicial tribunal, or as a Revenue Court, then has the High Court power to revise the order of the Revenue Board passed under Section 172 If the Board be a Revenue Court, I am clear that the High Court has no power under Section 115 of the Code of Civil Procedure to revise such an order of the Revenue Board. By virtue of the provisions in Section 192 of the Estates Land Act, not only should Section 115 of the Code be deemed to apply to all suits, appeals and other proceedings under the said Act, but also Sections 3 and 5 of the Code. Under Section 115 of the Code the High Court may revise any decision by any Court subordinate to such High Court and against which no appeal lies thereto, provided the prescribed conditions for exercising the revisional jurisdiction are shown to exist. Unless the Board of Revenue acting as a Revenue Court is subordinate to the High Court within the meaning of Section 3 of the Code, the High Court cannot exercise its powers of revision under Section 1

15. Section 3 of the Code makes Civil Courts only as subordinate to the High Court and though this section is not exhaustive, there is nothing-else in the Code by which we can hold that a Revenue Court is also subordinate to the High Court. On the other hand a distinction is maintained in the Code between a Civil Court and Revenue Court of original jurisdiction. A Revenue Court as such is not a Civil Court under the Code of Civil Procedure. But a Revenue Court may be deemed to be a Civil Court within the meaning of Section 16 of the Letters Patent, if regard be had to the definition given by their Lordships of the Privy Council in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 C. 295 (P.C.). Under Section 16 of the Letters Patent, the High Court of Judicature at Madras shall be a Court of Appeal from the Civil Courts of the Presidency of Madras and from all other Courts subject to its superintendence and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any laws or regulations now in force. If the Board of Revenue is a Civil Court as defined in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 C. 295 (P.C.) when deciding any matter under Sections 171 and 172 of the Estates Land Act, there is no difficulty in arriving at the conclusion under Section 16 of the Letters Patent that the Revenue Board is subordinate to the High Court. The High Court being a Court of Appeal from all the Civil Courts of the Presidency, it must be deemed to be superior to all such Civil Courts, whether or not it can exercise appellate jurisdiction over every order or decree passed by such Civil Courts. To entertain appeals from the decisions of such Civil Courts, there must be provision by virtue of any law or regulation in force. But the High Court would still be regarded as a Court of Appeal from all the Civil Courts of the Presidency and that would create a link between any Civil Court and the High Court as inferior and superior Courts. Moreover Section 107 of the Government of India Act declares that the High Court has superintendence over all Courts for the time being subject to its appellate jurisdiction. This is only in conformity with what is provided for in Section 16 of the Letters Patent. Even though the Revenue Board may be deemed to be strictly a Revenue Court, it should in my opinion be deemed to come under "all other Courts subject to its superintendence" in Section 16 of the Letters Patent. By virtue of Section 192 of the Estates Land Act, Order 46 of the Code of Civil Procedure dealing with reference of questions to the High Court must be taken to apply to all suits, appeals and other proceedings under the Estates Land Act. It is true that the Board of Revenue may or may not choose to make a reference to the High Court. But if any reference has to be made at all, it must be made only to the High Court. That is one indication of the Revenue Board being a subordinate tribunal. Another indication is also furnished by the fact that the High Court has the power to make rules under Section 202 of the Estates Land Act with the approval of the Local Government to be followed by all the Revenue Courts in dealing with matters arising under the Estates Land Act. The authority to make rules for the guidance of all Revenue Courts indicates at least a power of superintendence over such Courts. These are no doubt some indications to show that the High Court has at least the power of superintendence over the Board of Revenue when acting as a Revenue Court and passing orders under Section 171 or 172 of the Estates Land Act. The fact that there is no provision in the Estates Land Act constituting the High Court as a revisional authority over the Board of Revenue in any specified matters, either expressly or by implication, is not of much avail to the respondents in this case, because the local Legislature cannot by means of any Act passed by it take away the jurisdiction already possessed by the High Court under Section 16 of the Letters Patent or Section 107 of the Government of India Act. It is only by an Act of Parliament or by the exercise of the legislative powers of the Governor-General in Council that any interference with the powers of the High Court conferred by the Letters Patent can be made. That the Estates Land Act does not confer any powers of revision on the High Court over the orders of the Board of Revenue will not really affect the revisional jurisdiction of the High Court possessed by it otherwise. I have not thought it necessary to discuss this question with reference to the case-law as this aspect has been elaborately considered in the judgments of both the learned referring Judges. It is true that Section 115 of the Code of Civil Procedure does not help the petitioner in this case, nor is there any provision in the Estates Land Act itself investing the High Court with revisional power. If the Revenue Board in deciding questions regarding the settlement of rent under Section 171 or Section 172 of the Estates Land Act be a Revenue Court subject to the superintendence of the High Court or a Civil Court in the Presidency of Madras within the definition given in Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 C. 295 (P.C.), there is no doubt that under Section 16 of the Letters Patent and Section 107 of the Government of India Act, the High Court has jurisdiction to revise the orders of the Board of Revenue, and this Revision Petition cannot be dismissed in limine as unsustainable. My opinion, therefore, is that the High Court has jurisdiction to entertain this petition.

[104] By Court. - In the result C.R.P. No. 192 of 1926 will be dismissed with costs. Fee Rs. 750. Memorandum of cross-objections and the connected C.R.P. No. 1109 of 1926 are dismissed.