Court competent to order for addition of Government as a party.

The question for decision in this Revision Petition is whether the Government is a necessary party to the suit.

The Suit O.S. No. 193 of 1948 was instituted for a declaration that the resumption proceedings and the orders of the Revenue Divisional Officer, Erode, and the District Collector, Coimbatore, with reference to the suit property were null and void and that they would not affect the plaintiff’s right, tide and enjoyment of the suit lands or alternatively for declaring that the inam in the suit land was only of the melwaram and that it could alone be resumed and regranted to the defendant. The suit was contested and one of the issues which was tried as a preliminary issue is “whether the Government is a necessary party to the suit.” The lower court held that the Government was a necessary party and hence this revision petition by the plaintiff.

The plaintiff’s case is that the defendant applied to the Revenue Divisional Officer, Erode, under section 44-B of the Hindu Religious Endowments Act for resumption of the suit land on the ground that it was a service inam granted to his forefathers and the reason for the resumption was that the plaintiff was his lessee for many years under a long lease exceeding five years and therefore it was void in law. The Revenue Divisional Officer did not accept the evidence on behalf of the defendant and dismissed his application for resumption as there had been no proof of lease for a period exceeding five years, the condition precedent to the exercise of jurisdiction by the Revenue authorities for resumption under section 44-B being either an alienation or a lease for over 5 years. On appeal the District Collector of Coimbatore remanded the case for fresh disposal and after remand, a new Revenue Divisional Officer, who heard the case, held in favour of the defendant. As against that order the plaintiff filed an appeal which was dismissed on 5th February, 1948.

The case of the plaintiff was (1) that the order was void, illegal and ultra vires and the Revenue authorities had absolutely no jurisdiction to take up the question of resumption or decide it and (2) that section 44-B is ultra vires of the Provincial Legislature since it affected or purported to affect the title perfected by the law of limitation which is to be dealt with by the Central Government. He also asked for a declaration that the inam was in respect of only the melwaram and that it could only be resumed and re-granted to the defendant, under section 44-B of the Hindu Religious Endowments Act.

The defendant contended that the two issues framed in the case, namely, “whether section 44-B is ultra vires of the Madras Legislature” and “whether the orders passed by the Revenue Officers are void and without jurisdiction?” raise the question of the competency of the Madras Legislature to enact section 44-B of the Hindu Religious Endowments Act and question the orders passed by the Revenue Divisional Officer and the Collector, they cannot be gone into in the absence of the Government.

The learned Judge after referring to the decisions cited on either side observed that

“in the absence of the Provincial Government, a declaration is sought for that section 44-B is ultra virts of the powers of the Madras Legislature as it infringes on the powers of the Central Legislature and it is not difficult to contemplate a case of two parties filing a collusive suit getting declaration of title without making the real person vitally interested a party to those proceedings and then to rely upon that as the sheet anchor in subsequent proceedings which may be some years hence”, that it was but elementary justice that a person whose act is questioned should be made a party to those proceedings, that the powers of the local Legislature were challenged and that in such circumstances it seemed that the contention of the plaintiff that the Government was not a necessary party was hardly of any force.

The point that has to be determined is whether on