Interference with the order of Board of Revenue in second appeal by High Court.

This is an application for issuing a writ of certiorari to quash the order of the Board of Revenue dated 28th April, 1952. One Kalappa Gounder was the last Miras Headman of Kilaveneri Village, Thirumangalam Taluk, Madurai District. He resigned his post on 16th October, 1945. The petitioner, the grandson of the said Gounder and who was alleged to be the adopted son of the said Kalappa Gounder, was registered to the office. In regard to the question whether the petitioner was the adopted son of Kalappa Gounder, there was litigation which finally ended in the High Court. The High Court held that he was not the adopted son of Kalappa Gounder. The second respondent, who is a minor, filed a Regulation Suit No.1 of 1950 claiming himself to be next heir of Kalappa Gounder and for his being registered as Headman. On 20th April, 1951, the Revenue Divisional Officer set aside the order registering the petitioner and passed orders that the second respondent should be registered in his place. The petitioner preferred an appeal to the Collector of Madurai. The Collector allowed the appeal holding that the suit filed by the second respondent was time-barred as the cause of action arose on 31st December, 1945, when the petitioner was registered as headman and as the suit was not filed within three years from that date. Against the order of the Collector the second respondent preferred an appeal to the Board of Revenue. The’ Board of Revenue set aside the order of the Collector and restored that of the Revenue Divisional Officer, and held that the delay in filing the suit must be deemed to have been excused under section 5 of the Limitation Act. The petitioner filed the aforesaid writ for quashing that order.

Learned counsel for the petitioner contended that the judgment of the Board of Revenue is vitiated by an error apparent on the face of the record. A perusal of the judgment shows that the Revenue Board assumed that section 5 of the Limitation Act would apply and therefore the delay in filing the suit could be excused. It is not contended that section 5 of the Limitation Act applies. Indeed, it is conceded that section 5 of the Limitation Act has no application for excusing delay in filing a suit under section 14 of the Madras Hereditary Village Offices’ Act.

In the circumstances I must hold that there is an error on the face of the record. The Revenue Board applied a provision which admittedly has no application.

Realising this difficulty learned counsel appearing for the respondent attempted to sustain the order of the Revenue Board on the following three grounds: (1) The petitioner has no personal and present interest and therefore, cannot maintain the application. (2) This Court has no jurisdiction to issue a writ of certiorari under Article 226 of the Constitution of India in respect of an order made under the Madras Hereditary Village Offices’ Act. (3) The act of the Revenue Board is not a judicial act.

The first contention was based upon a judgment of Rajamannar, C.J. and Venkatarama Ayyar, J., in Ramamurthi, In re1. There, the petitioner, who is a member of the Legislative Assembly, applied for quashing the order of the Governor in nominating another person to the Madras Legislative Council. The learned Judges, after citing relevant authoritative decisions given on the subject in America and England, came to the conclusion that it was fundamental that in an application for writ of certiorari, the petitioner must establish his personal and present right. I am bound by the decision. But, in my view, that decision has no relevancy to the question to be decided in this case. The facts in this case are: The petitioner was registered as a headman under section 10 of the Madras Hereditary Village Offices’ Act. The second respondent filed a suit to set aside that order and to get himself registered in his place. He succeeded before the 1st tribunal, but failed before the 2nd tribunal.‘ The Revenue Board restored the order of the first t