1. A. S. CHOWDHURY, J. -These two applications are under section 115 of the Code of Civil Procedure and directed against an order made by the Board of Revenue. We considered it necessary to hear the learned Advocate-General as amicus curiae on the point as to whether the Board of Revenue is a Court within the meaning of section 11 15 of the Code of Civil Procedure and he accordingly appeared before us today. We place our appreciation on record for the able assistance we received from him.
2. The petitioner Fatema Khatun, prayed for permission for execution of two decrees obtained by her in two money suits against the opposite-party. The Board of Revenue, acting under the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964 (hereinafter called "the Ordinance") rejected the prayer.
3. Section 115 of the Code of Civil Procedure reads as follows: "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 if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."
4. The learned Advocate-General submits that it is necessary to consider whether the Board of Revenue is a Court subordinate to the High Court in respect of a matter disposed of by it under subsection (3) of section 6 of the said Ordinance.
5. Mr. Saba, on the other hand, strenuously argues that by reason of sections 7-A, 7-B and 7-C, the Board of Revenue acting under the said Ordinance is a Court subordinate to the High Court. The learned Advocate-General rightly contends that these provisions are not sufficient to constitute the Board of Revenue as a Court subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure.
6. Section 7-A merely says that the officers acting under the Ordinance will be deemed to be judicial officers under the Judicial Officers Protection Act, 1850.
7. Mr. Saha submits that in the discharge of these duties, they are judicial officers and as such amenable to the jurisdiction of this Court. He also submits that section 7-B provides that every Officer acting under this Ordinance shall have the powers of a civil Court, and he finally urges that section 7-C declares that j an Officer acting under this Ordinance shall be deemed to be a Court.
8. The learned Advocate-General however submits that the Legislature has failed to make necessary provision to bring the Board of Revenue within the ambit of section 115 of the Code.
9. A similar question came up before a Full Bench of the Lahore High Court in the case of Sultan Nanghlana v. Nur Hussain (AIR 1949 Lah.. 131). In that case Munir, A. C. J. Delivering the majority judgment of the Court discussed this question elaborately and I would like to quote in extenso his Lordship's observation in this behalf:- "Under section 115, Civil P. C. And section 44, Punjab Courts Act, the High Court can call for the records of case decided by a subordinate Court and make such orders as it thinks fit. Granting that the Election Commissioners constitute a Court, a proposition which itself is not free from doubt, revisional powers can be exercised by this Court only in respect of cases decided by Courts that are subordinate to it. If I am right in the view that the Election Petitions Commissioners are a special tribunal with exclusive jurisdiction it would follow that they are not subordinate to the High Court. It is not contended that the Commissioners are subject to the appellate or administrative jurisdiction of this Court. On what ground, then can they be held to be subordinate to this Court? Section 3, Civil P. C. Says that for the purpose of that Code the District Court is subordinate to the High Court and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. This is the only definition of subordinate given in the Code and the presumption is that the word "Subordinate" in section 115 of the Code is used in the sense in which it is defined in section 3. Section 44, Punjab Courts Act also uses the word "subordinate" and the only section of that act that defines and enumerates subordinate civil Courts is section 18, which says that besides the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of civil Courts, namely, (1) the Court of District Judge; (2) the Court of the Additional Judge; and (3) the Court of the Subordinate Judge. This section cannot be taken to mean that the Courts established under any other enactment for the time being in force are all subordinate to the High Court. It is, however, true that in several decisions some Courts which are not specifically mentioned either in the Code of Civil Procedure or section 18, Punjab Courts Act, have been held to be subordinate Courts for the purposes of section 115, Civil P. C. I cannot accept the broad and unqualified proposition that once it is held that an Officer, authority or functionary is exercising the functions of a Court in relation to rights that may be called "civil" that officer, authority or functionary must be held to be subordinate to the High Court. The result of any such finding would be that all Courts which adjudicate upon the civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the revenue Courts which admittedly decide civil disputes between the parties but also the income- tax authorities which determine the subject's liability to the State. One clear indication of subordinate has always been held to be that the Court whose subordination is in, question is subject to the appellate jurisdiction of the High Court. A Court may also be subordinate to the High Court even qua matters which not subject to the High Court's appellate power if these matters have been entrusted for adjudication to an admittedly subordinate Court as a Court and not to the Presiding Officer of such Court as a persona designation."
10. I quoted the above passage in extenso inasmuch as a complete answer to the points raised by Mr. Shaha is given therein. It has been clearly stated that simply because the authority discharged its function as a civil Court, it will not be a Court subordinate to the High Court.
11. The view expressed above find ample support in the decision of the Calcutta High Court in the case of Khetsidas Gangaram v. First Land Acquisition Collector, Calcutta (AIR 1946 Cal. 508). In that case a Full Bench of that Court held that unless it was clear that the Court against whose decision a revisional application is presented to the High Court, is subordinate to that Court no such applica--petition would lie. Chakraborty, J. Delivering the judgment of the Court observed "section 115 of the Code only speaks of a Court subordinate to the High Court and not of a civil Court so subor--dinate". The learned Judge further observed. "If a new Court was to be established today and made subordinate to the High Court, such of its orders as were not appealable, would be revisable under section 115 unless the jurisdiction under that section was otherwise excluded." It will therefore be seen that the learned Judge observed that the requirement is that a new Court is to be made subordinate to the High Court.
12. "If it be admitted for the sake of argument that the Collector is a `Court', we think that he certainly is not a Court subordinate to the High Court. The High Court has no appellate jurisdiction over the Collector and for that reason it is difficult to hold that the Collector is a Court subordinate to the High Court, even if he is a `Court' in any sense of the word."
13. Here again I pause to say that it is not enough to say that an Officer is acting judicially, nor it is sufficient to say that it isle a Court. It is necessary to provide in the Act that its orders are subject to the scrutiny of the High Court.
14. Similar view has been expressed by a Full Bench of the Madras High Court in the case of Abdul Satar Sahib v. The Special Deputy Collector and others (AIR 1924 Mad. 442). In that case a Full Bench of that Court observed that High Court had no power under section 115 of the Code of Civil Procedure to revise the order of a Collector made under the provision of the land Acquisition Act, inasmuch as the Collector while acting as such was not a Court subordinate to the High Court.
15. The question was also considered by a Special Bench of the Patna High Court in the case of Jagarnath Lall v. Land Acquisition Deputy Collector, Patna (AIR 1940 Pat. 102), Harris, C. J. Delivering the judgment of the Court observed, "In my view the mere fact that the Land Acquisition Deputy Collector might have been acting judicially gives this Court no right whatsoever to interfere under section 115, Civil P. C. Such power of interference is only given in cases of orders made by Courts subordinate to the High Court". The learned Chief Justice also observed "Further, the fact that the petitioner may have no remedy unless revision lies is also no ground for holding that this Court can interfere in its revisional jurisdiction. This jurisdiction is strictly limited to cases falling within section 115, Civil P. C. It is unfortunate that this Court has no power to interfere, but the absence of a remedy is a matter for Legislature and not for the Court".
16. It is a matter of relief to the people that this misfortune no longer continues by reason of Article 98 of the Constitution of 1962 so long as an application can brought within the ambit of that Article.
17. Similar view was expressed in the case of Lal Chand v. Bharat NUN Ltd. (AIR 1962 All.378). In that case a Division Bench of the Allahabad High held as follows:- "The word `subordinate' has two distinct meanings (1) `of inferior importance or rank' and (2) subservient to, or under the authority of. When one has to consider whether a Court is subordinate to a High Court within the meaning of section 115, it is not enough to show that is a subordinate Court in the sense of being a Court of an inferior grade or status; it must be shown that it is subservient to or subject to some authority of, the High Court. Subservience may arise out of some authority over the Court being vested in a superior Court or it may be created by a statutory provision, independently of any statutory authority being exercised over it. There are indications that the subordinate contemplated by section 115 is the subordina--petition not arising out of the subjection appellate or supervisory jurisdiction but the subordination arising out of a statutory provision."
18. There is no such provision in the East Pakistan Disturbed Persons (Reh bilitation) Ordinance making the Board of Revenue subordinate to the High Court and therefore this case is also clearly applicable to the facts of the present case in support of the view that no application under section 115 of the Code is maintainable.
19. PLD 1967 Dacca 521), a Division Bench of this Court held that a revisional application would lie when the District Judge hears an appeal under section 3 of the Ordinance. It was held that while hearing appeal District Judge acts as a Court. But that is not the case when an order is made under subsection (6) of section 6 of that Ordinance by the Board of Revenue.
20. HABIBUR RAHVIAN, J.-I agree,