- (1.)THIS is revision petition is directed against the order of the Additional Collector, Jaipur dated the 15th June, 1962 whereby he rejected the appeal filed by the petiti-oner against the order of the Tehsildar Dausa, dated 12. 12. 1961 in a case under Sec. 251 of the Rajasthan Tenancy Act.
(2.)THE main argument of the learned counsel for the petitioner was that the trial court had no jurisdiction to try and hear the case, as the powers under sec. 251 of the Rajasthan Tenancy Act had since been conferred upon Gram Panchayats. It was stated on behalf of the petitioner, that the opposite party had filed an application under sec. 251 of the Rajasthan Tenancy Act, in the Court of the Tehsildar Dausa on 15. 7. 61. THE written statement of the petitioner was filed on the 25th July 1961 and the plea of lack of jurisdiction was also taken therein. THE learned counsel for the petitioner made a reference to Government Notification No. F. 6 (41) Rev. B/60, dated the 17th June, 1961 which is reproduced below for facility of reference.
"in exercise of the powers conferred by clause (b) of sec. 260 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956), and in supersession of this Department's Notification No. F. 6 (41)Rev, B/60, dated the 17th June, 1960, the State Government hereby directs that - (1) the powers conferred on a Tehsildar by Sub-sec. (1) of Sec. 251 of the Rajasthan Tenancy Act No. 3 of 1955) (Rajasthan Act No. 3 of 1955) of the disposing of applications of the holder of land disturbed in the actual enjoyment of right of way, shall be exercised, in place of Tehsildar, by the village panchayat of the village in which the land in respect of which the right of way has been disturbed is situate ; and (2) an appeal against an order passed by a village panchayat, in any case decided under the power delegated to it by this Notification, shall lie to the Collector of the district concerned. "

It was urged that this order was unambiguous and it transferred the jurisdiction to dispose of applications relating to the right of the Way to the village Panchayat, in place of the Tehsildars as hithertofore. It was further stated that this order having come into force with effect from the 17th June, 1961, the order of the Tehsildar dated 12. 12. 61 obviously, fell within the mischief of sec. 230 (a) of the Rajasthan Tenancy Act, and was, therefore, invalid.

The learned counsel for the opposite party opposed this contention by narrating in detail the background of this Notification and subsequent developments. In this connection, he referred to Nathu versus Bajari, RRD 1962 page 16, whereby a Division Bench of the Board of Revenue had declared a similar notification issued by the Government on the 17th June, 1960 as ultra vires of the provisions of the Rajasthan Land Revenue Act. It was held therein that - "sec. 260 of the Rajasthan Land Revenue Act only empowered the Government to delegate only such powers or authority as were envisaged or contemplated under the Rajasthan Land Revenue Act. In other words the jurisdiction or authority conferred by the Rajasthan Tenancy Act could not be transferred in the exercise of the powers u/s 260 of the Rajasthan Land Revenue Act. It is, therefore, clear that the Government Notification was ultra vires of the provision of the Rajasthan Land Revenue Act. Hence the Gram Panchayat could not dispose of an application u/s. 251 of the Rajasthan Tenancy Act. "

My attention was drawn to the fact that this decision was given on the 29th June, 1961, and it was argued that the second Notification dated the 17th June, 1961 also suffered from the same defect, as there was no material difference between the two Notifications, and in both the cases, the Government sought to derive its authority by virtue of Clause (b) of sec. 260 of the Rajasthan Land Revenue Act, 1956.

In order to further develop his case, the learned counsel for the opposite party made a reference to Rajasthan Divisional Commissioner Abolition Act, 1962 by virtue of which sec. 260 of the Land Revenue Act stands substantially amended. It was argued by him that this Act having come into force on 21. 4. 62, the jurisdiction of the Tehsildar to dispose of applications relating to the right of the way, stood unimpaired on the 12th December 1961, when he accepted the application of the opposite party in the present case. He further argued that this Act has the effect of validating the decisions of the Gram Panchayats, but it does not invalidate the decisions given by the Tehsildars who continue to enjoy the powers conferred under sec. 251 of the Rajasthan Tenancy Act.

He also relied upon AIR 1954 Allahabad 493 in which it was held that - "a decree passed by a Civil Court before the coming into force of the Amending Act 10 of 1947, which was validly passed according to law then in force, will not be set aside in appeal only because the Amending Act, which had come in force during the pendency of the appeal had prescribed a different forum viz. , the Revenue Court, for such suits. "so far as substantive law goes, no retrospective effect can be given to it unless there is a clear provision to that effect in the Amending Act, but so far as laws of procedure are concerned, an amending act shall have a retrospective effect but only in so far as it have a retrospective effect but only in so far as it does not affect the rights already created or vested, where a decree had already been passed in favour of the plaintiff by a competent Court, and so long as the decree stands as a good decree on merits, the decree holder has a subsisting right to execute the decree and to this extent he acquires a vested interest and subsequent change during the pendency of the appeal in the forum of the suit, would not affect the decree. " It was argued, that there was no provision in the Rajasthan Divisional Commissioners Abolition Act, 1962 which would invalidate earlier decisions, and as the opposite party had acquired a vested interest by the order of the Tehsildar granted on 12. 12. 61, subsequent amendment of procedural law could not invalidate the earlier decision. " He further cited 1951 Patna 571, wherein it was laid down that - "it is an established rule of construction that retrospective operation is not to be given to a statute as to impair the existing right or obligation unless the intention is expressed in unequivocal terms. Where the Cr. of Wards validly assumed in May 1940 jurisdiction over the person and property of a certain person who was duly constituted a ward of the court the amendment of sec. 7 by the amending Act of 1940 which came into force in June 1940 could not affect the rights and obligations already vested, nor could it alter the and obligations already vested, nor could it alter the juridical status of the person as a ward of the Court.

A reference was also made to AIR 1955 Allahabad page 432, wherein the following rule was laid down in relation to the interpretation of statutes bearing upon the application of new enactments to pending suits - "it is no doubt a general rule that where the intention of the legislature is doubtful, an enactment will not be construed so as to affect vested rights of action; but the matter is one of construction, and if upon a consideration of the enactment as a whole, it is apparent that it was intention of the legislature that the provisions of the Act would be applicable to pending suits, they will be so applied. "

In support of his case, the learned counsel for the opposite party, further, cited A. I. R. 1955 Orissa page 77 which reads as follows : - "when a law is altered during the pendency of an action the rights of the parties should be decided according to law as it existed when the action was begun unless the new status either by express provision or by necessary implication, indicates a clear intention to affect pending actions also. "

Relying on these authorities, it was argued by the learned counsel for the opposite party, that the procedural change introduced by the Rajasthan Divisional Commissioners Abolition Act did not oust the jurisdiction of the Tehsildar on 12. 12. 61 with regard to the cases relating to the right of the way etc.

In order to better appreciate the effect of the aforesaid Act, it would be desirable to reproduce the relevant section. Sec. 260 as amended by the aforesaid Act reads as follows - "260. Delegation - (1) The State Government may, by notification in the Official Gazette - (a) delegate all or any of its powers under this Act, except the power to make rules, to the Board or the Settlement Commissioner or the Director of Land Records or a Collector, or (b) direct that any duties imposed and powers conferred by this Act or the rules made thereunder or by any other law for the time being in force or the rules made under such other law or any officer or authority appointed or constituted under this Act or the rules made thereunder shall be performed and exercised by any other lawfully appointed or constituted officer or authority specified in the notification, whether such other officer or authority shall have been appointed or constituted under this Act or the rules made thereunder or under any other law for the time being in force or the rules made under such other law, or, (c) require the Board or any other officer to perform the duties and exercise the powers imposed and conferred by this Act or the rules made thereunder on the Settlement Commissioner or the Director of Land Record, or (d) authorises any authority or officer lawfully constituted or appointed to delegate its or his powers under this Act or under any other law for the time being in force, except, the power to make rules under this Act or under such other law, to any other authority or officer, constituted or appointed under this Act or the rules made thereunder or under any other law for the time being in force or the rules made under such other law. (2) Doubt having been expressed as to the scope of that power of delegations provided for in this section as it stood before the 16th day of November 1961, it is hereby enacted, for the removal and clarification of such doubts, that, not withstanding anything contained in any judgment, order or decision of any court (civil or revenue) tribunal, or other competent authority and notwithstanding any defect or omission of form, language or reference in any notifications issued by the State Government under this section previously to the said say or any rule of law or interpretation. (a) all delegations of powers and duties made by the State Government under this section before the sixteenth day of November, 1961, shall be deemed to have been lawfully and validly made in terms of sub-sec. (a) as hereby amended as if such amendments had then been made, and (b) all notifications delegating such powers and duties shall, until superseded, continue to be operative and to have effect according to their tenor. " A perusal of the amended sec. 260 of the Land Revenue Act would show that the State Government is now authorised to direct that any duties imposed and powers conferred by the Land Revenue Act or by any other law for the time being in force on any officer or authority appointed or constituted under the Land Revenue Act shall be performed and exercised by any other lawfully appointed or constituted officer or authority specified in the Notification, whether such other Officer or authority shall have been appointed or constituted under the Land Revenue Act or under any other law for the time being in force.

This clause obviously empowers the State Government to transfer jurisdiction to the Panchayats in relevant matters. A perusal of Clause 2 of the amended section would show that this was introduced to remove the doubts which had been expressed regarding the scope of the power of delegations provided for by this section as it stood before the 16th day of November, 1961. It was enacted that - "notwithstanding anything contained in any judgment, order or decision of any court tribunal or other competent authority and notwithstanding any defect or omission of form, language or reference in any notifications issued by the State Government under this section previously to the said day or any rule of law or interpretation, all delegations of powers and duties made by the State Government under this section before the sixteenth day of November, 1961, shall be deemed to have been lawfully and validly made in terms of sub-sec. (a) as hereby amended as if such amendments had then been made. "

(3.)THE purport of this clause is obvious and admits of no ambiguity. It is an all comprehensive clause and seeks to resolve and clarify all doubts which may arise with regard to the validity of the Government Notifications made under this section previously. It is stated that notwithstanding any defect or omission of form or any rule of law or interpretation, all delegations made by the State Government under this Section before the 16th November, 1961 shall be deemed to have been validly made and goes on to say they all Notifications delegating such powers and duties shall until superceded continue of be operative and to have effect according to their tenor.
To my mind, this umbrella clause takes care of the objections raised by the learned counsel for the opposite party on the strength of the rulings so diligently produced by him and goes unequivocally in favour of the petitioner. In view of this, the obvious conclusion is that the Tehsildar had acted without jurisdiction on the 12th December 1961 when he made an order in favour of the opposite party in this case relating to an application under Sec. 251 of the Rajasthan Tenancy Act.

I, therefore, accept this revision petition and set aside the impugned order of the Additional Collector, Jaipur, dated the 15th June, 1962, and remand the case to the Gram Panchayat concerned within whose jurisdiction the matter now falls for disposal according to law. .