- (1.) THIS reference has arisen as a consequence of divergence of opinion between the learned Members, Shri Gajendra Singh and Shri S. L Kakar, while disposing of the second appeal preferred against the judgment and decree passed by the learned Revenue Appellate Authority Jaipur on 2-4-64. In accordance with the procedure laid down in sec. 13 (2) of the Rajasthan Land Revenue Act, the case was submitted to the Chairman, Board of Revenue for reference to another Member of the Board for decision in accordance with the opinion of the majority of the Members who heard it. Eventually the case came up for hearing on 30-12-69 before the learned Member, Shri Niranjan Singh.
(2.) A preliminary objection was raised on behalf of the respondents that sec. 98 (2) of the C. P. C. provided that where in an appeal heard by a bench of two or more Judges, there is no majority of opinion to decide the appeal, the decree of the lower court shall be confirmed. It was contended that in the instant case the procedure laid down in sec. 98 (2) of the C. P. C. had not been followed since the learned Members had not made any statement on the point of law on which they had differed and, therefore, the decree of the lower court should be confirmed. The learned counsel appearing for the respondents also averred that there existed an inherent lack of jurisdiction in the court constituted by the third Member, in asmuchas the Chairman, Board of Revenue had issued an order u/s 13 (2) of the Rajasthan Land Revenue Act, which he was not competent to do, as the provisions of the Rajasthan Land Revenue Act did not apply. Consequently, the learned Member, Shri Niranjan Singh has framed the following legal issue and made this reference for the consideration of this Full Bench: - "whether provisions of sec. 13 (2) of the Rajasthan Land Revenue Act apply or the procedure laid down in sec. 98 (2) of the C. P. C. would apply and whe-ther there existed any lack of jurisdiction in this court. " Shri Durgalal Bardar, the learned counsel appearing for the appellants, contended that the Board of Revenue has been constituted under the Rajasthan Land Revenue Act, which is the source of the power of the Board and which prescribes the procedure that the Board should follow. He argued that the Board has to function according to the procedure laid down in Chapter II of the Rajasthan Land Revenue Act, as there were no provisions embodied in the Rajasthan Tenancy Act which prescribed the procedure that the Board would follow. The learned counsel drew our attention to (Gangaram vs. Kesharlal) 1965-RRD 38 in support of his argument that there was no inconsistency between sec. 98 of the G. P. G. and sec. 13 2) of the Rajasthan Land Revenue Act. He averred that the view taken by a majority of Members constituting the Full Bench which laid down this rule was that there was no conflict between S. 98 of the C. P. C. and S. 13 (2) of the Rajasthan Land Revenue Act. The learned counsel emphasised that sec. 13 (2) of the Rajasthan Land Revenue Act was a simplified version of the S. 98 of the CPC It was his contention that the Board has to follow its own procedure, as laid down in Chapter II of the Rajasthan Land Revenue Act, and that in case of any inconsistency between the general law as embodied in the C. P. C. and the provisions of the special law incorporated in the Rajasthan Land Revenue Act, the latter will prevail over the former. The quintessence of his arguments was that the provision of sec 13 (2) of the Rajasthan Land Revenue Act being the special law laying down the procedure for the Board, in the event of divergence of sec. 98 of the G. P. G. and that the court did not suffer from any inherent lack of jurisdiction. Shri S. N. Pareek, learned counsel appearing for the respondents contended that sec. 208 of the Rajasthan Tenancy Act extended the provisions of the C. P. G. to all the suits and proceedings, under the Rajasthan Tenancy Act, subject to the exceptions specified in this section. He cited Ramsarup vs. Munshi (1963 S. C. 553) and stated that according to the doctrine of Incorporation by reference, the provisions of the C. P. C. so extended, would be deemed as if they had been bodily lifted and transposed in the Rajasthan Tenancy Act. The learned counsel also drew our attention to Shri G. P. Singh's principles of Statutory Interpretations at pages 153 and 159 to emphasise the same point of view. The limitations and restrictions imposed are as follows: (1) provisions of the C. P. C. which are inconsistent with anything in the Rajasthan Tenancy Act would not apply in so far as the inconsistency extends, (2) provisions of the C. P. C. which are applicable only to special suits and proceedings which were outside the scope of the Tenancy Act also would not apply, (3) provisions specified in list I of IV schedule are also exempted and will be deemed to be in applicable, lastly, (4) provisions of the C. P. C. as modified in list II of the IV schedule will be applicable. The learned counsel averred that sec 98 of the C. P. C. did not come under any one of the exceptions enumerated in sec. 208 of the Rajasthan Tenancy Act and, therefore, will apply in full vigour. In support of his contentions, the learned counsel cited 1965 RRD 38 and stated that the majority of Members constituting the Full Bench had held the view that the provisions of sec. 98 of the C. P. C. would apply. He further submitted that even in the view of Shri Gajendra Singh, sec. 98 of the C. P. C. was not inconsistent with the provisions of sec. 13 (2) of the Rajasthan Land Revenue Act. The learned counsel cited the case reported Ashuthubhuja Singh vs. The Board of Revenue ( AIR 1954 All. 521 ) in support of his contention that in evert of failure by two Members to state the point of law on which they differ, the decree of the lower court shall be confirmed. He also cited the cases reported in Nathusingh vs. Sriram (1956 RD U. P.) and Sonapati vs. Bhagauti Kunbi (RD) 1957 U. P. Page 262 ). The learned counsel further contended that when Sec. 208 of the Rajasthan Tenancy Act was enacted the Board of Revenue Ordinance 1949 was in existence and the legislature was aware of the existence of Sec. 16 of the Ordinance and yet they extended the applicability of Sec. 98 of the C P. C. 1 he learned counsel also cited AIR 1938 Allahabad 641 wherein it has been held that where two Judges comprising a D. B. disagreed in law or in fact, the procedure laid down in clause 27 of the Letters Patient of the Allahabad High Court and not that laid down in Sec. 98 of the C. P. C. would apply. He cited Rajagopala Naidu vs. Subhammal and another (A I. R. ; 1928 Madras 180) in order to emphasise that Sec. 98 of the C. P. C. would be applicable in all cases except Letters Patent Appeals. The learned counsel further argued that the Rajasthan Tenancy Act is a self-contained Act and that Sec. 13 (2) of the Raj. Land Revenue Act could not be invoked. He drew our attention to Sec. 258 of the Tenancy Act and stated that section 258 conferred powers on the Board to make rules and that the Board has to frame rules and lay down it procedure for the conduct of its business in accordance therewith. Shri P. D. Kudal Advocate, who appeared as 'amicus Curiea' lent support to the contention of the learned counsel for the appellants and argued that the provisions embodied in Sec. 13 (2) of the Rajasthan Land Revenue Act, read with rule 10 of the Rajasthan Revenue Court Manual, were saved by Sec 4 of the C. P. C. Sec. 4 of the C. P. C. provides that a special or local law will prevail over general law, as laid down in the C. P. C, which will not restrict or narrow any special form of pro-cedure prescribed under the Special or Local law, for the time being in force. It was his contention that Sec 13 (2) of the Raj. Land Revenue Act was inconsistent with the provisions of Sec. 98 of the C. P. C. and that the latter shall prevail only when there was no specific provisions in the local law. In support of his contention, he cited the case Trivedi Ratilal Dahyabhai vs. Hasmukhlal Savatilal (1956 Saurashtra 53 ). The main argument of the learned counsel was that the Rajasthan Tenancy Act embodies substantive law whereas the procedure for Rajasthan Revenue Courts is prescribed by the Raj. Land Revenue Act and the rules made thereunder. Drawing our attention to the provisions of Section 208 of the Rajasthan Tenancy Act, he emphasised that in accordance with clause 1 of this Section the provisions of the C. P. C. which were inconsistent with those of the Rajasthan Tenancy Act will not apply. The learned counsel argued that Sec. 5, clause 6 of the Tenancy Act defines the Board of Revenue and for the purpose of the proceedings under the Rajasthan Tenancy Act the Board shall mean the Board of Revenue for the State, established and constituted under the Rajasthan Board of Revenue Ordinance 1949 or under any law for the time being in force. Accordingly, he urged that the procedure of the Board will be the same as laid down in Chapter II of the Rajasthan Land Revenue Act and cases of difference of opinion between the two Members will be referred to a third Member, according to Section 13 (2) of this Act read with rule 10 of the Rajasthan Revenue Courts Manual. He also cited the case H. R. Patel vs. Mrs. C. G. Venkatalakshamma (AIR 1955 Mysore, 65 ) in support of his contention. In his rejoinder, the learned counsel for the appellant Shri Bardar averred that list 1 of Schedule IV of the Rajasthan Tenancy Act had not excluded the applicability of Sec 4 of the C. P. C. and the provisions of Sec. 201 of the Rajasthan Tenancy Act will have to be read with those of Sec. 4 & 5 of the G. P. G. Sec. 4 further restricted the applicability of the provisions of G. P. G. to proceedings under the Rajasthan Tenancy Act, apart from the restrictions incorporated in Sec. 208 of Tenancy Act itself. He contended that provisions of the G. P. G. which were inconsistent with those of the Rajasthan Tenancy Act will not be deemed to have been incorporated in the Tenancy Act and, therefore, Sec. 98 of the G. P. G. will no apply in so far as it is inconsistent with Sec. 13 (2) of the Rajasthan Land Revenue Act. To emphasise this point, he drew our attention to the provisions of Sec. 100 of the G. P. G. and those of Sec. 224 of the Rajasthan Tenancy Act. The learned counsel made out the point that although Sec. 100 Civil Procedure Code has been extended to proceedings under the Rajasthan Tenancy Act, yet in view of the inconsistency obtaining between the provisions of 100 Civil Procedure Code and those of Sec. 224 of the Rajasthan Tenancy Act, the latter will apply to the exclusion of the former, so far as the inconsistency extends.
(3.) THE inconsistency between the provisions of these two sections relates to the fact that whereas in terms of Sec 224 of the Rajasthan Tenancy Act, an appeal would lie to the Board if the decision is contrary to the wight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact, there is no such provision in Sec. 100 of the G. P. G. He contended that on the same analogy the provisions of Sec. 13 (2) of the Land Revenue Act will apply to the exclusion of the provisions of Sec. 98 C. P. C. in view of the inconsistency between the procedure laid down under these sections. Drawing our attention to the definition of the Board of Revenue given in Sec. 5 sub-clause 6 of the Rajasthan Tenancy Act, the learned counsel urged the Board will function in accordance with the procedure laid down in Chapter II of the Land Revenue Act and exercise its jurisdiction as prescribed in this Chapter. He further averred that the Board is a creature of the Land Revenue Act and derives its source of power from this statute and that the provisions incorporated in Chapter II of the Land Revenue Act so far as they are not inconsistent with any provision of the Tenancy Act shall operate in full vigour. He cited 1968 AIR Rajasthan 20 (Chandmal Naurat Mal vs. State of Rajasthan) in support of this point. The essence of the ruling given in this case is that where there is a specific provision in a law, provisions of the C. P. C. are not attracted. We have given careful consideration to the contentions raised by the parties. We have no hesitation in accepting the contention of the learned counsel for the respondents that by virtue of the provisions of Sec. 208 of the Rajasthan Tenancy Act provisions of the C. P. C. have been made applicable to proceeding under the Tenancy Act, subject to the limitations imposed by the exceptions specified in this Section. We maintain that by virtue of the doctrine of incorporation by reference, such of the provision of the C. P. C. as have been extended to the Tenancy Act shall be deemed to have been bodily lifted and transposed in the Tenancy Act. Schedule IV, List I u/s 208 of the Tenancy Act, does not exclude the applicability of Sec. 98 of C. P. C. However, we are of the opinion that as a result of the operation of the doctrine of incorporation by reference, Chapter II of the Land Revenue Act shall also be applicable to the cases under the Tenancy Act, where no inconsistency exists, as this Chapter lays down the constitution and the manner of working of the Board and may be deemed to be equivalent to the Latters Patent of the High Court. This conclusion is warranted by the definition of the Board of Revenue as given in Sec. 5, sub-clause (vi) of the Tenancy Act, which is as follows : - "board" shall mean the Board of Revenue for the State, established and constituted under the Rajasthan Board of Revenue Ordinance, 1949 or under any other law for time being in farce. " The establishment and constitution of the Board is provided under Chapter II of the Land Revenue Act, which inter alia, makes provision for the establishment and composition of the Board, tenure of its Members, powers of the Board, jurisdiction of the Board and how it will be exercised, power to a Bench, power to refer a question to the High Court, and also prescribes the procedure for decision of a case in the event of difference of opinion between two Members. There are no corresponding provisions for the establishment constitution and functioning of the Board in the Rajasthan Tenancy Act, and therefore, the provisions of S. 13 (2) of the Land Revenue Act, read with R. 10 of the Revenue Court Manual shall operate in full vigour. On the analogy of AIR 1938 All 641 & 1928 Mad. 180 cited by the learned counsel for the respondents too, we are led to the conclusion that Chapter II of the Land Revenue Act shall govern the working of the Board even as the provisions of Latters Patent prevail over the C. P. C. in the case of High Court where an inconsistency exists. This view of the matter is further justified by the provisions of Sec. 4 of the C. P. C. which saves the special provisions of Sec. 13 (2) of the Land Revenue Act. It would be worthwhile to subject the provisions Sec. 98 of C. P. C. and those of Sec. 13 (2) read with rule 10 of the Revenue Courts Manual, to a closer scrutiny with a view to ascertaining whether there is any inconsistency between the two. Sec. 98 of the C. P. C. is as follows: - " (1) Where an appeal is heard by a Bench of two or more the Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. (2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed. Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court. Sec. 13 (2) of the Land Revenue Act is reproduce as below: "where such members are equally divided in opinion as to the order to be made in such case, the case shall be referred to another member and decided in accordance with the opinion of the majority of the Members who heard it. " On a comparison of the provisions of the two sections, the inference is irrestible that they are almost alike and akin to each other. Sub-sec. 2 of sec. 98 C. P. C. lays down that where a unanimous view does rot emerge between two Judges, the decree of the lower court shall be confirmed. This is, however, subject to the proviso that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges composing the Bench differ in opinion of a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges and such point shall be decided according to the opinion of the majority of the Judges who had heard the appeal, including those who first heard it. In the provision of sec. 13 (2) there is no such requirement for the two Judges to make a statement of the point of law or upon which they differ. The procedure is simpler and in the event of a divergence of opinion, the case is referred to a third Judge and the case will then be decided in accordance with the opinion of the majority of the Members who heard it. Even in sec. 98 sub-sec. 2 there is no compuls on that the two Judges must state the point of law upon which they differ. The word used'is 'may' so that, it is discretionary with the Judges to state the point of law on which they differ of course if they do so, the appeal shall be heard on the points of difference of opinion between them by one or more of the other Judges and decided according to the majority of the opinion. In essence, therefore, there is no incompatibility or inconsistency between the provisions of these two sections. Both these sections provide that in the event of divergence of views the case shall go to one or more Judges and decided according to the majority opinion. We have, therefore, not been able to appreciate the preliminary objection raised in this case. In our opinion, the failure on the part of the two Judges to pin point the legal issue on which they differed will not deprive the third Judge, to whom the case is referred, of his jurisdiction to hear the case and dispose it of in accordance with the law. Even if, the contrary view is held, that the provisions of sec. 13 (2) of the Land Revenue Act are inconsistent with sec. 98 (2) of the C. P. C. , we have no hesitation in upholding the contention that the former provisions being part of a special law which governs the working of the Board of Revenue, shall operate in full force, to the exclusion of the provisions of sec. 98 (2) of the C. P. C. This conclusion is entirely warranted by sec. 4 of the C. P. C. , which saves sec. 13 (2) of the Land R. venue Act and the operation of which, it will be relevant to note here, is not excluded by List I of Schedule IV in terms of sec. 208 (c) of the Rajasthan Tenancy Act. This view-point is further supported by the rule laid down in 1956 Saurashtra page 58 (Trivedi Ratilal Dahyabhai vs. Hasmukhlal Savailal Pandya) as well as AIR 1942 Gal. 49 (Smt. Sukumari Devi vs. Rajdhari Pandey.) We have been unable to appreciate the argument advanced by the learned counsel for the appellants that the Tenancy Act is a self-contained Act. His reference to sec. 258 to press this point is altogether misconceived and fallacious. Sec. 258 of the Tenancy Act merely prescribes the scope of making Rules for the regulation of business relating to the matters enumerated therein. It does not contemplate any rules or procedure for the Board or how the Board will exercise its jurisdiction. The establishment and constitution of the Board has been provided for in Chapter II of the Land Revenue Act which is comprehensive and self-contained. There are no corresponding provisions in the Tenancy Act. We entirely agree with the contention of the learned counsel for the appellants that the definition of the Board in sec. 5 sub clause (v) of the Rajasthan Tenancy Act extends to it the provisions of Chapter II of the Land Revenue Act which prescribes the manner of the working of the Board. Sec. 13 (2) of the Land Revenue Act lays down the procedure to be followed in case of a difference of opinion between the two Members of the Board. This section will operate as there is no inconsistency between these provisions and any of the provision of the Tenancy Act. The argument that sec. 98 of the C P. G. will not be applicable in so far as it is inconsistent with the provisions of sec. 13 (2) of the Land Revenue Act has a great deal of force in it. In any case, in all suits and proceeding arising under the Tenancy Act, the Board will function in terms of the statutory provisions of Chapter II of the Land Revenue Act, which are analogous to the provisions of the Letters Patent of a High Court. ;