- (1.) THIS purports to be a second appeal against the order of the Addl. Commissioner, Bikaner dated 6. 9. 1960 whereby he had rescinded his previous order sanctioning exchange of certain land in favour of the appellant.
(2.) THE facts of the case in brief are that on 8. 8. 58 Shah Mohammad and Mohammad Sadiq appellants made an application to the Naib Tehsildar, Colonisation requesting for exchange of 27 bighas of land in their khata in fields Nos. 51/2 and 52 for Government land in field No. 237 and 241. As the land they offered was sandy loam and that which they asked for was 23 bighas light loam,and 4 bighas of sandy loam, they offered to pay the difference in the price thereof. THE Naib Tehsildar without inviting any objections to this proposal made a report to the THEsildar Colonisation on 23rd February, 1959 recommending the exchange on payment of Rs. 1840/- in two instalments. THE Tehsildar endorsed the recommendation of the Naib Tehsildar to the Dy. Director of Colonisation, who forwarded the same to Director of Colonisation on 31. 5. 59. THE Director of Colonisation passed an order on 19. 9. 59 sanctioning this exchange with the amendment that the amount of Rs. 1840/- should be recovered from the appellant in one instalment. It appears this order remained in the office of the Director of Colonisation till the 24th of October, 1959 when it was sent to the office of the Dy. Director of Colonisation who sent it to the Tehsildar, Nohar on 25th of October, 1959. Meanwhile on 26th of October, 1959, one Jitukhan made an application to the Director of Colonisation bringing to his notice the unconscionable nature of this exchange, alleging that no objections had been invited and that he was prepared to pay Rs. 400/- per bigha for this land if it were to be auctioned. THE Director of Colonisation immediately ordered that the exchange order issued by him should not be implemented. As it is clear from the file, both the orders sanctioning the exchange and the order stopping the implementation of the exchange were received in the Tehsil at the same time. THE Tehsildar ordered on the 29th October, 1959 that "ishtihar ujradari" (proclamation inviting objections) didn't seem to have been issued and it should be issued. On 11. 11. 59 the Tehsildar forwarded the papers to the Dy. Director of Colonisation. THE Dy. Director of Colonisation made an enquiry on the spot and made a report that no objections had been invited according to the rules, and it appeared from the inspection of the spot that the land Shah Mohammad wanted to offer was of low productivity and uneven in nature, whereas the land he wanted in exchange was of high productivity and absolutely level. A portion of land which he wanted to exchange was full of shrubs and was uncultivable. He suggested that it would be proper if the auction was held according to rules of the Govt. land which Shah Mohd. wanted in exchange. THE director of Colonisation after going through the report of the Dy. Director of Colonisation came to the conclusion that the exchange order had not been implemented, and as no notice inviting objections had been issued and as the exchange was not proper exchange, the order should be rescinded. He however, issued a notice to Shah Mohammad why the order should not be rescinded. After giving him hearing as well as to Jitukhan the Director of Colonisation cancelled his previous order dated 19th September, 1959 and directed that the land should be auctioned in accordance with rules Shah Mohammad went in appeal to the Addl. Commissioner Bikaner who held that an appeal lay against the order of the Director of Colonisation but he rejected the appeal on the ground that the Director was competent to review his order dated 19. 9. 59 suo moto and that there were sufficient grounds for reviewing the said order. It was this order against which the present second appeal has come before us. We have heard the counsel for the parties as well as for the State. On being questioned by us as to the competence of a second appeal against an order in appeal and not a decree in appeal the learned counsel for the appellant conceded that no second appeal lay. He however, made an application that his appeal be converted into a revision. The main argument taken by the learned counsel for the applicant was that the learned Director of colonisation has exceeded the jurisdiction vested in him in reviewing his own order suo moto. It was contended by the counsel for the State on the other hand that even not a revision lay against the order passed by the Director of Colonisation, or the Addl. Commissioner, under the Colonisation Act. We have, therefore, to examine this point a little more closely. The Colonisation Act (hereafter called the Act) does not contain any specific provision for appeal or revision except that R. 18 of the Rajasthan Colonisation (Bhakra) Project Government Land Allotment) Rules, 1955 lays down that any person aggrieved by an order of an allotment made by the allotting authority may within 30 days of the date of such order, appeal to the Commissioner whose decision thereupon shall be final. It is a settled principal of law that and a right of appeal is a statutory right, and there is no natural or inherent right attaching to litigation. Such a right cannot be assumed unless it is expressly given by statute or by rules having the force of a statute. The Addl. Commissioner has held that under Sec. 5 of the Raj. Colonisation Act an appeal would lie against the order passed under the Act. It is obvious from the bare perusal of this section that it does not provide for any appeal. We cannot assume that the legislature expressly provided for an appeal against the order passed under this Act by its use of the phrase-"the powers duties jurisdiction and procedure of revenue courts' appeal as we have stated above is a vested right of a party to a proceeding and unless it is expressly in a statute it cannot be assumed. In our opinion no appeal lies against the order passed under the Colonisation Act unless it were an order of allotment against which the appeal has been provided under rule 18 of the Colonisation (Bhakra Project Govt. Land) Rules 1958. The learned Addl. Commissioner erred in holding that an appeal would lie against an order passed under the Colonisation Act by virtue of Sec. 5 of the Act. The learned Commissioner, however, seems to argue that under Sec. 12 of the Act the orders passed by the Director of Colonisation were subject to any orders that may be passed by the Commissioner and he could assume appellate powers on that ground. In our opinion Sec. 12 also does not give any appellate authority to the Addl. Commissioner. All that it authorises him to do is to issue any general or special orders with regard to matters connected with exchange of land. The question whether under Sec. 5 of the Act re-visionary powers of the Board as contained in Sec. 84 of the Land Revenue Act and Sec. 230 of the Raj. Tenancy Act are encompassed deserves to be examined. The learned counsel for the State referred to us 1957 RRD 61, 1958, RRD, 123 and 1959 RRD. , 178. In 1957 RRD. p. 61 it was held that the order of the Tehsildar regarding forfeiture of a building is a judicial matter and that revisional jurisdiction of the Board only extends to judicial matters. In RRD. 1958, Saied Hamid Ahmad Vs. State of Rajasthan, the Board held, following 1938 Federal Court, that as the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 did not contain any provision for filing a revision to the Board, it was not competent to hear it. In Pashupati Bharti Vs. Secretary of State and others (1938 Federal Court page 1) the point for determination before their Lordships was whether the Federal Court had jurisdiction to entertain an application for revision against the order of the High Court refusing grant of a certificate under Sec. 205 of the Government of India Act, 1935. Their Lordships held that giving of a certificate was a condition precedent to the exercise of the revisionary jurisdiction and that they had no inherent power to exercise a revisionary jurisdiction for the purpose of preventing injustice. On the point whether the superior courts have inherent powers of revision for the purpose of preventing injustice they further observed that "we know of no authority for the proposition that a court by the exercise or any inherent power can extend its appellate jurisdiction or increase its revisional authority over other courts". In 1952 RRD. p. 179 it was held that the decision of the Commissioner in matters of allotment was final and no revision was competent. This is exactly in accordance with the provision of rule 18 of the Rajasthan Colonisation Rules as stated above. It was further observed that allotment of land was a non-judicial matter and as such the Board had no competence to interfere in the same. All the authorities stated above are unexceptionable having regard to the provisions of law to which they relate. Thus the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 did not contain a provision analogous to Sec. 5 of the Act. The question at issue before us is not; whether on account of non existence of any provision in a statute, the superior courts have an inherent power of revision to prevent injustice, but whether Sec. 5 of the Rajasthan Colonisation Act contains such a provision of revision by implication. In order to understand its correct interpretation we may quote this section in extenso : - "5 Applicability of Tenancy and Land Revenue laws - (1) Except as otherwise provided in this Act. , the laws relating to agricultural tenancies, land the powers, duties jurisdiction and procedure of revenue courts the survey and record operations the settlement and collection of revenue rent and other demands and the partition of estates and tenancies for the time being in forcible, apply in a colony, shall in so far as may be applicable, apply to tenancies held and to proceedings conducted under this Act. (2) Nothing in such laws shall however, be so construed as to vary or invalidate any rule made or any condition entered in any statement of condition issued, by the State Govt. under this Act. " It will also be better to describe the scheme of the Act to understand its correct meaning. It will appear from the perusal of the various sections of this Act that this mainly concerns the allotment of land in colonies due to their special circumstances. Every other aspect of inter relationship between the tenants and or the issues, or the rights arising otherwise than in the process of the this allotment have to be governed by the Tenancy laws as contained in the Rajasthan Tenancy Act, or the various provisions of the Land Revenue Act. Similarly unless it is otherwise provided in the Act, the powers duties jurisdiction and procedure of the revenue courts shall be the same as given in the Land Revenue Act and the Tenancy Act. The only thing as we! have seen above, which is expressly provided is rule 18 of the Rajasthan Colonisation Rules that the order of Commissioner on appeal in allotment cases would be final and would admit of no interference in revision. The issue further boils down to whether revision would be included in the phrase "powers duties and jurisdiction and procedure of the revenue courts. " A perusal of the heading of sec. 84 of the Land Revenue Act and that of sec. 230 of the Rajasthan Tenancy Act clearly indicates that it is the 'power' of the Board of Revenue to call for records and revise orders, provided they are covered under the provisions of sec. 84 of the Land Revenue Act and sec. 230 Rajasthan Tenancy Act, as the case may be. We are, therefore, of the opinion that Board of Revenue has the power to revise the orders passed under the Colonisation Act except orders relating to allotment of land, provided they fulfil the conditions laid down under sec. 84 of the land Revenue Act. or S. 230 of the Rajasthan Tenancy Act, as the case may be. The learned counsel for the opposite party argued that in this case a revision would be incompetent because these conditions have not been fulfilled. Under sec. 84 of the Rajasthan Land Revenue Act or under sec. 230 of the Rajasthan Tenancy Act the following conditions are necessary before the Board can call for records and exercise its powers of revision: - (1) the case must have been decided by a revenue court as defined under the Rajasthan Tenancy Act, (2) No appeal should lie in the case to the Revenue Board (3) the case should be of a judicial nature and not involving non-judicial matters and (4) the court by whom the case was decided should appear to have exercised jurisdiction not vested in it or him by law, or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction or his jurisdiction, illegally or with material irregularity. Applying these principles to the facts of this case we find that the impugned order was passed by Director of Colonisation who exercised his powers as a Collector under the Act. The Director of Colonisation would obviously be a revenue officer. It will not become a revenue court until he is required to act judicially. The term 'judicially' has not been defined though the term judicial matter has been defined in sec. 23 (2) of the Rajasthan Land Revenue Act. It means a proceeding in which a revenue court or an officer has to determine the rights and liabilities of the parties thereto, and the proceedings and orders as well as the appeals, revisions and references in the case specified in the 1st Schedule shall be deemed to be judicial matters for the purpose of this Act. The 1st Schedule to the Land Revenue Act does not include an order passed by the Director of Colonisation or Collector with regard to the giving of Government land in exchange for the land held by the Khatedar on certain conditions. The list in the 1st Schedule however, cannot be deemed to be extrausnative and the main criterion to determine whether a particular matter would be a 'judicial matter' would rest on the fact whether it involves adjudication of the rights of the parties. As we have seen above in the narration of the facts in this case, an order was passed by the Director of Colonisation on the report of the Naib Tehsildar which was forwarded to him through proper channel. Before the order could be implemented the other order cancelling its implemention was passed. Both these orders were received by the Tehsildar at the same time so that no implemenation of the first order could be undertaken. Even Shah Mohammad the applicant was not informed. It is obvious that mere passing of an order on the file in a case which is essentially of a non-judicial nature dose not create any right of the parties. The Director of Colonisation was also a representative of the Government the owner of the land. There was an offer on behalf of the applicant for exchange of 75 bighas of his land with 75 of Government land on certain terms. The order accepting the exchange was passed on the file and not communicated to the applicant. It cannot be said that the offer was ever accepted. It was entirely an order of an executive nature which the Director of Colonisation passed on his file on 19th Sept. 1959. He could certainly change it by a subsequent order as the previous order had not created any right at all. We therefore, think that there is considerable force in the contention of the opposite party that the impugned order dated 14. 4. 1960 is not open to revision as it was not a judicial order. It cannot be said to be a review within the meaning of sec. 229 of the Rajasthan Tenancy Act or of Order 47 Rule 1 of the Civil Procedure Code. Besides even this is not correct that the Director Colonisation was reviewing this order suo moto. An application was made objecting to this exchange by Jitukhan. This was forwarded to the Tehsildar who reported he matter to the Dy. Director of Colonisation. The Dy. Director Colonisation went to the spot and found that the offer of exchange was unconscionable. He moved the Director of Colonisation for reviewing of his order of 19th September, 1960. The Dy. Director of Colonisation obviously on behalf of the Government was a person aggrieved at this unfair exchange. The Director of Colonisation issued notices to the parties on the report of the Dy. Director of Colonisation. It, therefore, cannot be said in this case that the order was reviewed by the Director of Colonisation suo moto or on behalf of a person who was not aggrieved; though as we have stated above, the Director or Colonisation was competent to modify or change this order suo moto. It was also urged by the counsel for the opposite party that this case did not involve a pure exchange as envisaged under sec. 12 of the Colonisation Act, in as much as the applicant not only offered his land but had also to pay the money. This was merely a case of allotment of land rather than of an exchange, with the only exception that instead of paying only money for the land the applicant was paying the money and offered his land. There is considerable force in this argument also and if it is also a case of allotment rule 18 of the Rajasthan Colonisation Rules will come into force and the order passed by the Commissioner would be find no revision in that case will be competent before us. Sec. 36 of the Land Revenue Act would be applicable so far as the review is concerned and under this section any revenue court or officer is competent to suo moto review his own order. Thus from whatever angle we may examine the order of the Director of Colonisation, we find that it cannot be interfered with in revision. In the first place the revision is incompetent because the impugned order was not one of a judicial nature and was not passed by a revenue court. Secondly the main ground of attack that the Director of Colonisation could not review his own order is factually incorrect as the Director was reviewing the order after having been moved by the Dy. Director Colonisation. Thirdly it cannot be said to be a review within the meaning of sec. 229 of Rajasthan Tenancy Act or order 47 rule 1 of the Civil Procedure Code. We, therefore, find no substance in this revision and reject it. . ;