- (1.) A .D.B. of the Board while hearing an appeal in case No. 17/66/Appeal; /Jaipur Surajmal s/o Radhavallabh vs. Hajari, Kistura and Kesara decided to refer the following question for consideration of a larger bench : "Should Government notification No.F.2 (172)Rev.D/Gr 22/61 dated 11 -6 -63 be regarded as having been issued under section 260 of the Land Revenue Act and held to be, and always to Have been valid on that basis -.
(2.) THE back ground under which this reference has been made is that an earlier D.B. of this Board had held that the said notification was without proper authority of law in consequence of the ommission of clause (g) of sub section (1) of section 26 of the Rajasthan Land Revenue Act, (hereinafter referred to as the Act) and that the Revenue Appellate Authority was, therefore, not competent to hear appeals in terms of sections 75 and 76 of the Act. This decision of D.B. is reported in 1970 R.R.D. page 173 (Gangasharan vs. Dr. Ratilal Revision No. 150/Jaipur of 66 decided on the 19th December, 1969). While this question came up again before the D.B. which had made this reference to us, it was contended that the question was not properly agitated before the earlier D.B., as it was not examined in a proper perspective, section 260 of the Rajasthan Land Revenue Act not having been mentioned at all. The learned Members constituting the D.B. accepted this contention and decided to make this reference to us.
(3.) THE learned counsel Shri Roopchand Sogani for the respondent contended that notification No. F. 2 (172; Rev. D/Gr. 11/61 dated 11 6 -93 purports to have been issued under section 260 (1) (6) of the Act and through sheer over sight section 260 of the Act has been mentioned as the source of power It was argued that section 26 has no relevance to the subject because the delegation and conferment of powers can take place only under section 260 of the Act. It was urged that where a source of power is incorrectly mentioned in a notification, it does not in. validate the notification. A.I.R. 1964 Supreme Court page 264 (Afzal Ullah vs. State of Uttar Pradesh) was cited in support of his contention. Our attention also drawn to A.I.R. 1964 Supreme Court page 1329 (Hukumchand Mills Ltd. vs. State of Madhya Pradesh) wherein the Supreme Court have held that where the Govt. have powers to make amendments, recitation of wrong source of power in a notification did not vitiate the amendments. A.I.R. 1970 Gujarat page 108 (Jayantilal Amrutlal Shodhan vs. The Union of India & others) was also cited in support of the same proposition. The learned counsel argued that what is material is the substance and not the form or the heading, as has been held in A.I.R. 1962 Madhya Pradesh page 262 (Prem Shankar Sharma vs. Collector East Nimar, Khandawa), wherein a full bench of the Madhya Pradesh High Court have held that in determining the validity of the rules, what is material is their substance and not the form or the heading. A rule purported to have been made under a wrong provision of an Act would nonetheless be valid if it is shown to be within the four corners of the powers conferred by any other provision of the Act.;