- (1.) THIS revision has been preferred against an order of the Add. Collector. S. Madhopur dated 26. 7. 61 by which he has rejected the appeal preferred by the applicant against the order of the Tehsildar Sapotra dated 26. 2. 61 allotting certain land to the opposite party Nand Kumar. . The allotment of land is a "non-judicial matter" and revision in non-judicial proceedings should lie to the State Government and not to the Board as provided by Sec. 83 of the Rajasthan Land Revenue Act, 1959.
(2.) IT is, however, being contended on behalf of the applicants that the applicants possessed a right of being heard in appeal by the appellate court against an order of the Tehsildar and that if they have been deprived of that right by any order of the Addl. Collector it became a 'judicial matter' defined in Sec. 23 (2) of the Act or at any rate a 'case of a judicial nature' referred to in section thereof. The argument is that by rejecting his appeal as being time barred and not letting the delay to be condoned u/s 5 of the Limitation Act which was applicable to the case of his appeal vide Sec. 87 of the Act his right has been affected adversely and therefore the revision could lie to the Board so far as this matter alone was concerned. IT is being urged that while defining the expression "judicial matter" the legislature has laid down in Sec. 23 (2) of the Act that it means also a "proceeding in which a revenue court or officer has to determine the rights and liabilities of the parties thereto". This it has been urged is over and above the case specified in the First Schedule as "judicial matter" for the purpose of the Act. The point for determination therefore, which emerges in this case is whether even though the main case of the allotment of land itself will remain a non-judicial matter outside the scope of the jurisdiction of the Board the proceedings with reference thereto in which the rights or liabilities of a party are to be determined will become 'judicial natter' and they can be examined by the Board in its powers of revision. The learned counsel for the opposite party Nandkumar and the learned Government Advocate have very vehemently urged that when the subject matter of the case itself was a "non-judicial matter" the proceedings taken in the course of the decision relating thereto could not become 'judicial matter' notwithstanding the definition of the term 'judicial matter' referred to above, given in Sec. 23 (2) It has also been urged that condoning of delay under Sec. 5 of the Limitation Act is not itself a right vesting that if it is proved to the satisfaction of the appellate court that there was a "sufficient cause" for not filing the appeal within the time limit, the court had discretion to admit the appeal by condoning the delay, but that in itself it did not make it obligatory upon the appellate court to so admit the appeal. This it has been argued is clear from the use of the words "may be admitted" in the language of Sec. 5. It has been urged that the court has got a discretion to admit or refuse the appeal even if "sufficient cause" was proved in support of the delay in filing the appeal. It cannot, however, be denied and it is not being denied that the discretion to be exercised by the court to such cases is to be a judicial and not an arbitrary one. It has been very well made clear in Brijendra Singh Vs. Kahsiram, A. I. R. 1917 P. C. 1956 while quoting with approval the observation of Plowdh. J. in Karimbux Vs. Dolatram (788)1888 Punjab, 183 (F. B.) When the discretion is to be exercised judicially and not arbitrarily it becomes a matter of serious consideration whether the manner of the exercise of the discretion cannot be treated to be a matter of "judicial nature" and cannot therefore be examined u/s 84 of the Rajasthan Land Revenue Act by the Board in its powers of revision. In this connection it has to be remembered that the Board can call for the record of the case and examine it only when "no appeal lies" to it. The order of the Addl. Collector rejecting the application u/s 5 of the Limitation Act will be an original order the first appeal against which shall lie to the Commissioner vide Sec. 75 (b) of the Act. Vide Sec. 76 (d) of the Act an appeal against the order passed by the Commissioner under Sec. 75 (b) shall lie to the Board. This means indirectly an appeal shall lie to the Board. The powers as given u/s 84 of the Act cannot therefore, be exercised for this reason alone if not for any other. Besides the procedure and intermediary proceedings relating to a case should all be governed in matters of jurisidiction by the procedure provided for the decision of the main subject matter thereof. Letting intermediary orders to be interfered with by any authority other than the one empowered to finally dispose of the matter itself will lead not only to anomalous position sometimes but also to prolong the proceedings and unnecessary harassment of the parties themselves. The present proceedings relate to the allotment of land. It is not a "judicial matter" under Sec. 23 (2) of the Act read with the First Schedule thereof. The revision, therefore, should lie to the State Government and not to the Board. The result is that this revision is hereby rejected as being incompetent. .;