- (1.) A Division Bench of this Board, which heard the appeal by Surajmal against the Revenue Appellate Authority's order of 11th March, 66, has referred the following question for consideration by a larger Bench of the Board : - "does the power of the village Panchayat to decide mutations in consequence of Government Notification No. F. (185) Rev. B/157 dated 11-9-57 extend to cases arising out of the operation of sec. 19 of the Rajasthan Tenancy Act?"
(2.) THE Hon'ble Members constituting the Division Bench felt that the decision of the appeal depended upon the decision of the question whether the power of deciding mutation cases resulting from the acquisition of Khatedari rights under sec. 19 of the Rajasthan Tenancy Act vest in village Panchayats as a result of Notification of 27th October, 1956 and 11th September, 1957 issued under clause (b) of sec. 260 (1) of the Rajasthan Land Revenue Act and quoted in the decision of (his Board in the case of Balu vs. Ramdeo reported as 1969 R. R. D. page 66 or not ? In the arguments before the Division Bench, the question was raised that the decision of the Board in the case of Balu vs. Ramdeo was an authority for the view that the jurisdiction to decide mutation case, falling under sec. 135 of the Rajasthan Land Revenue Act, vested in village Panchayats were the lands forming the subject matter of mutation proceedings were located within the territorial limits such of Gram Panchayats. The learned Members constituting the D. B. which has made this reference took note of the fact that mutations are not occasioned merely by transfer and succession, but also, for instance, as a consequence of acquisition of khatedari rights under sec. 19 of the Rajasthan Tenancy Act and observed that since mutations covered by sec. 19 of the Rajasthan Tenancy Act involved an enquiry of a varied nature relating to acquisition of khatedari rights, it could hardly be intended that this enquiry should be held and the matter be decided by Gram Panchayats. The D. B. has in the order of reference also observed that mutation in such cases follows an enquiry which will have to be made by the Assistant Collector and since this aspect of the matter was not considered by the L. B. which decided the case of Balu vs. Ramdeo, the matter needed reference to a Larger Bench of the Board. Initiating the discussions, Shri R. G. Sogani supported the proposition, that the Gram Panchayats cannot decide matters failing under sec. 19 of the Rajasthan Tenancy Act and record acquisition of khatedari rights conferred by this section, by contending that the report, contemplated by sec. 133 of the Rajasthan Land Revenue Act, and the procedure to be followed, on receipt of such report, laid down in sec. 135 (1) and (2) of the Act do not include, in their purview, the acquisition of khatedari rights under sec. 19 of the Rajasthan Tenancy Act by the person in possession, because : Firstly, sec. 133 comes into play only when the need for mutation arises as a result of the obtaining of possession by succession, transfer or otherwise and where the claimant has not obtained possession, sec. 133 would not apply. Elaborating this argument, he said that person claiming to have acquired khatedari rights by virtue of sec. 19, does not obtain possession by succession, transfer or otherwise of any property or other right or interest in any land or profits thereof within the meaning of sec. 133. Secondly, it was contended that though the word "otherwise" used after the words "succession and transfer" in sec. 133 enlarges the scope of the section to cover obtaining of possession by modes other than succession or transfer, the increase in scope will be only to the extent of obtaining of possession by modes similar to succession and transfer because the principle of interpretation of statues, incorporated in the doctrine of ejusdem generis, permits the construction of the word " or otherwise" to mean only a mode, at least, analogous to those specified immediately previously i. e. analogous to "transfer and succession". It was further stated with reference to this argument that acquisition of khatedari right by operation of sec. 19 is not analogous to the obtaining of possession by transfer and succession and hence sec. 133 has no application in such cases. Thirdly, it was contended that sec. 133 requires the reporting of only such matter as can be decided by the authority to which the report is made by virtue of sec. 135. Now sec. 135 authorises the Gram Panchayat after the delegation of the powers of the Tehsildar to the Gram Panchayats to make such enquiry as appears necessary and (1) intundisputted cases, if the succession or transfer or other acquisition appears to have taken place, record the same in annual registers or, (2) if the succession or transfer or other acquisition is disputed, to decide such dispute according to law if it is competent under the Rajasthan Land Revenue Act or any other law for the time being in force so to do. Developing the third point, the learned counsel contended that the authority to decide that khatedari rights have been acquired by virtue of sec. 19 having not been vested in the Gram Panchyat, the provisions of sec. 133 cannot be interpreted, to require, the reporting of the acquisition of such right to the Gram Panchayat, its deciding, after necessary enquiry, whether such rights have been acquired and ordering, in mutation proceedings, that the person who acquired such rights, should be recorded as a khatedar in the annual register; i. e. his name be entered in place of the name of the person who enjoyed such rights before such acquisition. Fourthly, it was contended that in Uttar Pradesh, the Revenue Courts have held that mutation is warranted only where possession has been obtained and since sec. 34 and sec. 35 of the U. P. Revenue Act are para-material, respectively, with secs 133 and 135 of our Act, the assumption that secs 133 and 135 do not contemplate the reporting and deciding, respectively, of acquisitions under sec. 19 of the Rajasthan Tenancy Act, is justified. Fifthly and lastly Shri Sogani urged that this Board has in the case of Shri Sukhdan vs. Shrimati Anchi reported as 1970 R. R. D. page 65 and in the case Nathilal vs. Radhakishan, reported as 1971 R. R. D. page 9, held that the enquiry envisaged in sec. 19 before conferment of khatedari rights has to be made by the Tehsildar or Assistant Colletor, as the case may be, and the disposal of such an application by the Gram Panchayat was without jurisdiction. Shri S. N Parikh who appeared on behalf of Surajmal, who was appellant in the appeal from which this reference has arisen, contended that the use of the word "acquisition" in sec. 135 of the Rajasthan Land Revenue Act shows that the word "otherwise" used is sec. 133 covers cases of acquisition of khatedari rights also, that mutations arising out of the acquisition of khatedari rights under sec, 19 of the Rajasthan Tenancy Act are, therefore, covered by sec. 133 Further it was averred by Shri Parik that since whatever powers were vested in the Tehsildar, under sec. 133 and sec. 135 and the powers of the land Records Officer in sec. 125 have been delegated by the Government, in exercise of powers vested in it, to the Gram Panchayat, in respect of cases, relating to lands situate in their territorial jurisdiction, the Gram Panchayats have powers, co-extensive with those of the Tehsiidars, in mutation cases and since the Tehsiidars have been held by the Board in the Board's two decisions last mentioned to have the jurisdiction to record such mutations, the Gram Panchayats have now got the powers to do so. Secondly, it was argued that the obtaining of possession of a property is not the only circumstance in which the provisions of sec 133 would apply, the report contemplated by the section would be necessary also where a person obtains other rights or interests in any land and since a person acquiring khatedari right u/s. 19 obtains a right and interest in land, sec. 133 would apply and by virtue of sec. 135 and the Notifications delegating powers to Gram Panchayats, the latter would be competent to decide such cases. Thirdly, it was contended that the U. P. analogy and the Rule propounded by the U. P. courts would not be applicable to cases covered by the Rajasthan Land Revenue Act, because sec 34 of the U. P. Act which corresponds to sec. 133 of our Act, is different from our sec. 133 in one very important respect and this difference is very material. Under the U. P. Law as contained in sec 34, a report has to be made only where possession of any land is obtained by succession or by transfer. The words "otherwise of any property or other right or interests" which appear in sec. 133 of our Act, do not find a place in the U. P. Law. Lastly, it was contended that every charge in rights in respect of a land has to be recorded and since sec. 133 and 135 are the only provisions relating to the mutations, the mutation under sec 19 would also fall under these sections and the authority empowered to decide matters under these sections would decide mutation case under sec. 19 also. Shri P. D. Kudal thought there was no valid reference before the Board because the reference order does not say that the power of deciding such mutations does not vest in the Panchayat but merely contains an apprehension and secs. 11 and 13 of the Rajasthan Land Revenue Act do not envisage reference in such cases. Shri P. D. Kudal's objection that we do not have valid reference before us, because the Division Bench which made the reference has not given its finding on the question whether the power vests in the Panchayat or does not vest in it, can be taken up first. The reference is undoubtedly not covered by sec 13 of the Rajasthan Land Revenue Act because it was not a question of Members constituting the Division Bench being equally divided in Opinion as to the order to be made. The other provision for reference, to a Bench of the Board, is contained in sec. 11. This section empowers the Chairman or any other Member of the Board sitting singly, to refer any question of law for reasons, to be recorded, for the opinion of the Bench. A Larger Bench of the Board consisting of four Members ruled in the case of Panney Singh vs. Guman Singh, reported as 1964 R. R. D. p. 101, that "there is nothing to prevent a Bench referring a point of law to a Larger or F. B. and such a Larger Bench is fully competent to take a decision on an important point of law on a reference made by a D. B. " The point is thus settled by this decision of the Board, and we are of the opinion that we need not further go into it. Reverting to the other points we may at the outset state that it is common ground between the learned counsel that dispute under reference is confined to cases falling under sub-sec. (1) (a) of sec. 19. There is no dispute regarding acquisition of khatedari rights by virtue of the provisions of sub-sec. (2) of that section because the powers under sub-sec. (2) have been given to the Assist. Collector whose powers not having been delegated by the relevant Notification to the Gram Panchayat, the latter would not be competent to decide cases falling under sub-sec. (2)
(3.) ANOTHER common ground is that, as held by this Board, in the case of Balu vs. Ramdeo, (1969 R. R. D. page 66), whatever powers have been given by secs. 133 and 135 of Rajasthan Land Revenue Act to the Tehsildar, stand delegated by the relevant notifications to the Gram Panchayat in respect of areas falling in its jurisdiction. Gram Panchayats can decide all those, disputed and undisputed, cases where, as a consequence of the provisions of sec. 133 and sec. 135, the Tehsildar could have ordered mutation. In other words the Gram Panchayat has the same powers as the Tehsildar has under these sections; only the territorial jurisdictions of the two authorities differ. The Gram Panchayat would, therefore, be acting without jurisdiction in exercising the powers of the Tehsildar in sec. 19 (1) cases only if it could be shown, and it is held, that the Tehsildar's powers to decide such cases are not the result of the provisions of secs. 133 & 135, but of some other provisions. The possibility of the enquiry being complicated would not stand in the way of the Gram Panchayats deciding a mutation case if the Tehsildar could have decided it, before such a delegation, in exercise of powers vested in the Tehsildar by sec. 133 etc. We are unable to subscribe to the view that these notifications could not have intended the delegation of the power to decide disputed cases entailing complicated or protected enquiry to the Gram Panchayats which are by their character and constitution not equpied to do justice to this job. It is not for the courts to decide whether the authority which is invested with certain power by legislation, is in possession of the qualifications which the Court considers necessary for properly exercising that authority. The courts are there to interpret the law and Legislature has the power to decide which authority should exercise certain powers and where the legislature has invested an authority with certain powers, the courts cannot take that power away or diminish it because of the apprehension that such authority may not be equipped to conduct a complicated enquiry. If the legislation has given the powers, the Gram Panchayats shall enjoy them notwithstanding any reservations that any one may have about a particular Gram Panchayat or Gram Panchayats in general, because the language used in the Notifications delegating the powers of the Tehsildar to the Gram Panchayat have been interpreted to mean that the powers given by sec. 133 etc. to the Tehsildar have been delegated to the Gram Panchayat for the lands falling in its territorial jurisdiction. In view of what has been stated above, the question to be examined is whether the acquisition of khatedari rights by a person under sec. 19 (1) (a) of the Rajasthan Tenancy Act is covered by sec. 133 and requires to be reported. If we find that it is covered by sec. 133, the Gram Panchayats shall have jurisdiction to determine the acquisition of such rights, and order necessary mutations. On the other hand if we come to the conclusion that disputes about the acquisition of khatedari right under sec. 19, as distinct from the recording of the decision in such disputes in mutation proceedings, fall outside the scope of sec. 133 and sec. 135 etc. , the delegation aforementioned would not include the delegation of the powers to decide disputes regarding acquisition of rights under sec. 19 (1) (a) of the Rajasthan Tenancy Act. Sec. 133 of the Rajasthan Land Revenue Act reads as under : - "133 Report of succession and transfer possession. (1) Every person obtaining by possession succession, transfer, or otherwise of any property or other right or interest in any land or the profits thereof, which is required by this Act, or any rules made thereunder to be recorded in the annual registers, shall bring the fact to the notice of the village Patwari and report it to the Tehsildar of the Tehsii in which such land is situated either direct or through the village Patwari or Land Record Inspector, within three months from the date on which he obtains such possession. " Where mutation proceedings are a consequence of transfer or succession, the possession of the land forming the subject matter of the mutation proceedings comes to the person who seeks mutation from the person whose name is recorded in an annual register as the holder of the right. The possession before such succession or transfer takes place, is with the original holder and as a result of the succession or transfer, the possession is transferred to the claimant. Thus there is invariably transfer of possession and in every such case, the claimant obtains possession as a as a result of the transfer or succession. The position is some what different vis-a-vis possession in cases u/s. 19 (1) (a ). A claimant u/s. 19. 1 (a) is in possession from before the point of time when he acquires khatedari rights by the operation of law and hence there is no obtaining of possession by him as a result of operation of sec. 19, or by acquisition of the right conferred by it. Shri Sogani has in this connection cited the U. P. decision reported as 1936 R. D. page 287 (Habibulla vs. Kulbul) holding that : - "a revenue court has to be satisfied not only that a transfer has taken place but that the applicant has obtained possession by transfer. " The U. P. Board has in other cases also expressed the view that the object seems to be to compel person who comes into possession by any sort of valid legal transaction, to report the transaction so that it may be recorded in the annual registers and persons who have not obtained possession are not subject to any disability but may report under sec. 33 (2 ). The U. P. case of Kr. Bhanpartab Singh vs. Shrimati Biran Kaur reported as 1935 R. D. page 438 is very much to the point and lays the rule that : - "before a person, claiming title by succession, can file an application for mutation under sec. 34, of Land Revenue Act, he must obtain possession arising out of or based on such succession. " These U. P. decisions are based upon sec. 34 (1) of their Act which is given below: - "34. Report of succession or transfer of possession - (1) Every person obtaining possession of any land in a village - (a) by succession and such succession has not been recorded in the annual register under sec. 33-A or (b) by transfer : shall report such succession or transfer to the Tehsildar of the Tehsii in which the land is situate. " ;