- (1.) A preliminary objection has been raised by Shri Ved Vrat, who is counsel for most of the respondents, that this special appeal is not maintainable because the case is under the Rajasthan Tenancy Act and the combined effect of secs. 222 to 225 of that Act is that a special appeal is barred not with standing the proviso to sec. 10 (1) of the Land Revenue Act. This will apply even to decisions passed, as in this case, and not only to interlocutory orders.
(2.) SHRI S. N. Pareek, appearing for the appellants, says this is a not a case under the Tenancy Act but under the Land Revenue Act. In dec ding under what section of law a case falls, he says, it is necessary to look at the content and not merely at the section mentioned by the plaintiff or applicant. Here the subject matter is the pasture land of village Kuchil, Under sec. 92 of the Land Revenue Act a Collector is empowered to set apart land for any special purpose, and one of these purposes is the free pasturage of cattle. Sec. 93 of the same Act concerns the regulation of the use of pasturage. These sections, says SHRI Pareek, are the substantive provisions of law regarding the demarcation of pasture. In the Rajasthan Tenancy Act, sec. 5 (28) merely defines pasture land and is not a substantive provision. Rules 3 to 7 of the Rajasthan Tenancy (Government) Rules have been framed to give effect to this section but the State Government has power to frame rules only for giving effect to substantive law and hence these rules cannot be said to be valid. On the other hand, under sec. 261 (2) (xii) of the Land Revenue Act rules can be framed for regulating, under sec. 93 of that Act, the grazing of cattle on pasture land. Learned counsel also says that the Additional Collector, Ajmer made a reference to the Board under sec. 282 of the Tenancy Act read with sac. 9 of the Land Revenue Act. Since the subject matter of the case does not fall within the Tenancy Act, the reference should be regarded as having been made only under the Land Revenue Act. Countering this argument, Shri Ved Vrat, says that the Additional Collector made a reference under sec. 232 of the Tenancy Act and he could very well have mentioned sec. 221, which deals with the general superintendence of the Board over all revenue courts, instead of sec. 9 of the Land Revenue Act as the two sections are similar. The mere mention of sec. 9 of the Land Revenue Act did not mean that the case must be heard under that Act. Further, under sec. 209 of the Tenancy Act a court can grant any relief to which the plaintiff is entitled. The case has arisen out of a direction given by S. D. O. to the Tehsildar to carry out a mutation in pursuance of an alleged compromise decree. Thus the subject matter is covered by the Tenancy Act because the original suit was under that Act. We have considered the matter. The dispute centres round whether certain land in village Kuchil is pasture land or is in the khatedari of most of the present respondents. The proceedings have arisen out of an order of the S. D. O. Kishangarh dated 8-10-58 in which instructions were given that on the basis of a compromise in a revenue suit the land should be recorded as charagah. These instructions were carried out and a mutation effected. The respondents have denied the compromise. We are therefore unable to accept the contention of Shri Pareek that the subject matter of this case is restricted to pasture land. It is plain that the khatedari rights of the respondent are also involved and this alone will take the case within the purview of the Tenancy Act. The suit itself was under that Act. The reference to sec. 9 of the Land Revenue Act by the Additional Collector is immaterial because that section is merely an administrative section and by no stretch of imagination can it be said that the case falls under the Land Revenue Act. Sec. 92 of that Act, to which reference has been made by Shri Pareek, empowers a Collector to set apart land for the pasture, among other special purposes, but no such action has been taken in this case since the coming into force of the Land Revenue Act and the reference to this section and also to sec. 93, is therefore inconsequential. We have now to see whether it is correct, as Shri Ved Vrat claims, that special appeals do not lie under the proviso to sec. 10 (1) of the Land Revenue Act in respect not only of interlocutory orders but also of decisions passed by single Members in cases under the Tenancy Act. He has relied on the ruling of a Larger Bench of the Board in Saudagar Singh vs. Revad Ram reported in 1969 RRD 318. This says that where a statute specifically provides that a decision shall be final, sec. 10 of the Rajasthan Land Revenue Act will not apply. It has been pointed out that in cases under the Tenancy Act such a finality has been given by sec. 222, which bars appeals except as provided in that Act. Shri Ved Vrat has also cited 1972 RRD 168 Ruria vs. Thandi, which says that the provisions of Secs. 222 to 225 of the Tenancy Act are a substantive piece of legislation covering all matters likely to be heard by various authorities under the Tenancy Act whereas sec. 10 (1) of the Land Revenue Act merely lays down the procedure for the exercise of jurisdiction vested in the Board. In 1972 R. R. D. 169 Mangu vs. Shri Kishan, says counsel, it was argued that the view taken by the Larger Bench in 1969 R. R. D. 318 would have no applicability because the revision petitions had not been disposed of on matters under sec. 212 of the Tenancy Act. Repelling this, it has been held that the Larger Bench ruling is comprehensive and embraces matters other than those under sec. 212 of the Tenancy Act. Another ruling cited, 1968 R. R. D. 455 Mahipal Singh vs. State, is concerned with whether a special appeal will lie under sec. 23 A of the Public Demands Recovery Act. It is noted that this provision of law is similar to sec. 18 (4) of the Forest Act and that in the case reported in 1967 R. L. W. 244 the Rajastnan High Court has laid down that no special appeal will lie against an order of a single Bench in a case under the Forest Act. In view of this, it is held, the provisions of sec. 10 of the Land Revenue Act will not be applicable to cases under the Public Demands Recovery Act. The opening words of this section clearly indicate that it will not apply if there is a specific provision to the contrary in any other law or enactment. Finally, Shri Ved Vrat has cited A. I. R. 1962 Supreme Court 256 (Union of India vs. Mohindra Supply Co. ). In this the Supreme Court has laid down in a case where a single Judge of the Punjab High Court disposed of an appeal under sec. 39 (1) of the Arbitration Act, that there is no further right of appeal under clause 10 of the Letters Patent of the High Court against the order of the single Judge. This is because sec. 39 (2) of the Arbitration Act expressly prohibits a second appeal from an order passed in appeal under sec. 39 (1) except an appeal to the Supreme Court. Shri Pareekh has strenuously argued that the above rulings are not really relevant to the point at issue. He says that in the Saudagar Singh case the reference in the Larger Bench was only on the point whether the word "decision" used in sec. 10 of the Land Revenue Act includes an order of the Board of Revenue on the subject of the appointment of a receiver or the grant of an injunction and whether a special appeal lies against such an order. He contends that the Larger Bench had no right to go beyond its terms of reference and any views expressed by it in relation to matters not covered by sec. 212 of the Tenancy Act can only be regarded as obiter dicta and not binding. As regards A. I. R. 1962 Supreme Court 256, Shri Pareek says it is a case under the Arbitration Act and has no relevance. In 1972 R. R. D. 158 the issue is the refusal to stay the execution of a decree of the lower court and 1968 R. R. D 455 is concerned with the Public Demands Recovery Act. Except for 1972 R. R. D. 169, he says, none of the rulings cited on behalf of the respondents deals with decisions, as opposed to interlocutory orders, under the Rajasthan Tenancy Act. Shri Pareek has given a long list of rulings in which the meaning of the word "decision" or "judgment" has been discussed. We need refer only to two of these in order to establish the definition. In A. I. R. 1964 Madras 194 Southern Roadways vs. P. Mathurai Veeraswami and others it is stated that there are two tests which must be satisfied before a judicial order can be regarded as "judgment" for the purposes of clause 15 of the Letters Patent : (1) the decision in question should terminate the suit or proceeding and (2) such decision should effect the merits of the controversy between the parties in that very suit or proceedings. The second ruling, A. I. R. 1963 Andhra Pradesh 9 Kuppa Viswapathi vs. Kuppa Venkato Krishna Sastry, says that any adjudication which puts an end to a suit or proceedings in the court before which it is pending, or an order which affects the merits of the controversy between the parties, is a judgment. Shri Pareek argues that if in all cases under the Rajasthan Tenancy Act, not only interlocutory orders but decisions (judgments) as well, no relief is available under the proviso to sec. 10 (1) of the Land Revenue Act, that provision of law would be meaningless. Citing A. I. R. 1965 Supreme Court 639 Gamini Krishnayya and other vs. Guraza Seshachalam and others, he says that every provision of a statute has to be given full effect and, wherever possible, the court should not place that construction upon a provision which would tend to make it redundant or to overlap another provision or to limit its application in discharge of its general applicability, unless of course that is the only construction which could reasonably be placed upon it. He has further cited A. I. R. 1965 Supreme Court 1477 to make the point that on a procedural matter, when a section yields to two conflicting constructions, the court should adopt the construction which maintains rather than disturbs the equilibrium.
(3.) SHRI Moti Lal Jain, appearing for respondents Nos. 3, 14, 16, and 17, generally supports the arguments of SHRI Pareek. He has drawn attention to a judgment of the Rajasthan High Court in Rawat Himmat Singh vs. State of Rajasthan reported in 1967 RLW 244. We shall discuss this ruling later as it pointedly deals with the subject in controversy. SHRI Jain has also cited 1964 RRD 293, perhaps to make the point that the right of appeal is a substantive right, and has also referred to 1970 RRD 332, SHRI Bhagla vs. Zor Singh, which is a Full Bench decision of the Board. This latter ruling says that Chapter II of the Land Revenue Act lays down the constitution and manner of working of the Board of Revenue and may be deemed to be equivalent to the Letter Patent of the High Court. There are no corresponding provisions for the establishment, constitution and functioning of the Board in the Rajasthan Tenancy Act. Thus Chapter II of the Land Revenue Act will be applicable to cases under the Tenancy Act where no inconsistency exists. SHRI Jain has further argued that the proviso to sec. 10 (1) of the Land Revenue Act should be treated as an independent substantive section and in this connection has referred to AIR 1959 Rajasthan 232 and AIR 1962 Madras 108. It is true, as Shri Pareek has said, that the reference made to the Larger Bench in the Saudagar Singh case was on the point whether the word "decision" used in sec. 10 of the Land Revenue Act includes an order of the Board of Revenue regarding the appointment of a receiver or the grant of an injunction and whether a special appeal lies against such an order. The contention of Shri Pareek is that the Larger Bench went out of its way to assert that, apart from interlocutory orders, even decisions under the Tenancy Act are not subject to the proviso to sec. 10 (1) of the Land Revenue Act because of the bar in sec. 222 of the Tenancy Act. We note, however, that the Larger Bench relied on certain rulings of the Rajasthan High Court and the Supreme Court in arriving at this conclusion and these rulings hold good even if the Larger Bench's views in this regard are to be ignored. Shri Jain has cited 1967 RLW 244 Rawat Himmat Singh vs. State of Rajasthan and argues that in this ruling it has been held that sec. 10 (1) of the Land Revenue Act would not apply because the Board was acting as persona designate and not as a revenue court He has tried to deduce from this that the High Court view is that in cases where the Board acts as a court, the power under sec 10 (1) is not affected. This is not so. The High Court has clearly said, in para 16 of the judgment, that the answer to the question whether a Division Bench of the Board could hear an appeal against the order of a single Member in the case before it would depend on a proper consideration of two subsidiary questions (1) whether the Board was dealing with the matter as persona designate or in its capacity as the highest revenue court of the State, and (2) whether on a proper consideration of the provisions of the Forest Act a further appeal at the instance of the parties could be said to be expressly or impliedly barred. As regards the first point, it was decided that the Board was acting as persona designata. In dealing with the second point, it was noted that under the Mewar Forest Act as well as the Rajasthan Forest Act an order passed on appeal was final and no aggrieved party had any right whatsoever to agitate the matter above the appellate authority. The High Court goes on to say: "in our view, therefore, to the extent the proviso to sec. 10 of the Rajasthan Land Revenue At gives a right of appeal to an aggrieved party, the same cannot be availed of being a provision of a general nature, as in the Rajasthan Forest Act, under which the matter has arisen and which is a special statute, the right of the party to agitate the matter above the appellate officer or authority has been expressly taken away. Sec 10 of the Rajasthan Land Revenue Act clearly lays down that the provisions thereof are subject to provisions of other laws or enactments for the time being in force. To the extent the provisions of the Rajasthan Forest Act have taken away the right of the party to agitate the matter before any authority above the appellate authority, he cannot resort to the provision of sec. 10 of the Land Revenue Act, in other respect sec. 10, however, can have its operation. . . . . . . . Nor do we find that there is anything in the argument that the proviso (to sec. 10) should be taken as an independent section. We cannot accede to the submission if he means to suggest that the proviso will not be subject to other enactments. In other words, in our view, the opening words of sec. 10 shall be applicable to the subject matter of the proviso and, therefore, it is wholly immaterial if the proviso is read as a proviso, as it purports to be, or as an independent section. In our view, resort cannot be had to the proviso in the present case as the provisions of the Rajasthan Tenancy Act have taken away the right of a party for a further appeal" ;