- (1.) THESE are special appeals under sec. 10 of the Rajasthan Land Revenue Act, 1956, against the orders passed in revision by two Members of this Board sitting singly. The impugned orders arose from interlocutory orders passed by the lower courts in suits under the Rajasthan Tenancy Act, 1955. Sec. 10 of the Land Revenue Act was amended by Ordinance No. 1 of 1964 which was published in the Gazette on 10. 1. 1964. Subsequently the Ordinance was replaced by an Act of the State Legislature (Act No. 5 of 1964) which was published in the State Gazette on 26. 3. 1964. According to Sec. 5 of the Rajasthan General Clauses Act, 1955, any Rajasthan law made after the first day of November, 1956 which is not expressed to come into operation on a particular day, shall, if it is an Act or Ordinance of the Governor or the President, come into operation on the day on which it is first published as such Act or Ordinance in the Rajasthan Gazette. The amendment of sec. 10 of the Rajasthan Land Revenue Act 1956 which thus came into operation on 10. 1. 1964 adds the following clause to the first proviso to Sub-sec. (1): - "if the Member who passed the judgment declares that the case is a fit one for appeal. " The proviso as amended would read as follows : - "provided that a party aggrieved by a decision of a single member shall have the right to make a special appeal to a bench consisting of two or more members of the Board within one month from the date of the decision of the single member, if the member who passed the judgment declares that the case is a fit one for appeal".
(2.) THE preliminary question that has arisen in these special appeals before us is whether any certificate of fitness for appeal to a bench consisting of two or more members is an essential pre requisite for these appeals being entertained. Admittedly, those special appeals have been filed after the amendment of sec. 10, but the proceedings which have given rise to them commenced long before the amendment. The learned counsel for the appellants have cited a number of cases, but no case law has been put up by the learned counsel for the respondents before us. The first case cited is A. I. R. 1928 Calcutta 640 (Full Bench ). An amendment had been made in the Letters Patent of the Calcutta High Court whereby appeals from the appellate decisions of a single Judge were made appealable to a Division Bench subject to the production of a certificate of fitness for appeal given by the Single Judge. This amendment is identical to the amendment of sec. 10 of the Rajasthan Land Revenue Act, 1956. Their Lordships held that the requirement of obtaining a certificate of fitness for appeal would not apply in cases where the suit had been instituted before the amendment of the Letters Patent. Following the dictum laid down by the Privy Council in "colonial Sugar Refining Company versus Irving", their Lordships observed that the rights of appeal are not matters of procedure and that the right to enter the superior Court is deemed to arise to a litigant before any decision has been given by the inferior Court. , and that unless the contrary can be shown the provision which takes away jurisdiction is itself subject to the implied saving of the litigants' right. Examining the amendment of the Letters Patent their Lordships held that there was not much material on which to base a definite conclusion that the intention was to bring pending suits under the new system. The conclusion that they drew was that it was not the date of presentation of the second appeal to the High Court which determined the applicability of the amended clause. , but the date of institution of the suit. A special Bench of the Madras High Court considered the effect of a similar amendment in clause 15 of the Letters Patent of that High Court in the case cited as A. I. R. 1929 Madras 381. Their Lordships endorsed the view taken by the Calcutta High Court and dissented from the contrary view expressed by the Bombay High Court in A. I. R. 1928 Bombay 371. It may be noted here that subsequently in A. I. R. 1944 Bombay 252, the Bombay High Court overruled their own earlier decision. In A. I. R. 1931 Calcutta 100, the Calcutta High Court reaffirmed their decision of 1928. In A. I. R. 1957 Supreme Court 540 their Lordships approved of the Full Bench ruling of the Calcutta High Court in A. I. R. 1928 Calcutta 640. Their Lordships of the Supreme Court observed that the right of appeal is not a mere matter of procedure but is a substantive right, and that such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commenced, and that such right is to be governed by the law prevailing on the date of the institution of the suit or proceeding and not by the law prevailing on the date of its decision or on the date of the filing of the appeal. This vested right of appeal can be taken away by a subsequent enactment only if it so provides expressly or by necessary intendment and not otherwise. A few other cases have been cited by the counsel for the appellants, but it is not necessary for us to examine them. The authorities already cited are conclusive that the right of appeal, being a substantive right, cannot be restricted or fettered by a subsequent amendment of the law unless the amendment is made retrospective by express provision or by necessary implication. In these appeals before us the question is whether the amendment of sec. 10 of the Rajasthan Land Revenue Act 1956 is retrospective in its effect or not. In identical circumstances the Calcutta and Madras High Courts have held that the amendments of the Letters Patent as phrased were not retrospective. In our view there is nothing in the amending Act on which to base the conclusion that the amendment of sec. 10 of the Land Revenue Act was intended to be retrospective. The learned counsel for the respondent has with alacrity seized on the fact that the matters before the Calcutta and Madras High Courts were suits and not interlocutory orders in suits, and that the two High Courts were considering cases of appeals and not revision. We do not think this makes any difference in principle. What we have before us are special appeals, and the question is whether the right to prefer these special appeals is affected by the amendment of sec. 10 of the Land Revenue Act. We do not think it does on a true construction of the amendment. In our view the right to prefer these special appeals vested in the appellants from the date the proceedings commenced in the trial court and cannot be subjected to the condition that a certificate of fitness for appeal should be obtained from the learned Members who passed respective orders in revision sitting singly. We are fully conscious of the fact that the amendment of sec. 10 is a desirable reform and that the result of the view we are taking would be unfortunate in that a desirable reform would not affect innumerable cases of a like nature which commenced in the lower courts before the date of the amendment of sec. 10. The number of such cases may run into thousands and the amendment would have no impact on the work of this Board for some years. This may be regrettable, but this is what follows from a strict construction of the law. It is our duty to interpret the law as it is, and the remedy lies with the authorities that make the law. Since our decision has an important bearing on the working of this Board, a copy of this judgment will be submitted to the Chairman of the Board. These appeals will now be heard on merits without requiring the appellants to file certificates of fitness for special appeals. . ;