- (1.) PER K. S. Ujwal, (G. L. Mehta, Chairman C. S. Gupta and R. Mookerjee in agreement) A Division Bench of this Board heard this special appeal and requested the Chairman to constitute a Bench consisting of more than two members to give an authoritative pronouncement on the following question: - "in view of the Larger Bench Judgment reported in 1969 R. R. D. 318, and in view of the fact that section 74 of the Land Revenue Act is similar to Section 222 of the Tenancy Act, is there, subject to the provisions of Section 77, a right of special appeal against a decision of a Single Member of the Board in a case under the Land Revenue Act and, if not, will the proviso to Section 10 (1) of the Land Revenue Act and Section 77 (b) of the same Act be deemed to be sterile section ?"
(2.) A bench of three members was constituted for the purpose. The majority of the counsel who appeared before this three Member Bench felt that it would be in the fitness of things if,in view of the larger Bench judgment in the case of Sodagarsingh vs. Revad Ram (1969 R. R. D. 318) a full bench consisting of 5 or more Members is constituted to hear this matter. The Hon'ble Chairman was accordingly requested to cons-titute a Full Bench of 5 Members. The present Full Bench consisting of 5 Members was, therefore, constituted for deciding this reference. The present applicant Kistoorchand, to be hereinafter called the applicant, filed an application under Section 84 Rajasthan Land Revenue Act for revising the orders made by the Revenue Appellate Authoritv, Udaipur, (Camp Jaipur) on 11-3-69. This revision was registered at no. 113/1969. It was fixed for hearing for 15-3 72 when Shri Motilal Jain appearing on behalf of the applicant pleaded no instructions. The revision was dismissed in default on the above mentioned date. An application was filed on behalf of the applicant on 24. 3. 72 by Shri Motilal Jain for the restoration of the revision. The application was decided on 14-4-72 and it was ordered that the application is accepted on condition that the applicant shall pay Rs. 100/, awarded to the non-applicant Chander Singh on 14. 4. 72 as costs and a further sum of Rs. 100/-, as costs to compensate the non-applicant for the restoration of the revision, by 1-5-72. It was further ordered that in the event of the applicant failing to pay the above mentioned amount of Rs. 200/- as costs, the application for restoration shall be deemed to have been rejected. On 3-5-72 Shri Ved Vrat the learned counsel for the non-applicant filed an application to inform the Board that the applicant had not complied with the conditions of the order dated 14. 4. 72 and hence the application for restoration should be treated as dismissed as decided on 14. 4. 72. This application was hardly necessary because the ordet dated 14. 4. 72 makes it abundantly clear that the application will be deemed to have been rejected if the condition regarding the payment of costs is not fulfilled by 1-5-72. However, since the application had come up, the Board by its order dated 7-6-72 held that the application for restoration is dismissed because the applicant has not complied with the conditions of order dated 14-4-72. Applicant then filed a special appeal under Section 10 Rajasthan Land Re-venue Act against the order dated 14-4-72 challenging it on the ground that the learned Member was in error in ordering the acceptance of the application for restoration on condition of payment of costs.
(3.) WHEN this special appeal came up for hearing before the D. B. of the Board a preliminary objection was, raised it seems, by the learned counsel for the non-applicant. It was urged by him that the special appeal is not maintainable in view of the decisions of the Board in the cases of Sodagar Singh vs. Revadram (1969 R. R. D. 318), Janta Khanpur Vs. Bherun Singh (1973 R. R. D. 55) and Devsi vs. Jugal Kishore (1973 R. R. D. 58 ). On behalf of the applicant it was urged that the above mentioned decisions did not stand in the way of the maintainability of this special, appeal. The learned members constituting the D. B. feeling that different views had been expressed by different Benches decided to make a reference. It was argued that no case for reference is made out. The present reference has evidently been made under section 11 Rajasthan Land Revenue Act. A question of law can be referred, for opinion to a Bench. The Member making the reference has to record in writing his reasons for making the reference. The reference will be competent if it fulfills the requirements of the law under which it is made. Amongst other things, which do not presently concern us, a reference under Section 11 must fulfil the following condition viz -the question referred must arise from the case or proceeding in which the reference is made. The question for consideration before the Bench which made the reference was whether the law allowed a special appeal against the impugned order dated 14-4-1972. The Bench was not required to decide whether special appeal can be heard against decisions of a different nature than the one impugned; nor was it required to decide whether the proviso to Section 10 Land Revenue Act empowered the Board to admit special appeals against judgments under the Rajasthan Tenancy Act. These questions do not arise from the proceedings before that Bench. The Board is required to decide disputes between parties to the proceedings on the facts and circumstances of each case in the light of the law applicable to those facts. The Board is not required by the Land Revenue Act to pose hypothetical questions and then set about deciding such questions. We have therefore to see whether the reasons recorded by the reference making Bench show that a question of law requiring our opinion arises out of the proceedings. ;