MODI, J. - (1.) THIS is a writ petition by Balu under Art. 226 of the Constitution against an order of the Revenue Board dated the 12th December, 1960.
(2.) THE facts leading up to this petition may be shortly stated as follows. Respondents Udaram, Omprakash and two others had obtained a Bapi patta of certain agricultural holdings bearing Khasara Nos. 42, 44 and 86 situated in village Kotra, Tehsil Osian, from the Tehsildar of Jodhpur, during the regime of the erstwhile Jodhpur State, on the 22nd February, 1949. THEse other two persons sold their rights to one Ramchandra who having died is represented in this proceeding by his two minor sons Bhanwar Singh and Mangal Singh through their respective mothers Msts. Godawari and Jamna. THE petitioner took an appeal against the order of the Tehsildar to the Deputy Commissioner Jodhpur. This was, however, dismissed as the memorandum of appeal filed by the petitioner was not accompanied by a copy of the order sought to be appealed against. It is admitted that this order was upheld right up to the Revenue Board. THEreafter respondents Udaram and Omprakash and certain others filed a suit for possession of these agricultural holdings in the court of the Assistant Collector Jodhpur, the allegation being that the former had been dispossessed of the holdings in question by the petitioner Balu. THE petitioner who was defendant in the suit, inter alia contended that the Tehsildar Jodhpur had no authority or jurisdiction whatsoever to grant any Bapi patta of Mustaqil or Ghair Mustaqil agricultural lands at the relevant time in the former State of Jodhpur. THE trial court, namely, the Assistant Collector, Jodhpur, upheld the petitioner's contention and dismissed the respondent's suit. THE respondents then went up in appeal to the Additional Commissioner, Jodhpur, from the judgment and decree of the Assistant Collector Jodhpur. THE Additional Commissioner set aside the trial court's judgment and decree and remanded the case for a decision on the remaining issues as the trial court had dismissed the plaintiff's suit on the issue relating to jurisdiction treating it as a preliminary point. THE petitioner then went up in appeal to the Board of Revenue who by its judgment dated the 12th December, 1960, (the date 12th November, 1960, mentioned in the writ petition, it is conceded, was an error for the date 12th December, 1960) upheld the order of the Additional Commissioner. It is against this decision that the present writ application has been filed before us. The only contention which thus falls for determination in this writ petition is whether the finding of the Revenue Board that the Tehsildar had the jurisdiction to grant a Bapi patta of the lands in question is not well-founded We shall now refer to the relevant laws bearing on this question. It is admitted before us that the grant of Bapi pattas in the former State of Jodhpur was governed by a set of rules which are called Rules for Bapidars and Ghair Bapidars. See the Marwar Code Vol. I at pages 107 to 122. Unfortunately these rules do not show the exact date when they were brought into force; but it is not disputed before us that they were introduced some time in the twenties of this century. Curiously enough, although they contain a number of provisions governing the grant of such pattas and the incidents of such grants, they do not contain any provision in themselves as to the authority who could grant Bapi pattas of agricultural lands. We pause here for a moment to point out that the observation made in the judgment of the Revenue Board that "it is an admitted position between the parties that under the Bapi Rules of Jodhpur State the authority to issue the Bapi patta for agricultural lands was conferred upon the Assistant Commissioner Land Revenue" is obviously inaccurate, and, so also the further observation that "on 21. 12. 48 a notification was issued conferring these powers upon the Sub-Divisional Officer" as will appear from the further part of our judgment, inasmuch as the notification of 1948 did not confer any such powers upon the Sub-Divisional Officer. It is reasonable to presume, however, that the power to grant such pattas which originally seems to have vested in the Government came to be delegated to the subordinate officers by executive orders so that it is not in dispute before us that the position round about 1947 was that such pattas were usually granted by the Assistant Land Revenue Commissioner who was earlier designated Assistant Superintendent Hawala. On the eve of the integration of the then State of Jodhpur the United State of Rajasthan, certain administrative changes were brought about, and a Government circular dated the 21st December, 1948, was published in the Jodhpur Rajpatra, dated the 25th December, 1948. This was issued under the signature of the Chief Secretary of the State of Jodhpur, by order of His Highness the Maharaja of Jodhpur who was the sole legislative for that State. This circular reads as follows - Subject - Powers of Revenue Officers, Dy. Commissioners, Sub-Divisional Officers and Tehsildars. In order to avoid confusion and secure continuity, a statement is appended showing the court or officer who will deal with each class of business under the new scheme of administration. Thus for instance some cases which are now being dealt with by the Hakims will be dealt with from the 1st January, onwards by the Subdivisional Officer and some by the Tehsildar. Some others which are now being disposed of by the Judicial Superintendents and by the Commissioner of Land Revenue or Tribute Superintendent, as the case may be, will be heard and disposed of by the Deputy Commissioner himself. Revenue Officers are requested to study carefully the statement appended to the circular and act accordingly, 2. Land Revenue and Tenacy legislation is under active consideration but till it is promulgated, the procedure laid down under the existing laws and rules will naturally be followed. 3. A separate order is under issued formally transferring each class of cases to the proper court, where it will be determined. By Order, of His Highness the Maharaja Sahib Bahadur, Chief Secretary to Government. Below it was given a Schedule of powers of the various revenue courts and officers. At item No. II dealing with the business which upto that time was transacted by the Assistant Commissioner, Land Revenue, it was specified in sub item No. 4 that the disposal of ghair mustaqil holdings in Bapi Or Ghair Bapi would thereafter fall under the charge of the Tehsildar and the controlling authority or the appellate court would be the Deputy Commissioner. The holdings with which we are concerned in this writ application are admittedly Ghair Mustaqil and consequently the Tehsildar would be the authority to deal with the grant of Bapi Pattas with respect to them. This circular was to take effect from the 1st January, 1949. If the matter rested at that, there need have been no room for controversy on the question of jurisdiction in the present case. Learned counsel for the petitioner, however, contends that this circular was superseded by the Marwar (Adaptation of Laws) Act, 1949 (Act No. II of 1949, hereinafter called the Act of 1949) which also came into force on the 1st January, 1949. Dealing with the Rules for Bapidars and Ghair Bapidars it was enacted by this Act that the word "hakim" and the words "assistant Superintendent, Hawala" wherever they occur therein shall be substituted by the words "sub-Divisional Officer" and further, for the words "hawala Superintendent" wherever they occur, the words "deputy Commissioner" shall be substituted. It is then Contended on the basis of this provision that the matter of grant of Bapi Pattas with respect to the class of lands with which we are concerned in the present writ application could be done only by the Sub-Divisional Officer and not by the Tehsildar, and, consequently the grant of Bapi rights to the respondents by the Tehsildar was entirely without jurisdiction. Before we proceed further, we should like to take this opportunity of pointing out that the Legislature seems to have forgotten that at the time the Act of 1949 came to be enacted, the words "assistant Superindent Hawala" and Hawala Superintendent did not exist in the Bapi Rules at all, for by an earlier Government circular dated the 30th April, 1942 published in the Jodhpur Government Gazette dated the 9th May, 1942, the designations of "hawala Superintendent" and "assistant Superintendent Hawala" among others were revised as "commissioner, Land Revenue" and "assistant Commissioner, Land Revenue. " This circular has undoubtedly the force of law because it was issued under authority of His Highness the Maharaja of Jodhpur who, as we have already pointed out, was the sovereign legislative authority for that State. Be that as it may, the question is whether the adaptation ordered by the Act of 1949 to which we have referred above properly has the effect of vesting the authority to grant Bapi Pattas of Ghair Mustaqil lands in the Sub-Divisional Officer. Our answer to this question is in the negative though not for the reason which has been relied on by the learned Members of the Board in this behalf. Their view seems to be that by the Act of 1949 the words ''assistant Superintendent, Hawala" were directed to be substituted by the words "sub-Divisional Officer" and that this provision cannot have any application to the words 'assistant Commissioner, Land Revenue. " The fact of the matter, however, is that there was no such designation in existence as "assistant Superintendent, Hawala" at the time the Act of 1949 came to be enacted, and that designation had already been revised as "assistant Commissioner, Land Revenue" by the Government circular of 1942. With respect, therefore, we cannot concur in the reasoning which seems to have found favour with the Revenue Board in coming to the conclusion to which it did. All the same, we have not felt persuaded to accept the position contended for by learned counsel for the petitioner that by virtue of the change made by anything contained in the Act of 1949 as respects the Rules for Bapidars and Ghair Bapidars, the authority to grant Bapi pattas of Ghair Mustaqil lands was vested in the Sub-Divisional Officer. As we have adverted to above, these Rules do not contain any specific provision as to the authority which could grant Bapi Pattas of various classes of agricultural lands in the former State of Jodhpur. And that being so, any change brought about by the Act of 1949 in the Rules in question would not have the effect of vesting the Sub-Divisional Officer with the authority to gram such pattas. We hold accordingly. To negative this conclusion, it was strongly pressed upon us that the circular of 1948 was just some thing in the nature of a proposal and that it would not be correct to hold that it had any statutory force. We have already quoted the circular in extenso and we find it impossible in view of its plain language, to accept that this was some thing in the nature of a proposal only. It clearly says that in order to avoid confusion and secure continuity, a statement was being appended to show the revenue court or officer who would thereafter deal with each class of business under the new scheme of administration. It was, therefore, enjoined that all revenue officers should carefully study the statement and act accordingly. It was of course added that land revenue and tenancy legislation was under the active consideration of the Government but until it was promulgated, the existing law and rules must have their force. This circular was issued by the Chief Secretary to the Government of Jodhpur by order of His Highness the Maharaja in whom the entire legislative authority resided so far as that State was concerned. It was contended that a circular like this cannot properly claim statutory force and that the machinery for making legislation in the form of Acts was not unknown to that State and in fact was usually resorted to. This may be true, so far as it goes. But we cannot help pointing out that it is equally true that it was not by means of Acts alone, properly so-called, that that State used to formulate its laws. As an instance of what we have in our minds, we should like to draw attention to the notification relating to the re-organisation of the Judicial Department in that State appearing at page 885 of Vol. I of the Marwar Code. This notification lays down the powers of the various courts which existed in that State right from the Chief Court to the courts of Naib Hakims and honorary courts. Can it be contended that this notification did not have the force of law ? Not for a moment in our opinion. The circular of 1948 seems to us to be more or less of the same pattern, and as we have discussed above, the position laid down by it was not affected by anything contained in the Act of 1949. We, therefore, hold that the Tehsildar had the jurisdiction to grant a Bapi Patta of Ghair Mustaqil agricultural lands in the former State of Jodhpur at the relevant time, although we should like to add that our reasons for coming to this conclusion are somewhat different from those which prevailed with the Revenue Board. The result is that this writ application fails and is hereby dismissed but under the circumstances we leave the parties to bear their own costs. . ;