D. C. Joseph, Member - (1.) A reference has been received from a Member for an authoritative pronouncement on the following questions : (1) Can the Board go into the validity of a rule framed by the State Government in exercise of powers delegated under sub-section (2) of section 261 Land Revenue Act and decide whether an impugned rule is or is not under the Land Revenue Act ? (2) Whether rule 14 (4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 as it was prior to the amendment dated 28-11-70 is within the limits of the powers delegated by the Act ? and (3) Whether the amendment dated 28-11-70 inserting the following words "or a Tehsildar under the Rules repealed by rule 21 of these Rules" in rule 14 (4) is retrospective in operation and is therefore beyond the powers delegated by sub-section (2) of section 261 of the Land Revenue Act ?
(2.) THIS reference has arisen out of orders passed by the Collector Pali and upheld by the R. A. A. Jodhpur which were challenged in second appeal before the Board under section 76 of the Land Revenue Act. Allotments had been made to all the appellants under the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1957 well before the new allotment rules came into force in the year 1970. The Collector Pali cancelled the allotments under rule 14 (4) of the 1970 Rules. A separate reference posing the same questions has been made in respect of a similar order passed by the Collector Bhilwara. It is urged by the Government Advocate that it would be useful first of all to determine whether the Board has the power to examine the validity of a rule framed by the State Government in exercise of powers delegated by sub-section (2) of section 261 of the Land Revenue Act. Only if the Board found itself competent to go into this question would it be necessary to examine the other questions. We have found this request reasonable and have accordingly directed Shri Satya Deo Rajpurohit, counsel for the appellants, to address us first on this aspect. Shri Rajpurohit says that law-making power falls into three categories:- (l) the power of Parliament to make laws; (2) the power of Parliament and the State Legislatures to legislate in respect of matters contained in the Lists and (3) delegation of power by the Legislatures to make rules and issue notifications. In respect of the first two, he says, the provisions of the Constitution itself are to be examined, but in the third case it is only the interpretation of a particular Act and the rules made thereunder which is involved. He has drawn attention to section 113 of the C. P. C. hand says that under this section a civil court may make a reference to the High Court, but when a constitutional question is involved the court is compelled to make such a reference. Where no matter involving interpretation of the Constitution is involved, it is the discretion of the court whether it makes a reference or not. There is no bar on its interpreting the question itself. Learned counsel says that section 113 of the C. P. C. is not applicable to the Rajasthan Tenancy Act by virtue of the relevant entries in List I of the Fourth Schedule to that Act; neither is it applicable to the Rajasthan Land Revenue Act, but the latter itself contains a specific provision for intra court reference (section 11) and for reference to the High Court (section 12 ). Under section 11 the Chairman or any other Member of the Board sitting singly for the disposal of any case or proceeding may, if he thinks fit, for reasons to be recorded in writing, refer any question of law or custom having the force of law or of the construction of any document arising before him in such case or proceeding for the opinion of a Bench, and the case or proceeding shall be disposed of in accord-ance with the opinion received Section 12 says that if in any case it appears to a Bench that any such question is referred to in section 11 is of public importance and that it is expedient to obtain the opinion of the High Court thereon, the Bench may after the question to that court. Counsel's contention is that section 12 is discretionary and the Board may or may not refer such a question to the High Court. There is no bar in the section on the Board itself considering the matter and in this respect the Board has the same freedom to act, subject to the same restriction, as a civil court under section 113 C. P. C. We shall discuss this point later. The Board itself, says Shri Rajpurohit, has several times examined the vires of provisions of an Act or rules. In 1964 RRD 209 the decisions of the lower courts were attacked on the ground that section 42 of the Rajasthan Tenancy Act was discriminatory and ultra vires. It was held that the Board was not the proper forum where the power of the State Legislature could be questioned. Learned counsel says that this view was undoubtedly correct: because a constitutional point was involved. This ruling was followed by a Single Member in 1973 RRD 522 There, says counsel, it was argued that rule 17a of the Rajasthan Colonisation (Medium and Minor Irrigation Project Government Land Allotment) Rules, 1968 was ultra vires of the Colonisation Act and it was held, relying on 1964 RRD 209, that the Board was not the proper forum where the vires of an Act of the State Legislature could be questioned. Counsel says the learned Member went astray because it was not the Act which was being challenged but the fact that the rule was not in conformity with the Act. These two rulings apart, he says, the Board has never hesitated to examine the vires of subordinate legislation especially. In 1968 RRD 581 notification No. F. 6 (82) Rev/b/ 59 dated August 13, 1960 cnferring the powers of Assistant Collector on Tehsildar to dispose of applications under section 80 of the Rajasthan Tenancy Act for payment of compensation exceeding Rs. 300/- for trees vested in a khatedar was held to be illegal because it was in conflict with section 217 (2) of the Rajasthan Tenancy Act. In 1970 RRD 173 it was held by a Division Bench that notification No F. 2 (172) Rev/d/gr, 11/61 dated 11 6-63 conferring the powers of Director of Land Records on the Revenue Appellate Authority was invalid. This view was later overruled by a Larger Bench in 1917 RRD 40 which held that the notification in question would be deemed to have been issued under section 260 of the Rajasthan Land Revenue Act and always to have been valid on that basis. Shri Rajpurohit has admitted that in none of these rulings was there a conscious finding after discussion as to whether the Board was competent to go into the vires of an Act or the rules or notifications issued thereunder. However, the question of the jurisdiction of the Board did come up before a Full Bench in Mana vs. Kaiyan 1966 RRD 135. In that case the point at issue was whether the Board of Revenue had been properly constituted in accordance with section 4 of the Rajasthan Land Revenue Act, 1956. During the hearing of the reference a preliminary objection was raised by the Advocate-General to the effect that the Board was not competent to hear and adjudicate upon the reference. He said that the question raised did not fall within the scope of section 11 of the Land Revenue Act as it was not a question of law. He also made a reference to Article 226 of the Constitution and argued that it the non petitioner wanted to raise the question of the validity of the appointment of the Members of the Board the proper remedy for him was to seek a writ of quo warranto from the High Court. It was further argued that a question of jurisdiction could relate to (a) subject matter, (b) territorial limits and (c) pecuniary limits in money suits and, as the question did not relate to any of these matters, the Bench was not competent to answer the reference. After considering various authorities, the Bench came to the conclusion that since the validity of the Constitution of the Board itself had been challenged it would necessarily have to decide this question before it could proceed. It was held that it was the primary obligation of the courts and officers upon whom is cast a duty of deciding a case judicially that they will entertain objections to the jurisdiction of their own authority, whether these are raised with relation to the subject matter of the dispute or territorial or pecuniary limits or with regard to their competence to exercise jurisdiction. Shri Rajpurohit has vehemently argued that since the Board in this case examined the relevant provisions of the Land Revenue Act itself in relation to its composition, there would certainly be jurisdiction to examine the vires of a rule framed under the rule-making power of the State Government given by the Land Revenue Act. It is further asserted that Revenue courts are quite distinct from civil courts and for this attention has been drawn to a judgment of a Division Bench in 1963 RRD 81. Citing AIR 1961 Calcutta 217, counsel says that where there is any conflict between a rule framed under an Act and a section of the Act itself, this must be dealt with in the same spirit as a conflict between two sections of the Act would be dealt with; and if reconciliation is impossible, the subordinate provisions must give way. It is argued that since in the present reference the rule which has been challenged is beyond the rule-making power delegated to the Sate Government, it will have to be set aside. That is a question which we will go into later if we decide that we are competent to consider the matter at all. Shri Rajpurohit has also drawn our attention to V. N. Shukla's Constitution of India (sixth edition) by D. K Singh at page 387, the commentary on Article 228. This says that the object of this Article is to make in the State the High Court the sole interpreter of the Constitution and at the same time to prevent it from being made a forum for academic discussions on constitutional questions. It is not that the subordinate courts have no jurisdiction to interpret the Constitution. But in order to have the most competent decisions on constitutional questions and to maintain uniformity in interpretation, the provision has been made in this Article. It is noted that by amendments made in 1951 in section 113 of the C P. C. and section 432 of the Cr. P. C. 1898 (Section 395 of the Cr. P. C. 1973) it has been made obligatory on the lower courts to send a case for the opinion of the High Court wherever the vires of a legislative enactment is questioned for the first time before it. Shri Rajpurohit has deduced from this that the courts have virtually unlimited powers. Shri S. N. Pareek, appearing as the first of several amicus curiae, is of the view that if the vires of any constitutional matter is challenged courts other than the Supreme Court and the High Court have no jurisdiction. However, he says, the power of the court is not taken away if the question is whether a particular enactment does or does not fall in part III of the Constitution. Shri Pareek has cited C D. Jha's Judicial Review of Legislative Acts (1974 edition.) Discussing the powers of the District Court for judicial review, this says that the power of examining the constitutional validity of a legislative Act even by the District Court was considered necessary by the Indian Parliament to give facility to the aggrieved party to raise the point expeditiously even in the subordinate court where the original civil or criminal case was pending. With this object a new rule, i. e, rule 4 (A), was inserted in Order XL VI of the C. P. C. by which rules 2, 3 and 4 also were made applicable in the case of reference on the point of the constitutionality of any legislative Act (pages 150 and 151 ). It is further stated that it is available to the aggrieved person to file a suit under section 9 of the C. P. C. for declaration of a part or the whole of any law as ultra vires if the plaintiff is actually aggrieved by the impugned legislative provision. Jha goes on to say that from the decisions of the Supreme Court it is clear that such suits may be filed in District Courts. In Jhula Bai vs. State of M. P. AIR 1969 SC 78 it has been held that "when a provision is already declared unconstitutional or the consitu-tionality of any provision is to be challenged a suit is open". However, Jha has further pointed out that in America, unlike India, even the district courts have the power to declare a legislative Act unconstitutional. Appeals can be filed up to the Federal Supreme Court, but the power of the District Court to declare a statute void in America remains. This suggests that the District Court in India only have the power to examine and refer to the High Court and not to decide the vires of a statute themselves and in this respect the quotation from Jha appears to support the case of the State rather than that of the appellants. The wording of section 113 C. P. C. is also in consonance with this.
(3.) SHRI Pareek supports the argument made on behalf of the appellants that sections 12 of the Rajasthan Land Revenue Act is analogous to section 113 of the C. P. C. but says that the powers of the Board are wider than those in section 113 because there is no obligation to make a reference. A further point made is that rules are delegated legislation and as per AIR 1972 SC 1917 the delegate is empowered only to carry out the subsidiary policy within the guidelines laid down by the Legislature. It would not be permissible for the authority to whom powers are delegated to transgress the limits so as to bring about a conflict with the enactment itself. As regards the scope of section 11 of the Land Revenue Act, SHRI Pareek says that the matter before the court is undoubtedly a question of law and there can be no impediment to hearing the reference. The question of law is regarding the interpretation of section 261 of the Land Revenue Act and whether the rules framed under that section are in consonance with the rule-making power conferred by the section. Shri Moti Lal Jain, quoting from Bindra's Interpretation of Statutes (5th edition) at page 11 has sought to draw a distinction between rules of law and rules of construction "a rule of law cannot be said to contral the construction of a statute, inasmuch as a statute is itself part of the supreme law of the land and over-rides any pre-existing rules with which it is inconsistent. A rule or canon of construction, whether of will, deed or statute, is not inflexible, but is merely a presumption in favour of a particular meaning in case of ambiguity". Shri Jain has also cited AIR 1954 Calcutta 436 in which it has been held (para 19) that in some statutes, power is given to frame rules and when so framed they are made part of the statute. In such a case it may be permissible to supplemen the provisions of the statute itself, within limits. But where rules are to be framed for "carrying out the purpose of the Act", such rules cannot travel beyond the four corner? of the Act itself. It has further been held that in the case of statutory rules the court can always go into the question as to whether they are inconsistent with the statute under which they are made. Another citation of Shri Jain, AIR 1955 Punjab 125, held that where there was an inconsistency between the statute which declared that the provincial Government shall have full power to demand the dismissal of an officer without enquiry and a statutory rule which declared that an enquiry shall be an essential prerequisite to an order of dismissal, the statute would take precedence over the statutory rule and the court must give effect to the purpose of the statute and the intention of the Legislature. In AIR 1956 Rajasthan 101, a Full Bench has held that the rules to be framed under any provision of the Act cannot be inconsistent with the provisions of the Act. Shri Jain, like Shri Pareek before him, has tried to make the point that the rule which is the subject matter of this reference goes beyond the power of Government under the delegation given by section 261 of the Land Revenue Act. As we have observed earlier, we can consider this aspect only if it is decided that we have jurisdiction to do so. Shri Gokul Prasad Sharma has drawn attention to section 8 of the Land Revenue Act and argues that since the Board is the highest court of appeal, revision and reference, it is the ultimate authority in revenue matters except for those convered by Article 228 of the Constitution. It is inferred from this that there can be no bar to the examination of the vires of a rule framed in exercise of powers conferred by the Land Revenue Act under section 11 of the Act. A similar view has been expressed by Shri R. K. Goyal. Shri Yagya Datt Sharma has quoted a passage from Craies on Statute Law (8th Edition) at page 297. This passage deals with delegated legislation. " The initial diffence between subordinate legislation and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that courts of law, as a general rule, will not give effect to the rules, etc. thus made unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the courts, the validity of delegated legislation as a general rule can be. The courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may enquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation, and it follows that the court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials". Shri Yagya Datt has deducted from this that the courts have full authority to investigate the vires of delegated legislation. It is noteworthy, however, that the above comments relate specifically to British Law. ;