- (1.) THE learned Division Bench which heard this appeal has referred the following two questions to this Larger Bench; (1) Whether the amendment in Section 183 of the Rajasthan Tenancy Act by Ordinance No. 9 of 1970 and later on by Act No. 17 of 1970 is prospective or retrospective in nature keeping in view the provisions of Section 46a of the Rajasthan Tenancy Act. (2) Whether in the facts and circumstances of this case the appeal shall have to be disposed of in accordance with the orders of the larger bench dated 3-4- 70 or the Division Bench hearing the appeal is still free to take a different view having regard to the amendment of section 183 of the Rajasthan Tenancy Act by ordinance No. 9 of 1970 and Act No. 17 of 1970.
(2.) IN order to appreciate these questions a few facts are necessary to be stated. The plaintiff Uma and others are members of the Scheduled Tribe. They filed a suit against Kajor who is a brahmin and is not a member of the Scheduled Caste or Scheduled Tribe for restoration of possession of certain lands under section 183 Rajasthan Tenancy Act. That suit was decreed by the Sub-Divisional Officer, Udaipur on 12-1 67. The defendant went up in appeal before the learned Revenue Appellate Authority, Udaipur. This appeal was accepted on 5-9-67 and the plaintiffs suit was dismissed. Then the plaintiffs filed a second appeal to this Board. This appeal was heard by a learned Division Bench and on 5-8-69 the learned Division Bench differing with the view taken by another Division Bench referred the following question to a Larger Bench: - "whether in the circumstances of the instance case a suit can be brought forth by a member belonging to a Scheduled Tribe or a Scheduled Caste under Section 183 of the Rajasthan Tenancy Act against a trespasser who is not a member of a Scheduled Tribe or a Scheduled Caste, the former having been held as not competent to admit the latter as a tenant in view of the provisions of Sec. 46a of the Rajasthan Tenancy Act. " The occasion for this reference arose because under sec. 183 Rajasthan Tenancy Act as it then stood a suit could be filed by a person who was entitled to admit the trespasser as a tenant. The earlier decision of D B. referred to above was to the effect that on account of the bar contained in sec. 46a a person belonging to the Scheduled Caste or Scheduled Tribe could not admit a person not belonging to Scheduled Caste or Schedule Tribe, as tenant and therefore such a person belonging to Schedule Caste or Tribe could not bring a suit for ejectment under Sec. 183 against a trespasser who did not belong to Scheduled Caste or Scheduled Tribe but the learned D. B. which heard this appeal was not in agreement with this decision of the other D. B. The Larger Bench which heard this reference by its judgment dated 3-4-70 answered the reference to the effect that "a member belonging to the Scheduled Caste or Tribe cannot bring a suit under sec. 183 of the Rajasthan Tenancy Act against a trespasser who is not a member of a Scheduled Caste or Tribe for ejectment because the former is not entitled to admit him as tenant in view of the provisions of Sec. 46a which debarred him from letting out his - holding to a non Scheduled Caste or Tribe person. " On receiving this answer from the Larger Bench the Division Bench proceeded to dispose of the appeal but in doing so it was faced with some difficulty. After the reference was answered by the Larger Bench sec. 183 of the Rajasthan Tenancy Act was amended by Ordinance No. 9 of 1970 on 13-8 70 (and later this Ordinance was replaced by Act No. 17 of 1970 on 27-11-70) by substituting the words "on the suit of the person or persons entitled to eject him" for the words "on the suit of the person or persons entitled to admit him as a tenant. " This amendment had been found to have retrospective effect by another D. B. in the case of Ram Sevak vs. Natthi, (reported in RRD 1974 NUC 23 ). IN view of this amendment and the retrospective effect given to it by another D. B. question arose before the learned D. B. hearing this appeal after the reference was answered by the Larger Bench, whether in fact the amendment of Sec. 183 was with retrospective effect as held in the case of Ram Sevak vs. Natthi by another D. B. and even if it had retrospective effect whether it was still bound to dispose of the appeal in accordance with the answer furnishing by the Larger Bench to the question referred to it in view of sec. 11 of the Rajasthan Land Revenue Act. Faced with this difficulty the learned members of the D. B. thought it fit to refer the aforesaid two questions to the still Larger Bench. We have heard the learned counsel for the parties. It would be proper to take up the second question first because if we come to the conclusion that even if the amendment of sec. 183 of the Rajasthan Tenancy Act by Ordinance No. 9 of 1970 and Act No. 17 of 1970 is of retrospective effect the D. B. is still bound to dispose of the appeal in accordance with the answer furnished by earlier Larger Bench in view of sec. 11 of the Rajasthan Land Revenue Act, it would not be necessary for us to answer the first question. Sec. 11 of the Rajasthan Land Revenue Act lays down "the Chairman or any other Member 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 accordance with such opinion. " A simple reading of sec. 11 therefore goes to show that when a matter is referred to a larger Bench the Bench referring the question shall dispose of the case in accordance with such opinion as the Bench to which it was referred gives. The question in the present case is whether this plain meaning of Sec. 11 will still hold good if after the opinion of the Larger Bench to which the question was referred has been received the provision of law on which such opinion was based has been changed or amended retrospectively. In this connection Mr. N. S. Chordia appearing for the respondent has drawn our attention to 1972 RLW 155 1960 and SC 941. In the case reported in 1972 RLW 155 three appeals under sec. 82 of the Employees Insurance Act were heard by a Hon'ble Single Judge of the High Court. The Hon'ble Single Judge referred a question about the vires of Rule 17 of the rules made under the Act to a Larger Bench on account of the importance of the question raised. The matter was then heard by a Bench of two Hon'ble Judges. They were of the opinion that Rule 17 of the rules was intravires of rule making power conferred on the State Government under sec. 96 (1) (3) of the Act. This finding was returned to the learned Single Judge When the matter came up before the Hon'ble Single Judge a contention was raised that meanwhile the Hon'ble Supreme Court had held Rule 17 of the Rules to be ultravires in another case- It was urged that the judgment of the Hon'ble Supreme Court was binding on the courts by virtue of Art. 141 of the Constitution and in view of that pronouncement of the Hon'ble Supreme Court the judgment of the D. B in the reference could not stand. The Hon'ble Single Judge over ruling this objection observed that "rule 59 of the HIGH COURT OF RAJASTHAN Rules contained a mandate that the Bench referring the question to a Larger Bench shall follow the decision of the Larger Bench answering the question and dispose of the case after deciding the remaining questions if any arising therein. " It was further observed that "therefore it was not open to that Bench to go behind the decision of the D. B. about the vires of the Rule 17 of the Rules notwithstanding the Supreme Court decision to the contrary. Sec. 11 of the Rajasthan Land Revenue Act, is almost in the same terms as Rule 59 of the HIGH COURT OF RAJASTHAN Rules. Though it is not perameteria. It will be useful to quote both the provisions. Rule 59 of the HIGH COURT OF RAJASTHAN is as under : "rule 59. Reference of a case to a Larger Bench. The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question or questions so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question or questions and dispose of the case after deciding the remaining questions, if any, arising therein. " Section 11 of the Rajasthan Land Revenue Act reads : "section 11. Power to refer to a Bench - The Chairman or any other Member of the Board sitting singly for the disposal of any case or proceeding may fix 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 accordance with such opinion. " It is thus clear on the reading of the two provisions that under both of them the Bench referring the matter to a Larger Bench shall follow the decision of the Larger Bench and shall dispose of the matter in accordance with such opinion of the Larger Bench. Therefore the position under Rule 59 of the HIGH COURT OF RAJASTHAN Rules and Section 11 of the Rajasthan Land Revenue Act is similar. The decision of the Hon'ble High Court in 1972 R. L. W. 155 should therefore govern the present case. In that case despite the fact that the opinion of the Larger Bench was impliedly over ruled by the Hon'ble Supreme Court in another case the Bench referring the question to the Larger Bench found itself still bound to follow the decision of the Larger Bench. Therefore in the present case also the Bench which referred the question earlier to the Larger Bench must be found to be bound by the decision of the Larger Bench despite the fact that the provisions of Section 183 on which the opinion of the Larger Bench was based had undergone an amendment even retrospective in operation. The decision of the Hon'ble High Court referred to above was sought to be distinguished on behalf of the appellant on the ground that in that case the opinion of the Larger Bench was merely impliedly over ruled by a later decision of the Supreme Court but here the law itself under which the opinion of the Larger Bench was based has been amended and therefore the two cases are not similar. In our opinion this distinction is uncalled for and unjustified. When the Hon'ble Supreme Court decided that Rule 17 made under the Employees Insurance Act was ultravires of the powers of the State Government it must be deemed that Rule was void ab initio. Similar is the position if it is found that Section 183 had been amended with retrospective effect because in that case the position would be that the amended Section will be deemed to have been in existence from the inception and the original Section would be deemed not to have been in existence at all. We are therefore clearly of the opinion that the authority reported in 1972 R. L. W. 155 clearly applies to the facts and circumstances of this case and it must be held that the D. B. which referred the earlier question to the Larger Bench was bound to dispose of the appeal in accordance with the opinion of the Larger Bench. It was not open to the D. B. to go behind the decision of the Larger Bench. There is another aspect from which the matter can be looked at. The decision of the Larger Bench on the question referred to it was final. It was not open to any further appeal and therefore the question decided by it cannot be allowed to be reagitated, as such a course would be barred by the principles of resjudicata which apply not only to two different suits but even to two stages in the same suit as has been held by the Hon'ble Supreme Court in 1960 S. C. 941.
(3.) IN view of what has been stated above, our answer to the second question is that the D. B. shall have to dispose of the appeal in accordance with the opinion of the Larger Bench vide its judgment dated 3-4-70 and the D B. hearing the appeal is now free to take a different view having regard to the amendment of Section 183 of the Rajasthan Tenancy Act by Ordinance No. 9 of 1970 and Act No. 17 of 1970, so far as this case is concerned. In view of our answer to question No. 2 as above we do not feel called upon to answer the first question, which as a matter of fact cannot be said to arise in the proceedings before the D. B. when it cannot go behind the opinion of the Larger Bench. The reference is therefore answered as above. . ;