D. C. Joseph, Member - (1.) A reference has been received from a Division Bench seeking an authoritative answer to the following question of law: - "whether in a matter under the Land Revenue Act an appeal under section 10 of the Act lies to Bench of two or more Members of the Board from the decision of a Member sitting singly if such decision does not attract the provisions of section 77 of the Act".
(2.) THE D. B was hearing a special appeal against an order of a Single Bench dated 24-6-72 accepting a revision petition filed by Ram Sukha and Dhanna under section 84 of the Land Revenue Act. It was argued before the D. B. that in view of section 74 of the Land Revenue Act the appeal was not maintainable. In this connection attention was drawn to a ruling of a Larger Bench in the case Sodagar Singh vs. Rewad Ram 1969 RRD 318. This held that a special appeal was barred in a matter covered by the Rajasthan Tenancy Act in view of the specific prohibition in section 222 read with section 225. THE D. B. noted that this ruling of the L. B. pertained only to the Tenancy Act, but during the course of arguments attention was drawn to the view expressed by another D B. in Janta Khanpur vs. Bherun Singh 1973 RRD 55 to the effect that section 74 of the Land Revenue Act was analogous to section 222 of the Tenancy Act and therefore a special appeal was also barred under the former Act. It was observed that section 10 of the Land Revenue Act merely states how the jurisdiction of the Board is to be exercised and does not confer any right of appeal. THE learned Members who have made this reference did not agree with the view of the earlier D. B in the Janta Khanpur case and hence have sought an authoritative opinion. Shri Moti Lal Jain, counsel for Nand Kishore, has strenuously argued the section 10 of the Land Revenue Act does indeed confer a right of appeal. He had drawn attention to the wording of section 74 and section 77 of the Act and says that in neither of these sections is there any bar to the right of appeal conferred by sec. 10. This section is operative "except as otherwise provided by or under this Act or by any other law or enactment for the time being in force in the whole or any part of the State and subject to any rules made in that behalf. " In the absence of any bar full effect has to be given to the section. Shri Jain has also discussed the effect of a proviso to a section and has cited several rulings. The first of these is AIR 1971 Assam and Nagaland 78. In this it has been held, quoting Maxwell on Interpretation of Statutes, that there is no rule that the first or enacting part of a section is to be construed without reference to the proviso. The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest. If, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect. Another ruling cited AIR 1971 Gujarat 96 does not appear to be relevant for our purpose nor is AIR 1971 Andhra Pradesh 218. In AIR 1971 Punjab and Haryana 379 it has been held that a proviso qualifies whatever is stated in the main enactment and forms part of the subject matter thereof. The point sought to be established by Shri Jain is that section 10 in itself confers a right of appeal and to this extent the view expressed in 1973 RRD 55 is not good law and as a result the conclusion reached in that case, that special appeals do not lie under the Land Revenue Act, is incorrect. Shri Dharam Chand Jain, appearing as amicus curiae, says that sec. 10 has to be viewed along with sec. 77. The latter imposes a bar to an appeal in certain circumstances and it is to this extent only that the right of appeal conferred by sec. 10 is taken away. He has cited AIR 1975 SC 1871 which says that while interpreting a provision of Jaw a construction which would defeat its purpose and, in effect, obliter-ate it from the statute book, should be avoided. In AIR 1965 SC 639 it has been held that every provision of a Statute has to be given full effect and wherever possible the court should not place that construction which would tend to make it redundant or to overlap another provision or to limit its application in disregard of its general applicability unless, of course, that is the only construction which could reasonably be placed upon it. Shri Dharma Chand says that a Larger Bench has laid down in the Sodagar Singh case that a special appeal under section 10 of the Land Revenue Act does not lie in cases under the Tenancy Act. If the view taken in 1973 RRD 55 were to be accepted, this prohibition would extend to all cases under the Land Revenue Act also and the proviso to sec. 10 would be meaningless and incapable of application in any circumstances. Shri Gokul Prasad Sharma has sought to make a harmonious construction of sections 10, 74 and 77 of the Land Revenue Act He has drawn attention to the fact that section 74 bars an appeal "except as provided in this Act. ". Section 77 also bars an appeal in certain circumstances. Sections 75 and 76 provide certain forums of appeal and so does the proviso to section 10 (1 ). The latter is undoubtedly part of the Land Revenue Act and hence an appeal is not barred by virtue of section 74. In equating section 74 of the Land Revenue Act with sec. 222 of a different (Tenancy) Act, the D. B. in 1973 RRD 55 was plainly in error, he says. Shri Bal Krishan Pareek, Government Advocate, has drawn attention to section 11 of the Land Revenue Act which says that a reference can be made by the Chairman or any other Member of the Board sitting singly to a Bench on any question of law or custom having the force of law or for the construction of any document arising before him in a case or proceeding. He says it has been held in 1964 RRD 101 that while section 11 speaks of a reference by the Chairman or a Member sitting singly, there is nothing to prevent a Division Bench referring a point of law to a Larger or Full Bench because the jurisdiction of the Board can be exercised as laid down in section 10 of the Land Revenue Act either by the Chairman or any other Member sitting singly or by a Bench of the Board consisting of two or more Members. The Government Advocate argues from this that what is not prohibited is allowed and since in the present case sec. 77 (b) does not debar a special appeal against a judgment accepting a revision application such an appeal will lie. The Deputy Government Advocate, Shri U. P. Mathur, has argued on similar lines, adding that the deliberate omission of the word "acceptance" in relation to a revision in section 77 (b) of the Land Revenue Act makes it clear that in such a case an appeal will lie. Shri Mathur has drawn our attention to AIR 1926 Calcutta 1113 in which it has been held that in a matter which relates to the curtailment of a right of appeal, if there is the slightest doubt the benefit of that doubt should go to the party who seeks to appeal. In AIR 1965 Kerala a Full Bench of that High Court has said that in the case of statutes conferring a right of appeal, where the words are not clear enough to be coercive the canon of construction is that the ambiguity should be resolved in favour of the right to appeal rather than against it. A third ruling cited AIR 1950 Assam 22 says that where the existence of a right of appeal is doubtful the appellant should be given the benefit of the doubt. Shri Mathur argues that the right of special appeal in the event of a single Member accepting a revision petition has been deliberately conferred by the Legislature by way of abundant caution so that a party having succeeded at the lower appellate stage is not lighty deprived of the fruits of his success. Shri Ved Vrat has supported Shri B. K. Pareek in saying that what is not restricted should be taken to be permitted. He says that section 77 of the Land Revenue Act imposes certain restrictions and these restrictions apply to all appeals under the Act, including appeals under section 10. To the extent that restrictions have not specifically been mentioned appeals are permissible under the Act. Shri S. N. Pareek has pointed out that section 10 falls in Chapater II of the Land Revenue Act and sections 74 and 77 fall in Chapter V. He says that the provisions of section 77 have nothing to do with those of section 10 The intra-court appeals of the Board are analogous to the Letters Patent appeals of the High Courts. He has cited 1960 RLW 328 which says that the limits to which an appeal under section 100 C. P. C. is subject cannot be imported for the purposes of dealing with special appeals under section 18 of the High Court Ordinance. In 1965 RLW 458 the High Court has discussed the wording of section 48 of the Rajasthan Municipalities Act and it has been held that the words "shall be final and conclusive" were knowingly introduced in this section in order to provide that only one appeal would be heard at the stage of the High Court and that the decision in that appeal would be final and conclusive and no further appeal would lie under section 18 of the HIGH COURT OF RAJASTHAN Ordinance No. XV of 1949. Shri Pareek has further cited G. P. Singh's Principles of Statutory Interpretation at page 17 and says that the intention of the lawmakers, expressed in the law itself, is to be taken as a whole. The point sought to be made is that the proviso to section 10 (1) should be viewed in the context of the special power of the Board as the highest court of appeal and revision. However, the second ruling he has cited itself says that the special power is subject to the provisions of the statute. The first merely deals with the grounds on which a special appeal can be made.
(3.) SHRI Pareek has tried to lead us away from the specific reference and to attack the validity of the judgment of the Larger Bench in the Sodagar Singh case. He has pointed out that the reference before the Larger Bench there was limited to whether the term 'decision' used to section 10 of the Land Revenue Act includes an order of the Board of Revenue about the appointment of a receiver or grant of an injunction and whether a special appeal lies against such an order. The Board answered the reference as follow : "it is the considered opinion of this Larger Bench of the Board that the term 'decision' used in section 10 of the Rajasthan Land Revenue Act does not include orders of the Board of Revenue passed in the exercise of the revisional jurisdiction of the Board in regard to the appointment of a receiver or the grant of a temporary injunction in matters arising under section 212 of the Rajasthan Tenancy Act, and further that in view of the specific provisions of sections 222 and 225 of the Rajasthan Tenancy Act and section 77 (b) of the Land Revenue Act a special appeal in terms of the proviso to section 10 (1) is barred". Shu Pareek says that the Larger Bench exceeded its terms of reference in passing certain gratuitous remarks that in view of the specific provisions of sections 222 and 225 of the Rajasthan Tenancy Act and section 77 (b) of the Land Revenue Act a special appeal in terms of the proviso to section 10 (1) is barred. He has traced the background against which the Rajasthan Tenancy Act, 1955 and then the Rajasthan Land Revenue Act, 1956 were brought into force and has stressed that the Tenancy Act came first and at its commencement there were no restrictions on the hearing of special appeals. He has deduced from this that it was not the intention of the Legislature to bar the hearing of special appeals by the Board in cases under the Rajasthan Tenancy Act. The reference before us does not relate to a case under the Rajasthan Tenancy Act. Moreover, as we shall see presently, even if the last clause of the Larger Bench ruling in 1969 RRD 318 is taken to be outside its terms of reference, the Board has in other cases reiterated the view that no special appeal lies under the Tenancy Act. A short answer to the last point made by SHRI Pareek is that the bar lies not in the later (Land Revenue) Act but in section 222 of the Tenancy Act itself Shri N. S. Chordia, counsel for the respondent Ram Sukha, also argues that section 10 of the Land Revenue Act is a provision by itself. He says the provisions for appeal, reference, revision and review are contained in Chapter V of the Act and he supports the view taken in 1973 RRD 55 that section 10 relates only to the manner of exercise of the jurisdiction of the Board and does not confer a right of appeal. The other rulings cited by Shri Chordia, which were also brought to the notice of the D. B. earlier, do not advance his case. In 1972 RRD 169 the cases were under the Rajasthan Tenancy Act and it was held, following the Larger Bench, that the special appeals were not maintainable in view of the provisions of sections 222 and 225 of the Tenancy Act. In 1973 RRD 57 and again at 58 the special appeal was against an interlocutory order passed by a single Member and it was held that since this was not a 'decision' no special appeal would lie. In 1973 RRD 157 also it was held that the order of the single Member was not a decision in terms of the proviso to section 10 (1) of the Land Revenue Act. In 1973 RRD 510 the view was taken that no special appeal would lie in any case under the Rajasthan Tenancy Act. Shri Chordia has expressed full agreement with the view taken in 1973 RRD 55 that section 222 of the Rajasthan Tenancy Act is analogous to section 74 of the Land Revenue Act and that since the Board has held in the Sodagar Singh case that special appeals are barred under the Tenancy Act such appeals are similarly barred under the Land Revenue Act. Section 10 of the Land Revenue Act, he claims, is merely a procedural section conferring no right of appeal but only indicating the manner in which the jurisdiction of the Board is to be exercised. If there is some difficulty in implementing the proviso to section 10 (1), and it causes some hardship or inconven ence, that will have to be undergone. A procedural section cannot overcome a statutory bar. Reliance in this connection has been placed on 1966 RRD 250 which says that where the language is plain and unambiguous it should be given effect to by the courts without consideration of hardship resulting thereby. During the course of arguments considerable stress was laid by Shri Chordia and Shri S. N. Pareek on the ruling of Larger Bench of the Board in Sodagar Singh vs. Rewad Ram 1969 RRD 318, though from different viewpoints. The intention of Shri Pareek was to raise doubts regarding the validity of this ruling since the exclusion of all cases under the Rajasthan Tenancy Act from the purview of special appeals within the Board of Revenue was, in his view, a serious curtailment of the right of appeal granted by the proviso to section 10 (1) of the Land Revenue Act and in fact rendered this provision nugatory. Shri Chordia, on the other hand, drew our attention to other cases where the Board has followed the Sodagar Singh ruling and particularly the decision of a Division Bench in 1973 RRD 510, of which one of us was a Member. It was noted therein that even if the view were taken that the Larger Bench exceeded its terms of reference in asserting that, apart from interlocutory orders, even decisions under the Tenancy Act do not attract the proviso to section 10 (1) of the Land Revenue Act because of the bar in section 222 of the Tenancy Act, the Larger Bench had relied on certain rulings of the HIGH COURT OF RAJASTHAN and the Supreme Court in arriving at this conclusion and these rulings would in any case hold good. It was accordingly held that in all cases where a Member of the Board sitting singly passes a decision or order under the Rajasthan Tenancy Act, a special appeal under the proviso to section 10 (1) of the Land Revenue Act is barred. It will be noted that the main reason why the Larger Bench held that no special appeal would He under the Rajasthan Tenancy Act was because of the combined effect of sections 222 and 225 of that Act read with the first clause of section 10 of the Land Revenue Act. This clause, to which Shri Moti Lal Jain has drawn pointed attention, reads "except as otherwise provided by or under this Act or by any other law for the time being in force". This opening clause clearly qualifies the operation of the section and since in the Rajasthan Tenancy Act the Legislature has expressly taken away any right of appeal except as provided in that Act (section 222) there can be no special appeal within the Board of Revenue. In cases under the Land Revenue Act a difficulty has arisen because a Division Bench has held in 1973 RRD 55 that section 222 of the Tenancy Act is analogous to section 74 of the Land Revenue Act and, therefore, unless a specific right of appeal is conferred by the Land Revenue Act, there can be no appeal. It has been held that section 10 of the Land Revenue Act merely states how the jurisdiction of the Board is to be exercised and does not confer any right of appeal. We find considerable difficulty in accepting this view of the learned Division Bench. Section 222 of the Tenancy Act and section 74 of the Land Revenue Act are similar, but each refers to appeals falling within that particular Act. Shri Chordia has drawn our attention to the fact that section 74 falls in Chapter V of the Land Revenue Act whereas section 10 falls in an earlier Chapter. However, section 74 does not refer to orders passed under that particular Chapter only but in the Act itself. The wording of the section is plain and unambiguous and it bars appeals except as provided under the Act. With due respect to the learned Members who constituted the Division Bench in the case reported in 1973 RRD 55, they were led into error by considering whether a right of appeal exists under the proviso to section 10 (1 ). This was unnecessary Section 74 does not say anything about a 'right' of appeal. It merely says that if an appeal is provided by the Act it can be preferred. There can be no denying that the proviso to section 10 (1) does provide for an appeal just as appeals are provided for in sections 75 and 76. The proviso in fact speaks of a right to appeal but even if the word 'right' were not there section 74 would still permit an appeal. However, section 77 of the Land Revenue Act lays down certain restrictions and we are particularly concerned here with section 77 (b ). This says that no appeal shall lie from an order rejecting an application for revision or review. If the case before us were one where the Single Bench had rejected an application for revision no special appeal would lie, but since the case is one where the Single Bench has accepted an application for revision, the special appeal is not barred by section 77 (b ). We may observe that, if the view taken in 1973 RRD 55 were accepted, Shri Pareek would be vindicated in saying that the proviso to section 10 (1) has been rendered meaningless. We agree that it could never have been the intention of the Legislature that this should be a sterile cause incapable of application The Supreme Court rulings cited by Shri Dharam Chand Jain are pertinent in this regard. The right of special appeal conferred by section 10 of the Land Revenue Act does exist, subject to the limitations imposed by the first clause of the section. ;