K. S. Lodha, Member - (1.) IN these two revisions the following question has been referred to the Larger Bench by a Single Bench : - "whether the period of 90 days provided in proviso (iii) to section 86 is applicable even to an application for review of an order effecting any question of right between a private person and the State or it is applicable only when the order is one effecting any question of right between the private persons. "
(2.) IT will be worthwhile to recapitulate in brief the circumstances in which this reference was necessitated. The Assistant Colonisation Commissioner Rawatsar (headquarter Hanumangarh) dismissed the two review applications filed before him in these two matters as being barred by time, as they were not filed within 30 days of the date of the orders sought to be reviewed. According to him, the period of limitation for applications for review, in matters in which the State was a party, would be governed by Article 124 of the Indian Limitation Act, 1963 by virtue of section 87 of the Land Revenue Act and the period so provided is 30 days. Two revisions against the orders of the learned Assistant Colonisation Commissioner dated 24 4-73 were filed before this Board and came for hearing before one of us. IT was contended that the period of limitation for filing application for review before any revenue court or officer is 90 days as provided under (iii) proviso to section 86 and, therefore, the learned Assistant Colonisation Commissioner was wrong in holding that only a period of 30 days under Article 124 of the Indian Limitation Act, 1963 was provided for such applications for review. Reliance in this connection was placed upon a decision of a Division Bench of this Board in review No. 82/72/jhalawar jamal Shah vs. State of Rajasthan decided on 8-4-74. In that matter the following two questions had been referred to a Division Bench : - (1) Whether provisions of the Indian Limitation Act, 1908 apply to applications for review under the Land Revenue Act; and (2) What is the limitation prescribed for filing applications for review under the Land Revenue Act. The learned Division Bench in that case answered the first question 'in negative' and the answer to the second question was '90 days'. The decision of the learned Division Bench would have governed the decision of these two revisions before the Single Bench, but it was contended that while answering the second question the learned Division Bench did not take into consideration the fact that the period of 90 days provided in the (iii) proviso to section 86 was applicable only to applications for review of an order effecting any question of right between private persons and not applications for review of an order effecting any question of right between a private person and the State and, therefore, that decision of the learned Division Bench was not applicable to the present cases. It was found that the question whether the period of 90 days would govern the applications for review both against the orders effecting any question of right between private persons and any question of right between a private person and the State, had not been agitated before the learned Division Bench and naturally had not been considered by it, and, therefore, if the Single Bench was to take the view that the period of 90 days as provided under the (iii) proviso to section 86 would not govern applications for review of orders effecting any question of right between a private person and the State, it would be a decision in conflict with the decision of the Division Bench which in general holds that the period of limitation for an application for review is 90 days. It was, therefore, thought fit that the question stated above be referred to a Lager Bench. Now we have heard the learned counsel for the parties, as well as, the amicus curiae. It has been urged by them that the answer to the first question by the Division Bench in Jamal Shah's case referred to above is also not correct. According to them, section 87 of the Land Revenue Act maker the provision of Limitation Act, 1908 applicable to applications for review as also appeals under the Land Revenue Act and the learned Division Bench was not correct when it held that the Limitation Act of 1963 would apply by virtue of section 87 of the Land Revenue Act.
(3.) IN our opinion, this question need not be re-opened for a variety of reasons. IN the first place this question is not the subject matter to the present references. IN the second place the learned Division Bench had after referring to section 8 of the INdian General Glauses Act and section 9 of the Rajasthan General Clauses Act and various decisions of the Hon'ble Supreme Court and the other High Courts had come to the conclusion that as the Limitation Act of 1908 had been repealed and re-enacted by the Act of 1963 the reference to the Limitation Act of 1908 in section 87 must be deemed to be reference to the re-enacted Limitation Act of 1963. This conclusion of the learned Division Bench now stands reinforced by a decision of the HIGH COURT OF RAJASTHAN in civil writ No, 1265/73 Chandu Ram vs. the State of Rajasthan decided on 12 3-74. IN these circumstances we do not feel inclined nor called upon to reconsider this question. It was, however, urged by the learned counsel for the petitioners, as well as, the amicus curiae that the Hon'ble HIGH COURT OF RAJASTHAN did not consider the question whether the Limitation Act of 1908 had been applied by incorporation or merely by reference u/s 87 of the Rajasthan Land Revenue Act. Having over-looked the distinction between application by incorporation and application by reference, it had gone wrong in holding that reference to Indian Limitation Act, 1908 in section 87 of the Land Revenue Act must be deemed to be a reference to the newly enacted Limitation Act, 1963 and, therefore, this decision of the Hon'ble HIGH COURT OF RAJASTHAN is a judgment per-incuriam and is, therefore, not binding on this Board. We are, however, unable to accept this contention. It has been held by his Lordship: "by virtue of the provisions of section 8 of the General Clauses Act a reference to an enactment which has been repealed and re-enacted must be construed as reference to the new law which has repealed the earlier Act. The decision of the Supreme Court in the State of U. P. vs. MP. Singh may be referred in this respect. Thus any reference under section 87 Land Revenue Act to the provisions of the Indian Limitation Act of 1908 must be construed, after January 1, 1964 to the corresponding provisions of the re-enacted law namely the Limitation Act of 1963". It is therefore, clear that it was after the consideration of section 8 of the General Clauses Act that the Hon'ble High Court came to the conclusion that reference to the Limitation Act of 1908 in section 87 Land Revenue Act must be deemed to be a reference to the newly enacted Limitation Act of 1963. It cannot be assumed that the Hon'ble High Court was oblivious of the distinction between enactment by incorporation and enactment by reference. The judgment therefore, cannot be said to be per-incuraim. The learned counsel referred to Craze's Statute Law page 360 (1963 Edition), Bindra's Interpretation of Statute page 705 (1970 Edition) and Sutherland's Statute Construction Vol. 2-550 and also to some judgments. In view of the decision of the Hon'ble HIGH COURT OF RAJASTHAN referred to above, we need not burden our judgment by referring these commentaries and authorities. In support of his contention that the judgment of the Hon'ble HIGH COURT OF RAJASTHAN being per-incuriam is not binding on us, the learned counsel relied upon 1968-Patna-284, 1969-All-162, 1970-Delhi-29, 1967-Gujarat-229, 1939-A11-291 and 1934-A11-335. We have already found that the judgment of the Hon'ble HIGH COURT OF RAJASTHAN in this case cannot be said to be per-incuriam and, therefore, these authorities are of no avail to the petitioners. It may be added that even if we were of the opinion that certain arguments were not raised and therefore, not considered by the Hon'ble High Court and so the judgment was per-incuriam, still it is not open to us to refuse to follow that judgment as a judgment per-incurum may not be binding on a court of co-ordinate jurisdiction but it is binding on an inferior court or tribunal. The HIGH COURT OF RAJASTHAN is a court of record and the law declared by it is binding on all courts and tribunals in Rajasthan We must, therefore, over-rule the contention that the Limitation Act of 1908 continues to apply u/s 87 of the Rajasthan Land Revenue Act. Now coming to the question under reference, we may at once State that seemingly there is a conflict between the decision of this Board in Jamal Shah's case referred to above and the decision of the Hon'ble HIGH COURT OF RAJASTHAN in Chandu Ram's case because according to the Division Bench of this Board the period of limitation for filing an application for review under the Land Revenue Act is 90 days; whereas according to the Hon'ble HIGH COURT OF RAJASTHAN , it is only 30 days. This apparent conflict is on account of the fact that according to the Board the period of 90 days under (iii) proviso to section 86 is applicable, whereas according to the Hon'ble High Court, it is 30 days under Article 124 of the Indian Limitation Act, 1963. But on a careful reading of the two judgments, this conflict stands resolved. As already stated above while answering the second question in Jamal Shah's case, the learned Division Bench of this Board seems to have ignored the fact that the third proviso to section 86 is applicable only to applications for review of an order effecting any question of right between private persons. A bare reading of this proviso would bear it out that this proviso is not attracted in the cases of an application for review of an order effecting any question of right between the State and a private person. It would be proper to reproduce proviso (iii) to section 86 here : "no order effecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings and no application for the review of suck order shall be entertained unless it is made within 90 days from the passing of the order (the italic is our)". According to this proviso, therefore, an order effecting any question of right between private persons can be reviewed only if an application is made by one of the parties to the proceedings and that such application has to be made within 90 days of the passing of the order sought to be reviewed. In other words, it excludes the power of suo-motu review by the court when the order sought to be reviewed is one effecting any question of right between private persons and it is for the private persons to move the court for the review of such an order. It is for such an application that a period of 90 days has been provided. In other cases where the order sought to be reviewed is one effecting any question of tight between a private person on one hand and the State on the other, the court may either suo-motu review such an order or any of the parties may apply for review and to such an application for review, Article 124 of the Indian Limitation Act, 1963 would apply by virtue of section 87 Land Revenue Act. The case before the Hon'ble HIGH COURT OF RAJASTHAN was came in which the order sought to be reviewed was an order effecting the question of right between a private person and the State and, therefore, it was held that the period of limitation of 30 days under Article 124 of the Indian Limitation Act, 1963 would apply Therefore, the position which now emerges is that the decision of the Division Bench of this Board in jamal Shah's case must stand modified to the extent that the period of 90 days under the (iii) proviso to section 86 must apply to an application for review of an order effecting the question of right between private persons only. ;