- (1.) THIS reference has been made to us by a Division Bench in the following circumstances. A jagir appeal was disposed of by a Division Bench consisting of Sarvashri R. N. Madhok and Z. S. Jhala on 4. 11. 1963. On 21. 11. 1963 a petition for the review of the appellate order of the Division Bench was filed by Gunwant Singh. The review petition was put up before a Division Bench consisting of the Chairman, Shri S. D. Ujjwal, and Shri R. N. Madhok, Member. It was brought to the notice of the Division Bench that there were two conflicting rulings of this Board regarding the competence of a single Member to hear a petition for review. The earlier decision was in the case of Bachan Singh vs. Bheru, decided by a Division Bench on 27. 3. 1963 (RRD 1963 page 135 ). The facts of this case before the Division Bench were that a second appeal under the Rajasthan Tenancy Act, 1955 was decided by a Division Bench consisting of Sarvashri S. L. Kakkar and R. N. Hawa, Members, on 2. 5. 1961. A petition for review was filed soon after and admitted by the same Bench. However, before the final order was passed on the review petition, Shri S. L. Kakkar ceased to be attached to this Board, and Shri R. N. Hawa sitting singly granted the review. It was held that the order passed by Shri Hawa granting the petition for review was perfectly within jurisdiction. However, in Ram Sahai vs. Brijmohan decided on the 26th December, 1953 (RRD 1964 p. 311), the above view was dissented from and it was held that a petition for the review of an order of a Division Bench would be disposed of only by a Division Bench and not by one Member sitting singly. The learned Members who passed orders in that case did not refer the matter to the Full Bench. In the present case referred to us for opinion, Sarvashri R. N. Madhok and Z. S. Jhala, Members, passed an appellate order tinder the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 on 4. 11. 1963, and the petition for review was presented on 21. 11. 1963. The case came up for hearing for the first time before a Division Bench on 8. 4. 1964 and by that date Shri Z. S. Jhala had ceased to be attached to this Board, while Shri R. N. Madhok continued to function on the Board. The question that we have to decide is whether a petition for review should have been heard by Shri R. N. Madhok sitting singly, if he continues to be attached to the Board and is not otherwise precluded from hearing the review petition.
(2.) SHRI S. N. Pareek, counsel for the applicant Gunwant Singh, has vehemently argued that a petition for the review of an order of a Division Bench can only be heard by a Division Bench and not by a single Member, even though one of the Members who constituted the Division Bench passing the appellate order, has ceased to be attached to the Board. He has taken his stand on sec. 10 (1) of the Rajasthan Land Revenue Act, 1956, and Rules 8 and 9 of the Rajasthan Revenue Courts Manual. For convenience, these provisions are reproduced below - "10. Jurisdiction of Board how exercised.- 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, the jurisdiction of the Board may be exercised - (a) by the Chairman or any other member of the Board, sitting singly, or (b) by a Bench of the Board, consisting of two or more members: Provided that a party aggrieved by a decision of a single member shall have the right to make a special appeal to a bench consisting of two or more members of the Board within one month from the date of the decision of the single member. (2) Subject to any rules made in that behalf, the Chairman may distribute the business of the Board and make such territorial or other divisions of its jurisdiction as he may deem fit. (3) Every order made or act done under sub-sec. (1) or in accordance with the distribution or division made under sub-sec. (2), shall be deemed to be the order or act, as the case may be, of the Board. " "8. Class of cases heard by a Member sitting singly.- The following class of cases may be heard and disposed of by a member sitting singly.- (i) Miscellaneous applications; (ii) applications for setting aside an order of dismissal for default by the Board or an ex parte decision given by the Board; (iii) applications for review of the orders and judgment passed by a single member of the Board; (iv) references; (v) applications for transfer of cases; (vi) revisions when the lower-courts' decree or order is to be modified or reversed; and (vii) appeals under sec. 76 (d) of the Rajasthan Land Revenue Act, 1956. " "9. Class of cases heard by a Division Bench.- The following class of cases shall be heard and disposed of by a Division Bench - (i) all decrees or orders coming under the consideration of the Board on appeal; (ii) if in any case heard by a single member, any question of law or custom having a force of law or of the construction of any document is referred to a Bench for decision. When a case is heard by a Bench of the Board, the decision of such case shall be in accordance with the opinion of the majority of the members. " Shri Pareek argues that Rule 8 of the Rajasthan Revenue Courts Manual permits a single Member only to review the orders passed by a single member and not the orders passed by a Bench consisting of two or more members. Undoubtedly, Rule 8 does not provide for the review of the orders of a Division Bench or a larger bench by a single Member, but it is worthy of note that Rule 9 does not prescribe the manner for the review of the orders of a Division Bench or a larger Bench. The conclusion that follows is that Rules 8 and 9 do not between them exhaust the manner of exercise of jurisdiction by the Board. Sec. 10 (1) which lays down the manner of exercise of jurisdiction by the Board says that the provisions of this sec. are subject to the other provisions of the Act or any other law or enactment for the time being in force. Sec. 86 of the Rajasthan Land Revenue Act, 1956 provides as follows - "86. Review of the Board and other courts.- (1) The Board, of its own motion or on the application of a party to a suit or other proceeding, may review and may rescind, alter or confirm any order made by itself or by any of its members. (2) Every other revenue court or officer may either on its or his own motion or on the application of any party interested, review any order passed by itself or himself or by any of its or his predecessors in office and pass such orders in reference thereto as it or he thinks fit : Provided that - (i) no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order; (ii) no order from which an appeal has been made or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending, be reviewed ; (iii) no order affecting 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 such order shall be entertained unless it is made within ninety days from the passing of the order. (3) An application for review under this section shall lie on any of the grounds mentioned in rule 1 of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908) and the provisions of the said order shall, subject to the provisions contained in sub-sec. (1) or sub-section (2), be applicable. " It should be clear from a plain reading of sub-sec. (3) of sec. 86 that Order 47 of the Civil Procedure Code in its entirety has been made applicable to review proceedings by the Board or any other revenue Court subject to the provisions contained in sub-sec. (1) or (2) of this Section. These provisions are however not germane to the question of law that we have to decide here. Since this reference has come to us in connection with a jagir appeal, it would be worthwhile to recall the relevant provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. Sec. 40 as it stood on 24. 3. 1958 authorised the Board to review its own decisions Suo-moto or on the application of a party. Sec. 30a was further amended with effect from 2. 12. 1960 when it was laid down that a review would be competent on any of the grounds mentioned in Order 47, Rule 1 of the Code of Civil Procedure, and that the provisions of the said Order shall apply. Sec. 39 of the Act says that when an appeal is made to the Board, the procedure prescribed for the hearing of appeals in the Board under the Rajasthan Tenancy Act, 1955 shall be followed. Sec. 229 of the Rajasthan Tenancy Act, 1955 runs as follows: - "229. Power of review by Board and other revenue courts.- Subject to the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), - (1) the Board of its own motion or on the application of a party to a suit or proceeding, may review and may rescind, alter or confirm any decree or order made by itself or by any of its members ; and (2) every revenue court, other than the Board, shall be competent to review any decree, order or judgment passed by such court. " It is abundantly clear that in deciding the petition for review presented by Gunwant Singh in the case Board has to apply the provisions of Order 47 of the Code of Civil Procedure. The provisions of Sec. 10 of the Rajasthan Land Revenue Act, 1956 are subject to the provisions of other laws for the time being in force, and the special provisions for hearing review petitions in matters falling under the Rajasthan Tenancy Act, 1955 as well as the Land Reforms and Resumption of Jagirs Act, 1952, require that the provisions of Order 47 of the C. P. C. should be observed. There is nothing in Rules 8 and 9 of the Rajasthan Revenue Courts Manual to suggest that they override the other provisions of law referred to in sec. 10 (1) or even provide for all the situations arising in review petitions in the Board. Even sec. 86 of the Rajasthan Land Revenue Act, 1956 makes Order 47 applicable in its entirety to the procedure in this Board. We have now to see the effect of Order 47 of the Code of Civil Procedure on the present case. Rule 5 of Order 47 is as follows: - "5. Application for review in court consisting of two or more Judges.- Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for continues or continue attached to the Court at the time when the application for review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. " The answer to the reference made to us depends on a proper construction of Rule 5 of order 47. A number of cases have been cited before us by the learned counsel on both sides, which we proceed to discuss. In 9 Indian Cases p. 532, it was ruled by Woodroffe, J. of the Calcutta High Court that when an appeal is heard by two Judges of the High Court, one of whom leaves the Court, the Judge who continues in the court is competent to hear an application for a review of the decree made in the appeal and also the application for a rule and for the review of the rule. In AIR 1919 Cal. 1033 (2) it was held that during the absence on leave of one of two Judges of a High Court constituting a Division Bench, the other Judge has no jurisdiction to hear an application for review of its decree unless the former Judge has ceased to be a member of the Court or is precluded by absence or other cause, for a period of six months next after the application, from considering the decree to which the application refers. In A. I. R. 1922 P. C. 112, their Lordships held that a Judge who was not one of the Judges who had passed the decree sought to be reviewed, was precluded from hearing the review application. The facts before their Lordships were that a Division Bench of the Chief Court of the Punjab consisting of Scott Smith and Leslie Jones, JJ. had passed a decree which was sought to be reviewed. When the application for review came up, it was heard by Wilberforce J. , and Scott Smith J. , since Leslie Jones J. , had in the meantime ceased to be attached to the Chief Court. Interpreting R. 5 of O. 47, their Lordships observed that R. 5 barred the hearing of the application for review by Wilberforce, J. and this in itself was a fatal objection. In A. I. R. 1927 Rangoon 20, it was ruled that where a case is decided by a Bench of two Judges and an application for review of that decision is made when one of the two Judges is on leave, the review application should be heard only by the other Judge; and if he grants the application he is to forward the papers to be laid before the Chief Justice for the appointment of a Bench to hear the review. In A. I. R. 1942 Mad. 23, it was held that the application for review should be heard and decided only by the Judges who heard the appeal or where one of them is absent, by the other Judge sitting alone. In this ruling, 9 I. C. 532 (Cal.) was followed. The next ruling before us needs a more elaborate discussion since Shri S. N. Pareek has placed much emphasis on it. It is A. I. R. 1953 Travancore Cochin 1 (F. B. ). In this case, there was a difference of opinion in the Full Bench, Sankaran and Gangadhara Menon JJ. , taking one view, and Subramania Iyer J. , taking a different view. Shri Pareek has relied on the minority judgment in this case, which is that if six months have expired after the date of presentation of the application for review, which has not been dealt with by the Judge or Judges who participated in the disposal of the case, it is competent, after the expiry of that period, for any other Judge or Judges to deal with the matter if, at the time the application comes up for hearing, the Judge or Judges or any one of the Judges who passed the decree or made the order is not available to hear it. The majority view was that Rule 5 prohibits the hearing of the application by any other Judge or Judges, only where the two conditions necessary for the disposal of the application within the period of six months prescribed by the rule are satisfied. These two conditions are that the Judge or Judges who originally decided the matter continue to be attached to the Court and that such Judge or Judges are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers. Sankaran J. , observed that the necessary implication is that the prohibition will not operate where these conditions are not satisfied and that the Judge or Judges who originally passed the orders sought to be reviewed, can hear the application for review within the said period of six months or at any time thereafter. The mandate is that such Judge or Judges alone shall hear the application. The matter came up again before Travancore-Cochin High Court in different circumstances in A. I. R. 1953 T. C. 306. All the three Judges who had passed the orders sought to be reviewed had either ceased to be attached to the High Court or were otherwise precluded for a period of six months next after the application for review from hearing the application for review. In these circumstances, it was held that the application for review could be heard by any three Judges, since none of the Judges who originally decided the matter were available. In A. I. R. 1957 M. P. 780, it was held that a review of a decree or order must be heard by the very judge or judges who passed the decree or order, if the Judge continues or the Judges continue to be attached to the Court and when the Judge or Judges become available within six months from the date of the presentation of the application for review. In such a case no other Judge or Judges can hear the review petition. Lastly, there is a decision of the Rajasthan High Court in Division Bench (A. I. R. 1960 Rajasthan 72), which is binding on us. Before we discuss this decision, it would be necessary to mention that Shri S. N. Pareek has laid much stress on Rule 64 of the Rajasthan High Court Rules, 1952. This rules says that an application for the review of a judgment shall be presented to the Registrar, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered. If such Judge or Judges or any one or more of such Judges be no longer attached to the Court, the application shall be laid before the Chief Justice, who shall, having regard to the provisions of Rule 5 of Order 47, arrange for a Bench for the hearing and disposal of such application. The proviso to this rule says that no application for the review of a judgment of one Judge who is precluded by absence or other cause for a period of six months next after the application from considering the decree or order which the application refers, shall be heard or disposed of except by a Bench of two or more Judges; and that no application for the review of a judgment of two or more Judges any one or more of whom is or are by absence or other cause for a period of six months next after the presentation of the application precluded from considering the decree or order to which the application refers, shall be heard or disposed of except by a Bench consisting of the same or a greater number of Judges. Now this is a specific rule framed by the Rajasthan High Court to govern its own procedure in review proceedings, and it has no application to the procedure required by law to be followed in this Board. It is significant that in A. I. R. 1960 page 72, a Division Bench of the Rajasthan High Court did not at all refer to Rule 64 of the High Court Rules. Obviously, they did not think it was at all applicable to the case before them, in which a decision of this very Board in review proceedings was being questioned. The facts which came up before the Rajasthan High Court in AIR 1960 Raj. 72, were as follows. A jagir appeal was decided by a Division Bench of this Board consisting of Sarvashri Kanwar Bahadur and Jainath Kunzru, Members, on 29. 10. 1957. A review petition was filed by the State thereafter, and it was heard by another Bench consisting of Sarvashri Shyam Lal and Kanwar Bahadur, and the petition granted on 17. 10. 1958. It was urged by the petitioner before the High Court that Shri Jainath Kunzru, one of the learned Member who had decided the appeal had been away on two months leave only from 2. 9. 1958, and was otherwise available to hear the review petition. This was supported by an affidavit. All that the opposite side stated was that the learned Members who granted the review said in their order that a period of six months had expired since the application for review had been made and that the other Member who was a party to the judgment under review was not available for hearing the review petition by reason of his illness. The view that their Lordships took appears from the following observation made by them - "this, in our opinion, is altogether insufficient to show that the other member had been precluded by absence or other cause for a period of six months from considering the order under review within the meaning of R. 5 of O. 47 C. P. C. Even if we were to hold for the sake of argument that it was so, though we are not prepared to accept that, the only competent member of the Board of Revenue to hear the review in such circumstances would have been the remaining member, namely, Shri Kanwar Bahadur, and the other learned member who took part in the hearing of the review had no jurisdiction whatsoever to do so. " With the above observations, their Lordships directed that the review petition should be heard by Sarvashri Kanwar Bahadur and Jainath Kunzru, who had originally decided the appeal. The conclusion that we arrive at on a consideration of the various rulings cited before us may now be summed up. It should be clear that a review proceeding is distinct from an appeal and its purpose is to provide the Judge or Judges who had made an order to review it on any of the grounds set out in O. 47, R. 1 of C. P. C. It is but reasonable that that very Judge or those very Judges who passed the order sought to be reviewed, should consider the review petition since they are conversant with the facts of the case. It is equally clear that no Judge or Judges other than the Judge or Judges who originally passed the order sought to be reviewed should hear the review petition, for if any other Judge or Judges hear the review petition this would be tantamount to sitting in judgment on the Judge or Judges who originally made the order. It is only as a matter of necessity that any other Judge or Judges should hear the review petition when the Judge or Judges who originally passed the order sought to be reviewed have ceased to be attached to the Court or are otherwise precluded from hearing the petition for review. If an order has been made by one Member of the Board and that Member remains attached to the Board and/or is not precluded from hearing the review petition by reason of absence or other cause for a period of six months next after the application for review, that very Member and no other Member is competent to hear the application from the stage of admission till the conclusion of the review proceedings. If the order sought to be reviewed has been passed by two Members and both of them continue to be attached to the Board and/or are not precluded by reason or absence or other cause for a period of six months next after the application from hearing the review petition they alone and no other Member or Members shall hear and decide the review petition. If one of the two Members ceases to be attached to the Board, and the other Member continues to be attached to the Board and/or is not precluded for a period of six months next after the application for review from hearing it, he alone will be competent to hear and pass orders on the application for review. This would also be the position if the order sought to be reviewed has been passed by more than two Members, that is to say, the remaining Member or Members alone would be competent to dispose of the application for review if they are not precluded from hearing it for a period of six months next after the application for review by absence or other cause. It is not necessary that the remaining Member or Members must hear and decide the application for review within a period of six months next after the application has been made. The only condition to be satisfied is that the remaining Member or Members are not precluded from hearing an application for review by absence or other cause for a period of six months after the application for review has been presented. It does not matter if the application for review has not been put up to the Member or Members within six months so long as that Member or those Members were not precluded from hearing it by absence or other cause for a period of six months next after the presentation of the application. In other words, that Member or those Members are competent to take up the application for review at any time within the period of six months next after the application or thereafter so long as it is shown that they were not precluded by absence or other cause from hearing and considering the application for review within the said period of six months, A case may or may not be put up to a Member who has jurisdiction to hear it, and this is a matter of administrative arrangement in the Board. If the accident of administrative arrangement a case is not put upto a Member who has jurisdiction to hear it and is available to exercise his jurisdiction, the jurisdiction's not taken out of the hands of the Member by circumstances which are not relevant to the jurisdiction conferred on him by law. In the case immediately before us, the remaining Member, Shri R. N. Madhok, alone has jurisdiction to hear and dispose of the review petition unless it is shown that he was precluded, by reason of absence or other cause, from hearing it for a period of six months next after the presentation of the application for review. A recognised "other cause" could be secondment to any assignment without severance of connection with the Board. But the omission to arrange a hearing by the Member competent to conduct the hearing even though he was available would not fall within the definition of "other cause", since such an omission is only an incident of distribution of business in the Board and cannot be ascribed to the non-availability of the Member competent to exercise jurisdiction.
(3.) THIS reference by the Division Bench stands answered accordingly. .;