KAN SINGH, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution by one Rawat Himmat Singh and by it he seeks a writ of prohibition against the Board of Revenue, Rajasthan for restraining it from entertaining hearing and determining a special appeal filed by the State of Rajasthan before a Division Bench of the Revenue Board against an order of a Single Member of the Board of Revenue dated 30. 9. 64, purporting to have been passed by him on the revision application filed by the petitioner before the Board under sec. 22 of the Rajasthan Forest Act, as, according to the petitioner, such an appeal was not maintainable. The relevant facts necessary for a proper appreciation of the question raised before us may briefly be stated as follows -
(2.) THE petitioner is the ex-Jagirdar of Thikana Bhensrodgarh in district Chittorgarh. According to him, in village Kalakhet, the land known as 'kalakhet Hathi Pagga' measuring 1447 Bighas and odd, was part of his Jagir land while his Jagir was existing and thereafter on its resumption he claimed it to be his Khud-kasht land. THE petitioner's Jagir was resumed on 25. 8. 54 under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, and thereafter, the petitioner maintains, he has been paying the land revenue of this. In respect of this land the Government of Rajasthan notified its intention to declare it as a Reserve Forest under sec. 4 of the Mewar Forest Act (No. 2 of 1942), 1942, and the notification was published in the Rajasthan Rajpatra on 4. 3. 50. In pursuance of the notification the petitioner filed his objections before the Forest Settlement Officer against the inclusion of this land in the proposed Reserve Forest, but the grievance of the petitioner was that the Forest Settlement Officer did not dispose of the objections properly and on 21. 3. 52 it was ordered by the Forest Settlement Officer that the. land in dispute may not be recorded in the name of the petitioner. THE petitioner proceeds to say that this order of the Forest Settlement Officer was illegal and without jurisdiction and, therefore, he complained against this order to the Chief Forest Officer of the State. On this complaint the Forest Settlement Officer again too up his objection for consideration, but he rejected it on 18. 11. 58 saying that the objections already stood rejected in 1952 and as no appeal had been filed against the earlier decision, the petitioner was not entitled to challenge the same. Against this decision of the Forest Settlement Officer the petitioner filed an appeal under sec. 17 of the Rajasthan Forest Act, 1953, before the Collector, Chittorgarh. THE Collector, Chittorgarh, agreed with the order of the Forest Settlement Officer observing that the appeal filed by the petitioner was not competent under the Mewar Forest Act, 1942, and accordingly the Collector rejected the appeal. Against the order of the Collector, Chittorgarh, the petitioner filed a revision application before the State Government on 4. 3. 63, but it was returned to the petitioner for being presented to the Board of Revenue, as the State Government had delegated its powers in the matter of revision applications under the Rajasthan Forest Act, 1953, to the Revenue Board. Consequently, the petitioner filed the revision application before the Board of Revenue. This revision application was heard by a Single Member of the Board Shri Kr. Gajendra Singh, who accepted the revision application, set aside all the orders of the Forest Settlement Officer and directed that the disputed land be released forthwith in favour of the petitioner and the income collected by the Forest Department during the period of its possession over the land be refunded to the petitioner, after deducting the charges of collection. The State felt aggrieved by this order of the learned Single Member and lodged a special appeal before the Division Bench of the Board purporting to do so under sec. 10 of the Rajasthan Land Revenue Act, 1956. The present writ petition raises the question of the maintainability of this appeal. When the petitioner filed the writ petition before us in July, 1965, we asked him to raise the question about the maintainability of the appeal before the Division Bench of the Revenue Board and get a decision on this question. Since then the petitioner had raised this preliminary objection before the Division Bench of the Revenue Board, but the preliminary objection about the jurisdiction has been overruled and the petitioner has placed before us a copy of order of the Board dated 27. 6. 66, by which the Board decided the preliminary objection. The writ petition has been opposed on behalf of the State and it is contended that the Board has rightly overruled the preliminary objection raised by the petitioner. It is then urged in the alternative that even the learned Single Member of the Board had no jurisdiction to hear the revision application and for the learned Dy. Govt. Advocate, appearing for the State, had made a two fold submission. In the first place, he submits that under the Mewar Forest Act 1942, there was no provision for filing any revision and the order of the Forest Settlement Officer which was passed on 21. 3. 52, long before the coming into force of the Rajasthan Forest Act, 1953, had become final and could not be interfered with. Secondly, it is argued that the re-visional powers could not have been exercised after a period of five years. By way of rejoinder learned counsel for the petitioner sought to question the order of the Forest Settlement Officer passed in 1952, on the ground that the proceedings were ab initio void-, because under the Mewar Forest Act the Government had no power to declare private forests not belonging to the Government as Reserve Forests. We may observe that we did not think it necessary to permit either of the learned counsel to raise the last mentioned points. If the Government wanted to challenge the order of the learned Single Member of the Board on the ground that he had no jurisdiction to entertain the revision, then it was for the Government to have filed a writ petition, because on the writ petition filed by the petitioner himself it would not be possible for us to quash the order of the learned Single Member on the grounds urged by the Government in reply, even if we were to accept those grounds as tenable. Similarly, we were not persuaded to permit the learned counsel for the petitioner to question the validity of the orders passed by the Forest Settlement Officers as back as in the year 1952, specially when he did not take any ground regarding their validity in his writ petition. The only question, therefore, to which we propose to direct our attention is about the maintainability of the appeal filed by the State Government against the judgment of the learned Single Member of the Board before a Division Bench of the Board under sec. 10 of the Rajasthan Land Revenue Act, 1956. It was argued before the Division Bench of the Revenue Board that as the proceedings had arisen under the Rajasthan Forest Act, 1953, by virtue of the provisions of sec. 18 (4) of that Act the order of the revisional authority was final and could not be questioned in a special appeal. It was pointed out on behalf of the Jagirdar that the provisions of sec. 10 of the Rajasthan Land Revenue Act, which were of a genera) nature, were not applicable in the present case, as the Forest Act was a special enactment which conferred finality on the proceedings before the Forest Settlement Officer. The learned counsel appearing for the petitioner Jagirdar placed reliance on Temple of Shri Bankteshwar Balaji vs. The Collector, Ajmer (l), Union of India vs. Mohindra Supply Company (2), Collector of Rangoon vs. Chandrama (3), Tata Iron and Steel Company Ltd. vs. The Chief Revenue Authority of Bombay (4), The Rangoon Botatoung Company Limited vs. The Collector, Rangoon (5), The Dargah Committee, Ajmer vs. State of Rajasthan (6), Bhanu Pratap Singh vs. State of Rajasthan (7), Ladu Ram vs. Sheo Narain (8), Abdul Rehman vs. Abdul Rehman (9), Karimmiya Hamdumiya Soniwal vs. Jafar Ali Bawamiya (10), Kartar Singh vs. Administrator General of Bihar (ll), Shanker Lal Poddar vs. Govinda Prosad Lath (12), M. V. Rajwade I. A. S. District Magistrate vs. Dr. S. M. Hassan (13), Rao Shiv Bahadur Singh vs. The State of Vindhya Pradesh (14) and J. & K. Cotton Spinning Mills Company Ltd. vs. State of Uttar Pradesh (15 ). The Division Bench of the Board did recognise the principle elucidated in these cases that a general provision in a statute should yield to a special provision and it also accepted the principle as regards Letters Patent appeals in the High Court that such a provision in the Letters Patent was of a general nature and where the special statute under which the subject matter of the appeal had arisen, took away the right of appeal of a party, then resort can not be had to the provisions of the Letters Patent in questioning the judgment of a Single Judge of the High Court before a Division Bench. The learned Members of the Board, however distinguished the present case on the ground that under sec. 18 (4) of the Rajasthan Forest. Act, 1953 finality was conferred on the orders of the appellate court and not on the orders passed in revision by the Board of Revenue. The essentials of the reasonings of the Revenue Board will be clear from the following passage which occurs after the reproduction of sec 18 (4) of the Rajasthan Forest Act. "the plain reading of this sub-section is that the order passed in appeal is final, subject to revision by the Government, now the Board of Revenue. This cannot be considered to mean that the order passed by a single member of the Board is final. It only means that the order passed by the appellate authority is final, if no revision is filed. In case a revision is filed, the order shall naturally be reopened and will be subject to the order passed in revision in view of this plain grammatical interpretation of the aforesaid section. The authorities so laboriously cited by the learned counsel for the respondent lose their applicability as stated above. Those authorities obviously relate to the cases where finality has been expressly attached to the orders under appeal and, therefore, the High Courts refused to interfere with the appellate orders which had been declared by law to be final. No such finality has been prescribed to an order of the single member passed in revision under sec. 18 (4) of the Forest Act. " The Revenue Board also held that when it dealt with a revision application under the Rajasthan Forest Act, 1953, it was not acting as a persona designata but as a court and, therefore, the rules of procedure by which judicial matters before it were governed, shall apply to the revision application under the Rajasthan Forest Act and consequently the special appeal under sec. 10 of the Rajasthan Land Revenue Act was competent. Besides the authorities that have been referred to in the order of the Revenue Board, the learned counsel for the petitioner invited our attention to Mohd. Umar vs. Ahmed (l6), Hanskumar Kishan Chand vs. The Union of India (17) and South Asia Industries Private Limited vs. S. B. Sarup Singh (18 ). The learned Deputy Government Advocate submitted on the basis of Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai (19) that the proviso occurring in sec. 10 of the Rajas than Land Revenue Act should be construed like a separate substantive section and the appeal should be taken to be competent under it. In the alternative he submitted that even the revision application should have been dealt with by the entire Board as apart from sec. 10 of the Rajasthan Land Revenue Act, there is other provision which empowered any Single Member of any Bench of the Board to deal with the matter. Before we proceed to consider the points agitated before us, it will be convenient to refer to the relevant statutory provision. In the territory of former Mewar State, Mewar Forest Act, 1942, was in force during the relevant period till it came to be repealed by the Rajasthan Forest Act, 1953, which came into force on 1. 6. 53. Chapter II of that Act provided for Reserved Forests. Sec. 4 provided for the issue of a notification by the Government for declaring any land a reserved forest. Sec. 5 declared that after the issue of a notification no rights shall be acquired in or over the land comprised in such notification. Sec. 6 provided for local publicity of such notification by the Forest Settlement Officer and any person claiming any right in the land to present his claim before the Forest Settlement Officer. Sec. 7 provided for the holding of an inquiry by the Forest Settlement Officer when claimants were to be given an opportunity for making good their claims. The Forest Settlement Officer had been given the powers of a civil court in the trial of suits. Sec. 9 provided that rights in respect of which no claim had been preferred or for the existence of which no knowledge had been acquired by the Forest Settlement Officer as a result of inquiry shall be extinguished. Secs. 11 and 12 are for final appeals and are as follows - "sec. 11 - Any person aggrieved by an order of the Forest Settlement Officer may, within two months of his being informed of the order, prefer an appeal to the Minister-in-charge of the Forest Portfolio. " "sec. 12 - There shall be second appeal to the Prime Minister whose decision shall be final. " A reading of the corresponding provisions of the Rajasthan Forest Act, 1953, shows that there is provision for appeal against the orders of the Forest Settlement Officer and the Officer or Court empowered by the Government under sec. 17 of the Rajasthan Forest Act, would be the appellate authority. Such appeals are to be heard in the manner prescribed for the time being for hearing of appeals in the matter of land revenue. Secs. 17 and 18 are the material provisions and they run as follows - "sec. 17 - Appeal from order passed under sec. 11, sec. 12, sec 15 or sec. 16 - Any person who has made a claim under this Act, or any Forest Officer or other person generally or specially empowered by the State Government, in this behalf, may, within three months from the date of the order passed on such claim by the Forest Settlement Officer under sec. 11, sec. 12, sec. 15 or sec. 16 present an appeal from such order to such officer of the Revenue Department of rank not lower than that of a Collector, as the State Government may, by notification in the Official Gazette appoint to hear appeals from such orders. Provided that the State Government may establish a Court hereinafter called the Forest Court composed of three persons to be appointed. by the State Government and, when the forest Court has been so established, all such appeals shall be presented to it. " "sec. 18. Appeal under sec. 17 - (1) Every appeal under sec. 17 shall be made by petition in writing, and may be delivered to the Forest Settlement Officer, who shall forward it without delay to the authority competent to hear the same, (2) If the appeal be to an officer appointed under sec. 17, it shall be heard in the manner prescribed for the time being for the hearing of appeals in matters relating to land revenue. (3) If the appeal be to the Forest Court, the Court shall fix a convenient place in the neighbourhood of the proposed forest for hearing the appeal, and shall give notice thereof to the parties, and shall hear such appeal accordingly. (4) The order passed on the appeal by such officer or court or by the majority of the members of such Court, as the case may be, shall, subject only to revision by the State Government, be final. "
(3.) A comparison of secs. 17 and 18 of the Rajasthan Forest Act, 1953, with secs. 11 and 12 of the Mewar Forest Act shows that what was made final under the Mewar Forest Act, was the decision of the Prime Minister, whereas under the Rajasthan Forest Act, what was made final was the order passed on appeal, subject only to revision by the State Government. The two provisions also differ in other material respects. While under the Mewar Forest Act, there was a provision for revision by the State Government, under sec. 22 (2) the State Government could, by a notification in the Official Gazette, delegate all or any of its powers under that section to the Board of Revenue or any other authority. That section runs as under - "sec. 22. Power to revise arrangements made under sec. 15 or sec. 18 - (I) The State Government, may, within five years from the publication of any notification under sec. 20 revise any arrangement made under sec. 15 or sec. 18, and may for this purpose rescind or modify any order made under sec. 15 or sec. 18, and direct that any one of the proceedings specified in sec. 15 be taken in lieu of any other of such proceedings, or that the right admitted under sec. 12 be commuted under Sec. 16; Provided that no such arrangements shall be rescinded or modified unless previous notice has been given to the person or persons likely to be affected by such revision and they have been heard. (2) The State Government may, by noun-cation in the Official Gazette, delegate all or any of its powers under this section to the Board of Revenue or to any other authority named in such notification. " The State Government delegated its powers under sec. 22 (2) to the Revenue Board and the notification was in the following terms - "no. F. (141)Rev/a-59 - In exercise of the power conferred by sub-secs. (2) of sec. 22 of the Rajasthan Forest Act. 1953 (Rajasthan Act 13 of 1953) the State Government hereby delegates all its powers under the said section to the Board of Revenue. " Sec. 10 of the Rajasthan Land Revenue Act, under which the Division Bench of the Revenue Board purported to deal with the matter is as follows - "sec 10. Jurisdiction of Board how exercised - (1) 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 Rajasthan 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 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. " In our view the answer to the question whether the Division Bench of the Revenue Board could hear the appeal against the order of the learned Single Member of the Board will depend on a proper consideration of two subsidiary questions : (1) Whether the Board was dealing with the matter as a persona designata or it has been entrusted with the work of hearing revision application under the Rajasthan Forest Act, in its capacity as the highest Revenue Court of the State? (2) Whether on a proper consideration of the provisions of the Mewar Forest Act, or the provisions of the Rajasthan Forest Act for that matter further appeal at the instance of the parties can be said to be expressly or impliedly' barred? In dealing with the question of the maintainability of Letters Patent appeals in matters reaching the High Court under enactments other than the Code of Civil Procedure, the Supreme Court had occasion to examine the question at length, in the light of the previous authorities, in National Sewing Thread Company Ltd. vs. James Chadwick & Bros. , Ltd. (20), and their Lordships in dealing with the case arising under the Trade Marks Act. observed as follows - "ordinarily after an appeal reaches the High Court, it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the Charter under which the Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. Thus. sec. 76, Trade Marks Act, confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by sec. 76 it has to exercise that jurisdiction in the same manner as it exer-cises the other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent, there being nothing to the contrary in the Trade Marks Act. " This was clearly a case where it was held that the matter had come to the High Court as a Court. The position was again examined by the Supreme Court in Hanskumar Kishan Chand vs. The Union of India (17 ). In this case their Lordships pointed ous the distinction regarding the applicability of ordinary rules of procedure in a court to cases which come before it under other enactments as court and cases which come before it not as a court, but as persona designata. In the case the matter had arisen under the Arbitration Act. In this case most of the rulings that have been referred to by the Revenue Board were considered by their Lordships and their Lordships observed as follows - "nor does it make any difference in the legal position that the reference under the statute is to a Court as arbitrator. In that case, the Court hears the matter not as a Civil Court but as persona designata, and its decision will be an award not open to appeal under the ordinary law applicable to decisions of Courts, A statute, however, might provide for the decision of a dispute by a Court as Court and not as arbitrator, in which case its decision will be a decree or order of Court in its ordinary civil jurisdiction, and that will attract the normal procedure governing the decision of that Court, and a right of appeal will be comprehended therein. The position therefore is that if the reference is to a Court as persona designata, its decision will not be open to appeal except to the extent that the statute so provides ; but that if, on the other hand, it is to a Court as Court, its decision will be appealable under the general law, unless there is something in the statute, which abridges or takes away that incident. It may be a question whether the reference to a Court under a particular statute is to it as a Court or as persona designata but when once, it is determined that it is to it as persona designata, there can be no question that its decision is not open to appeal under the ordinary law. " (Italic is ours) The effect of the several decisions cited by their Lordships was summarised in the following words - "the law as laid down in the above authorities may thus be summed up : It is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the Code of Civil Procedure or the Letters Patent. Whether it is so or not will depend on whether the proceeding in which it was given came before the Court in its normal civil jurisdiction, or de hors it as a persona designata. Where the dispute is referred to the Court for determination by way of arbitration as in 39 I A. 197 P. C. (A) or where it comes by way of appeal against what is statedly an award as in ILR 37 Bom 506 (B), ILR 4l Mad. 943 ; (AIR 1919 Mad. 626 - F. B.) (D) and 58 I. P. 259 : (AIR 1931 P. C. 149) (E) then the decision is not a judgment, decree or order under either the Code of Civil Procedure or the Letters Patent. " The above case was followed in Union of India Co. (2) and South Asia Industries Private Limited vs. S. B. vs. Mohindra Supply Sarup Singh (18 ). In the last mentioned case the previous cases were again reviewed and summarised as follows - "a statute may give a right of appeal from an order of a tribunal or a Court to the High Court without any limitation thereon. The appeal to High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers conferred on it under sec. 108 of the Government of India Act, 1915, an appeal under sec 39 of the Act will be heard by a single Judge. Any judgment made by the single Judge in the said appeal will, under cl. 10 of the Letters Patent, be subject to an appeal to that Court. If the order made by a single Judge is a judgment and if the appropriate Legislature has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under cl. 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court. " It will be observed from the above passage that the right of appeal to the High Court must be given by a statute, from an order of the Tribunal or a court, and then the appeal to the High Court would be regulated by the practice and procedure obtaining in the High Court. The appeal under the Letters Patent will be available against any judgment given by the single Judge unless the legislature had expressly or by necessary implication taken away the right of appeal. The same criterion was applied by this Court in two cases, namely, Temple of Shri Bankteshwar Balaji vs. The Collector, Ajmer (l) and Mohd. Umar vs. Ahmed (16 ). In temple of Shri Bankteshwar Balaji vs. The Collector, Ajmer (l), it dealt with a matter arising under the Ajmer Abolition of Intermediaries and Land Reforms Act, and on a consideration of the provisions of that Act it was held that as it did not contemplate any further appeal against the judgment of a Single Judge of this Court, special appeal under sec. 18 of the Rajasthan High Court Ordinance, 1949, was not available to the party. In Mohad. Umar's case (16), the Court held that as sec. 48 of the Rajasthan Municipalities Act, made the judgment of the Election Tribunal and that of the High Court final and conclusive, further appeal to the Division Bench was barred. Therefore, we have to find out on a proper consideration of the provisions of the Mewar Forest Act, as well as those of the Rajasthan Forest Act, whether any finality was envisaged by those provisions when the matter was dealt with by the Forest Settlement Officer or by the appellate Authority under those Acts. Under the Mewar Act the decision of the Prime Minister under sec. 12 was made final. Under the Rajasthan Forest Act, what was made final was the order passed on appeal by the officer empowered to hear the appeal subject only to revision by the State Government. According to the view taken in South Asia Industries Private Ltd. vs. S. B. Sarup Singh (18), the expression "final" prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. In Poonam Chand vs. Municipal Board, Jhalawar (21), we also took the view that when the law provided that an order was final, its intention was that the party had no further right of appeal, though as regards the revisio-nal jurisdiction of the superior authority we added that this was not affected. Thus the provisions of the Mewar Forest Act, or for that matter, those of the Rajasthan Forest Act, 1953, do not leave any doubt in our mind, that so far as any aggrieved party was concerned, he had no right whatsoever to agitate the matter above the appellate authority. In our view, therefore, to the extent the proviso to sec. 10 of the Rajasthan Land Revenue Act gives a right of appeal to an aggrieved party the same cannot be availed of being a provision of general nature, as the Rajasthan Forest Act, under which the matter had arisen and which was a special statute, the right of the party to agitate the matter above the appellate officer or authority has been expressly taken away. Sec. 10 of the Rajasthan Land Revenue Act clearly lays down that the provisions thereof are subject to the provisions of other laws or enactments for the time being in force. To the extent the provisions of the Rajasthan Forest Act have taken away the right of a party to agitate the matter before any authority above the appellate authority, he cannot resort to the provisions of sec. 10 of the Rajasthan Land Revenue Act ; in other respects sec. 10, however, can have its operation. In other words, while the proviso to sec. 10 cannot be resorted to by the party, sec. 10 can operate as regards the mode of transacting of business by the Revenue Board in other respects. . We are not impressed by the argument of the learned Deputy Government Advocate that the whole Board alone could deal with the revision application. Nor do we find that there is anything in the argument that proviso should be taken as an independent section. We cannot accede to the submission if he means to suggest that proviso will not be subject to the other enactments. In other words, in our view,the opening words of sec. 10 shall be applicable to the subject matter of the proviso and, therefore, it is wholly immaterial if the proviso is read as a proviso as it purports to be or as an independent section. In our view, resort cannot be had to the proviso in the the present case, as the provisions of the Rajasthan Forest Act have taken away the right of a party for a further appeal. ;