- (1.) THIS revision has been filed against the order of the Excise Commissioner, Rajasthan, Udaipur dated 3-4-68 u/s 9 A of the Rajasthan Excise Act, 1950 read with Rajasthan Excise, Rules, 1956, and rule 28 of the Rajasthan Opium Rules, 1959, read with Rule 10 of the Rajasthan Opium (Lanced Poppy Heads) Rules, 1960.
(2.) A preliminary objection has been raised on behalf of the State that no revision lies to the Board of Revenue against the order of the Excise Commissioner under the Opium Act and Rajasthan Opium (Lanced Poppy Heads) Rules, 1960. In reply, the learned counsel for the applicants has invited my attention to Rule 10(2) of the Rajasthan Opium (Lanced Poppy Heads) Rules, 1960 which reads as under : - "Number of licences for the sale of lanced poppy heads by wholesale or retail shall be fixed from time to time for each area, by the Commissioner, and shall be disposed of by auction by the Assistant Commissioner in so far as may be, in accordance with the procedure prescribed for the auction of country liquor licenses in Chapter VII of the Rajasthan Excise Rules 1956, except that final approval of the Commissioner shall not be necessary for acceptance of the highest bid," It is argued that since under this rule the procedure prescribed for the country liquor licenses is the same as incorporated in Chapter VII of the Rajasthan Excise Rules, 1956, by virtue of the doctrine of Referential Incorporation, the provisions of Rajasthan Excise Act will come into play and this revision is thus maintainable u/s 9 A of the Rajasthan Excise Act. For facility of reference we may reproduce this section as follows : - 9-A : Appeals and revision - (1) An appeal shall lie : - (a) to the Excise Commissioner from any order passed by an Excise Officer under this Act and, (b) to the Board of Revenue from any order passed by the Excise Commissioner under this Act otherwise than on appeal. (2) Any appeal under sub-sec. (1) may be preferred at any time within sixty days from the date of the order complained of. (3) The decision of the Excise Commissioner or the Board of Revenue, as the case may be, on such appeal shall, subject to the result of revision if any, under sub-sec. (4) be final. (4) The Board of Revenue may revise any order passed on appeal by the Excise Commissioner. As a perusal of this section shows it provides for appeals and revisions from orders passed under the Rajasthan Excise Act. It would, obviously, therefore, be stretching legal interpretation too far, to construe this section in a manner so as to confer jurisdiction on the Board of Revenue with regard to the orders passed by the Excise Commissioner under the Opium Act or Rules made thereunder. It is apparent that the reference to Chapetrl VII of the Rajasthan Excise Rules in R. 10(2) of the Rajasthan Opium Rules has been made by way of convenience and can by no stretch of interpretation be deemed to confer jurisdiction on the Board of Revenue in matters relating to the Opium Act. I endorse the argument of the learned counsel for the applicants that when a question of jurisdiction arises, the intrinsic facts constituting the question should be carefully examined. Applying this test to the present case, I have no doubt in my mind that the aid of sec. 9-A of the Rajasthan Excise Act cannot be invoked in this case which arises from the Opium Act read with the Rules made thereunder. As it stands, there is no provision for a revision by the Board of Revenue against the order of a Commissioner under these Rules. As such I am of the opinion that this revision petition is clearly misconceived and is not maintainable. Further more, it is pertinent to note that a writ petition in almost similar terms before the High Court was summarily rejected by D. B. of the High Court vide its order dated 17-4-63. When confronted with this order, it was stated by the learned counsel for the applicants that the writ was rejected summarily on the ground that applicants have not in the first instance approached the Board of Revenue. But this statement is not corroborated from the order of the High Court nor was a mention of this fact made by the applicants while presenting this revision petition before the Board of Revenue on 26-4-68. It may also be noted here that in the memo of revision, apart from citing Sec. 9-A of the Rajasthan Excise Act read with Rajasthan Excise Rules, applicants cited Rule 28 of the Rajasthan Opium Rules read with Rule 10 of the Rajasthan Opium (Lanced Poppy Heads) Rules, 1960. Under R. 28 cited by the applicants, the State Govt. may on any application or otherwise call for and examine the record of any proceedings before any Excise Officer, including those relating to the grant of a licence or permit or pass granted or applied or under these rules, for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed and as to the regularity of such proceedings and may either amend, modify or confirm such order or pass such other order as it may deem fit. It is thus apparent that the learned counsel for the applicants who presented this revision petition was not clear in his mind about the exact provision of law under which this revision was being preferred before the Board of Revenue. As stated above, so far as the jurisdiction of the Board of Revenue, is concerned I have no doubt in my mind that this petition whereby the order of the Excise Commissioner under the Rajasthan Opium (Lanced Poppy Heads) Rules is being attacked is not maintainable. ;