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Mastana Dudh Utpadak Sahkari Samiti, Pali Vs. Board of Revenue for Rajasthan, Ajmer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberWrit Petn. No. 643 of 1968
Judge
Reported inAIR1977Raj4; 1976(9)WLN349
ActsRajasthan Land Revenue Act, 1956 - Sections 10 and 77
AppellantMastana Dudh Utpadak Sahkari Samiti, Pali
RespondentBoard of Revenue for Rajasthan, Ajmer and ors.
Appellant Advocate S.T. Porwal, Adv.
Respondent Advocate M.C. Bhandari, Adv.
DispositionPetition allowed
Cases ReferredIn Garikapati v. Subbiah Chowdhry
Excerpt:
rajasthan land revenue act, 1956 - section 10--special appeal--before amendment of 1984 special appeal could be filed without obtaining leave to appeal.;the lis which started prior to the coming into force of this amendment would carry with it all the incidences of right of appeal and revision. under such circumstances, there was no necessity of obtaining leave to appeal from the learned single member as the lis in this case started in the year i960 when the amendment of section 10 of the rajasthan land revenue act was not in force. under such circumstances, a special appeal could be preferred against the decision of the learned single member without obtaining leave to appeal from the member who passed the judgment ;(b) rajasthan land revenue act - section 77(b)--no special appeal against..........the non-petitioners were served with a notice as envisaged under section 91 of the rajasthan land revenue act calling upon them to withdraw from the land trespassed by them. the tehsildar on may 25, 1960 declared them trespassers for the st. years 2015 and 2016 and ordered their eviction from the land in dispute, and also imposed a penalty of six times the rent. as the non-petitioners failed to vacate the land trespassed by them, further proceedings were reinitiated on august 6, 1961, and again an order was passed on october 4, 1962. out of the disputed land measuring 1072 bighas 7 biswas. 400 bighas were allotted to deonarain dudh utpadak sahkari samiti during the st. years 2018 and 2019. thus, the order dated october 4, 1962 related, in fact, to the area of 672 bighas 5 biswas.....
Judgment:

Kudal, J.

1. This is a writ petition directed against the judgment of the learned Board of Revenue for Rajasthan dated April 17, 1968.

2. The facts of the case, in brief, are that the Patwari. Kharda and the Revenue Inspector, Pali reported the fact of trespass by Gambhira, Sardul, Jetha, Amara, Chandra and Ganesh in the land in dispute on January 7, 1960. The disputed lands consisting of Khasra Nos. 558/1 measuring 920 bighas 8 biswas and 558/2 measuring 151 bighas 17 biswas are situated in village Kharda. tehsil Pali. On this report, the non-petitioners were served with a notice as envisaged under Section 91 of the Rajasthan Land Revenue Act calling upon them to withdraw from the land trespassed by them. The Tehsildar on May 25, 1960 declared them trespassers for the St. years 2015 and 2016 and ordered their eviction from the land in dispute, and also imposed a penalty of six times the rent. As the non-petitioners failed to vacate the land trespassed by them, further proceedings were reinitiated on August 6, 1961, and again an order was passed on October 4, 1962. Out of the disputed land measuring 1072 bighas 7 biswas. 400 bighas were allotted to Deonarain Dudh Utpadak Sahkari Samiti during the St. years 2018 and 2019. Thus, the order dated October 4, 1962 related, in fact, to the area of 672 bighas 5 biswas which was still in possession of the non-petitioners as trespassers. Feeling aggrieved against the order of the Tehsildar dated October 4, 1962, an appeal was filed before the learned Additional Collector. Pali which was dismissed on November 19, 1963. The penalty vyas, however, reduced from six times the rent to four times the rent. Sardul, Amara, Chandra etc. filed a revision petition before the learned Board of Revenue for Rajasthan, Ajmer against the order of the learned Additional Collector, Pali. The revision petition was dismissed on February 7. 1967, Sardul and others feeling aggrieved against the decision of the learned Single Member of the Board of Revenue dated February 7, 1967 filed a special appeal under Section 10 of the Rajasthan Land Revenue Act before a Division Bench. The learned Division Bench on April 17, 1968 allowed the special appeal, and quashed the judgments of the lower Courts. It is against this order of ihe Board of Revenue that the present writ petition has been filed.

3. On behalf of the petitioner, it has been contended that the learned Division Bench of the Board of Revenue erred in law in entertaining a special appeal under Section 10 of the Rajasthan Land Revenue Act when leave to appeal was not obtained from the learned Single Member who passed the order on the revision petition on February 7, 1967. It was also contended that the learned Division Bench seriously erred in law in entertaining a special appeal against an order of rejection of a revision petition. It was also contended that the learned Division Bench lacked inherent jurisdiction to entertain such a special appeal which was specifically barred under Section 77 (b) of the Rajasthan Land Revenue Act.

4. On behalf of the non-petitioners, it was contended that there was no necessity for obtaining leave to appeal from the learned Single Member as the lis started as early as in the year 1960. It was further contended that as the order of the learned Single Member was against the principles of natural justice, and as there were material irregularities in the procedure, the learned Division Bench was fully justified in setting aside the order of the learned Single Member.

5. We have carefully considered the respective contentions of the learned counsel for the parties and have perused the record of the case. The fact of trespass was reported by the Patwari, Kharda and the Revenue Inspector, Pali on January 27, 1960. The Tehsildar passed order of ejectment under Section 91 of the Rajasthan Land Revenue Act on May 25, 1960. Section 10 of the Rajasthan Land Revenue Act provides 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, if the Member who passed the judgment declares that the case is a fit one for appeal. Originally, the last rider that special appeal shall lie only when the learned member declares the case to be a fit one for an appeal, was not in Section 10 of the Rajasthan Land Revenue Act. This provision was inserted by the Rajasthan Act No. 5 of 1964, published in the Rajasthan Gazette, Part IV-A, Extraordinary, dated March 26, 1964. It is evident that the lis in this case had started much prior to the coming into force of this amendment in Section 10 of the Rajasthan Land Revenue Act. The amendment is not retrospective in nature. In Garikapati v. Subbiah Chowdhry, AIR 1957 SC 540, it was held as under:

'The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'

6. Thus, it would be clear that the lis which started prior to the coming into force of this amendment would carry with it all the incidences of right of appeal and revision. Under such circumstances, there was no necessity of obtaining leave to appeal from the learned Single Member as the lis in this case started in the year 1960 when the amendment of Section 10 of the Rajasthan Land Revenue Act was not in force. Under such circumstances, a special appeal could be preferred against the decision of the learned Single Member without obtaining leave to appeal from the Member who passed the judgment. In this view of the matter, the objection raised by the learned counsel for the petitioner that the special appeal before a Division Bench could not have been filed without first obtaining the leave to appeal to as Division Bench is without force and is hereby overruled.

7. The learned counsel for thepetitioner has contended that no special appeal lay against the decision of the learned Single Member who rejected the revision petition. Reliance has been placed on Section 77 (b) of the Rajasthan Land Revenue Act. Section 77 (b) provides that no appeal shall lie from an order rejecting an application for revision or review. Section 10 of the Rajasthan Land Revenue Act provides that except as otherwise provided by or underthis Act or by any other law or enact-ment 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 by the Chairman or any other member of the Board, sitting singly, or by a Bench of the Board, consisting of two or more members. It further provides 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, if the Member who passed the judgment declares that the case is a fit one for appeal. This provision of filing a special appeal is governed by the clause 'except as otherwise provided by or under this Act.' Section 77 (b) of the Rajasthan Land Revenue Act specifically bars a special appeal against an order of rejection of a revision petition. The necessary inference is that in case where revision petition under the provisions of the Rajasthan Land Revenue Act is rejected no special appeal shall lie. The provisions of Section 77 (b) are mandatory in character and contain no ambiguity. The learned Division Bench, therefore, seriously erred in law in admitting an appeal for hearing against the order of rejection of revision petition. As indicated above, such a special appeal was clearly barred by the provisions of Section 77 (b) of the Rajasthan Land Revenue Act. It, therefore, follows that the Division Bench acted without jurisdiction in entertaining and accepting an appeal against the order rejecting the revision petition as the learned Division Bench could not entertain the appeal. There was no occasion for the Division Bench to have decided the matter on merits.

8. Having given our most anxious consideration to the arguments advanced by the learned counsel for both the parties, we have no hesitation in holding that the learned Division Bench acted contrary to law and without jurisdiction in entertaining an appeal against an order of rejection of a revision petition by a Single Member.

9. For the reasons stated above, the writ petition is hereby allowed. The order of the learned Division Bench dated April 17, 1968 is hereby set aside. The order of the learned Single Member dated February 7, 1967 shall, therefore, stand confirmed.

10. The petitioner shall be entitled to the costs of this writ petition.


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