M.C. Jain, J.
1. This writ petition raises an important question as to the applicability of Section 232 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the 1955 Act)' and Section 82 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'the 1956 Act') to the ceiling proceedings under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as 'the 1973 Act').
2. A notice under Section 11 (1) of the Act was issued to the petitioner. Thereupon the petitioner submitted his return. The petitioner's ceiling case was then decided by the Authorised Officer by his order dated 28-4-1975 (Ex, 1) and it was found that there is no surplus land available with the petitioner. Thereafter, the Collector issued a show cause notice dated 17-3-1981 (Ex. 2) calling upon the petitioner as to why reference should not be made to the Board of Revenue under Section 232 of the Rajasthan Tenancy Act and under Section 82 of the 1956 Act, in view of the infirmities pointed out in the notice. The petitioner seeks to challenge the notice Ex. 2 on the ground that the Collector had no jurisdiction to issue notice Ex. 2 in view of the fact that the provisions contained in Section 232 of the 1955 Act and Section 82 of the 1956 Act are not in any way attracted to the proceedings under the 1973 Act, so the Collector had no authority to issue any show cause notice to the petitioner.
3. Return to the writ petition has not been filed despite lapse of sufficient time and the case was ultimately listed for hearing. Today a prayer is made by Mr. Balia, the learned Deputy Government Advocate for adjournment for filing the reply. As sufficient time has already been given and the same has not been availed, I do not think it just and proper to allow further time now to the respondents for filing reply to the writ petition. Besides that, the question involved in the present writ petition is a pure question of law and looking to it, the case was posted for hearing.
4. Mr. S. N. Sharma, learned counsel for the petitioner, urged that the Act is a self, contained Code and the ceiling proceedings under the Act, thus, would not attract the provisions of the 1955 Act and the 1956 Act, in general and the provisions relating to reference in particular contained in Ss. 232 and 82, respectively. Shri Sharma emphasised that the 1973 Act makes detailed provisions relating to the procedure to be followed by the Authorised Officer, while determining the ceiling matters arising under the 1973 Act and further detailed provisions are found relating to appeals, review and reopening of ceiling cases. He submitted that the original authority under the 1973 Act is the Authorised Officer, who is appointed by the State Government by notification in relation to a particular area. 'Authorised Officer' has been defined in Section 2, Clause (2) of the 1973 Act. The order passed by the Authorised Officer under Section 12 (3), where under the ceiling area is determined and thereafter final statement is published under Section 13, and the orders passed under Sub-section (3) of Section 19 and under Section 21 are appealable to the Collector and against the Collector's order second appeal lies to the Board of Revenue under Section 23 of the 1973 Act and under Sub-section (6) of Section 23 the decision or the order of the Authorised Officer has been made final subject to the derision of the Collector or the Board in appeal and even his order cannot be questioned by any civil or revenue court. He further pointed out that by Section 23-A, which is introduced in 1976, power of review has been conferred on the Authorised Officer, when proceedings are dropped by him. Besides that, special provision regarding reopening of cases has been incorporated in Section 15 of the 1973 Act, whereunder cases can be reopened, which have been decided under the repealed law, under Sub-section (2) of Section 15 and cases can be reopened, which have been decided under the 1973 Act, under Sub-section (1) of Section 15. In view of these provisions the contention of Mr. Sharma is that Section 232 of the Rajasthan Tenancy Act and Section 82 of the Rajasthan Land Revenue Act, will have no application and no reference can be made by the Collector, so the issuance of notice Ex. 2 to the petitioner is without jurisdiction.
5. Mr. Balia, learned Deputy Government Advocate, on the other hand, contended that the Board of Revenue is the highest court of appeal, revision and reference and also possesses general powers of superintendence over all subordinate revenue courts and revenue officers. He made reference to Section 8 and Section 9 of the 1956 Act and to the definition of the expression 'Revenue Court' as defined in Section 5, Clause (35) and Section 221 of the 1955 Act. He submitted that the 'Authorised Officer' under the 1973 Act is a 'Revenue Officer' and is subordinate to the Collector and the Board of Revenue, so the Collector is competent to make reference, under both the provisions, as stated in the notice. Whenever the Collector finds any illegality, impropriety or irregularity in the record of any case or proceeding decided by or pending before 'any revenue court or revenue officer subordinate to him, and if he is of opinion that the order passed or the proceeding taken by 'such court or officer' should be varied, cancelled or reversed, he may refer the case with his own opinion thereon for the orders of the Board. Simply a show cause notice has been given. It is open to the petitioner to satisfy the Collector that the order passed and the proceeding taken by the Authorised Officer do not suffer from any illegality, impropriety or irregularity and is not liable to be varied, cancelled or reversed and is not a fit case for making reference to the Board. Mr. Balia urged that reference under the two relevant provisions is competent to the Board and besides that the present writ petition is premature as it has simply been directed against the show cause notice.
6. The question, as to whether the present writ petition is premature, depends on the question as to whether reference by the Collector under either of the two provisions of the two laws referred to above, in respect of proceedings or orders passed under the 1973 Act, is at all competent. In case it is found that the two provisions are not at all attracted to the proceedings under the 1973 Act, then in that situation no notice could be issued by the Collector for showing cause as to why reference should not be made and the issuance of notice would be completely without jurisdiction and so the present writ petition would not be premature. The writ petition would be premature only when it is found that reference in relation to the proceedings under the 1973 Act is competent by the Collector under either of the two provisions, so the second argument of Shri Balia as to whether the writ petition is premature, depends on the main argument advanced by Shri Sharma, learned counsel for the petitioner. I, therefore, proceed to consider the main contention advanced by Shri Sharma in the present case.
7. If the matter relating to ceiling of agricultural holdings, is viewed in historical perspective, it would appear that the provisions relating to ceiling were first introduced under Chapter III-B of the 1955 Act and the State Government made the Rajasthan Tenancy (Fixation of Ceiling on Land) Rules 1963 in exercise of the powers conferred by Section 257 of the 1955 Act. The powers are exercised by the 'Revenue Courts' under the 1955 Act. Further Ceiling Law as contained under the 1955 Act was repealed by the 1973 Act. It is to be seen as to how the 1973 Act is to be viewed in relation to the 1956 Act and the 1955 Act. After the 1973 Act the position is completely changed. The law relating to ceiling does not form part of the 1955 Act and the heirarchy of authorities is different from what was provided under the 1955 Act.
8. For the proper appreciation and adjudication of the controversy, it is essential to have a look to the relevant provisions of the 1955 Act and the 1956 Act.
9. Section 232 of the 1955 Act reads as under :--
'232. Power to call for record and refer to the Board. -- The Collector may call for and examine the record of any case or proceeding decided by or pending before any revenue court subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of the proceeding, and, if he is of opinion that the order passed or the proceeding taken by such court should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board and the Board shall, thereupon, pass such orders as it thinks fit, Provided that the power conferred by this section shall not be exercised in respect of suits or proceedings falling within the purview of Section 239' It would appear from the above provision that the power of making reference is conferred on the Collector. He can call for and examine the record of any case or proceeding decided by or pending before any revenue court subordinate to him for the purpose of satisfying himself as to the legality or propriety at the order passed and as to regularity of the proceeding and after examining the record or the order, if he forms an opinion that the order passed or the proceeding taken by 'such court' should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for orders of the Board. So far as the present matter is concerned, the most relevant condition, which must exist before making a reference, is that the order passed or proceeding taken, should be an order or proceeding of any revenue court subordinate to him. Section 232 does not provide that the revenue court subordinate to the Collector must pass an order or take up the proceeding under the 1955 Act. then only reference would lie. The Revenue Court may pass any order even under the law other than the 1955 Act or the revenue court may take up proceeding under a law other than the 1955 Act, but the order passed or the proceeding taken must be of a revenue court subordinate to the Collector. The question arises as to what is a revenue court and what revenue courts are subordinate to the Collector. For that we find provisions under the 1955 Act as well as under the 1956 Act.
10. The expression 'revenue court' is defined under Clause (35) of Section 5 of the 1955 Act, as under : --
'(35) 'Revenue Court'' shall mean a court or an officer having jurisdiction to entertain suits or other proceedings relating to agricultural tenancies, profits and other matters connected with land or any right or interest in land, wherein such court pr officer is required to act judicially; It shall include the Board and every member thereof, a revenue appellate authority, a Collector, a Sub-Divisional Officer, an Assistant Collector, a Tehsildar or any other revenue officer while so acting.'
Constitution of Revenue Courts and Officers is provided under Chapter III of the 1956 Act. Chapter III is divided into five parts A to E. Part A deals with Territorial Divisions, Part B deals with Courts and Officers and Part C deals with powers. Sections 15 and 16 make provisions for territorial divisions and to create, abolish or alter divisions. Then Sections 18 to 20-A provide for appointments of Settlement Commissioner and Additional Settlement Commissioner, Director and Additional Directors of Land Re-cord and appointment of other officers, namely, the Collector, Tehsildar, Additional Land Record Officer, Settlement Officer. Assistant Collectors, Naib-Tehsildars and other officers. Section 20-A deal with the provision of appointment of Revenue Appellate Authority. Section 23 provides for controlling power. The control over non-judicial matters is vested in the State Government other than the matters connected with settlement and the control of all judicial matters and matters connected with settle-meat is vested in the Board. Sub-section (2) of Section 23 further defines the expression 'judicial matter', for which reference has to be made to the First Schedule. Section 24 of the 1956 Act deals with subordination of revenue courts and officers. It makes a detailed provision as to what courts and officers are subordinate to whom subject to the provisions of Sections 9 and 23. I may also refer here the provisions contained in Sections 8 and 9 of the 1956 Act. Section 8 deals with the powers of the Board. It provides that subject to the other provisions of the 1956 Act or to the provisions of the 1955 Act or of any other law in force, the Board shall be the highest revenue court of appeal, revision and reference in Rajasthan. Section 9 confers powers of general superintendence and control over all revenue courts and over all revenue officers on the Board subject to the other provisions of 1956 Act. Section 221 of the 1955 Act makes a provision for subordination of revenue courts. It provides that the general superintendence and control over all revenue courts shall be vested in the Board, and all such Courts shall be subordinate to the Board, and subject to such superintendence, control and subordination. It further provides that all Additional Collectors, Sub-Divisional Officers, Assistant Collectors and Tehsildars in a district shall be subordinate to the Collector thereof.
11. I may also refer here the provision contained in Section 82 of the 1956 Act. It reads as under:--
'82. Power to call for records and proceedings and reference to State Government or Board -- The Settlement Commissioner or the Director of Land Records or a Collector may call for and examine the record of any case decided or proceedings held by any revenue court or officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of proceedings.
and, if he is of opinion that the proceedings taken or order passed by such subordinate court or officer should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board, if the case is of judicial nature or connected with settlement, or for the orders of the State Government if the case is of a non-judicial nature not connected with Settlement;
and the Board or the State Government, as the case may be, shall thereupon pass such order as it thinks fit.' The provision of Section 82 is identical, analogous and akin to the provision contained in Section 232 of the 1955 Act. The Collector is empowered to make reference on being satisfied about the illegality or impropriety of the order passed or the irregularity of the proceedings taken by any revenue court or officer subordinate to him.
12. It is significant to note that there is no officer like 'Authorised Officer' either under the 1955 Act or under the 1956 Act. The Authorised Officer can be appointed in relation to any area and not necessarily in accordance with the territorial divisions provided under the 1956 Act. There are clear provisions relating to the subordination of revenue courts and officers under the 1956 Act and the 1955 Act, as considered above. In the scheme of these laws, there is no case for the Authorised Officer being subordinate to the Collector. It is true that an appeal against the order of the Authorised Officer lies to the Collector under Section 23 of the 1973 Act, but there is no provision regarding subordination as such. The expression 'any revenue court or officer subordinate to him' that is, Collector, occurring in Section 232 and Section 82 has to be considered in the light of the provisions contained in these two laws, referred to above. This expression, in my opinion, would not cover the case of an Authorised Officer. Mr. Balia, learned Deputy Government Advocate, submitted that under Section 8, the Board is the highest revenue court of appeal, revision and reference in Rajasthan. not only subject to the provisions of the 1956 Act or the 1955 Act, but also subject to any other law in force. Thus, subject to the provisions of any other law, which may include the 1973 Act, the Board should be considered to be the highest court of reference. So the Board possesses the power of reference and reference can legally be made by the Collector. He also pointed out that the Authorised Officer acts in relation to matters connected with the agricultural holdings and he is thus a revenue officer covered under the expression 'revenue court' as defined under Section 5 (35) of the 1955 Act, though acting under the 1973 Act, but still he would be subject to the control of the Board under both the laws. Ex facie the argument appears to be plausible, but if a little deeper probe is made, the argument would not stand scrutiny. Prior to the 1973 Act the position was different, but after that, special law has been enacted for the imposition of ceiling on agricultural holdings in Rajasthan, whereunder special officer has been conferred with the power to initiate and undertake ceiling proceedings, and under Sub-section (6) of Section 23 of the 1973 Act the order of the Authorised Officer is final, subject to the decision of the Collector and the Board of Revenue in appeal, that is, finality has been attached to the order of the Authorised Officer subject to the decision in appeal and the order of the Authorised Officer is not liable to be called in question by any civil or revenue court, that is, even by the Board, as the Board is a revenue court under Section 5 (35) of the 1955 Act. If power of reference is conceded to the Board, it would be directly in conflict with the provisions of Sub-section (6) of Section 23. The order of the Authorised Officer cannot be questioned by the Board in exercise of its power of deciding reference and it is only subjected to appeals first by the Collector and then by the Board. It cannot be lost sight of that the 1973 Act is a special law, whereas the 1955 Act and the 1956 Act are general laws The provisions of special law will override the provisions of general law. Under the scheme of the 1973 Act, there is no provision for reference. There are provisions of first appeal and the second appeal and there is a provision for reopening of decided cases under Section 15. The provision of reference in essence is a provision for reopening of cases. The conditions of reopening as mentioned in Sections 232 and 82 are different from the conditions mentioned in Section 15, Sub-sections (1) and (2). Had the legislature intended to provide for a provision for reference, instead of embodying a provision like Section 15, it would have enacted a provision analogous to Section 232 or Section 82 by making those sections applicable. But instead the legislature devised entirely a new scheme of reopening. Thus, considering the scheme of 1973 Act, it would appear that that is a special law providing a different heirarchy of authorities, introducing finality provision relating to the orders of the Authorised Officer and making a special provision for reopening of cases. In view of that I am clearly of the opinion that the provisions of Section 232 of the 1955 Act and Section 82 of the 1956 Act would have no application to the proceedings under the 1973 Act. The Board can simply act as a second appellate authority and it cannot otherwise interfere in the orders of the Authorised Officer, in exercise of any powers, which may vest in it either under the 1955 Act or under the 1956 Act.
13. I have been referred to a decision of the Board of Revenue in the State of Rajasthan v. Jogendra Singh (1981 RRD 137). I may straightway mention that this decision has no application to the present case. Though the case has no bearing, but some observations made in that decision, have been referred to by Shri Sharma, learned counsel for the petitioner, for consideration by this Court. In that case four references were made by the Addl. Collector, Sri Ganga-nagar, under Section 232 of the 1955 Act. The references were made in ceiling cases disposed of by the Sub-Divisional Officer, Sri Karanpur by his order dated 7-8-1971. The cases could not be reopened under Section 15 (2) of the 1973 Act as they became barred by limitation, so the references were made under Section 232 of the 1955 Act. Shri K. V. Sankaran, learned Member of the Board of Revenue found the references incompetent and rejected the same. The learned member observed that Section 232 has been held to apply only to cases decided under the Rajasthan Tenancy Act and he further observed that Chapter III-B has been repealed by the 1973 Act, so he held that a decided case under a repealed provision cannot be reagitated by reference under Section 232. The second premise appears to be correct, but the first proposition or the premise that Section 232 applies only to cases decided under the 1955 Act is doubtful. I need not consider in the present case that Section 232 is applicable only to cases decided under the 1955 Act. It may be added that the present case is a case decided under the 1973 Act and reference is sought to be made in a case decided under the 1973 Act, so Jogendra Singh's case (supra) has no bearing.
14. Reference has also been made to a Division Bench decision of this Court in Raghubir Singh v. Board of Revenue for Rajasthan (1979 WLN 481). In that case proceedings were taken under Chapter III-B of the 1955 Act. After remand of the case by the Board of Revenue, the ceiling area was again determined by the Sub-Divisional Officer and he came to the conclusion that the father and the son constitute two separate units and each one of them was entitled to get 62 'bighas' and 8 'biswas' of land, and it was held that they are entitled to retain 124 'bighas' and 16 'biswas' only and the surplus land measuring 4 'bighas' and 46 'biswas' may be resumed. In appeal the order of the Sub-Divisional Officer was upheld by the Revenue Appellate Authority and a revision was preferred by Raghubir Singh before the Board. The learned member of the Board in revision came to the conclusion that Surendrapal Singh was born to Raghubir Singh on March 14, 1963 and was only 12 years of age when the ceiling proceedings were finalised by the Sub-Divisional Officer on May 5, 1976, and he further held that the provisions of the old ceiling law would apply to the case, but the Sub-Divisional Officer committed an error of law in determining the ceiling area under the new Law, that is, under the 1973 Act. The Board observed that there is no provision for separate units in Chapter III-B of the 1955 Act. The learned member found that Sub-Divisional Officer committed a gross and patent illegality. The order of the Sub-Divisional Officer was set aside and the case was sent back to the Sub-Divisional Officer for fresh determination of the ceiling area. Two writ petitions were filed and a contention was advanced by the learned counsel for the petitioners that the order of the Sub-Divisional Officer became final and the Board of Revenue had no jurisdiction to set aside that part of the Sub-Divisional Officer's order, which has gone against the State. The Division Bench made reference to Sec. 221 of the 1955 Act and Section 9 of the 1956 Act and held that the impugned order is covered by Section 221 of the 1955 Act. whereunder the general superintendence and control over all revenue courts is vested in the Board. This case is also distinguishable. The present is not a case under the old Ceiling Law. that is Chapter III-B of the 1955 Act. I, therefore, cannot agree with the contention of Shri Balia, learned Deputy Government Advocate, that the Board can exercise general power of superintendence and control over the act of the Authorised Officer under the 1973 Act. Raghubir Singh's case (supra) is not a case under the 1973 Act.
15. In the light of what I have discussed above I hold that there are no powers of reference vested in the Board of Revenue, either under the 1955 Act or under the 1956 Act in relation to the orders passed or proceedings taken by the Authorised Officer under the 1973 Act In this view of the matter the objection that the writ petition is premature, does not survive, as the issuance of notice by the Collector is absolutely without jurisdiction and the petitioner can legitimately raise the grievance by invoking the certiorari jurisdiction of this Court under Article 226 of the Constitution, as the Collector has exercised jurisdiction not vested in him by law.
16. The writ petition, therefore, deserves to be allowed and the notice Ex. 2 deserves to be quashed.
17. In the result, the writ petition is allowed and the notice Ex. 2 is quashed.
18. The parties shall bear their own costs of this writ petition.