G P KUCHIL Vs. RAM CHANDRA

JUDGEMENT

(1.) A preliminary objection has been raised by Shri Ved Vrat, who is counsel for most of the respondents, that this special appeal is not maintainable because the case is under the Rajasthan Tenancy Act and the combined effect of secs. 222 to 225 of that Act is that a special appeal is barred not with standing the proviso to sec. 10 (1) of the Land Revenue Act. This will apply even to decisions passed, as in this case, and not only to interlocutory orders.

(2.) SHRI S. N. Pareek, appearing for the appellants, says this is a not a case under the Tenancy Act but under the Land Revenue Act. In dec ding under what section of law a case falls, he says, it is necessary to look at the content and not merely at the section mentioned by the plaintiff or applicant. Here the subject matter is the pasture land of village Kuchil, Under sec. 92 of the Land Revenue Act a Collector is empowered to set apart land for any special purpose, and one of these purposes is the free pasturage of cattle. Sec. 93 of the same Act concerns the regulation of the use of pasturage. These sections, says SHRI Pareek, are the substantive provisions of law regarding the demarcation of pasture. In the Rajasthan Tenancy Act, sec. 5 (28) merely defines pasture land and is not a substantive provision. Rules 3 to 7 of the Rajasthan Tenancy (Government) Rules have been framed to give effect to this section but the State Government has power to frame rules only for giving effect to substantive law and hence these rules cannot be said to be valid. On the other hand, under sec. 261 (2) (xii) of the Land Revenue Act rules can be framed for regulating, under sec. 93 of that Act, the grazing of cattle on pasture land. Learned counsel also says that the Additional Collector, Ajmer made a reference to the Board under sec. 282 of the Tenancy Act read with sac. 9 of the Land Revenue Act. Since the subject matter of the case does not fall within the Tenancy Act, the reference should be regarded as having been made only under the Land Revenue Act.

(3.) SHRI Moti Lal Jain, appearing for respondents Nos. 3, 14, 16, and 17, generally supports the arguments of SHRI Pareek. He has drawn attention to a judgment of the Rajasthan High Court in Rawat Himmat Singh vs. State of Rajasthan reported in 1967 RLW 244. We shall discuss this ruling later as it pointedly deals with the subject in controversy. SHRI Jain has also cited 1964 RRD 293, perhaps to make the point that the right of appeal is a substantive right, and has also referred to 1970 RRD 332, SHRI Bhagla vs. Zor Singh, which is a Full Bench decision of the Board. This latter ruling says that Chapter II of the Land Revenue Act lays down the constitution and manner of working of the Board of Revenue and may be deemed to be equivalent to the Letter Patent of the High Court. There are no corresponding provisions for the establishment, constitution and functioning of the Board in the Rajasthan Tenancy Act. Thus Chapter II of the Land Revenue Act will be applicable to cases under the Tenancy Act where no inconsistency exists. SHRI Jain has further argued that the proviso to sec. 10 (1) of the Land Revenue Act should be treated as an independent substantive section and in this connection has referred to AIR 1959 Rajasthan 232 and AIR 1962 Madras 108.