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1971 DIGILAW 3 (RAJ)

Surajmal v. Hajari

1971-01-18

B.P.SOOD, GOVERDHAN SINGH, NIRANJAN SINGH

body1971
A.D.B. of the Board while hearing an appeal in case No. 17/66/Appeal; /Jaipur Surajmal s/o Radhavallabh vs. Hajari, Kistura and Kesara decided to refer the following question for consideration of a larger bench : "Should Government notification No.F.2 (172)Rev.D/Gr 22/61 dated 11-6-63 be regarded as having been issued under section 260 of the Land Revenue Act and held to be, and always to Have been valid on that basis ?". The back ground under which this reference has been made is that an earlier D.B. of this Board had held that the said notification was without proper authority of law in consequence of the ommission of clause (g) of sub section (1) of section 26 of the Rajasthan Land Revenue Act, (hereinafter referred to as the Act) and that the Revenue Appellate Authority was, therefore, not competent to hear appeals in terms of sections 75 and 76 of the Act. This decision of D.B. is reported in 1970 R.R.D. page 173 (Gangasharan vs. Dr. Ratilal Revision No. 150/Jaipur of 66 decided on the 19th December, 1969). While this question came up again before the D.B. which had made this reference to us, it was contended that the question was not properly agitated before the earlier D.B., as it was not examined in a proper perspective, section 260 of the Rajasthan Land Revenue Act not having been mentioned at all. The learned Members constituting the D.B. accepted this contention and decided to make this reference to us. The learned counsel Shri Roopchand Sogani for the respondent contended that notification No. F. 2 (172; Rev. D/Gr. 11/61 dated 11 6-93 purports to have been issued under section 260 (1) (6) of the Act and through sheer over sight section 260 of the Act has been mentioned as the source of power It was argued that section 26 has no relevance to the subject because the delegation and conferment of powers can take place only under section 260 of the Act. It was urged that where a source of power is incorrectly mentioned in a notification, it does not in. validate the notification. A.I.R. 1964 Supreme Court page 264 (Afzal Ullah vs. State of Uttar Pradesh) was cited in support of his contention. Our attention also drawn to A.I.R. 1964 Supreme Court page 1329 (Hukumchand Mills Ltd. vs. State of Madhya Pradesh) wherein the Supreme Court have held that where the Govt. validate the notification. A.I.R. 1964 Supreme Court page 264 (Afzal Ullah vs. State of Uttar Pradesh) was cited in support of his contention. Our attention also drawn to A.I.R. 1964 Supreme Court page 1329 (Hukumchand Mills Ltd. vs. State of Madhya Pradesh) wherein the Supreme Court have held that where the Govt. have powers to make amendments, recitation of wrong source of power in a notification did not vitiate the amendments. A.I.R. 1970 Gujarat page 108 (Jayantilal Amrutlal Shodhan vs. The Union of India & others) was also cited in support of the same proposition. The learned counsel argued that what is material is the substance and not the form or the heading, as has been held in A.I.R. 1962 Madhya Pradesh page 262 (Prem Shankar Sharma vs. Collector East Nimar, Khandawa), wherein a full bench of the Madhya Pradesh High Court have held that in determining the validity of the rules, what is material is their substance and not the form or the heading. A rule purported to have been made under a wrong provision of an Act would nonetheless be valid if it is shown to be within the four corners of the powers conferred by any other provision of the Act. Shri S.N. Parikh, appearing on behalf of appellants, contended that he had no fundamental disagreement with the legal proposition enunciated by the learned counsel for the respondents. He, however, argued that vide an order dated 12th December, 1952 the office of the Director of Land Records had been abolished and there was no occasion to invoke powers under section 260 (1) (b) of the Act. He further referred to 1967 R.R.D. page 39 (Thikana Kuchaman vs. State) wherein a D.B. of this Board have held that the powers of Director of Land Records are vested in the Revenue Board. His argument was that the office of the Director Land Records was never in existence after the abolition of this office in 1952 and his powers could not be delegated under section 260 (1) (b). It was urged by him that the very language of the notification in issue suggests that section 260(l)(bj was not in the mind of the Government when they issued it. It was urged by him that the very language of the notification in issue suggests that section 260(l)(bj was not in the mind of the Government when they issued it. Shri P.D. Kudal, appearing as Amicus Curiae, contended section 19 of the Act contemplates the appointment of a Director of Land Records for the State and section 21 of the Act makes provision that any appointment under section 19 may also be made by virtue of office. He, therefore, contended that it is not incumbent that the powers of the Director Land Records can be conferred on another authority only when his office is in existence. The powers envisaged in section 25 (3) of the Act can be conferred on another officer by virtue of his office, in terms of section 21 of the (Act. The sum and substance of his contentions was that the powers conferred on the Director of Land Records by clause (f) of sub section (1) of section 75 of the Act as well as those conferred by clause (c) of section 76 of the Act have been entrusted to the Revenue Appellate Authority of the area concerned by virtue of this notification and that this is quite in order. He supported Shri Roopchand Sogani the learned counsel for the respondents that if a source of power is incorrectly mentioned in the notification, it does not render the notification invalid. Shri N.S. Chordia supported the line of arguments taken by Sarva Shri P.D-Kudal and R.C. Sogani. During rejoinder Shri Roopchand Sogani referred to notification No. F. 49/ Apptts A /52 and argued that the abolition of the post of the Director Land Re. cords, did not result in a vacuum, as this very notification provided that the Board of Revenue be constituted as the Director of Land Records. The notification dated 11-6- 63 delegated the function of the Director of Land Records as enjoyed by the Revenue Board by virtue of section 75 and 76 of the Act to the Revenue Appellate Authority of the area concerned. He stoutly defended the proposition that the notification in question was legally valid and did not suffer from any infirmity or defect, merely because a wrong section was quoted. We have given our careful consideration to the contention made by the learned counsel appearing in this case. He stoutly defended the proposition that the notification in question was legally valid and did not suffer from any infirmity or defect, merely because a wrong section was quoted. We have given our careful consideration to the contention made by the learned counsel appearing in this case. It is section 260 of the Act which enables the State Government to delegate its own powers under the Act on any subordinate authorito or to direct that any duties imposed and powers conferred by the Act, or the Rules made thereunder, or by any other law for the time being in force, on any officer or authority appointed or constituted under the Act or the Rules made thereunder, shall be performed and exercised by any other lawfully appointed or constituted officer or authority. The notification No. 4,49) Apptts (A)/52 dated the 15th December, 1952 abolished the post of Director Land Records with effect from |15th December, 1952 and provided that the Board of Revenue will constitute as a Director of Land Records. The notification dated 1lth June, 1963 purports to have been issued in pursuance of the provisions of Section 260 (1) (b) of the Act and there is no mistaking about it, or any scope for doubt, if the notification is read in juxtaposition with the provisions of section 260 (1) (b). The provisions of section 26 (g) of the Act are not relevant at all in as much as the Revenue Appellate Authority is not a successor authority for the Commissioner. Section 26 (g) was omitted vide Rajasthan Act No. 8 of 1962 whereas the notification in question was issued on the 1lth June of 1963, after the abolition of the office of the Commissioner. Evidently therefore powers in terms of of section 26 g) could not be conferred on any authority after the deletion of section 26 (g) by Act No. 8 of 1962. We have carefully perused A.I.R. 1964 Supreme Court page 264 (Afzal Ullah vs. State of Uttar Pradesh). The rule laid down in this judgment is that mention of a wrong provision under which bye-laws were purported to be made, would no make these bye-laws invalid. A.I.R. 1964 Supreme Court page 1329 (Hukamchand Mills Ltd. vs. the State of Madhya Pradesh) reiterates the same proposition i.e. that recitation of wrong source of power in the notification did not vitiate the notification. A.I.R. 1964 Supreme Court page 1329 (Hukamchand Mills Ltd. vs. the State of Madhya Pradesh) reiterates the same proposition i.e. that recitation of wrong source of power in the notification did not vitiate the notification. We therefore, respectfully follow this rule of law as laid down in these two judgments by the Supreme Court and maintain that the notification in question was not rendered invalid merely because the source of power has been incorrectly mentioned. We, therefore, answer the question referred to us in the following terms: "Notification No.F.2, 127 Rev./DGr. 11/61 dated 11-6- 1963 be deemed to have been issued under section 260 of the Rajasthan Land Revenue Act and be held to be, and always to have been valid on that basis."