Bakta Ram v. State of Rajasthan — 1975 DIGILAW 163 (RAJ)

D.C. Joseph, Member—A reference has been received from a Member for an authoritative pronouncement on the following questions : (1) Can the Board go into the validity of a rule framed by the State Government in exercise of powers delegated under sub-section (2) of section 261 Land Revenue Act and decide whether an impugned rule is or is not under the Land Revenue Act ? (2) Whether rule 14(4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 as it was prior to the amendment dated 28-11-70 is within the limits of the powers delegated by the Act ? and (3) Whether the amendment dated 28-11-70 inserting the following words "or a Tehsildar under the Rules repealed by rule 21 of these Rules" in rule 14 (4) is retrospective in operation and is therefore beyond the powers delegated by sub-section (2) of section 261 of the Land Revenue Act ? 2. This reference has arisen out of orders passed by the Collector Pali and upheld by the R.A. A. Jodhpur which were challenged in second appeal before the Board under section 76 of the Land Revenue Act. Allotments had been made to all the appellants under the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1957 well before the new allotment rules came into force in the year 1970. The Collector Pali cancelled the allotments under rule 14(4) of the 1970 Rules. A separate reference posing the same questions has been made in respect of a similar order passed by the Collector Bhilwara. 3. It is urged by the Government Advocate that it would be useful first of all to determine whether the Board has the power to examine the validity of a rule framed by the State Government in exercise of powers delegated by sub-section (2) of section 261 of the Land Revenue Act. Only if the Board found itself competent to go into this question would it be necessary to examine the other questions. We have found this request reasonable and have accordingly directed Shri Satya Deo Rajpurohit, counsel for the appellants, to address us first on this aspect. 4. Only if the Board found itself competent to go into this question would it be necessary to examine the other questions. We have found this request reasonable and have accordingly directed Shri Satya Deo Rajpurohit, counsel for the appellants, to address us first on this aspect. 4. Shri Rajpurohit says that law-making power falls into three categories:-(l) the power of Parliament to make laws; (2) the power of Parliament and the State Legislatures to legislate in respect of matters contained in the Lists and (3) delegation of power by the Legislatures to make rules and issue notifications. In respect of the first two, he says, the provisions of the Constitution itself are to be examined, but in the third case it is only the interpretation of a particular Act and the rules made thereunder which is involved. He has drawn attention to section 113 of the C.P.C. hand says that under this section a civil court may make a reference to the High Court, but when a constitutional question is involved the court is compelled to make such a reference. Where no matter involving interpretation of the Constitution is involved, it is the discretion of the court whether it makes a reference or not. There is no bar on its interpreting the question itself. Learned counsel says that section 113 of the C.P.C. is not applicable to the Rajasthan Tenancy Act by virtue of the relevant entries in List I of the Fourth Schedule to that Act; neither is it applicable to the Rajasthan Land Revenue Act, but the latter itself contains a specific provision for intra court reference (section 11) and for reference to the High Court (section 12). 5. 5. Under section 11 the Chairman or any other Member of the Board sitting singly for the disposal of any case or proceeding may, if he thinks fit, for reasons to be recorded in writing, refer any question of law or custom having the force of law or of the construction of any document arising before him in such case or proceeding for the opinion of a Bench, and the case or proceeding shall be disposed of in accord-ance with the opinion received Section 12 says that if in any case it appears to a Bench that any such question is referred to in section 11 is of public importance and that it is expedient to obtain the opinion of the High Court thereon, the Bench may after the question to that court. Counsels contention is that section 12 is discretionary and the Board may or may not refer such a question to the High Court. There is no bar in the section on the Board itself considering the matter and in this respect the Board has the same freedom to act, subject to the same restriction, as a civil court under section 113 C.P.C. We shall discuss this point later. 6. The Board itself, says Shri Rajpurohit, has several times examined the vires of provisions of an Act or rules. In 1964 RRD 209 the decisions of the lower courts were attacked on the ground that section 42 of the Rajasthan Tenancy Act was discriminatory and ultra vires. It was held that the Board was not the proper forum where the power of the State Legislature could be questioned. Learned counsel says that this view was undoubtedly correct: because a constitutional point was involved. This ruling was followed by a Single Member in 1973 RRD 522 There, says counsel, it was argued that rule 17A of the Rajasthan Colonisation (Medium and Minor Irrigation Project Government Land Allotment) Rules, 1968 was ultra vires of the Colonisation Act and it was held, relying on 1964 RRD 209, that the Board was not the proper forum where the vires of an Act of the State Legislature could be questioned. Counsel says the learned Member went astray because it was not the Act which was being challenged but the fact that the rule was not in conformity with the Act. Counsel says the learned Member went astray because it was not the Act which was being challenged but the fact that the rule was not in conformity with the Act. These two rulings apart, he says, the Board has never hesitated to examine the vires of subordinate legislation especially. In 1968 RRD 581 notification No. F. 6(82) Rev/B/ 59 dated August 13, 1960 cnferring the powers of Assistant Collector on Tehsildar to dispose of applications under section 80 of the Rajasthan Tenancy Act for payment of compensation exceeding Rs. 300/- for trees vested in a khatedar was held to be illegal because it was in conflict with section 217(2) of the Rajasthan Tenancy Act. In 1970 RRD 173 it was held by a Division Bench that notification No F. 2 (172) Rev/D/Gr, 11/61 dated 11 6-63 conferring the powers of Director of Land Records on the Revenue Appellate Authority was invalid. This view was later overruled by a Larger Bench in 1917 RRD 40 which held that the notification in question would be deemed to have been issued under section 260 of the Rajasthan Land Revenue Act and always to have been valid on that basis. 7. Shri Rajpurohit has admitted that in none of these rulings was there a conscious finding after discussion as to whether the Board was competent to go into the vires of an Act or the rules or notifications issued thereunder. However, the question of the jurisdiction of the Board did come up before a Full Bench in Mana vs. Kaiyan 1966 RRD 135. In that case the point at issue was whether the Board of Revenue had been properly constituted in accordance with section 4 of the Rajasthan Land Revenue Act, 1956. During the hearing of the reference a preliminary objection was raised by the Advocate-General to the effect that the Board was not competent to hear and adjudicate upon the reference. He said that the question raised did not fall within the scope of section 11 of the Land Revenue Act as it was not a question of law. He also made a reference to Article 226 of the Constitution and argued that it the non petitioner wanted to raise the question of the validity of the appointment of the Members of the Board the proper remedy for him was to seek a writ of quo warranto from the High Court. He also made a reference to Article 226 of the Constitution and argued that it the non petitioner wanted to raise the question of the validity of the appointment of the Members of the Board the proper remedy for him was to seek a writ of quo warranto from the High Court. It was further argued that a question of jurisdiction could relate to (a) subject matter, (b) territorial limits and (c) pecuniary limits in money suits and, as the question did not relate to any of these matters, the Bench was not competent to answer the reference. After considering various authorities, the Bench came to the conclusion that since the validity of the Constitution of the Board itself had been challenged it would necessarily have to decide this question before it could proceed. It was held that it was the primary obligation of the courts and officers upon whom is cast a duty of deciding a case judicially that they will entertain objections to the jurisdiction of their own authority, whether these are raised with relation to the subject matter of the dispute or territorial or pecuniary limits or with regard to their competence to exercise jurisdiction. Shri Rajpurohit has vehemently argued that since the Board in this case examined the relevant provisions of the Land Revenue Act itself in relation to its composition, there would certainly be jurisdiction to examine the vires of a rule framed under the rule-making power of the State Government given by the Land Revenue Act. 8. It is further asserted that Revenue courts are quite distinct from civil courts and for this attention has been drawn to a judgment of a Division Bench in 1963 RRD 81. Citing AIR 1961 Calcutta 217, counsel says that where there is any conflict between a rule framed under an Act and a section of the Act itself, this must be dealt with in the same spirit as a conflict between two sections of the Act would be dealt with; and if reconciliation is impossible, the subordinate provisions must give way. It is argued that since in the present reference the rule which has been challenged is beyond the rule-making power delegated to the Sate Government, it will have to be set aside. That is a question which we will go into later if we decide that we are competent to consider the matter at all. It is argued that since in the present reference the rule which has been challenged is beyond the rule-making power delegated to the Sate Government, it will have to be set aside. That is a question which we will go into later if we decide that we are competent to consider the matter at all. Shri Rajpurohit has also drawn our attention to V. N. Shuklas Constitution of India (sixth edition) by D.K Singh at page 387, the commentary on Article 228. This says that the object of this Article is to make in the State the High Court the sole interpreter of the Constitution and at the same time to prevent it from being made a forum for academic discussions on constitutional questions. It is not that the subordinate courts have no jurisdiction to interpret the Constitution. But in order to have the most competent decisions on constitutional questions and to maintain uniformity in interpretation, the provision has been made in this Article. It is noted that by amendments made in 1951 in section 113 of the C P.C. and section 432 of the Cr.P.C. 1898 (Section 395 of the Cr.P.C. 1973) it has been made obligatory on the lower courts to send a case for the opinion of the High Court wherever the vires of a legislative enactment is questioned for the first time before it. Shri Rajpurohit has deduced from this that the courts have virtually unlimited powers. 9. Shri S.N. Pareek, appearing as the first of several amicus curiae, is of the view that if the vires of any constitutional matter is challenged courts other than the Supreme Court and the High Court have no jurisdiction. However, he says, the power of the court is not taken away if the question is whether a particular enactment does or does not fall in part III of the Constitution. Shri Pareek has cited C D. Jhas Judicial Review of Legislative Acts (1974 edition.) Discussing the powers of the District Court for judicial review, this says that the power of examining the constitutional validity of a legislative Act even by the District Court was considered necessary by the Indian Parliament to give facility to the aggrieved party to raise the point expeditiously even in the subordinate court where the original civil or criminal case was pending. With this object a new rule, i.e, rule 4(A), was inserted in Order XL VI of the C.P.C. by which rules 2, 3 and 4 also were made applicable in the case of reference on the point of the constitutionality of any legislative Act (pages 150 and 151). It is further stated that it is available to the aggrieved person to file a suit under section 9 of the C.P.C. for declaration of a part or the whole of any law as ultra vires if the plaintiff is actually aggrieved by the impugned legislative provision. Jha goes on to say that from the decisions of the Supreme Court it is clear that such suits may be filed in District Courts. In Jhula Bai vs. State of M.P. AIR 1969 SC 78 it has been held that "when a provision is already declared unconstitutional or the consitu-tionality of any provision is to be challenged a suit is open". However, Jha has further pointed out that in America, unlike India, even the district courts have the power to declare a legislative Act unconstitutional. Appeals can be filed up to the Federal Supreme Court, but the power of the District Court to declare a statute void in America remains. This suggests that the District Court in India only have the power to examine and refer to the High Court and not to decide the vires of a statute themselves and in this respect the quotation from Jha appears to support the case of the State rather than that of the appellants. The wording of section 113 C.P.C. is also in consonance with this. 10. Shri Pareek supports the argument made on behalf of the appellants that sections 12 of the Rajasthan Land Revenue Act is analogous to section 113 of the C.P.C. but says that the powers of the Board are wider than those in section 113 because there is no obligation to make a reference. A further point made is that rules are delegated legislation and as per AIR 1972 SC 1917 the delegate is empowered only to carry out the subsidiary policy within the guidelines laid down by the Legislature. It would not be permissible for the authority to whom powers are delegated to transgress the limits so as to bring about a conflict with the enactment itself. It would not be permissible for the authority to whom powers are delegated to transgress the limits so as to bring about a conflict with the enactment itself. As regards the scope of section 11 of the Land Revenue Act, Shri Pareek says that the matter before the court is undoubtedly a question of law and there can be no impediment to hearing the reference. The question of law is regarding the interpretation of section 261 of the Land Revenue Act and whether the rules framed under that section are in consonance with the rule-making power conferred by the section. 11. Shri Moti Lal Jain, quoting from Bindras Interpretation of Statutes (5th edition) at page 11 has sought to draw a distinction between rules of law and rules of construction "A rule of law cannot be said to contral the construction of a statute, inasmuch as a statute is itself part of the supreme law of the land and over-rides any pre-existing rules with which it is inconsistent. A rule or canon of construction, whether of will, deed or statute, is not inflexible, but is merely a presumption in favour of a particular meaning in case of ambiguity". Shri Jain has also cited AIR 1954 Calcutta 436 in which it has been held (para 19) that in some statutes, power is given to frame rules and when so framed they are made part of the statute. In such a case it may be permissible to supplemen the provisions of the statute itself, within limits. But where rules are to be framed for "carrying out the purpose of the Act", such rules cannot travel beyond the four corner? of the Act itself. It has further been held that in the case of statutory rules the court can always go into the question as to whether they are inconsistent with the statute under which they are made. Another citation of Shri Jain, AIR 1955 Punjab 125, held that where there was an inconsistency between the statute which declared that the provincial Government shall have full power to demand the dismissal of an officer without enquiry and a statutory rule which declared that an enquiry shall be an essential prerequisite to an order of dismissal, the statute would take precedence over the statutory rule and the court must give effect to the purpose of the statute and the intention of the Legislature. In AIR 1956 Rajasthan 101, a Full Bench has held that the rules to be framed under any provision of the Act cannot be inconsistent with the provisions of the Act. Shri Jain, like Shri Pareek before him, has tried to make the point that the rule which is the subject matter of this reference goes beyond the power of Government under the delegation given by section 261 of the Land Revenue Act. As we have observed earlier, we can consider this aspect only if it is decided that we have jurisdiction to do so. 12. Shri Gokul Prasad Sharma has drawn attention to section 8 of the Land Revenue Act and argues that since the Board is the highest court of appeal, revision and reference, it is the ultimate authority in revenue matters except for those convered by Article 228 of the Constitution. It is inferred from this that there can be no bar to the examination of the vires of a rule framed in exercise of powers conferred by the Land Revenue Act under section 11 of the Act. A similar view has been expressed by Shri R.K. Goyal. 13. Shri Yagya Datt Sharma has quoted a passage from Craies on Statute Law (8th Edition) at page 297. This passage deals with delegated legislation. " The initial diffence between subordinate legislation and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that courts of law, as a general rule, will not give effect to the rules, etc. thus made unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the courts, the validity of delegated legislation as a general rule can be. thus made unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the courts, the validity of delegated legislation as a general rule can be. The courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may enquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation, and it follows that the court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials". Shri Yagya Datt has deducted from this that the courts have full authority to investigate the vires of delegated legislation. It is noteworthy, however, that the above comments relate specifically to British Law. 14. The learned Govt. Advocate has strenuously argued that the Board, being a creature of statute, i. e., the Land Revenue Act, cannot challenge the vires of any section of the Act or the rules made thereunder. He has cited AIR 1966 SC 1089 K.S. Venkataraman and Go. vs. State of Madras. Here the Supreme Court has held as follows; "If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder it functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute which is ultra vires, to that extent it would be acting outside the Act. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder it functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute which is ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court " That was a case under the Madras General Sales Tax Act, 1939. In Commissioner of Income-tax, M.P. vs. M/S Straw Products AIR 1966 SC 1113 the question arose as to whether the appellate tribunal was entitled to go into the question of the validity of an order passed in exercise of powers under the Income-tax Act since the order itself was not part of the Income tax Act and the appellate tribunal was not the creature of the order in the sense mentioned in Venkataramans case. The Supreme Court held that it would not be possible to sustain the distinction sought to be made : "The order is in effect an amendment of the Indian Income-tax Act insofar as it is applicable to the merged States. If it had not been for the order only the provisions of section 10(5) of the Act would have been applied for the purpose of working out depreciation. Now, in view of the Taxation Laws (Merged States) (Removal of Difficulties) Order, 1949, as explained by the 1962 Order, a different rule has been directed to be applied and the Income-tax Officer is bound to follow this statutory direction. We are unable to see how the judgment in Venkataramans case ( AIR 1966 SC 1089 ) does not apply". The Govt. Advocate infers from this that the creature of a statute is not entitled to examine the validity even if orders, notifications and rules issue under the statute. 15. The view taken in the Venkatarman case has been reiterated in AIR 1969 SC 78 , which has been relied on by Shri S.N. Pareek above. This also lays down the principles regarding exclusion of the jurisdiction of the civil court. It has been held that where there is no express exclusion, it is necessary to examine the scheme of the Act to find out the intendment. This also lays down the principles regarding exclusion of the jurisdiction of the civil court. It has been held that where there is no express exclusion, it is necessary to examine the scheme of the Act to find out the intendment. Thus it has to be seen whether the statute creates special rights or liabilities and whether it lays down that all questions about the said rights or liabilities shall be determined by the tribunals constituted by the statute, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. However, no challenge to the provisions of the Act as ultra vires can be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals. In 1967 (XIX) STC 66, the Supreme Court has said that it is now settled that the question as to the vires of a statute which a taxing officer has to administer cannot be raised before him. That was a case under the Mysore Sales Tax Act. In 1970 (XXV) STC 171, it was argued before the High Court of Orissa that the Orissa Sales Tax Act could not be questioned under sec, 24 of the Act because the assessing authorities, including the tribunal, were creatures of statute and the High Court in exercise of its advisory jurisdiction under sec. 24 had no powers higher than those of the tribunal. In the circumstances, a writ application had been filed. The Orissa High Court referred to the Supreme Court Judgment in the Venkatarman case and held that under section. 24 of the Orissa Act the High Court was subject to the same limitations to which the tribunal was subject : "We are therefore clearly of opinion that we have no power and jurisdiction under section 24 of the Orissa Act to declare a particular rule as being ultra vires the Act". Accordingly, it was held that the writ petition was maintainable. In AIR 1970 Allahabad 362 a Full Bench of the High Court relied on the rulings cited above, especially the Venkataraman case. Accordingly, it was held that the writ petition was maintainable. In AIR 1970 Allahabad 362 a Full Bench of the High Court relied on the rulings cited above, especially the Venkataraman case. It was further held that although the Supreme Court had not specifically held in any case brought to notice that an authority created by a statute could not question the validity even of a rule purporting to have been made under the statute, yet after the pronouncements of the Supreme Court in wide terms, sales tax authorities could not be expected to decide the validity of a rule purporting to have been made under a statutory provision declaring rules made thereunder to have the same effect as if enacted by the Legislature. It seems that the Straw Products case AIR 1966 SC 1113 was not brought to the notice of the court, but it laid down the same principle, A similar view, again following the Venkataraman ruling, has been taken by the Supreme Court in 1966 (XVII) STC 508. That was a case where a petition was filed in the Orissa High Court under Article 226 to have an assessment order quashed on the ground that the imposition of sales tax was without authority of law or ultra vires the Sales Fax Act and the Rules. It was held that the High Court should not have dismissed the writ petition on the , ground that the petitioner should exhaust his internal remedies under the Act, since the authorities constituted under the Act could not decide such a question. 16. The learned Govt. Advocate has further drawn our attention to State of U.P. vs. Baburam Upadhya AIR 1961 SC 751 . This has cited Maxwell "On the interpretation of Statutes" (10th edition) at pages 50-51. "Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judialiy noticed for all purposed of construction or obligation". "Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judialiy noticed for all purposed of construction or obligation". It was held by the Supreme Court in that case that the Police Act and the rules made thereunder constituted a self contained code providing for the appointment of police officers and prescribing the procedure for their removal It followed where the appropriate authority took disciplinary action under the Police Act or the rules made thereunder, it must conform to the provisions of the statute or the rules which had conferred upon it the power to take the said action. If there was any violation of the said provisions, subject to the question whether the rules were directory or mandatory the public servant would have a right to challenge the decision of that authority. It is argued from this that rules must be regarded as an integral part of Act, and since is it well established that the vires of an Act or a portion of it cannot be challenged by an authority set up by the Act itself, such an authority cannot be allowed to challenge the vires of rules framed in exercise of powers given under the Act. Any challenge to the Act or rules would have to be made in the civil court or the High Court. 17. It is further stated that the scope of section 11 of the Land Revenue Act is restricted to questions of law which can be raised before the Board itself and does not include a question regarding the vires or legality of a particular provision of Land Revenue Act or rules. The scope of section 12 is similarly restricted to matters described in section 11, and hence the Board cannot even make a reference in this regard to the High Court. 18. The scope of section 12 is similarly restricted to matters described in section 11, and hence the Board cannot even make a reference in this regard to the High Court. 18. Lastly, it has been pointed out that in AIR 1961 Calcutta 217, which has been relied on by Shri Rajpurohit, the Calcutta High Court has said that once rules and notifications are published in the official gazette these must be regarded as being incorporated in the Act itself However, we have noted that the Calcutta High Court was dealing with a case under the Central Excises and Salt Act, 1944 which expressly stated that all rules made and notifications issued under the Act would have effect as if enacted in the Act itself. 19. Speaking in rejoinder to the Govt. Advocate, Shri Rajpurohit has urged that the view taken in the Venkataraman case AIR 1966 SC 1089 and the other Supreme Court rulings cited applies to tribunals, whereas the Board is a court competent to decide all questions of law. In the instant cases the question of law is whether the Government has exceeded the rule-making authority delegated to it by framing the impugned rule with retrospective effect. The Board can decide this matter itself under section 11 of the Land Revenue Act or, if it feels difficulty in reaching a decision, a reference can be made to the High Court under section 12. That the Board is a court of like status to a civil court, says Shri Rajpurohit, is clear from section 8 of the Land Revenue Act, the proviso to which empowers the High Court to decide doubts or disputes as to the respective jurisdictions of these two types of courts. 20. Shri R.C. Sogani, who was unable to attend, requested permission to submit written arguments and this has been granted. Shri Sogani contends, citing AIR 1952 Allahabad 764, that it is a fundamental principle of the administration of justice in all courts and for all officers upon whom it cast the duty of deciding a case judicially that they will entertain objections to the jurisdiction of their own authority. Shri Sogani contends, citing AIR 1952 Allahabad 764, that it is a fundamental principle of the administration of justice in all courts and for all officers upon whom it cast the duty of deciding a case judicially that they will entertain objections to the jurisdiction of their own authority. "If a provision of the Sales Tax Act is ultra vires the legislature which enacted it, it is the duty of the Sales Tax Officer or the appellate or revisional authority, though appointed under the Sales Tax Act itself, to decide whether the Act or any portion thereof is ultra vires or not. The authorities may have to decide that their own constitution is invalid, but that is what they must decide when a question is raised before them." It is noteworthy that the second part of this argument prevailed with a Full Bench of the Board in Mana vs. Kalyan 1966 RRD 135 to which attention has been drawn by Shri Rajpurohit. However, as we shall see presently, the Full Bench ruling is not really relevant to the question before us Shri Sogani has referred us to Chitaleys C.P.C. (8th edition volume I note No. 65 on section 9 in which it is stated that the courts can consider and determine whether an Act passed by the Legislature is within its powers. Reference in this connection has been made to 1967 Allahabad Law Journal 21. There the contention on behalf of the appellant was that rule 26A framed under the U.P. Zamindari Abolition and Land Reforms Act was ultra vires as it was beyond the rule making power given under the Act itself. The District Judge held that the rule appeared to be beyond the power, but he said he had no jurisdiction to declare the rule invalid. The Allahabad High Court said : "we are unable to accept this attitude. It is the duty of the civil court to scrutinize the validity of each law challenged before it and, if the law does not appear to be validly framed, to declare it ultra vires and not to give effect to it. Again, in AIR 1954 Calcutta 436 (cited earlier by Shri Moti Lal Jain) it has been held that where rules are to be framed for "carrying out the purposes of the Act" such rules cannot travel beyond the four corners of the Act itself. Again, in AIR 1954 Calcutta 436 (cited earlier by Shri Moti Lal Jain) it has been held that where rules are to be framed for "carrying out the purposes of the Act" such rules cannot travel beyond the four corners of the Act itself. In the case of statutory rules the court can always go into the question as to whether they are inconsistent with the statute under which they are made. Shri Sogani has next referred to section 113 of the C.P.C. and says, citing AIR 1971 Mysore 355, that this section empowers the courts to make a reference where a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or any provision contained therein. The proviso does not empower the court to make such a reference where a case involves a question as to the validity of any rule, bye-law or notification or order issued under any Act, Ordinance or Regulation and hence the subordinate court itself can pronounce on their validity. The Mysore High Court was following a Rajasthan ruling in Sher Singh vs. Ghansi Ram AIR 1954 Rajasthan 233. There the Munsiff referred to the High Court under section 113 C.P.C. two questions as to the validity of a notification issued under an enactment. In rejecting the reference, Wanchoo C. J., who spoke for the court, said that a notification is obviously very different from an Act, Ordinance or Regulation and a reference under section 113 C.P.C. can only be made as to the validity of an Act, Ordinance or Regulation. Shri Sogani says that the effect of this is that the court has itself to decide the validity of any rule, notification or order issued under a present law. 21. He has further pointed out that the Rajasthan Land Revenue Act, while empowering the Board and the State Government to making rules consistent with the provisions of the Act, nowhere lays down that if such rules are framed they will become part and parcel of the enactment as if they are enacted in the Act itself. 21. He has further pointed out that the Rajasthan Land Revenue Act, while empowering the Board and the State Government to making rules consistent with the provisions of the Act, nowhere lays down that if such rules are framed they will become part and parcel of the enactment as if they are enacted in the Act itself. Even if there were any such provision it would not make any difference in view of the rule laid down by the Supreme Court in AIR 1955 SC 1585 In that case, the Advocate-General for the State of Kerala contended that rule 14A of the Madras General Sales Tax Rules was validly made in exercise of the powers under section 19 of the Act, and that in any event the rule having by sub-section (5) of Section 19 the effect as if it were enacted in the Act, it was not liable to be declared invalid. The Supreme Court said that the rules made under section 19 and published in the Government Gazette have by the express provision to have effect as if enacted in the Act : but thereby no additional sanctity attaches to the rules. Power to frame rules is conferred by the Act upon the State Government and that power may be exercised within the strict limits of the authority conferred. If in making a rule the State transcends its authority, the rule will be invalid, for statutory rules made in exercise of delegated authority are valid and binding only if made within the limits of the authority conferred. The validity of a rule, whether it is declared to have effect as if enacted in the Act or otherwise, is always open to challenge on the ground that it is unauthorised. This ruling of the Supreme Court has been discussed in G.P. Singhs Principles of Statutory Interpretation (2nd edition) at page 545 wherein it has been observed that the effect is that the formula "as if enacted in this Act" has ceased to serve any useful purpose in Indian Acts. A similar comment has been made by Swarup in Legislation and Interpretation at page 681. Shri Sogani has also quoted from Y.S. Deshpandes Judicial Review of Legislation at page 25 in which it is stated that subordinate legislation is reviewable like ordinary legislation, i.e., on the ground of ultra vires and unconstitutionality. A similar comment has been made by Swarup in Legislation and Interpretation at page 681. Shri Sogani has also quoted from Y.S. Deshpandes Judicial Review of Legislation at page 25 in which it is stated that subordinate legislation is reviewable like ordinary legislation, i.e., on the ground of ultra vires and unconstitutionality. At page 28 it has been observed that the vires of a law is capable of being challenged if the power to make law is either absent or has been exceeded by the rule-making authority. 22. During the course of arguments before us considerable stress has been placed by most counsel on the powers of the court to adjudicate in respect of the validity of a particular enactment and the rules made thereunder. In this connection it would be useful to investigate the scope of the section 113 of the C.P.C. and the effect of the Article 228 of the Constitution. The respective spheres of these two provisions are clearly brought out in AIR 1971 Andhara Pradesh 339, which says : "Where the validity of an enactment or regulation is contended to be invalid as being ultra vires the powers of the Legislature passed it or questioned on other grounds and not on the ground of its offending any of the provisions of the Constitution it will be a case falling under section 113 of the C.P.C. but if its validity is attached on the ground of its offending the provisions of the Constitution it must necessarily fall under Article 228 of the Constitution and has to be withdrawn and decided by the High Court". In AIR 1971 Calcutta 368 it has been held that the scope of section 113 C.P.C. and Article 228 of the Constitution are not co-extensive. Article 228 is confined to substantial questions of law as to the interpretation of the Constitution but the point of reference under section 113 is much wider. 23. It has been argued by several counsel that while section 113 C.P.C and we note, Order XLVI as well do not apply to revenue courts the power conferred under sections 11 and 12 of the Land Revenue Act is not only analogous but even wider and the revenue courts are free to examine the validity of the Acts which they administer and the rules framed under those Acts. It has further been argued that in the cases before us there is no question relating to the interpretation of the Constitution and hence there is no bar whatsoever to the making of a pronouncement on the validity of the rule which has been challenged. On the other hand, the learned Govt. Advocate says that the power conferred by section 11 is restricted to the examination of questions arising out of the Act or Rules as they stand and that the Board has no jurisdiction to challenge the enactment of which it is the creature or the rules framed thereunder. 24. The power of the court to go into a question of vires has been brought out in AIR 1969 S.C. 78 , upon which considerable stress has been placed. In that case the Madhya Bharat Government, in exercise of powers conferred by section 5 of the Madhya Bharat Sales Tax Act (Act 30 of 1950) issued a number of notifications in 1950, 1953 and 1954 imposing tax at different rates on tobacco at the point of import. The State of Madhya Pradesh was formed on November 1, 1956. In Bhai Lal vs. State of M.P. the High Court declared the notifications to be offensive to Article 301 of the Constitution on the ground that it was illegal levy a tax on the importer when an equal tax was not levied on similar goods produced in the State. This decision was confirmed by the Supreme Court (AIR 1954 S.C. 1006). The appellants did not take recourse to Article 226 of the Constitution but filed suits for refund of the tax on the ground that it was illegally collected from them. It is in this context that Hidayatullah C.J. delivering judgment on behalf of the court, held that the question of ultra vires of the taxing laws is always open to the civil courts for it cannot be the implication of any provision making the decision final that even void or invalid laws must be enforced with-out any remedy. It was observed, following Venkataramans case, that a challenge to the provisions of a particular Act as ultra vires cannot be brought before tribunals constituted under that Act; hence the powres of the civil courts to go into such matters. 25. It was observed, following Venkataramans case, that a challenge to the provisions of a particular Act as ultra vires cannot be brought before tribunals constituted under that Act; hence the powres of the civil courts to go into such matters. 25. However, as discussed above, unlike the U.S.A; in India the District Courts do not themselves have the power to declare a legislative Act unconstitutional. This is plain not only from AIR 1971 Andhra Pradesh 339 but from a bare reading of the proviso to section 113 C.P.C. Where there is a question as to the validity of any Act, Ordinance or Regulation or of any provision contained therein the determination of which is necessary for the disposal of the case, and the civil court feels that such Act, Ordinance, Regulation or provision is invalid or inoperative but has not been so declared by the High Court under which it functions or the Supreme Court, the civil court is duty bound to make a reference for the opinion of the High Court. In 1967 Allahabad Law Journal 21, as we have seen, it has been held that it is the duty of the civil court to scrutinize the validity of each law challenged before it, and if the law does not appear to have been validly framed, to declare it ultra vires and not give effect to it. This dictum was given without discussion and there was no mention of the necessity of reference under section 113 C.P.C. However, the Allahabad High Court was considering a case regarding the validity of a rule framed under the U.P. Zamindari Abolition and Land Reforms Rules, 1952 and what it said in effect was that the court below (District Judge) should have declared the rule invalid if it felt that it was so. In AIR 1954 Calcutta 436 it has been held that in the case of a statutory rule the court can always go into the question as to whether it is inconsistent with the statute under which it is made. AIR 1971 Mysore 355 and AIR 1954 Rajasthan 233 indicate that the civil court must itself decide such a question since it cannot be made the subject of a reference under section 113 C.P.C. 26. AIR 1971 Mysore 355 and AIR 1954 Rajasthan 233 indicate that the civil court must itself decide such a question since it cannot be made the subject of a reference under section 113 C.P.C. 26. To sum up, the position is that if the validity of an enactment is challenged on the ground of its offending the provisions of the Constitution, the case has to be withdrawn and decided by the High Court under Article 228 of the Constitution. If the case involes a question as to the validity of any Act, Ordinance or Regulation or any provision contained therein, and this question has not been decided by the High Court or the Supreme Court, the civil court is bound to refer it to the High Court under section 113 C.P.C. If however, the question is as to the validity of any rule, order or notification issued under any Act, Ordinance or Regulation, the civil court is itself empowered to make a pronouncement on its validity. In particular it can examine whether the rule-making power has been exceeded or whether the rules are in conflict with the provisions of the statute and can take corrective action. This power of the civil courts is there because a challenge to the provisions of a special Act as ultra vires cannot be brought before tribunals constituted under this Act or empowered to administer the Act, as we have seen. In his rejoinder, Shri Rajpurohit has argued that the rulings cited by the learned Govt. Advocate are in all cases where tribunals, as distinct from courts, were involved. He has argued that revenue courts are not tribunals but are akin to civil courts and are not subject to the limitations of tribunals. 27. To resolve this issue, we can do no better than refer to AIR 1961 SC 1669 in which Hidayatullah J, as he then was, discussed in detail the difference between a court and a tribunal. His was a dissenting judgment but this does not affect the validity of his observations as the point of dissent was whether the Central Govern-ment did or did not transcend the limits of its power. His was a dissenting judgment but this does not affect the validity of his observations as the point of dissent was whether the Central Govern-ment did or did not transcend the limits of its power. It has been held that all tribunals are not courts, though all courts are tribunals : "The word courts is used to designate those tribunals which are set up in an organised State for the administration of justice.........when rights are infringed or invaded, the aggrieved party can go and commence a quarrel before the ordinary civil courts. The courts which are instru-mentalities of Government are invested with the judicial power of the State, and their authority is derived from the Constitution or some Act of Legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of Courtes of civil judicature"...By courts is meant the courts of civil judicature and by tribunals those bodies of men who are appointed to decide controversies arising under certain special laws......Broadly speaking, certain special matters go before tribunals and the residue goes before the ordinary courts of civil judicature, their procedures may differ, but the functions are not essentially different.........In my opinion, a court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the state under its Constitution to exercise the judicial power of the State. These Courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction". In AIR 1965 SC 1595 the Supreme Court has said that judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy the State transfers its judicial functions and powers mainly to the courts established by the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribunals by entrusting to them the task of adjudicating upon special matters and disputes between parties. The basic and the fundamental feature which is common to the courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State. The basic and the fundamental feature which is common to the courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State. It is essential that the power of adjudi-caion must be derived from a statue or statutory rule. A third citation, AIR 1956 SC 65, is not of much help to us because that was a case under the Contempt of Courts Act and a distinction was sought to be drawn between a court and an administrative tribunal within the meaning of that particular Act. 28. The Board of Revenue, as it exists at present, has been created by section 4 of the Rajasthan Land Revenue Act, 1956. Section 8 of the Act says that the Board shall be the highest court of appeal, revision and reference in Rajasthan. Shri Rajpurohit himself has pointed out that revenue courts are are quite distinct from civil courts and in this connection has referred to a judgment of the Board reported in 1963 RRD 81. In view of the distinction drawn by the Supreme Court between Courts and tribunals it cannot be said that revenue courts fall in the first category. They are not the common courts of law though they may have the same trappings, and the fact they are called courts cannot by itself bring about an equation with the civil courts. The Code of Civil Procedure is applicable to the Rajasthan Tenancy Act only to the extent indicated in sec 208 of that Act and it has not been made specifically applicable to the Land Revenue Act, though the Board has held that its broad principles will apply to cases falling under the Land Revenue Act. There is in fact no single standard definition of a revenue court The revenue court envisaged in section 5 C.P.C. has jurisdiction limited to certain money matters and not any right or interest in land as that described in section 5 (35) of the Tenancy Act. The revenue courts in Rajasthan of which the Board of Revenue is the highest may thus be termed tribunals set up to administer land laws and perform such other judicial functions of the State as are assigned to them. The revenue courts in Rajasthan of which the Board of Revenue is the highest may thus be termed tribunals set up to administer land laws and perform such other judicial functions of the State as are assigned to them. Being creatures of statute they cannot act outside the statue and are not in a position to question the vires of any provisions of the statute which has created them or the other statutes they administer. Most of the arguments addressed before us have proceeded on the incorrect assumption that there is no distinction between the civil courts and revenue courts. 29. The only point which remains to be considered in this connection is whether a creature of statute has the jurisdiction to examine the validity of a rule framed under the rule-making power conferred by that statute distinct from a provision of the statute itself. Shri Sogani has cited AIR 1965 SC 1585 to show that when power to frame rules is conferred by an Act upon the State Government that power has to be exercised within the strict limits of the authority conferred. The Supreme Court has held that if this authority is exceeded, the validity of a rule can be challenged on the ground that it is unauthorised. The question is whether this challenge will be made in the courts of civil judicature or whether an authority framed under the Act can itself examine the vires of the rule. The view of the Supreme Court in AIR 1966 SC 1113 (para 14 above) was that the appellate tribunal was not entitled to go into the question of the validity of an order passed in exercise of powers under the Income-tax Act though the order was not part of the Act itself. In AIR 1961 SC 751 it was held that rules have to be followed for all purposes of construction or obligation exactly as if they are in the Act. In 1966 (XVII) STC 5©8 the Supreme Court said that the authorities constituted under the Sales Tax Act could not decide whether the imposition of the tax was ultra vires the Act and Rules. The Orissa High Court declared in 1970 (XXV) STC 171 that, as a tribunal under the Sales Tax Act, it had no power to declare a particular rule as ultra vires the Act. The Orissa High Court declared in 1970 (XXV) STC 171 that, as a tribunal under the Sales Tax Act, it had no power to declare a particular rule as ultra vires the Act. A Full Bench of the Allahabad High Court expressed a similar view in AIR 1970 Allahabad 362. 30. It will thus be seen that a tribunal cannot even go into vires of a rule or order issued under the Act by which it has been formed and by necessary implication an Act which it administers. It must act under the Act and not outside it and for this purpose the rules must be regarded as if they are part of the Act A creature of statute must respect rules in the same manner as it must respect the provisions of the statute. If the rule-making authority has exceeded its delegated power the rules can certainly be challenged as ultra vires, but the challenged has to be made in the ordinary civil courts or in the High Court. We do not see anything in the wording of section 11 of the Land Revenue Act that suggests that the above principle can be ignored and that the Board can sit in judgment on the provisions of the Act itself or the rules framed thereunder. During his arguments Shri Pareek raised the point that it has been held in Mana vs. Kalyan 1966 RRD 135 that the Board has jurisdiction to examine the validity of its formation under section 4 of the Land Revenue Act and that if a different view as to its competence is now taken this can only be done by another Full Bench or a reference made to the High Court under section 12. The point at issue in that case was whether the Board had been properly constituted within the meaning of Section 4 of the Land Revenue Act. A preliminary objection was raised by the Advocate General that the Board was not competent to examine this question and this objection was over ruled. It is noteworthy that the Board was not questioning the vires of any provisions of the Land Revenue Act: it merely expressed the view that it was competent to go into the question as to whether it had been properly constituted under the relevant provision of the Act. It is noteworthy that the Board was not questioning the vires of any provisions of the Land Revenue Act: it merely expressed the view that it was competent to go into the question as to whether it had been properly constituted under the relevant provision of the Act. We fail to see how this Full Bench ruling applies to the question before us. 31. In these circumstances, we find that the Board is precluded from going into the question whether a rule framed by the State Government in exercise of its powers under section 261 of the Rajasthan Land Revenue Act is valid or not. It will not be necessary to go into the remaining questions. The reference is answered accordingly.