Ptr Shri Ram Singh.:-

This is a reference from a division bench posing the following questions: -

" (1) whether u/secs. 75 and 76 of the rajasthan land revenue act, as they stand at present, appeals lie to the board in matters other than judicial matters', terms 'judicial matter' being understood as in sub - sec. 2 of sec. 23 of the act and

(2) if so, whether the board's decisions in appeals in non - judicial matters shall be subject to revision by the state government under section 83 of the act. "

The considerations which led to the reference were as given by learned coun - sel for respondent no. 1 in the appeals which were before the division bench, in his rejoinder. The relevant para from the reference is reporoduced below: -

"learned counsel for the respondent no. 1 in rejoiner argued that the discussion in 1968 r. R. D. 130 did not cover all aspects of the matter. The position arising out of it would create anomalies. Firstly, while the board would be able to hear appeals in non - judicial matters, it would not be able to inter - fere by way of revision in cases of non - exercise of jurisdiction, or transgression 8ion of jurisdiction, or illegality or material irregularity in the exercise of jurisdiction, in similar matters. Secondly, after the board has decided a matter in appeal, it would still be possible to agitate the matter before the state government exercising the revisional powers in non judicial matters under sec - tion 83. The state government would then be sitting in judgment over the decisions of the board. Again, while appeals in non - judicial matters would be heard by the board, the control over such matters would vest not in the board but in the government in accordance with section 23."

Shri p. D. Kudal, appearing on behalf of the respondent, raised a preliminary point that in the reference, the d b. Concerned had proposed reference to a bench consisting of more than three members. He said that the matter had already been considered by a bench of three members in the case in 1968 rrd 130 and it was only fair that it should now be considered by a bench consisting of a larger number, as otherwise the present bench would be unable to differ from the earlier decision in 1968 rrd 130. The reference was by the d. B. And its view that the reference be heard by a bench of more than three members should have been given effect to.

Shri r. C. Sogani arguing on this point said that the judgment in 1968 rrd 130 was not the judgment of a bench of three members constituted for the purpose. He also said that the referring bench was not called upon to say what number of members should constitute the larger bench to hear the reference. The mention of more than 3 members was at the most a suggestion.

Shri p. D. Kudal thought that hearing of the reference by this bench would be devoid of jurisdiction. The reference was by a d. B. And the bench should have been constituted in terms of the reference. The legality and propriety of the constitution of a bench not in accordance with the view of the d. B. Was open to question. If this bench acted without jurisdiction, all the proceeding, before it would stand vitiated. He said that a defect of jurisdiction could not be cured even by consent of parties. He cited 'karansingh & others vs. Chaman paswan & others (air 1954 sc 340) in support of this.

Shri s. N. Pareek said that the decision in 1968 rrd 130 was under section 13 of the rajasthan land revenue act, sub - sec. (2) of which reads as follows : -

" (2) where such members are equally divided in opinion as to the order to be made in such case, the case shall be referred to another member and decided in accordance with the opinion of the majority of the members who heard it."

He said that the bench which heard the case was a d. B. Only in consequence of a difference of opinion, the case was referred to another member and decided in accordance with his opinion, concurring with the opinion of one of the member of the d. B. Such decision by a special procedure in the event of difference of opinion between the two members of a d. B. Does not amount to a larger bench decision. The connotation of the word 'bench' is clear from section 10 of the act, sub section (1) of which refers to "a bench of the board, consisting of two or more members. "

He further said that the essential feature of a bench is that the members constituting it should sit together. Where this is not so, it is not a bench. Where the three members did not sit together as a bench, they could not be deemed to be constituting a bench of three member?. In support of this preposition he cited the full bench judgment of the rajasthan high court in 'bishweshwar vs. Board of revenue' (1955 rlw 422). He invited attention to the following observations in para 5 of the judgment as giving the reason why a bench necessarily means the members sitting together: -

"it is necessary that the tribunal should hear the parties at one and the same sitting, so that the case before the tribunal may be threashed out not only by the parties before the tribunal, but also among the members of the tribunal themselves."

The case pertained to the rajasthan board of revenue ordinance, 1949 and while using the term 'tribunal' the refererence was to the board.

He proceeded to say that it was no function of the d. B. Making a reference on a question of law, how the bench to consider the reference should be constituted. Since the reference had to be to a larger bench all that was necessary was that it should consist of more than two members.

We have considered the matter. Two of us, who constituted the d. B. Making the reference, in mentioning therein a bench consisting of more than three members, obviously acted under the impression that the decision in 1968 rrd 130, had to be regarded as a decision by a bench of three members by majority view. In the light of the discussion before us, however, it is quite clear to us that this is not so. The concept of a bench implies that the members sit together as a bench. There was no bench of threemembers considering the matter in the earlier case. The matter was heard by a bench of two members, and in consequence of difference of opinion between them, it was referred u/s. 13 to another member, and was then derided in accordance with his opinion concurring with the opinion of one of the earlier members. A decision by this process can in no sense be regarded as a larger bench judgment. Its status is not more than that of a judgment by the d. B. , even though base on the opinion of a third member.

In this view of the matter, there is no question of any illegality being involved in our considering the reference made by the d. B. Unlike the position in 1968 rrd 130, we shall be sitting as a regular larger bench consisting of three members, specially constituted for the purpose, and could not be said to be acting without jurisdiction. There could also be no bar to our deciding the matter in a manner contrary to the decision in 1968 rrd 130, if we came to the conclusion that it was necessary to do so, because in the view we have taken in para 10, that decision was not a decision by a bench of three members. The preliminary objection raised by shri p. D. Kudal is, therefore, overruled.

Learned counsel for the appellants, shri s. N. Pareek, arguing on the main questions, said that the second question did not arise and was un - necessary ; no decision was called for on a hypothetical question. The simple question was whether the distinction between judicial and non - judicial matters applied to second appeals under section 76 of the rajasthan land revenue act. The position of law on this point had been clearly determined in 'bhanwarlal vs. State' (and two other cases) 1968 rrd 130.

He said that in that case the learned member (shri s. L, kakar) , to whom the matter had been referred on a difference of opinion between the members of a d. B. (sarvashri r. N madhok and g. B. K. Hooja) ,agreeing with shri r. N. Madhok, set out the following conclusions: -

"so far as the provisions relating to appeals under section 75 and 76 of the rajasthan land revenue act are concerned, there is no distinction now between the matters judicial and non - judicial."

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"so far as the appeals are concerned cases relating to both judicial and nonjudicial matters, will be governed by the provisions of section 75 and 76 of the rajasthan land revenue act."

The order by shri s. L. Kakar contained a full discussion of the matter, and according to learned counsel the present reference was hardly necessary,

Shri p. D, kudal referred to section 23 (1) of the rajasthan land revenue act according to which (1) the control of all non - judicial matters, other than those connected with settlement vests in the state government while (2) the control of judicial matters and matters connected with settlement vests in the board. Under section 83 and 84, similarly, revisional jurisdiction has been vested in regard to matters of category (1) in the state and those of category (2) in the board. He said that a clear distinction has thus been made in respect of judicial and nonjudicial matters (other than those connected with settlement) in regard to control as well as revisional jurisdiction. It would, therefore, be contrary to the scheme of the act if the distinction was deemed to be eliminated in respect of second appeals, of this, the provisions of amended section 76 and section 23, read from the angle of harmonious construction. The matter had not been considered from this point of view in the earlier ruling.

He also argued that the words

"proceedings and orders as well as appeals, revisions and references in the cases specified in the first schedule shall be deemed to be judicial matters for the purposes of this act"

in section 23 (2) imply that the legislature intended the first schedule to contain the complete list of cases to be deemed to be 'judicial' earlier words in the sub section being meant only to elucidate the nature of th|e cases.

As all aspects had not been considered earlier, it was, he said, necessary that the question should now be considered afresh in the light of the submissions made by him before the d. B. And recorded in the reference, and before this bench. He also said that the second question referred raised an important question and needed consideration.

The learned deputy government advocate, shri g. K. Bhagat, disagreed with shri kudal's interpretation of sub - section (2, of section 23 and said that while matters referred to in the first schedule were specifically declared to be 'judicial', all proceedings in which a revenue court or officer has to determine the rights and liabilities of the parties thereto, are to be regarded as judicial. He said that even an allotment matter may, in certain circumstances, lead to or involve judicial proceedings e g. When an allotment interferes with somebody's existing right.

He then argued that in a pure allotment case, not involving any judicial proceedings such as the allotment of vacant government lands, the tehsildar neither acts as a revenue court nor even as a revenue officer, but as an agent of government, to whom the land belongs. Even the collector does not function as a revenue officer in allotment matters, but is only a persona designate for a special function. There can be no second appeal in such circumstances from the collec - tor's order.

Shri r. C. Sogani expressed disagreement with the views of the dy. Government advocate in regard to the position of the tehsildar and the collecter in allotment matters. He invited attention to section 101 of the rajasthan land revenue act which related to allotment of land for agricultural purposes and said that when a tehsildar, or a collector, acts in exercise of powers under the act or the rules made thereunder in the matter provided in the act, he must be regarded as acting in 'judicial' capacity. He invited attention to 'state of andhra pradesh vs. T. Gan - gappa & another' (air. 1958 andhra pradesh 140) in support of the contention that even in regard to allotment of land a revenue officer has to follow a judicial process as provided in the act and the relevant rules, and performs a 'judicial function'. He referred in this regard to the following observations of their lordships of the andhra pradesh high court in their judgment in the said case: -

"therefore, the form in which the applications are to be made, the requirements of observing principles of equity in making decisions, the hierarchy of several officers who are to hear the appeals and finally the exercise of the revising powers in the circumstances already clearly indicate that officers in the words of lord multon in local government board vs. Arlidge, 19l5 ac 120 at p. 150 (g) are to perform their duties 'conscientiously with a proper feeling of responsibility' and the decisions in exercise of powers under the rules judicial. The grant of lands to persons on satisfaction of certain conditions amount to discharge of judicial function, can hardly be doubted in view of 1022 ac 202 (air 1921 p 234 (c)."

The rajasthan land revenue (allotment of land for agricultural purposes) rules. 1957, have been framed under the rajasthan land revenue act, they provide for a proclamation inviting applications and a detailed procedure, including an enquiry by the tehsildar, for allotments of land. There are prescribed conditions of allotment and appeal to the collector is provided for in r. 15. As a result of an amend nent, even the collector's order in appeal is no longer final. Shri sogani therefore, argued in the light of the judgment cited by him, the tehsildar and the collector can not but be regarded as performing a 'judicial function in the matter, and the matter itself, being under the act and rules, must be treated as a 'judicial matter'.

He also referred to the supreme court judgment in 'maqbool hussain vs. State of bombay' (air 1953 sc 325) in which the following passage has been quoted with approval from cooper vs. Wilson (1937) 2 k. B. 309; -

"a true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites - (1) the presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the fact so found, including where required a ruling upon any disputed question of law"

Learned counsel said that wherever these factors or substantial elements thereof operate, there is a judicial matter involved. The cumulative effect of the rulings cited by him, he said, was that wherever an officer has to apply a judicial mind and to adopt a judicial process in deciding questions affecting parties, under the act or rules made thereunder, and his decisions are subject to appeal, revision etc. , by a prescribed hierarchy, the proceedings are judicial.

He said that it is not necessary in order to make any proceedings judicial proceedings that the procedure laid down in the code of civil procedure should be applicable to them. The procedure does not necessarily aoplv to special enactments which may provide their own special procedure. He cited fernandes vs, ranganayakulu (air) 1953 madras 236] in support of this contention.

Shri s. N. Pareek in his reply emphasised that the first schedule is not an exhaustive list of judicial matters and there is no ground for considering it as such, as urged by shri p. D. Kudal.

He further said that the distinction between judicial and non judicial matters for the purpose of'revision' cannot affect the provision regarding appeal, so as to take awav the right of second appeal provided for in the amended sec 76, even in respect of non - judicial matters.

We would like to go into the scope of the term 'judicial matters' as occurring in sec. 23. Sub - sec. (2) thereof reads as follows: -

" (2) the expression 'judicial matter' means a proceeding in which a revenue court or officer has to determine the rights and liabilities of the parties thereto and the proceedings and orders as well as apeals, revisions and reference in the case specified in the first schedule shall be deemed to be judicial matters for the purposes of this act."

Shri kudal's contention is that only matters specified in the first schedule to the rajasthan land revenue act are to be treated as 'judicial matters' for the purpose of the act. The list in the schedule is, according to him, exhaustive.

The existence of item 15 in the schedule namely 15. Such other matters as may be prescribed by the state government", may no doubt, give the impression that only the matters specified in the list and those which may be specifically prescribed by government, by rules made under the act, should be treated as judicial maters'. This would, however, mean that the following words occurring at the commencement of the sub section, namely -

"the expression 'judicial matter' means a proceeding in which a revenue court or officer has to determine the rights and liabilities of parties thereto."

Should be treated as virtully redundant or a 'surplusage', because if all that was intended as to declare the matters listed in the first schedule to be 'judicial matters' these words would be un - necessary.

Now, it is an established rule of interpretation that "statute is never supposed to use words without a meaning" and "if the language used in a statute is ambiguous and capable of two constructions, the rule. Is to adopt that construction which will give some effect to the words rather than that which will give none". "the rule is to adopt such an interpretation, utres magis valeat quarn pereat". "to reject words as insensible. Is theul tima ratio when an absurdity would from giving effect to the words of an enactment as they stand", vide 'craies on statute law', sixth edition, pages 103 - l04.

After due consideration of the matter, we are unable to hold that the first part sub - sec. (2) of sec. 23, quoted in the above para, is redundant or surplus. No absurdity is likely to result from giving them effect.

In fact this first part of the sub - sec. Would, on a plain reading, appear to be the main part, the second part referring to the first schedule being an extension. The words in the second part are "shall be deemed to be judicial matters". Such deeming clause is a well - known device in the drafting of statutes and is intended to create a legal fiction. The effect of a legal fiction is that a position which would otherwise not necessarily obtain is deemed nevertheless to obtain. This is done to remove uncertainty or leave no scope for doubt or dispute in regard to particular matters. The result in the present case is that all proceedings in which revenue courts and officers are called upon to determine the rights and liabilities of parties are, as a general rule, 'judicial matters', the proceedings etc, relating to matters listed in the first schedule shall, without prejudice to the generality of the foregoing, specifically be regarded as 'judicial matters'.

We need not in the present reference go into the question of the scope of the phrase 'to determine the rights and liabilities of parties', and attempt to show what matters may or may not fall within its ambit. There will always be border - line cases, in which only decisions of courts will determine whether in the particular circumstances a matter is to be held to be judicial or non - judicial. The words in sec. 232) that,

"the expression 'judicial matters' means a proceeding in which a revenue court or officer has to determine the rights or liabilities of the parties thereto"

shall, however, as held above, have to be given their full effect in deciding the issue in every case not covered by the first schedule.

The question then is whether or not appeal now lie to the board under sec. 75 and 76, as amended by act no 33 of 1959, in non - judicial matters. , this term being interpreted in the light to the conclusion above. In order to decide the question, we have considered it necessary to refer to the 'statement of objects and reasons' appended to "the rajasthan land revenue (amendment) bill, 1959, (bill no. 11 of 1959) which led to the enactment of 'the rajasthan land revenue (amendment) act, 1959 (act no. 33 of 1959. Secs. 4 and 5 of this amendment act amended secs. 75 and 76 of the raja sthan land revenue act. The 'statement of objects & reasons' contains (the following paragraphs -

"chapter v o) f the rajasthan land revenue act, 1956, dealing with appeals, references, revisions and reviews, provides for appeals from decrees and orders passed by revenue courts or revenue officers. However, by virtue of the existence of the word 'judicial' in clauses (a) and (b) of sub - sec. (1) of sec. 75 and in clause (a) of sub - sec. (1) of sec. 76 no order passed by a tehsildar or an assistant collector or a sub - divisional officer or a collector in non - judicial matters is so appealable.

The distinction between a decree and an order is unnecessary in this context because the rajasthan land revenue act, 1956 does not contemplate the institution of any suit in which a decree may be passed. In no proceedings instituted or started under that act can a decree be passed and therefore it is necessary to do away with the said distinction.

Again it is desirable that appeals should lie from all orders, whether judicial or non - judicial, passed by a tehsildar or an assistant collector or a sub divisional officer or a collector, and that second appeals should also lie from all such orders.

It has been considered desirable to amend the act suitably for the aforesaid purposes. "

The statement should leave no doubt the intention of amending secs 75 and 76, as above. It is unarnbiguoualy stated there - in that "it is desirable that appeals should lie from all orders, whether judicial or non - judicial and that second appeals should also lie from all such orders'*. In the face of this, there can be no manner of doubt that appeals do lie to board under the amended secs. 75 and 76 as provided therein, both in regard to judicial and non - judicial matters.

The next question referred to us pertains to sec 83 which reads as follows:

"83 - power of state government to call for records and revise orders - the state government may call for the record of any non - judicial proceeding not connected with settlement held by any officer subordinate to it, and may pass thereon such orders as it thinks fit'*.

Some doubt could be entertained whether the words "officer subordinate to it" (i. E. Subordinate to the state government) would include the board part b of chapter iii of the rajasthan land revenue act relates to "courts & officers" and the board is not dealt with under that heading. This alone can, however, not settle the matter, because whatever may be said about the term "officer" there can be no doubt that the board is a 'revenue court'. According to clause (vii) of sec. 3 of the rajasthan land revenue act, words and expressions defined in the rajasthan tenancy act when used in the rajasthan land revenue act have to be construed according to their definitions in the rajasthan tenancy act. The rajasthan tenancy act defines the terms "revenue court" and "revenue officer" in clauses (35) and (36) , respectively of sec. 5. "the board and every member thereof", are specifically included in the scope of "revenue court". "revenue officer" is defined as "any officer employed in the business of revenue and rent or in maintaining revenue records". It will be difficult to hold that members of the board are not revenue officers in this sense, or that when they sit in benches, proceedings before them are not proceedings before revenue officers.

So interpreted, the board and its members would apear to be covered by the words ' officer subordinate to it" in relation to the state government. As sec. 83 stands at present, therefore, it would be competent for the state government to call for the record of any non - judicial proceeding (the words judicial and non - judicial being, of course, interpreted in the light of the conclusion in para 29 to 31) , not connected with settlement, held by the board or any of its members.

There is, no doubt, however, that anomalies have arisen in consequence of the amendments in sec. 75 and 76 eliminating the distinction between 'judicial' and 'non - judicial' matters.

While in consequence of the amendments, appeals lie to the revenue appellate authorities even in non - judicial matters, sec. 20a refers to the functions of these authorities as relating to"revenue judicial cases and other matters specially provided for by law. " non - judicial matters coming within their purview, generally or in their entirety, by virtue of the amendments in secs. 75 and 76 could hardly be regarded as covered by the phrase "other matters specially provided for by law". There is no special provision relating to special matters but a general amendment bringing non - judicial matters within the appellate powers of the revenue appellate authorities. Thus, although sec. 75 and 76 eliminate the distinction between judicial and non - judicial matters, sec. 20 a appears to retain it, to whatsoever extent it may be.

Similarly, while sections 75 and 76 bring non - judicial matters also within the normal appellate hierarchy, the distinction continues in regard to revisional powers, by retaining separate sec. 83 and 84. Again, while the revisional jurisdiction in respect of judicial matters under sec. 84 can not be exercised where an appeal lies to board, the jurisdiction under sec. 83, in respect of non - judicial matters can be exercised by the state government even where an appeal (including a second appeal) lies to the board.

As observed in the "statement of objects and reasons", quoted in para 32, by virtue of the existence of the word 'judicial ' in clauses (a) and (b) of sub - section (1) of sec. 75 and in clause (a) of sub - section (1) of sec. 76, as they stood before the amendment by act no. 33 of 1959, orders passed by a tehsildar or an assistant collector or a sub divisional officer or a collector in non - judicial matters were not appealable. No appeals lay to the board, therefore, in non - judicial matters not connected with settlement. Section 83 vesting the state government with powers of revision in non - judicial matters not conected with settlement was obviously in this context.

Now that appeals do lie to the board in such matters in consequence of amendments of section 75 and 76, section 83 has become inconsistent, and not in keeping, with the scheme of the amended act. It could hardly be in consonance with this scheme that the state government should exercise revisional jurisdiction in nonjudicial matters in respect of (i) orders of the board assed in appeals under section 75 and 76, and (ii) orders of other subordinate authorities against which appeals lie to the board under these sections as amended.

No process of harmonious construction etc. , as suggested by shri p. D. Kudal can meet all the aspects of the anomalies discussed above. To quote from jagdish swarup's legislation and interpretation.

"the fact, if it be a fact, that certain anomalies would arise if the statute is read as it stands and the words used in it are interpreted according to their plain meaning can be no justification for rejecting that interpretation or for the introduction by the courts into the statutes of amendments which should not have been made whatever the anomaly, where the language is clear and unambiguous it has to receive the only construction of which it is capable. If the language is clear and unambiguous, the statute should be read as it stands and not in the light of any anomaly to which its wordings may give rise. The courts cannot place upon a statute what is called a benficient construction to prevent a real or supposed anomaly."

Interpretation cannot take the place of legislation. The state government ill, however, no doubt, examine the position with a view to bringing sec 20 a and section 83 read with sec. 84, into line with the amended secs. 75 and 76.

With the above observations, and subject to our conclusions in paras 29 to 31 above, our answer to both the questions referred to us in the present state of the law, is in the affirmative.