R.A.SHARMA, J.

1. :-

I have gone through the two judgments prepared by my two learned brothers (S.J. Mukhopadhaya and M.Y. Eqbal, JJ.) who along with me were the members of the Full Bench, which was constituted to answer the questions referred, which have been reproduced on the 2nd page of the judgment of Hon ble S.J. Mukhopadhaya, J.

2 Hon ble S.J. Mukhopadhaya, J. has held that Wilkinsons Rules have not been framed by the Governor General in the Council, who was the only competent authority at the relevant time to frame such Rules and, therefore, they lack statutory force and the law laid down by the Division Bench earlier in the case ofDulichand Khirwal, AIR 1958 Pat 366 and Mahendra Singhs case, AIR 1958 Patna 603,does not represent the correct legal position. Hon ble M.Y. Eqbal, J. on the other hand has taken a contrary view holding the said Rules to be statutory in nature. The decisions of the Division Bench of this Court in Dulichand Khirwal, AIR 1958 Patna 366 and Mahendra Singhs case, AIR 1958 Patna 603 (supra) have, accordingly, been approved by him.

3. For the reasons given by Hon ble S.J. Mukhopadhaya, J. I agree with him that the Wilkinsons Rules have not been framed by a competent authority and, therefore, they lack statutory force.

4. Although these Rules have no statutory force but the admitted position is that they have been followed and acted upon in the Administration of Civil Justice in the Kolhan area of Singhbhum district for about 150 years. Even Hon ble S.J. Mukhopadhaya, J. in paragraph 16 of his judgment has held that "the Wilkinsons Rules thus cannot be stated to be statutory, though it can be held to be a general law, being followed for more than 11/2 century. Final report on the survey and settlement operation in the district of Ranchi (1910) and the final report on the re-settlement of the Kolhan Government Estate (1913-1918) have also recorded that the Rules framed by Captain wilkinson though not sanctioned by the Government but have been followed in the Administration of Civil Justice. If these Rules are made inapplicable, now, in the absence of any suitable substitute, it may cause hardship and confusion. Therefore, it is expedient that till the new Rules/ Regulations are framed by the Goverment in place of these Rules, these Rules should continue to hold the field.

5. It may further be mentioned that the Wilkinsons Rules are applicable to a small area of land known as "Kolhan Estate" in the district of Singhbhum. These Rules are not applicable to other Tribal areas, including the remaining part of the district of Singhbhum. Hon ble M.Y. Eqbal, J. in Paragraph 45 to 50 of his judgment has highlighted the deficiency in the Willkinsons Rules to cope with the present system of life and litigation in Kolhan. The learned Judge has pointed out that these Rules were framed about 150 years ago in order to govern and regulate the litigations of the illiterate and ignorant tribals but by passage of time literacy and wisdom have progressively dawned on them on account of which these Rules have become inadequate to meet their requirements. In this connection the learned Judge has also observed that the large number of industries have been established in Kolhan area but these Rules do not lay down any procedure for resolving the dispute relating to dismissal, wrongful transfer of the workmen as well as the dispute between the landlord and the tenant. It is further pointed out that the decree passed by a Court under these Rules cannot be executed anywhere in the country excepting Kolhan itself. Even the Kolhan Enquiry Committee in its report dated 31st July, 1948 has highlighted some such deficiency and in this connection has observed as under :-

"Cases are instituted by ordinary petitions. The Court-fees Act is nominally in force in the Kolhan and where a case is allowed to assume the form of a regular civil suit, it is valued according to the Court-fees Act. As regards procedure, the Civil Procedur