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1955 DIGILAW 136 (ALL)

Nanak Chandra Kansal v. Murli Singh

1955-05-06

CHOUDHARY

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JUDGMENT Choudhary, J. - This is an application under Article 226 of the Constitution for a writ of certiorari quashing an order of the Board of Revenue dated 25th November 1953, and 22nd December, 1953. This order was the culmination of an application filed by the Petitioner u/s 175 of the U.P. Tenancy Act for ejectment of the opposite parties Murli Singh and Murari. Murari died during the pendency of the present writ petition and his legal representatives have been brought on record. The remaining Opposite party is the Board of Revenue. 2. The proceedings u/s 175 were filed by the Petitioner against the said opposite parties before the Tahsildar of Hapur on 27th September, 1946. As the case was contested, it was transferred to the court of the Revenue Officer Hapur. The Revenue Officer dismissed the suit on 24th June, 1948 and the Petitioner filed an appeal against it before the Commissioner Meerut on 31st August 1948. The Commissioner allowed the appeal and ordered ejectment on 25th January, 1949. Against this decision of the Commissioner the aforesaid opposite parties went up in second appeal to the Board of Revenue. The Board of Revenue summarily rejected the second appeal on 5th June, 1949 u/s 268 of the Act. Thereupon the opposite parties filed on 25th June, 1949 an application for review of the judgment dated 5th June, 1949. The review application was admitted on 31st January, 1950 and notices for hearing were issued fixing 23rd November, 1953. On 25th November, 1953 Sri S.N. Mittra, a Member of the Board, set aside the order dated 5th June, 1949 and simultaneously allowed the appeal of the opposite parties and dismissed the Petitioner's suit. This order was concurred in by another Member of the Board, Sri A. Rauf, on 22nd December, 1953. 3. The aforesaid decision of the Board of Revenue dated 25th November, 1953 and 22nd Dec, 1953 has been challenged before me on two grounds: (1) that in view of the provisions of Section 273 of the U.P. Tenancy Act the entire Board and not only two of its members, could have heard and disposed of the opposite parties' application for review, and (2) that while reviewing the order dated 5th June, 1949 the Board had no jurisdiction to allow the second appeal, specially without notice to the Petitioner. Neither of these contentions has any force. Neither of these contentions has any force. In support of the first ground the Learned Counsel for the Petitioner cited the case of Dulichand v. Judicial Members of the Board of Revenue 1954 A.W.R. (H.C.) 581, where it was held by a single learned Judge of this Court that u/s 273 an application for review has to be decided by the entire Board of Revenue. A contrary view was held in another single Judge decision reported as Maktool v. The Board of Revenue 1954 A.L.J. 430. The controversy has been set at rest by a Division Bench ruling of this Court in Civil Miscellaneous Writ No. 235 of 1953, decided on 5th April, 1955, where it has been held that it is open to the Board of Revenue to delegate the power of review in exercise of its appellate business under Rule 170 of the Rules framed u/s 293 of the U.P. Tenancy Act, 1939, except that the Board's delegated power of review cannot be exercised by a single Member, the concurrence of the second Member being necessary. The impugned order in the present case was not the order of a single Member but was concurred in by a second Member. It was therefore a valid order and the first ground taken on behalf of the present Petitioner fails. 4. As regards the second ground, the allegation in the Petitioner's affidavit that he was not served with notice for the hearing of the review application on 23rd November, 1953 should be accepted, as it is admitted on behalf of the aforesaid opposite parties. The other contention of the Petitioner cannot however be accepted, namely, that his counsel, Sri Brij Bhan Kishore, happened to be present in court only because he had been appointed by the Petitioner to inspect the file of the case. The averment in the counter-affidavit of the opposite parties is that Sri Brij Bhan Kishore Advocate informed the court on 23rd Nov. 1953 that he had duly informed the present Petitioner about the date fixed for hearing, and that the Petitioner had given him no instructions for that date. The petitioner has not cared to file any affidavit of Sri Brij Bhan Kishore Advocate in support of his own allegation or to controvert the aforesaid allegation in the counter-affidavit of the opposite parties. The petitioner has not cared to file any affidavit of Sri Brij Bhan Kishore Advocate in support of his own allegation or to controvert the aforesaid allegation in the counter-affidavit of the opposite parties. The order of Sri S.N. Mittra, Member of the Board of Revenue, dated 25th November 1953, a copy of which has been filed by the Petitioner, appears to support the version contained in the counter-affidavit of the opposite parties. It was observed in this connection by Sri S.N. Mittra in his aforesaid order then the Learned Counsel for the Respondent (meaning the present Petitioner) had withdrawn as he had no instructions. The contention of the Petitioner that the order dated 25th November, 1953 was passed without notice to him cannot therefore be accepted. 5. The other portion of the second ground is equally untenable. The complaint of the Petitioner is that while disposing of the review application the Board could not have at the same time allowed the appeal. In this connection the Learned Counsel for the Petitioner referred to the provisions of Order 47, Rule 8, Code of Civil Procedure, and certain decisions, e.g. Sagar Mal v. Parshotam Das 1941 A.W.R (H.C.) 371, in support of his proposition that disposal of an application for review is quite a separate matter from re-hearing the case. The argument was that the second appeal should have been re-heard after due notice to the parties on the application for review having been granted. Now, the provisions relating to review by the Board are contained in Section 273 and those by every other court in Section 274 of the U.P. Tenancy Act. While there is specific mention of Order 47 of the CPC for disposal of review applications u/s 274, there is no reference to that provision of the Code in Section 273. It follows therefore that the provisions of Order 47 of the CPC do not apply to a review made by the Board of Revenue. This is supported by the view of a learned Judge constituting the Bench which decided the aforesaid Civil Miscellaneous Writ No. 235 of 1953. That being so, the two stages suggested by Rule 8 of Order 47 of the Code of Civil Procedure, one of granting a review application and the other and subsequent one of re-hearing the case, do not apply to a review application before the Board u/s 273. That being so, the two stages suggested by Rule 8 of Order 47 of the Code of Civil Procedure, one of granting a review application and the other and subsequent one of re-hearing the case, do not apply to a review application before the Board u/s 273. This section is to the following effect: The Board, on its own motion or on the application of a party to the case, may review and may rescind, alter or confirm any decree or order made by itself or by a single Member 6. It would appear therefore that u/s 273 it is open to the Board both to review and rescind, alter or confirm any decree or order made by itself at once and the same time. It was open to the Member of the Board, Sri S.N. Mittra, to allow the opposite parties' application for review and second appeal simultaneously on 25th November, 1953. It has already been seen that this order was passed after due notice to the Petitioner's counsel. The other ground also on which the order in question has been assailed fails. Accordingly, the writ petition is dismissed with costs.