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1956 DIGILAW 215 (ALL)

Pt. Ram Das v. Board of Revenue

1956-07-24

CHATURVEDI, MOOTHAM

body1956
JUDGMENT Mootham, C.J. - This is an appeal from a judgment of Mr. Justice Mehrotra, dated 24-4 1955, dismissing a petition under Article 226 of the Constitution. 2. The Board of Revenue allowed an appeal filed by the second and third Respondents against a judgment and decree obtained by the Appellant in a suit brought by the Appellant and the fourth and fifth Respondents u/s 180 of the UP Tenancy Act, 1939. The Appellant thereafter filed an application before the Board for the review of the latter's judgment but this application was summarily dismissed on 3-8-1954 by a single member of the Board who declined to hear argument on behalf of the Appellant. The Appellant then filed a petition under Article 226 of the Constitution challenging the validity of that order and it is against the rejection of that petition that this appeal has been filed. 3. Learned Counsel for the Appellant has made two submissions. His first contention is that the review application ought to have been decided by all the members of the Board; in the alternative it is contended that as the Respondents' appeal to the Board had been allowed by two members of the Board so also ought his application in review to have been decided by two members. These questions are however concluded against the Appellant by the decision of this Court in Jaipal Singh v. The Board of Revenue 1956 A.W.R. (H.C.) 518 in which it was held that the Board of Revenue's powers of review had been validly delegated under Rule 170 of the rules made under the Tenancy Act, 1939, to a single number whose order would be the order of the Board, subject to the limitation that no decree or order shall be modified or reversed without the concurrent judgment of two members of the Board. We are therefore of opinion that in the present case a single member of the Board had jurisdiction to dismiss the application. 4. The second submission is of more sub stance. It is that the Board had no power to dismiss the application in review without first affording the present Appellant or his counsel an opportunity of being heard. We are therefore of opinion that in the present case a single member of the Board had jurisdiction to dismiss the application. 4. The second submission is of more sub stance. It is that the Board had no power to dismiss the application in review without first affording the present Appellant or his counsel an opportunity of being heard. The only section in the Tenancy Act which prescribes the Board's powers of review is Section 273 which provides that 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. 5. It is conceded that the Tenancy Act contains no express provision requiring the Board on a review application to afford the applicant or his counsel an opportunity of being heard, but it is said this that is a natural right possessed by any person who files an application for review. It is true that a court does not ordinarily dismiss an application filed by a person without affording that person an opportunity of being heard, and we are anxious that if this is a right to which the Appellant is entitled he should not be deprived of it. The general practice of hearing a person in support of his application is not however without exception, for example a criminal court is under no obligation before rejecting an application in revision to afford the applicant or his counsel an opportunity of being heard; and it is, we think, particularly significant that it is specifically provided in the UP Tenancy Act that the Board may summarily reject an appeal without first hearing the Appellant: see Sections 243, 246 and item l3 of List II of the second schedule. The position therefore will certainly be somewhat anomalous if the Board's powers summarily to reject, an application for the review of a judgment passed by it on appears are more restricted then its power summarily to reject the appeal itself. 6. Order XLVII, Rule 4 of the CPC so far as is material, read as follows: (1) Where it appears the Court that there is not sufficient ground for a review, it shall reject the application. 6. Order XLVII, Rule 4 of the CPC so far as is material, read as follows: (1) Where it appears the Court that there is not sufficient ground for a review, it shall reject the application. (2) Where the Court is of opinion that the application for review should be granted the same: Provided that-- (a) no such application shall be granted without previous notice to the opposite-party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and.... 7. It will be noticed that, although this rule makes provision for an opportunity being afforded to the opposite party of being heard if the civil court is of opinion that an application for review should be granted, it makes no specific provision for the applicant to be heard if the Court is of the view that the application should be rejected. This is in marked contrast to the provisions of Order XLI, Rule 11(1) which provides that a civil court shall not summarily dismiss an appeal without first hearing a day for hearing the Appellant or his pleader and hearing accordingly if he appears on that day. 8. The question is not free from difficulty, but we have come to the conclusion upon reading the provisions of Chapter XIV of the Tenancy Act as a whole that, however desirable it may be that an applicant who presents to the Board an application for the review of its judgment should be afforded an opportunity of being heard before the application is dismissed, there is no legal obligation imposed on the Board to afford him a hearing. 9. For these reasons we are unable to hold that the order of the Board of Revenue dated 30-8-1954, is vitiated by any error of law. This appeal therefore fails and is dismissed with costs.