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1975 DIGILAW 149 (MP)

Om Prakash Kriparam v. Municipal Committee, Dabra

1975-11-24

S.S.SHARMA, SHIV DAYAL

body1975
JUDGMENT : Shiv Dayal, C.J. ( 1. ) This petition under Articles 226 and 227 of the Constitution has been made by the petitioner Om Prakash in the following circumstances. On the petitioners application, the Municipal Committee, Dabra, on October 5, 1963, granted permission to the petitioner for construction. It is common ground that it is a class- III Municipality within the meaning of the M. P. Municipalities Act. 1961, (hereinafter called the Act). ( 2. ) By order dated February 15, 1965, the President, Municipal Committee, in exercise of his powers under section 187 (4) of the Act cancelled the said permission on the ground that it was not in the interest of the Municipality. Now, it is common ground that this was done on the subsequent objection raised by Lakhmichand, who has a Thela (cabin), where a door had to be opened under the initial permission granted by the Municipal Committee. ( 3. ) Aggrieved by that order, the petitioner preferred an appeal under section 308 of the Act to the Collector. The Collector returned the appeal to the petitioner for presentation to proper authority on the ground that by then the Municipality had been dissolved and an Administrator had been appointed. When the appeal reached the Administrator, he thought that he could not hear the appeal against the order of the President of the Municipality. He, therefore, considered the matter in review. ( 4. ) Eventually, by his order dated May 14, 1968, the Administrator refused to grant review, firstly, because the Nazul Department had not been made a party and, secondly, because on the one hand Om Prakash would not be benefited, while on the other hand, Lakhmichand and other Thelewalas will be harassed. Om Prakash then preferred an appeal to the Collector. By order dated November 18, 1968, that appeal was allowed ex parte and the order of the Municipality cancelling the permission (order dated February 15, 1965) was set aside. ( 5. ) Lakhmichand then applied for review of the order dated November 18, 1968. The Collector rejected that application. ( 6. ) Lakhmichand then filed a revision before the Board of Revenue. It was heard by Shri L. C. Gupta, President, Board of Revenue. ( 5. ) Lakhmichand then applied for review of the order dated November 18, 1968. The Collector rejected that application. ( 6. ) Lakhmichand then filed a revision before the Board of Revenue. It was heard by Shri L. C. Gupta, President, Board of Revenue. By his order dated May 23, 1970, the learned President held that no appeal lay to the Collector from the order passed by the Administrator in review proceedings, and dismissed the revision. However, the Collectors order dated November 18, 1968 (whereby the appeal preferred by Om Prakash was allowed) would be treated as an order in revision under section 323 of the Act, and, therefore, the order was not without jurisdiction. Lakhmichand then filed an application to the Board of Revenue for review. It was heard by Shri Noronha, President of the Board of Revenue. He agreed with his predecessor Shri L. C. Gupta in the finding that no appeal was competent before the Collector, but disagreed with him in the observation that the appeal could be treated as a revision under section 323 of the Act. According to Shri Noronha, it would not be, because the Collector did not take any step as contemplated in section 323. When the revision was allowed, he did not refer the matter to the State Government, as required by sub-section (2) of section 323. On that reasoning, Shri Noronha held that the order of the Collector dated November 18, 1968, was without jurisdiction, so that (1) the Collector was wrong in refusing to review it, and (2) review of his predecessors order was justified. In the result, he quashed not only the Collectors order dated November 18, 1968 but also restored the order of the Administrator dated May 14, 1968. ( 7. ) Om Prakash has now approached this Court under Articles 226 and 227 of the Constitution. ( 8. ) It is contended by Shri Gupta, learned counsel for the petitioner, that the order of Shri Noronha is without jurisdiction. By virtue of section 51 of the M. P. Land Revenue Code, 1959, (hereinafter called the Code), the Board may review any order passed by its President or by any of his predecessors-in-office and pass such order in reference thereto as it thinks fit. The order passed by Shri L. C. Gupta, President, Board of Revenue, could thus be reviewed by his successor. Shri Noronha. The order passed by Shri L. C. Gupta, President, Board of Revenue, could thus be reviewed by his successor. Shri Noronha. Even if the order passed by the Board of Revenue was not strictly within the Code, section 51 has a wide field to cover an order passed under another enactment. ( 9. ) Shri Noronha, President of the Board of Revenue, sitting singly, set aside the order passed by Shri L. C. Gupta, ex-President of the Board of Revenue, sitting singly. It sounds rather unhappy that a succeeding President of the Board of Revenue, sitting singly, sets aside an order passed by the former President of the Board, sitting singly. ( 10. ) In Mohadeolal v. Administrator General of West Bengal, AIR 1960 SC 936 = 1960 (3) SCR 578 . their Lordships empathically laid down thus: "Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one anothers decision If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgment of their own High Court." ( 11. ) In Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 . In such a case lawyers would not know how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgment of their own High Court." ( 11. ) In Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 . Gajendragadkar C. J., again observed for the Court in empathic terms:- "It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decision of the High Court, whether a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from the traditional way in the present case and chose to examine the question himself." ( 12. ) Their Lordships have thus laid down a rule as to precedents. The effect of the above observations is that a Judge sitting singly cannot overrule a decision on a question of law rendered by another single Judge in another case, when the latter is before him as a precedent. With stronger force, that principle must be applied when as in the present case, the successor Judge is of the opinion that he cannot agree with the view taken by his predecessor. ( 13. ) Under the rules framed by the Board of Revenue in exercise of the powers vested in it by section 9 of the Code, if a Member, sitting singly, considers that the decision which he proposes to take in a proceeding involves substantial departure from an earlier decision of a Member sitting singly, he shall refer the proceeding pending before him to the President with a recommendation that it be placed before a Division Bench [Rule 4 (1)]. The President of the Board of Revenue, on the judicial side, has no larger powers than any other Member. The President of the Board of Revenue, on the judicial side, has no larger powers than any other Member. Therefore, it did not matter that Shri Noronha was the President of the Board of Revenue. Judicial propriety demanded that he had to refer the case to himself for constituting a Division Bench to hear the application in which he interfered with the order passed by Shri L. C. Gupta. ( 14. ) However, since the present petition before us is under Article 226 of the Constitution, we shall not go by technicalities. We have to see whether any order or orders passed in this matter were without jurisdiction. We find that all the three different orders passed by the Collectors and both the orders passed by the Board of Revenue were erroneous and without jurisdiction. The Collectors first order whereby he returned the appeal under section 308 of the Act to the appellant Om Prakash for presenting it before the Administrator was without jurisdiction. Learned counsel for both sides concede that there is no provision in the Municipalities Act or any other enactment to the effect that if a Municipal Council is dissolved and an Administrator is appointed, the appeal, which has been preferred from an order passed by the Municipal Committee, before it was dissolved, will become infructuous or will be heard by the Administrator. In other words, the Collector was bound to hear the appeal, which was preferred before him under section 308 of the Act from the order passed by the President of the Municipal Committee under section 187(4). That appeal was admittedly within the prescribed time. ( 15. ) The second order of the Collector, whereby he allowed the appeal and set aside the order of the Administrator refusing to interfere in review, was also without jurisdiction, as such an appeal does not lie. ( 16. ) In the revision before the Board of Revenue, Shri L. C. Gupta, President, while holding that the appeal before the Collector was not competent, upheld the Collectors order as if passed in revision under section 323 of the Act. There was no warrant for so twisting the Collectors order, which was plain enough. He heard the appeal as an appeal and he passed the order as an appellate authority. In his order, there is no whisper of the exercise of any revisional jurisdiction. ( 17. There was no warrant for so twisting the Collectors order, which was plain enough. He heard the appeal as an appeal and he passed the order as an appellate authority. In his order, there is no whisper of the exercise of any revisional jurisdiction. ( 17. ) While quashing the order of the Collector dated November 18, 1968, Shri Noronda went to the length of restoring the order of the Administrator dated May 14, 1968. The error was two-fold. The learned President did not see that the order of the Collector, in returning the appeal, was itself without jurisdiction, and that the appeal preferred by Om Prakash, before the Collector, from the order cancelling the permission, was competent. Secondly, if he wanted to go to the root of the matter, he should have applied his mind to the objection raised by Om Prakash that no notice was given to him before cancelling the permission on an objection raised by a third person. He should have considered whether or not the celebrated rule of natural justice "audi alteram partem" was violated in cancelling the permission without hearing Om Prakash, when that was done not suo motu in the interest of the municipality, but on an objection raised by a third person, namely, Lakhmichand. ( 18. ) Accordingly, this petition is allowed. AH the above orders which were passed without jurisdiction are quashed. We direct that the Collector shall hear Om Prakashs appeal under section 308 of the Act, which he had filed on March 8, 1965. In the circumstances of the case, parties shall bear their own costs. The amount of security deposit shall be refunded to the petitioner. Petition allowed.