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Allahabad High Court · body

1983 DIGILAW 770 (ALL)

Munshi v. Board of Revenue

1983-10-07

K.P.SINGH

body1983
JUDGMENT K.P. Singh, J. - This is a Defendant's writ Petition against the order of the learned Member, Board of Revenue dated 12-11-81 whereby he allowed the review Petition and directed the Second Appeal to be heard by the Member concerned having jurisdiction over Meerut Division. On 7-8-1979 the learned Member had allowed both the appeals and had set aside the decree passed by the 1st appellate Court and had remanded the case to the appellate Court for fresh decision. 2. The grounds for allowing the review Petition are contained in paragraphs 7 and 8 of the impugned judgment dated 12-11-1981. The grounds mentioned at paragraph No. 8 of the impugned judgment are not at all clear as to what mistakes were committed by the learned Member while allowing the second appeal on 7-8-1979. 3. The learned Counsel for the Petitioner suggested to me during the course of arguments that the mistakes in the original judgment dated 7-8-1979 were only of clerical nature and if those mistakes were rectified, the ultimate decision could not be varied, whereas the learned Counsel for the contesting opposite party has only emphasised that the learned Member has considered the mistakes. In paragraphs 6, 9 and 10 of the original judgment as mistakes apparent on the face of the record and on that ground he recalled his earlier order, no interference should be made with the impugned judgment. In para 3 of the impugned judgment the mistakes mentioned appear to me only of clerical nature, hence I am not prepared to hold that the mistakes in the original judgment dated 7-8-1979 were such mistakes as could justify interference by the learned Member in a review Petition. The reasoning contained in paragraph 8 of the impugned judgment is no reasoning in the eye of law nor the reasoning is in speaking terms. Hence the impugned judgment suffers from mistake apparent on the face of the record and deserves to be set aside. I am not in agreement with the contention of the learned Counsel for the contesting opposite party that the impugned judgment calls for no interference on the basis of the reasoning contained in paragraph 8 of the impugned judgment. 4. Another ground for allowing the review Petition by the learned Member through the impugned judgment is that he had no jurisdiction to hear the appeal. 4. Another ground for allowing the review Petition by the learned Member through the impugned judgment is that he had no jurisdiction to hear the appeal. According to him the link officer could only deal with urgent matter such as admission of appeals, revisions etc. and to grant stay orders. In this connection it would be proper to quote paragraph 7 of the impugned judgment as below: There is no provision for transferring appeals etc. by link officer to link officer. The practice prevalent in the Bord for transferring appeals etc. to the link officer by some Members and some Members used to write to Senior Member of the Board for transferring such appeals etc. but the practice will not make law. Distribution for the business of the Board by amendment of Rule 73 of the Revenue Manual has been given to Seniormost Member as has been held in Baharuddin v. Gaon Sabha 1956 RD 53 by Full Bench of the Board at Allahabad which is approved by the Senior Most Member and thus it is a distribution by Board. The link officers have been authorised to hear admission of appeals, revisions etc. and to grant stay orders but there is no mention regarding transfer of appeals etc. to link officer, therefore, it appears that they should be transferred only by Senior-most Member and not by the link officer. In this view of the matter the appeals have been wrongly decided by me having no jurisdiction, therefore, for this reason alone these review applications are liable to be allowed. 5. The bare reading of the impugned judgment indicates that the learned Member has patently erred in thinking that the appeals were transferred by the link officer to link officer as the very first sentence of paragraph 7 indicates. In the present case the appeals were transferred by the Member Incharge of Meerut Division to the learned Member who was link officer of the former. The learned Member has also committed patent error in quoting Rule 73 of the Revenue Court Manual in paragraph 7 of the impugned judgment. In this view of the matter on the reasoning contained in paragraph 8 of the impugned judgment it deserves to be quashed. Moreover, according to the learned Member himself there is a practice prevalent in the Board for transferring appeals etc. In this view of the matter on the reasoning contained in paragraph 8 of the impugned judgment it deserves to be quashed. Moreover, according to the learned Member himself there is a practice prevalent in the Board for transferring appeals etc. to the link officer by some Members and some Members used to write to Senior Member of the Board for transferring appeals etc. Unless there is a specific provision of law to the contrary the learned Member should not ignore the order of transfer in pursuance of the practice prevalent in the Board. In not doing so, the learned Member has committed an error apparent on the face of the record in reviewing his own judgment dated 7-8-1979. It appears that according to the learned Member the appeals could be transferred to the link officer by the Seniormost Member, hence in the present case it might be an irregularity committed by the learned Member Incharge of Meerut Division who transferred the appeals to his link officer, but would not mean that the link officer would have no jurisdiction to hear the appeals on merits especially when the learned Member Incharge of Meerut Division had only followed the practice prevalent in the Board in transferring the appeals to his link officer. In my opinion the learned Member is under wrong notion that he had no jurisdiction to hear the appeals as the appeals were transferred to him not by the Seniormost Member. 6. The learned Counsel for the parties did not bring to my notice any specific provision of law whereby the appeals pending before a learned Member, Board of Revenue can be transferred to another Member. In such a circumstance if the learned Member Incharge of Meerut Division thought proper to transfer the appeals to his link officer following the practice prevalent in the Board he at least did not commit any error of law. When the orders of transfer in the appeals were passed on the claim of a Counsel for a party to which the Counsel for the other party had no objection, the orders in the appeals would be judicial orders. 7. Paragraph 170 of the Revenue Court Manual at the relevant time reads as below: (i) The seniormost member of the Board shall distribute business and make necessary territorial division of Board's jurisdiction amongst members. 7. Paragraph 170 of the Revenue Court Manual at the relevant time reads as below: (i) The seniormost member of the Board shall distribute business and make necessary territorial division of Board's jurisdiction amongst members. (ii) When the Board has distributed its judicial business among the members, the order of a Single member shall be the order of the Board. 8. In the present case the learned Member Incharge of Meerut Division transferred the appeals to his link officer and the Counsel for the parties agreed to that order and did not challenge the same. I think the order of transfer passed in the appeals in the circumstances of the case would be a judicial order and that order could not be ignored by the link officer unless that order was set aside in a competent proceedings. This is not a case where the learned Member for reasons known to him transferred the appeals on administrative grounds. Rather a Counsel for a party claimed transfer of the appeals from his Court and he on the agreement of the Counsel for the opposite parties transferred the same to the link officer to obviate the misapprehension to any party or his Counsel the order for transfer would be a judicial order of the Board which cannot be ignored by the link officer unless it was set aside in a competent proceedings. From this angle also I find that the learned Member has patently erred in holding that he had no jurisdiction to hear the appeals transferred to him in the circumstances of the present case. To my mind the impugned judgment suffers from patent error of law and deserves to be quashed. 9. In the result the writ Petition succeeds and the impugned judgment of the learned Member dated 12-11-1981 is hereby quashed. It would be open to the contesting opposite parties to press their review Petition if they so like and they can invoke jurisdiction of the Board in that regard. Parties are directed to bear their own costs.