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2005 DIGILAW 768 (RAJ)

Kamal Chand Kochar v. State of Rajasthan

2005-03-11

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The facts in brief are that the land was allotted to the petitioner vide order dated 07.03.1992 (Annexure-1). The said allotment order was cancelled vide order dated 20.01.1998 passed by the Commissioner Colonisation, IGNP, Bikaner. The said cancellation order was challenged by the petitioner by way of revision petition before the Board of Revenue who vide order dated 19.07.1999 allowed the revision and remanded the matter back to Assistant Colonisation Commissioner to decide afresh giving opportunity of hearing to the petitioner. 3. The Assistant Colonisation Commissioner, Kolayat vide order dated 15.01.2000 maintained the allotment in favour of the petitioner. However, against the order dated 15.01.2000, the Tehsildar preferred an appeal which came to be allowed by the Additional Colonisation Commissioner vide order dated 012.2000 and the allotment order of the petitioner was set aside. 4. The petitioner preferred revision petition against the order dated 012.2000 which was dismissed by Board of Revenue vide order dated 25.06.2002. Before the Board of Revenue, the petitioner submitted that the order dated 012.2000 was passed without giving an opportunity of hearing to the petitioner as no notice was served by the said authority upon the petitioner. The contention of the petitioner was not entertained by the Board of Revenue on the ground that the Board of Revenue cannot inquire into sufficiency of the service upon the petitioner and the petitioner should have submitted an application for setting aside of the ex-parte order before the Additional Colonisation Commissioner who decided the appeal of the State vide order dated 012.2000. 5. The petitioner preferred review petition against the order dated 25.06.2002 which was also dismissed by the Board of Revenue. 6. After failing to get any relief , the petitioner submitted application under Order 9 Rule 13 CPC before the same authority i.e., Additional Colonisation Commissioner-cum-Revenue Appellate Authority on the ground that the Board of Revenue observed that the petitioner should have approached the appellate authority for setting aside the ex-parte order. 6. After failing to get any relief , the petitioner submitted application under Order 9 Rule 13 CPC before the same authority i.e., Additional Colonisation Commissioner-cum-Revenue Appellate Authority on the ground that the Board of Revenue observed that the petitioner should have approached the appellate authority for setting aside the ex-parte order. The Additional Colonisation Commissioner vide order dated 05.05.2003 dismissed the said application on the ground that the order dated 012.2000 has already been upheld upto the Board of Revenue and since the Board of Revenue observed that there is no illegality in the order dated 012.2000, therefore, ex-parte order passed against the petitioner cannot be set aside now after the decision by the Board of Revenue. 7. The petitioner preferred revision petition against the order of Additional Colonisation Commissioner dated 05.05.2003 before the Board of Revenue. However the Board of Revenue dismissed the said revision petition vide order dated 23.09.2003 in view of the order passed by the Board of Revenue on earlier occasion. 8. In the backdrop of all these facts, the petitioner has now come up before this Court and is seeking relief of quashing the order dated 012.2000 (Annexure-4) by which the appeal of the State was allowed by Additional Colonisation Commissioner and set aside the allotment order of the petitioner. The petitioner has also challenged subsequent orders dated 25.06.2002 (Annexure-7), 05.05.2003 (Annexure-9) and 23.09.2003 (Annexure-10). 9. According to learned Counsel for the petitioner, the appeal was fixed for service of the petitioner on 211.2000. The petitioner placed on record the certified copy of the notice which was issued to the petitioner by the Court of Additional Colonisation Commissioner wherein there is a clear endorsement of the process server that the petitioner was not found, therefore, the summon was returned back to the Court unserved but the Additional Colonisation Commissioner passed the order to proceed ex-parte on assumption that the summon was duly served. 10. According to learned Counsel for the petitioner, the petitioner could have challenged the order by moving the application under Order 9 Rule 13 CPC and also by preferring appeal directly to the Board of Revenue. 10. According to learned Counsel for the petitioner, the petitioner could have challenged the order by moving the application under Order 9 Rule 13 CPC and also by preferring appeal directly to the Board of Revenue. Since, the petitioner preferred revision petition against the order dated 012.2000, therefore, he did not submit any application under Order 9 Rule 13 CPC as the petitioner was under impression that the revisional authority will look into the record of the Court itself which the revisional authority can do but the revisional authority only under assumption that it cannot inquire into the facts and cannot determine the sufficiency of service upon the petitioner, therefore, observed that the petitioner should have approached the appellate authority for setting aside the ex-parte order by moving application under Order 9 Rule 13 CPC. According to learned Counsel for the petitioner, the Board of Revenue, therefore, committed serious error of law by dismissing the petitioners revision petition. 11. It is also submitted that the appellate authority should not have dismissed the petitioners application for setting aside the ex-parte order as after the decision of the Board of Revenue, the petitioner was left with no alternative but to seek relief from the appellate authority in the light of the observations of the Board of Revenue. It is submitted that the appellate authority could have set aside the ex-parte order under Order 9 Rule 13 CPC as the Board of Revenue specifically refused to decide the issue of service of summon upon the petitioner. 12. Learned Counsel for the State vehemently submitted that the matter is old one. The Board of Revenue also observed so and the petitioner, instead of submitting application for setting aside the ex-parte order, preferred appeal which was dismissed by the Board of Revenue as back as on 25.06.2002. The petitioner instead of challenging the order of Board of Revenue submitted application under Order 9 Rule 13 CPC and that too after inordinate delay. It is also submitted that the appellate authority could not have set aside the order dated 012.2000 as that order was upheld by the Board of Revenue in totality. 13. I have considered the rival submissions. 14. It is clear that the Board of Revenue in its order dated 19.07.1999 clearly observed that the petitioners allotment was cancelled without affording an opportunity of hearing to the petitioner. 13. I have considered the rival submissions. 14. It is clear that the Board of Revenue in its order dated 19.07.1999 clearly observed that the petitioners allotment was cancelled without affording an opportunity of hearing to the petitioner. The Board of Revenue directed Assistant Colonisation Commissioner to decide the matter afresh in accordance with law. Accordingly, the Assistant Colonisation Commissioner reconsidered the matter and held that the petitioner is a bonafide agriculturist and he fulfilled all the requisite conditions of allotment of land. The allotment was upheld by the Assistant Colonisation Commissioner vide order dated 15.01.2000. Against this order, appeal was preferred by the State. The petitioner placed on record the certified copy of summons issued for the date 211.2000 wherein there is a report of the process server that the petitioner was not found and, therefore, summon is returned without service. This fact was not examined by the Board of Revenue merely on the ground that the revisional authority cannot inquire into the sufficiency of service of the petitioner before the appellate authority. It appears from the order of Board of Revenue dated 25.06.2002 that the Board of Revenue did not look into the record itself and without looking into the record, observed that the petitioner should have applied for setting aside of the ex-parte order before the appellate Court and he should have produced the evidence for that purpose. 15. It may be observed that it is not necessary in all cases to decide the application for setting aside the ex-parte order after giving opportunity to lead evidence and if the Court decided to decide the said application on the basis of the application and affidavits and material available on the record, the Court can do so. 16. Here in this case, where there is no rebuttal of allegation of the petitioner that the summon issued to the petitioner returned back with the report that the petitioner was not found, then there was hardly any scope for enquiry. In any of the order, it has not been mentioned that the Court examined the record and found the service of the petitioner as sufficient. In any of the order, it has not been mentioned that the Court examined the record and found the service of the petitioner as sufficient. It appears from the orders passed by all the Courts below that the contention of the petitioner was not even examined by any of the Court either by the Board of Revenue when the plea was raised for the first time in revision which was decided by Board of Revenue vide order dated 25.06.2002 and thereafter, when the petitioners plea was considered by the Additional Colonisation Commissioner-cum-Revenue Appellate Authority in its order dated 05.05.2003 and by the Board of Revenue in its order dated 23.09.2003. 17. In the facts and circumstances of the case, the point raised by the petitioner goes to the root of the matter and the order dated 012.2000 appears to have been passed without service of notice upon the petitioner, therefore, the same deserves to be set aside and quashed and the Board of Revenue committed error of law in dismissing the petitioners revision vide order dated 25.06.2002 and in upholding the order dated 012.2000. 18. In view of the above, this writ petition is allowed, the order dated 012.2000 passed by Additional Colonisation Commissioner and 25.06.2002 passed by Board of Revenue are quashed and set aside. 19. In view of the above, the petitioners application under Order 9 Rule 13 CPC itself becomes infructuous and, therefore, there is no need to set aside the orders passed on the petitioners said application. 20. Accordingly, the appeal No. 278/2000 (State vs. Kamal Chand) is required to be decided afresh by the Additional Colonisation Commissioner-cum-Revenue Appellate Authority, Bikaner. Both the parties are directed to appear before the appellate authority on 26.04.2005.