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2006 DIGILAW 2711 (RAJ)

State of Raj v. B. O. R.

2006-09-11

PREM SHANKAR ASOPA

body2006
Honble ASOPA, J.—In the instant writ petition, the State of Rajasthan has challenged order of the Board of Revenue, dated 15.9.1993 and order dated 8.1.11994 passed on the review petition. 2. After passing of the order dated 15.9.1993 by one of the members of the Board of Revenue, the State Government filed a review application the ground that the said Member was Advocate in Appeal No. 144/86 filed before the Board of Revenue by the respondents. The said review application was dismissed by the said Member on the ground that it had not been submitted before him on earlier occasion when the order dated 15.9.1993 was passed. 3. The State of Rajasthan has filed the present writ petition against both the orders and submitted that the said Member before his elevation was counsel for the respondent in the Board of Revenue in respect of the disputed land in earlier case therefore, he was not competent to hear the case after he became Member of the Board of Revenue. 4. Heard learned counsel for the parties. I have gone through the record of the writ petition and further considered rival submissions of the parties. 5. In R.V. Camborne Justices, (1955) 1 QB 41, Lord Heward said that "it is of fundamental importance that justice should not only be done, but it should manifestly and undoubtedly be seen to be done without giving currency to the erroneous impression that it is more important that justice should appear to be done than it should in fact be done". 6. Supreme Court in the case of P.K. Ghosh, I.A.S. & Anr. vs. J.G. Rajput reported in (1995) 6 SCC 744 in identical circumstances has held that a basic postulate of the rule of law is that ‘justice should not only be done but it must also be seen to be done". in the said case, objection of appearing for one of the parties was taken before the learned Judge who was one of the Members of the Bench but he did not recuse himself from the Bench hearing that matter. in the said case, objection of appearing for one of the parties was taken before the learned Judge who was one of the Members of the Bench but he did not recuse himself from the Bench hearing that matter. The court has further held that the learned Judge should have recused himself from the Bench hearing the matter not because he is likely to be influenced in any manner in doing justice but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge may be subconsciously – has been influenced by some extraneous factor. Supreme Court has ultimately concluded that credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. Relevant para 10 of the judgment is as under: "10. A basic postulate of the rule of law is that "justice should not only be done but it must also be seen to be done". If there be a basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the recuse himself from the Bench hearing that matter. This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge – may be subconsciously – has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party. Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done." 7. Learned counsel for the State Mr. H. V. Nandwana further cited before me the judgment of the Supreme court in Mst. Aqueela & anr. This is necessary not only for doing justice but also for ensuring that justice is seen to be done." 7. Learned counsel for the State Mr. H. V. Nandwana further cited before me the judgment of the Supreme court in Mst. Aqueela & anr. vs. State of U.P. reported in AIR 1999 SC 1586 . In that case, in such kind of situation, there was failure of justice and on the same ground the appeal was allowed and the matter was remanded back to the High Court. Part of para 1 and Para 2 of the aforesaid judgment are as follows: "1. .... It transpires that Criminal Revision No.1917/79 was also preferred by the complainant against the same verdict of the Court of Sessions through a counsel who later became a Judge of the High Court. The aforesaid three criminal appeals were disposed of, about fifteen years later, on 5.8.1994 by a division Bench judgment of the High Court authorised by the same Honble Judge aforementioned as a junior member of the Bench whereby the appeal of the State was allowed and the appeals of the accused-appellants were dismissed with the result that the offence under Section 304 Part II IPC was altered to be one under Section 302/34 IPC. Since Criminal Revision No.1917/79 preferred by the complainant had not been disposed of simultaneous, it was taken up by the same Bench twelve days later on 17.8.1994 on which orders were passed that the judgment passed on 5.8.1994 in Government Appeal No.199/80 shall govern the petition which was ordered to be disposed of accordingly. A statutory appeal has been preferred in this Court by the convicted accused and they have brought into focus the factum of the filing of the revision petition by the named Advocate turned Judge who sat to decide the appeal with a result disadvantageous to the accused-appellants and favourable to the complainant." "2. Without meaning to dwell on the aspect of the matter any further, the barest minimum what we say is that there has occasioned a failure of justice. That factor alone is enough for us to allow these appeals, which we hereby do, setting aside the impugned judgment and order of the High court and remit the matters back to it for fresh decision of the aforesaid three appeals on revival in accordance with law and on granting a fresh hearing. That factor alone is enough for us to allow these appeals, which we hereby do, setting aside the impugned judgment and order of the High court and remit the matters back to it for fresh decision of the aforesaid three appeals on revival in accordance with law and on granting a fresh hearing. Sequelly, the orders passed in Criminal Revision No.1917/79 are also set aside and the matter is put back as a tagged matter with the appeals now put before the High Court." 8. In my view, the Advocate turned Member ought to have accepted the review petition and recalled the order dated 15.9.1993 maintaining judicial propriety; more particularly, in the facts and circumstances of the case when there was a specific plea in the review petition and there appears to be no justification for the learned Advocate turned Member to dismiss the review application only on the ground that the aforesaid fact situation was not brought to his notice while passing the impugned order dated 15.9.1993. Submission of the learned counsel for the State of Rajasthan is that it cannot be solely made responsible for not raising it earlier and further when it was brought to the notice of the Advocate turned Member by way of filing the review application that he himself appeared for the respondent in earlier Appeal No. 144/86 before the Circuit Bench of the Board of Revenue at Kota, the Advocate turned Member ought not to have shown judicial obstinacy. Since all judicial functionaries are expected to have objectivity, impartiality and unclinching character to decide the case with un-biased mind, judicial obstinacy would vitiate the proceedings and render the action invalid. 9. In the result, the writ petition is allowed, both the impugned orders dated 15.9.1993 and 28.1.1994 are set aside and the matter is remanded back to the Board of Revenue to decide the same afresh.