Gendalal and Others vs Deena Nath and Others

T.S. Doabia, J.

The dispute in this petition is with regard to the right vis-a vis a well situate on survey No. 765. As per the petitioner he is also entitled to the use of the well whereas the ease of the respondents No. 1, 2, 3 and 4 is that they have exclusive right to use the well. It is highlighted that the well was constructed by the forefathers of one of the respondents. The intitial order was passed in favour of the petitioners, but the order of the Commissioner and Board of Revenue has gone against the petitioners.

On 8th of December, 1987 this court permitted all the parties to draw water from the well. The order passed by the Division Bench is as under:-

In the meantime, the petitioners shall jointly use the water of the disputed well for irrigation purpose. It is submitted that the petitioners have their own diesel pump for drawing water and that separate arrangement is made also by non-petitioners 1 to 4. Accordingly, the parties shall have liberty to use their own machinery separately for drawing water from the disputed well until further orders.

The learned counsel for the petitioner argued that :-

(1) His land touched the well in dispute whereas the land of respondents is situated away from the well.

(2) A canal intervenes between the well and the land of the respondents. -

(3) The well is not a private well and for this the learned counsel appearing for the state has placed reliance on some report having been submitted by the Patwari. This is noted in Annexure P-1.

It may be seen that the Board of Revenue has not dealt with any of the contentions raised on merits. The Board of Revenue took note of only one aspect of the matter. This was with regard to the question as to whether the appeal preferred before Collector was within limitation or not. After devoting time to this aspect of the matter the decision was given against the petitioners observing that there is no merit in the revision and the same is dismissed.

I do not think that this order satisfies the test of the speaking order. The Supreme Court of India in the case of Bharat Raja Vs. The Union of India (UOI) and Others, has held that :-

Let us now examine the question as to whether it was incumbent on the Central Government to give any reason as for its decision on review. It was argued that the very exercise of judicial or quasi-judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at a decision for or against a party. The decisions of tribunals in India are subject to the supervisory powers Of the High Courts under Art. 227 of the Constitution and of appellate powers of this Court under Art. 186. It goes without saying that both the High Courts and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word rejected" or dismissed". In such a case this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This well certainly be a very unsatisfactory method of dealing with the appeal. Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others as it must, and the Central Government adopts the reasoning of the State Government this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But when the reasons given in the order of the State Government are scrappy or nebulous and the Control Government makes no attempt to clarify the same, this court, in appeal may have to examine the case denovo without anybody bring the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstance, what is known as a "speaking order" is called for.

As laid down in categorical terms the Government functionaries should pass a reasoned order, the order passed by the Board of Revenue is not such an order.

Therefore, the case is remanded back to the Board of Revenue and a fresh order giving reasons be passed.

Learned counsel appearing for the respondents has stated that the petitioners have already sold the land and, therefore, they have ceased to have interest in this property. This aspect of the matter be also taken note of while deciding the case.

Parties are directed to appear before the Board of Revenue on 24th of April, 1995.