Sita Ram and others vs Board of Revenue, U.P.Allahabad, and others

B. N. Sapru, J.

The petitioners had filed two second appeals before the Board of Revenue. After hearing the parties, the Board of Revenue. Sri B. K. Mishra dismissed both the appeals by his order dated 28th July, 1970. The petitioners felt that there was manifest error of law in the order of the Board of Revenue and filed two review petitions on 12.8.1970. Both these review petitions were dismissed by Sri Prakash Kishan, I.A.S., by his order dated 20.11.1970. The petitioners were given no notice that their case had been fixed for preliminary hearing before the Board. It is necessary to mention that Sri B. K. Misra was on leave for about three months from 8.10.1970 to 31.1.1971 but he had not ceased to be a Judicial Member of the Board of Revenue. The petitioners alleged that when they came to know that their review petitions had been dismissed they on 18.4.1972 filed two restoration applications. Both these applications came up for hearing before Sri M. Z. Zaheer, I. A. S., Member, Board of Revenue, and he sent the two restoration applications before Sri B. K. Misra, J. A. S., Member Board of Revenue, for disposal, Sri B.K. Misra heard counsel for the petitioners and dismissed the restoration applications for recalling the order dated 20.11.1970 on 24.4.1972. Sri B.K. Misra held that hearing of the applicants or their counsel was not necessary under Order XLVII rule 4 (1) of the Code of Civil Procedure; that the Order XLVII rule 5 of the Code of Civil Procedure was net applicable; that a Member, Board of Revenue, was not a Judge within the meaning of Order XLVII rule 5 of the Code of Civil Procedure and that Sri Prakash Kishan, I. A. S.: had jurisdiction to dismiss the review petitions even though the final order dismissing the appeal was passed by Sri B. K. Misra.

Aggrieved by this order, the petitioners have preferred the instant writ petition.

The learned counsel for the petitioners has submitted that the initial order of Sri Prakash Kishan I.A.S., Member Board of Revenue, dated 20.11.1970 was illegal as the review petitions were dismissed without any notice to the petitioners, that their review petitions were going to be heard on that date. Review proceedings are judicial proceedings and it is legitimately, submitted that the parties should be heard before the orders are passed on the review petitions. As no notice was given to the petitioners that their review petitions would be heard on 20.11.1970, the order of Sri Prakash Kishan is illegal and cannot be sustained. Further, it is doubtful whether Sri Prakash Kishan could have heard the petitions because Sri B. K. Misra was merely on leave on 20.11.1970 but he had not ceased to be a Member of the Board of Revenue. Ordinarily the Judicial Member of the Board of Revenue who decides the case should hear the review petitions. As I have held that the order of Sri Prakash Kishan, Member, Board of Revenue, dated 20.11.1970 is illegal, the order of Sri B. K. Misra, dismissing the restoration applications has also got to be quashed. Accordingly, the order of Sri B. K. Misra dated 24 4.1972 is quashed.

In the result, the writ petition is allowed and the Board of Revenue is directed to rehear the two review petitions filed by the petitioners filed on 12 8.1970 after notice to the petitioners. As the matter is very old, the Board of Revenue should try to dispose of the review petitions as early as possible. In the circumstances of the case, there will be no order as to costs.