Veer Kishan Sharma vs State of Uttarakhand and Others

Umesh Chandra Dhyani, J.—By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 30.4.2015 passed by Board of Revenue, Dehradun, in Restoration Application No. 96 of 2005-06, captioned as Madhur Sharma and others v. State of Uttaranchal (Annexure-1). Heard learned Counsel for the writ petitioner, learned Counsel for the State, learned Counsel for the respondent Nos. 4 & 5 and perused the impugned order.

It will be useful to reproduce the entire order passed by learned Board of Revenue on 30.4.2015 in Recall Application No. 96 of 2005-06:

"File is presented today. Learned Counsel for the parties are present. Heard learned Counsel for the parties. Shri Rajveer Singh, District Government Counsel (Revenue) is appointed as Court Commissioner for proper disposal of the present recall application. He is directed to go to the spot, inspect the same in the presence of parties and submit his report as follows:

(1) How many mutations have been carried out as regard the disputed land after the execution of Will in the year 1998 till the year 2015?

(2) What is the present status of the disputed land?

District Government Counsel (Revenue)/Court Commissioner is directed to submit his report as regards the disputed land within 15 days.

List on 14.5.2015."

It will be also useful to reproduce the main ground, which has been taken by the writ petitioner, while assailing the impugned order, as below:

"Because vide impugned order learned Board of Revenue could not be permitted to enlarge the scope of a review petition. Undisputedly respondent Nos. 3, 4 & 5 have filed review with the prayer that the order under review was passed ex parte and they may be permitted to put forth their submission and order under review be recalled and revision filed by the petitioner be heard afresh after hearing both the parties. As such learned Board of Revenue absolutely exceeded its power under jurisdiction in travelling beyond the scope of the review, prayer made therein and controversy involved."

It is submitted on behalf of learned Counsel for the respondents that the order has rightly been passed so as to ascertain the correct position of the land on the spot, as also the mutations, which have been carried out since 1998 to 2015.

This Court is of the opinion that the order impugned cannot sustain in the eyes of law, because of the following reasons:

(1) District Government Counsel (Revenue), who himself is pleading the case on behalf of the respondent-State, ought not to have been appointed as an Advocate Commissioner in order to ascertain the status of the land in question.

(2) The Counsel, who is pleading or arguing the case on behalf of one party, is not expected to do justice to the other party. Even if he does so, there will always be a reasonable apprehension in the mind of the other side that the learned Counsel is biased. In other words, the very basis of appointing the District Government Counsel (Revenue) in the case goes against one of the principle of natural justice, i.e., nemo judex in re causa sua, which means that nobody should be a judge in his own cause.

(3) In the recall/restoration application, there was no requirement of application of Order XXVI Rule 29, C.P.C., inasmuch as, the limited question before the learned Board of Revenue, while deciding the recall application was, whether order dated 7th July, 2006 is fit to be recalled or not? Learned Board of Revenue ought not to have gone beyond that.

Writ petition, therefore, succeeds. Order dated 30.4.2015 passed by Board of Revenue, Uttarakhand, Dehradun, is accordingly set aside. Learned Board of Revenue is, however, requested to decide the recall/restoration application filed on behalf of respondent No. 4 and 5 as expeditiously as possible, according to law.