Smt. Shanti and Another vs Board of Revenue Lko. and Others

Ran Vijai Singh, J.—Heard Sri S.N. Tripathi, learned counsel for the petitioners, learned Standing Counsel and Sri S.C. Verma alongwith Sri K.K. Tiwari, learned counsel for the respondent No. 3.

This writ petition has been filed challenging the orders dated 19.3.2013 passed by learned Member Board of Revenue in Revision No. 848/LR/2012-13 (Smt. Shanti Devi and others v. Rameshwar and others) and order dated 28.12,2012 passed by learned Additional Commissioner, Administration, Gorakhpur Division, Gorakhpur in Revision No. 28/65/M-2012 (Ramehswar v. Smt. Shanti Devi and others).

Learned counsel for the parties agree that this writ petition may be decided finally without exchange of affidavits. The writ petition is taken up for final disposal with the consent of learned counsel for the parties.

The facts giving rise to this case are that it appears the Revision No. 28/65/M-2012-13 was filed against the order dated 19.3.2012 passed by the Tehsildar Nichlaul in Case No. 657/299/2012 (Shanti Devi and another v. Board of Revenue and others) by which the name of Sharda Devi and Shanti Devi was ordered to be recorded in place of Smt. Sudha Devi.

Aggrieved by this order, the respondent No. 3 has filed revision on 27.12.2012 before the Additional Commissioner Administration Gorakhpur Division Gorakhpur which was numbered as Revision No. 28/65/M-2012. The said revision was allowed on the very next date i.e. on 28th December, 2012 by the Additional Commissioner without issuing any notice to the respondents (the petitioners herein). Challenging this order, the petitioners have filed Revision No. 848/LR/2012-13 [Smt. Shanti Devi and others v. Rameshwar and others). The said revision was dismissed after hearing both the parties on the ground that by the order dated 28.12.2012, the matter has only been remanded after setting aside the order dated 19.3.2012 for fresh disposal after hearing both the parties.

Sri Tripathi, learned counsel for the petitioner contends that the order dated 28.12.2012 is totally an illegal order as it was passed without issuing any notice and hearing to the respondents (the petitioners herein). In his submissions, it is settled that even an administrative order, which leads to civil consequences, must be passed in conformity with the principles of natural justice and the procedure adopted must be just, fair and reasonable. Therefore the learned Member Board of Revenue has erred in dismissing the petitioners'' revision.

Refuting the submissions of learned counsel for the petitioners, Sri S.C. Verma, learned counsel appearing for the respondents submitted that as the order dated 19.3.2012 itself was an ex parte order against the respondent No. 3, therefore even if the order dated 28.12.2012 has been passed without issuing any notice to the other side ,it cannot be faulted with as by the aforesaid order, substantial justice has been done to the parties by setting aside the order dated 19.3.2012 with the direction to hear the matter afresh after hearing both the sides.

I have heard learned counsel for the parties and considered their submissions.

The submissions of Sri Tripathi is that the order impugned dated 28.12.2012 suffers not only from breach of principle of natural justice but it is also against the propriety and procedure for entertaining the revision. In his submissions, a fresh revision cannot be allowed without looking into the record and having version of the other side after due notice. On principles, the submissions of Sri Tripathi cannot be faulted with and it has worth but sitting under Article 226 of the Constitution of India, I am not inclined to interfere with this order for the simple reason that the order dated 19.3.2012 was also an exparte order. It is settled that if by quashing of an illegal order, another illegality revives in that eventuality, the Court should not interfere with such orders under the writ jurisdiction. Assuming the order dated 28.12.2012 is quashed, another illegal order dated 19.3.2012 which was passed in absence of respondent No. 3 would revive. Therefore, I refuse to exercise my discretion in favour of the petitioners under Article 226 of the Constitution of India.

The view taken by me finds support from the judgments of the Apex Court in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , Champalal Binani Vs. The Commissioner of Income Tax, West Bengal and Others, , Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others, , Mallikarjuna Mudhagal Nagappa and Others Vs. State of Karnataka and Others, , Chandra Singh Vs. State of Rajasthan and Another, , S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. and Others, , State of Uttranchal through Collector, Dehradun and Another Vs. Ajit Singh Bhola and Another, and State of Orissa and Another Vs. Mamata Mohanty, .

The writ petition is dismissed.

However, it is observed that the Tehsildar shall decide the matter expeditiously and in the meantime revenue entries as on date in the revenue record be maintained.