1. This is a petition for issue of a writ of certiorari in respect of a case decided by the Board of Revenue.
2. One Nuruddin filed a suit for redemption of a mortgage of certain agricultural land against Nathmal, in the Court of Nazim, Nimbahera. The Nazim decreed the suit for redemption subject to payment of Rs. 701/- by the plaintiff. Nathmal filed an appeal before the Commissioner of Udaipur who transferred it to the Additional Commissioner, and the latter allowed the appeal and dismissed the suit. Nuruddin had died in the meantime and Khawaja Hussain and others, legal representatives of said Nuruddin, filed a second appeal before the Board of Revenue. It was set for hearing before Shri Lal Sinha Saktawat, Member, Board of Revenue, who after hearing the parties did not agree with the Additional Commissioner and passed judgment on 22nd of September 1950 upholding the decision of the Nazim of Nimbahera. The operative portions of his judgment is:
'For these reasons as given above, I would, subject, to the concurrence of my learned colleague, allow the appeal, set aside the order of the Additional Commissioner, Udaipur, dated 3-5-1950 and uphold the order of the Nazim, Nimbahera dated 5-2-1948, decreeing the suit for redemption of the appellants.'
The file of the case was passed on to Shri A. A. Kherie, the other member of the Board of Revenue, who agreed with Shri Lal Sinha and the operative portions of his order is as under:
'For reasons given by my learned brother, I agree with him that there was no justification for the Additional Commissioner for disbelieving the entries in the Government record. In my opinion, the Nazim's decision is correct.
For reasons given above, I concur in the order that my learned brother proposes to make.'
This order was recorded by Mr. Kherie on the 29th of September, 1950.
3. In the present petition by Nathmal, it is contended that Shri Lal Sinha, a member of the Board of Revenue, heard the case at Udaipur on 22nd September 1950, on which date he passed the order mentioned as aforesaid. The acceptance of the appeal subject to the concurrence of his learned colleague, who did not hear the case, and was not sitting on the Bench with Shri Lal Sinha, was illegal. The passing of judgment by Shri A.A. Kherie at Jaipur on 29th September 1950 without notice to the defendant petitioner, or hearing him, has again been challenged as being illegal. It is argued that the alleged judgment of the Board of Revenue is to judgment at all and the case be sent for by the High Court for decision by that Court, or the Government of Rajasthan be directed to appoint a Tribunal consisting of members other than those who purported to decide the case as members of the Board, for decision in this case.
4. The Board of Revenue opposed this petition and contended that the procedure adopted by the two members of the Board was in accordance with the provisions of the Board of Revenue Ordinance (No. XXII of 1949) and the Rules made by the Government on 2nd November 1950 under Section 13, Sub-section (2) of that Ordinance. Reference was also made to the distribution of work made by the Chairman, Board of Revenue, on November 4, 1949, between different members of the Board.
5. The respondents Khwaja Hussain and others supported the Board of Revenue.
6. On a careful consideration of the provisions of the Ordinance and the Rules made thereunder, it is clear that the Board of Revenue in this case had acted in excess of the jurisdiction conferred upon it.
7. Section 13 of the Board of Revenue Ordinance, 1949, is as follows:
'Section 13: (1) Except as otherwise provided by or under this Ordinance or by any other law or enactment for the time being in force in the whole or any part of Rajasthan and subject to any rules made in that behalf or the general or special orders of the Government, the jurisdiction of the Board may be exercised:
(a) by the Chairman or any other member of the Board, sitting singly, or
(b) by a Bench of the Board, consisting of two or more members.
(2) Subject to any rules made in that behalf or the general or special orders of the Government, the Chairman may distribute the business of the Board and make such territorial or other divisions of its jurisdictions as he may deem fit.
(3) Every order made or act done under Sub-setion (1) or in accordance with the distribution or division made under Sub-section (2) shall be deemed to be the order or act, as the case may be, of the Board.'
8. It may be pointed out that the restrictions to the exercise of the jurisdiction of the Board, by the Chairman, any member of the Board mentioned in the opening words of the Sub-section (1) of Section 13 of the Ordinance are two-fold; (1) 'As otherwise provided by or under this Ordinance or enactment for the time being in force in the whole or any part of Rajasthan', and (2) 'Subject to any rules made in that behalf or the general or special orders of the Government.' It is sometimes laid down in an enactment that a particular matter shall be heard by a Bench consisting of not less than so many members. The first restriction is of this kind. The second restriction is by rules or orders of the Government. These Rules or General or Special Orders of the Government could only be those consistent with the provisions of the Ordinaries, They may, for instance, provide for particular classes of cases to be dealt with by the Chairman or any other member of the Board sitting singly or by a Bench of the Board. The provisions of Sub-section (2) to a certain extent overlap the provisions of Sub-section (1), inasmuch as, the Chairman is also authorised to distribute the business of the Board subject to any rules made in that behalf or the general or special orders of the Government. According to Sub-section (2) also, there can be rules or any general or special orders of the Government as to what classes are to be dealt with by the Chairman, any member of the Board sitting singly or by a Bench of the Board. But the Rules or the general or special orders of the Government in this case also have to be consistent with the provisions of the Ordinance. The Chairman of course under Sub-section (2) distributes business to particular members at his discretion. Such distribution of business was done by him by Notification No. 45/BR of 4th November 1949 appearing in the Rajasthan Raj-Patra of the same date. None of the restrictions mentioned in Subsection (1) have however been brought to our notice and it is, therefore, clear that where a case is dealt with by the Chairman or a single member or a Bench, the decision of the Chairman, the member or the Bench is that of the Board and would be final under Section 11 of the Ordinance. There is no provision in the Ordinance whereby any case is heard by a single member could be operative and valid (sic). The procedure adopted in this case was sought to be supported in the rules framed by the Government by Notification No. F-20-(10) Rev/50, dated 2nd November 1950. These rules purport to have been framed under Sub-section (2) of Section 13 of the Ordinance, and are as follows:
Rule 1. The following classes of cases may be heard and disposed of by a single member:
(1) Miscellaneous applications.
(2) Applications for setting aside an order of dismissal for default by the Board or an ex parte decision given by the Board.
(3) Applications for review of judgments or orders passed by a single member of the Board.
(4) Applications for transfer of cases under the relevant sections of the different Tenancy and Land Revenue Acts.
Rule 2. The orders passed by a single member in cases of the nature specified in rule (i) shall be final.
Rule 3. In other cases, where a single member hearing a case upholds the decree of the lower Court, Ms decision shall be final.
Rule. 4. No decree or order coming under the consideration of the Board on appeal, revision or reference, shall be modified or reversed without the concurrent judgment of two members.
Rule 5. Whenever an order or decree is modified or reversed on appeal, revision or reference, the judgment or order shall be signed by both members concurring therein.
Rule 6. The members who hears a case singly and considers that the decree or order of the lower Court should be reversed or modified, shall record his judgment or order as the case may be, and send it to the other member for expression of opinion. If the other member concurs, the judgment or order shall be deemed to be the judgment or order of the Board. In cases of disagreement between the two members, the case shall be referred to the Chairman and be disposed of in accordance with the provisions of section 15 of the Ordinance.
Rule 7, if any case heard by a single member involves any question of law, or custom having the force of law, or of the construction of any document it may be referred to a Pull Bench in accordance with Section 14 of the Ordinance.'
9. The numbering of the rules has been done by us, outgoes not appear in the Notification.
10. The above Rules, when closely examined, show that in Rule 1 certain matters were authorized to be heard and disposed of by a single member. These matters do not include a second appeal. Rule 2 refers to orders in cases described in Rule 1 Rule 3 purports to make the decision of a single member final in any case where he upholds the decree of the lower Court. No express power is conferred by the Rules upon a single member to hear an appeal or revision against a decree but Rule 3 may be construed as giving an implied power to do so. Rule 4 purports to lay down that a single member of the Board could not by himself modify or reverse a decision of the lower Court on appeal, revision or reference to the Board, but such reversal or modification required a concurrent judgment of two members. Rule 6 lays down the procedure to be followed by a single member hearing a case and coming to the conclusion that the judgment of the lower Court requires to be reversed or modified. The rule says that a single member shall record his judgment or order as the case may be and send it to other member for expression of his opinion. If the other member concurs, the Judgment or order shall be deemed to be judgment or order of the Board. Rule 6, thus, purports to authorize two members to hear a case without forming a bench. This rule is contrary to the provisions of Sub-section (i) of Section 13 which provides only two modes of hearing, (i) either by a member of the Board sitting singly, or (ii) by a bench of the Board consisting of two or more members, and is, therefore, invalid.
11. Again, in the present case, it is conceded that the second member Mr. Kherie recorded his opinion concurring with the opinion of Mr. Lal Sinha without hearing the parties or giving notice of hearing to them. If the concurrence judgment referred to in Rule 4 was one which had to be given by two members forming a bench, there is do doubt that the parties would have been given notice of hearing and if they had appeared, the Bench would also have given them a hearing. But Rule 6, even as it stands, does not say that the second member can express his opinion without giving a notice of hearing to the parties or hearing them should they appear and wish to be heard, and the procedure adopted is not authorized even according to the Rules as they are.
12. It appears reasonable that if the case is to be heard by two members, the party should have an opportunity of convincing either of them about the strength of his case. It is possible that while the member who first heard the case could not be convinced by a party, the second member could be so convinced and in that case the party would secure a disagreement between the two members and have thereafter, the right to address the third member before whom the case may be placed under Section 16 of the Ordinance. It was, therefore necessary in this case that notice of hearing should have been issued to the parties and opportunity allowed to them to be heard by the second member as well.
13. The learned Government Advocate relied on 'Khumaraswami Mudali v. Muniratna Mudali', AIR (19) 1932 Mad 529; 'Ratnamala Pattamahadevi v. Rayats of the Mandasa Zamindari', AIR (21) 1934 Mad 231, and 'In re V. Shanmuga Mudaliar', AIR (38) 1951 Mad 276 for his contention that the Board of Revenue had not acted without jurisdiction or in excess of its jurisdiction. All these cases are distinguishable on facts.
14. In AIR (19) 1932 Mad 529, the rules of procedure before the Board of Revenue provided for hearing of parties in certain matters, but provided that it will not hear either petitioners or their counsel in person in other matters. The matter before the Board was one in which the Board laid down that it will not hear toe petitioner. In that view, it was held that the Board of Revenue had not exceeded its jurisdiction in giving a judgment without hearing the parties.
15. In AIR (21) 1934 Mad 231, the case was under the Madras Estate Land Act (1908), and the appeal had been presented under Section 171 of that Act. The learned Judges referred to Sections 169, 170 and 172 of the Act in which provisions existed for giving reasonable notice to the parties and affording opportunity to hear them; while under Section 171 such a provision was missing and their Lordships held that this could not have been by chance and that, therefore, the Board of Revenue had not exceeded its jurisdiction in not hearing the petitioner in the case.
16. In AIR 1951 Mad 272, the petition before the Board of Revenue was one in revision and it was held that the party was not entitled as of right to be heard by the Board. There is also mentioned that the petitioner had stated all the grounds of objection in his petition and it was deemed that the party had sufficient opportunity to state its case.
17. Another case cited by the learned Government Advocate was 'Local Government Board v. Arridge', (1915) A C 120. This case is also not relevant as the decision was based on the particular language of the Housing Town Planning Act of 1909. According to their Lordships, the Government Board had handled the case with extreme patience, with scrupulous regard to their statutory duties and to the rights of all concerned. The Government Board, in this case, was an organisation with executive functions and resembled a department of the State.
18. After the arguments were over, another case 'Rajaram v. The Revenue Board of Rajasthan', (Writ Appln. No. 44 of 1951), decided on 17th of July, 1951, by the Jaipur Bench came to our notice. The learned Judges were of opinion that there was no illegality in the procedure adopted by the Board of Revenue in accordance with Rule 6 of the Rules framed by the Government on 2nd of November 1950, referred to in the earlier part of the judgment. The decision is, however, distinguishable as the case before the Board was a revision arising out of a petition filed before a Sub-divisional Officer under Section 7 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949.) Under Section 10 (1) of that Ordinance, it was provided that no appeal shall lie from any order of the Sub-Divisional Officer passed under the Ordinance. The interference by the Board of Revenue was provided in Sub-section 2 which is as follows :
'The Board of Revenue may of its own motion or on an application made to it in that behalf call for the record of any case disposed of by the Sub-divisional Officer or other Officer of equal status under this Ordinance and may pass such orders thereon as may appear to the Board to be just and expedient.'
The power to be exercised by the Board of Revenue in Sub-section 2 is very wide and more or less as a Court of revision and the parties had obviously no right to be heard in those proceedings.
19. As to the power of this Court to issue writ of Certiorari reference may be made to 'Province of Bombay v. Khushaldas Advani', AIR (37) 1950 S C 222. Their Lordships of the Supreme Court followed the dicta of Atkin, L. J., in the 'King v. Electricity Commissioners', (1924) 1 K B 171:
'Where anybody of persons having legal authority to determine questions affecting the rights of subjects and having authority to act judicially act in the excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.'
Das J., at page 250 further observed that the law is now well settled that a writ of certiorari will lie to control a statutory body if it appears to act without jurisdiction or in excess of it or in violation of the principles of natural justice that on a true consideration of Statute creating a body, it can be said to be a quasi-judicial body entrusted with quasi-judicial functions. It need hardly to be stated that the Rajasthan Board of Revenue is a body having two functions one of which is administrastive and executive, and the other is judicial. The matter that came before the Board and with which we are now dealing, was disposed of in the exercise of its judicial function.
20. It was not brought to our notice that the Rajasthan Board of Revenue had framed any Rules under Section 18 of the Ordinance regulating the procedure of the Board in the transaction of its business. In the absence of any such Rules, in a case like the present which was a second appeal in a, suit for redemption of agricultural land, it would be safe to presume that the Board in the exercise of its judicial function was to follow the procedure laid down in the Code of Civil Procedure in the matter of hearing appeals, and the Board was, therefore, bound to afford an opportunity to support the judgment of the lower Court before proceeding to reverse that judgment.
21. Leaving aside the applicability of the procedure laid down in the Code of Civil Procedure in appeals of this kind, this one principle of natural justice is firmly established that where judicial functions are to be exercised by a Court or by a Board, it is necessary that they must always give a fair opportunity to those who are parties in the controversy to correct or to contradict any relevant statement prejudicial to their view. Reference may be made to 'Indumati Devi v. Bengal Court of Wards' AIR (25) 1938 Cal 385, wherein Panckridge, J., observed at page 389 that where departments of Government or statutory bodies are given judicial or quasi judicial functions, the Court will interfere to prevent the exercise of such functions in a non-judicial manner. The obligation to give notice and hear the party affected was recognised in the case of 'Cooper v. Board of Works for the Wands-worth District', (1863) 14 C B (NS) 180. His Lordship then referred to the observations of Lord MacNaghten in 'Lapointe v. L Association De Bien-faisance Et De Retraite De La Police De Montreal', (1906) A C 535, at P 539:
'The learned counsel for the appellant referred to two well-known Club cases before Sir George Jessel, M.R., 'Fisher v. Keane', (1879) 11 Ch D 353 and 'Labouchere v. Eari of Wharncliffe', (1880) 13 Ch D 346. It may be worthwhile to mention a later case before the same learned Judge, in which he refers to the case in 'Wood v. Wood', (1874) 9 Ex 190, in the Exchequer and express regret that he was not acquainted with that case when those Club cases were decided See 'Russell v. Russel', (1880) 14 Ch D 471.'
'It contains' he says:
'a very valuable statement by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform which I should have been very glad to have had before me on both those Club cases that I recently heard namely the case of 'Fisher v. Keane', and the case of 'Labourchere v. Earl of Wharncliffe.' The passage I mean is this, referring to a committee : 'They are bound in the exercise of their functions by the rule expressed in the maxim 'Audi alteram partem', that no man should be condemned to consequences resulting from alleged misconduct unheard and without haying the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal, or body of persons invested with authority to adjudicate upon matter involving civil consequences to individuals.'
22. The petition is therefore allowed. The decision of the Board dated 22nd of September by Shri Lal Sinha and the concurrent judgment dated 29th of September 1950 by Mr. Kheri are, therefore, set aside. The case will go back to the Board of Revenue for a re-hearing in accordance with law.
23. We are aware that provisions similar to Rule4 of the Rules exist in the U. P. Land Revenue Act,but even in that Act, there is no provision thatthe two members of the Board shall proceed topass a judgment without hearing the parties. Itwas stated at the Bar by the Government Advocatethat in Uttar Pradesh there was a practice similarto that followed in this case. Whatever may havebeen the practice, the illegality is apparent, andArticle 226 of the Constitution authorized the HighCourt to interfere and pass proper orders, and toissue a writ in a proper case for correction of theillegal exorcise or jurisdiction by judicial tribunals.There will be no order as to costs.