1. This is a reference by a Division Bench, and arises in the following circumstances :
2. Shri Bishveshwar, petitioner, instituted a suit in the Court of Civil Judge, Sirohi, for recovery of Rs. 5000/- on 6-2-1937, against Thakur Balwant Singhji Jagirdar of Thikana Pandly, as legal representative of Tiwari Shiv Lal and Mst. Champa. It was transferred to the Court of Revenue Officer by the Civil Judge by an order dated 16-7-1938.
On 31-8-1945, the suit was dismissed for default. It was restored by the Hevenue Member of Sirohi State by order dated 28-11-1948. The defendant filed a revision-before the State Council of Sirohi against the order of restoration, and it came before the Board of Revenue, Rajasthan, for disposal. The revision was heard by Shri Chhail Behari Lal, Member of the Board of Revenue, who recorded an order that
'Subject to the concurrence of my learned colleague, I would accept the revision petition! and set aside the order of restoration passed by the Revenue Member, Sirohi State, on 28-11-48.' Shri Kishen Puri, another Member of the Board of Revenue, concurred with the order of Shri Chhail Behari Lal, and the order of the Revenue Member, Sirohi, was thus, set aside.
Bishveshwar filed this petition, and it was contended, among other things, on his behalf that only one Member of the Board, Shri Chhail Behari Lal, heard the parties, and the concurring Member did not near the parties, and, there fore, the order passed by the Board was contrary to natural justice, and should be set aside.
3. In respect of the above contention, there was some conflict of opinion in this Court. In an unreported case -- 'Rajaram v. Revenue Board of Rajasthan', Writ Appln. Ho. 44 of 1951 (Raj) (A), a Bench held that there was no illegality in the procedure adopted by the Board of Revenue, when the case before the Board was heard, by one Member and concurred by another without hearing the parties.
In -- 'Nathmal v. Board of Revenue, Rajasthan, Jaipur', AIR 1952 Raj 46 (B), another Bench made observations that the Rule which authorised two Members of the Board to hear and decide a case without forming a Bench, and enabled a second Member to act without hearing the parties, was contrary to the provisions of Section 13 CD of the Board of Revenue Ordinance.
The 'case of Rajaram (A)', was distinguished on the ground that while the 'case of Nathmal (B)', was a second appeal before the Board, the 'case of Rajaram (A)', was being dealt with by the Board in the exercise of its revislonal jurisdiction. A third Bench of this Court, --'Bhoransingh v. Revenue Board of Rajasthan', AIR 1953 Raj 4 (C), took the view which was taken in 'Rajaram's case (A)', without, however, referring either to 'that case' or to 'that of Nathmal (B)'.
The Division Bench, which heard the present case, was of opinion that the view taken in 'Nathmal v. Board of Revenue (B)', was more in accordance with law and natural justice, not only in the matter of appeals, but in the case of revisions as well, where the order of the lower Court was being set aside. It was pointed out that in the case of a revision two classes of cases) could be contemplated.
In one class the revision may be dismissed, in which case it is the petitioner alone who can have a grievance and the dictum that a petitioner is not entitled to be heard as a matter of right in revisions may be applicable. In the second class of cases, where the revision is allowed, all principles of justice would require that no order made in favour of the non-petitioner be reversed unless he is granted an opportunity of being heard.
4. In view of the conflict of decisions, the Bench referred the following question to the Full Bench :
'Whether a decision given by one Member or the Board of Revenue after hearing parties and concurred by another Member of the Board of Revenue without hearing the parties is valid in the case of revision, when the decision is one allowing the revision and reversing the decision, of the lower Court?'
5. We have carefully gone through the pro-visions of the Board of Revenue Ordinance and the Rules made thereunder and the previous decisions of this Court.
The 'case of Rajaram (A)', was noticed by the Bench deciding the 'case of Nathmal (B)', (to which two of us were parties) after the arguments had been heard, and as the 'case of Raja-ram (A)', was distinguishable on the ground that it was a case of revision, while 'Nathmal's case (B)', was that of a second appeal, the question, was not referred to a Full Bench to resolve the conflict then, and it was considered necessary to settle the law so far as appeals were concerned.
On a careful consideration we feel that the procedure relating to revisions cannot be different in case it was proposed to set aside the order of the lower Court.
In para 18 of 'Nathmal v. Board of Revenue (B)', the observation that in the exercise of revisional powers by the Board the parties had obviously no right to be heard was rather a wide one, and intended only to cover such cases in which the revision was to be rejected, for In that case the judgment of the lower Court and the grounds sought to be urged by the petitioner remained before the Board, and if after taking them into consideration no interference was to be made, the party could not be said to nave) any grievance that his case had not been looked into.
It is, however, otherwise where the decision of the lower Court is sought to be set aside. It is possible, and in many cases probable, that the opposite Party, if heard, could point out facts or reasons in support of the decision of the lower Court, although such reasons may not nave been considered necessary to be recorded or may not have been seriously considered in coming to the same conclusion by the lower Court. What is, however, more important is that Section 13 of the Board of Revenue Ordinance provides only two modes of hearing, viz.,
1. By the Chairman or any other member of the Board, sitting singly, or
2. By a Bench of the Board, consisting of two or more members.
According to Rule 4 of the Rules framed under Sub-section (2) of Section 13, no decree or order coming under the consideration of the Board on appeal, revision or reference, can be modified or reversed without the concurrent judgment of two members.
As referred to above, Section 13 only provides two modes of hearing, either by a Member singly or by a Bench of two or more Members. The compliance of Rule 4, therefore, requires that the two Members should sit as a Bench and not separately. The reason is obvious.
As pointed out in 'Nathmal's case (B)', la cases where the matter is to be disposed of by a Bench, it is imperative that opportunity is allowed to the parties to place their points of view before each Member of the Tribunal, and it would not do that the case' be heard by one Member alone and the other Member may only signify concurrence.
In a case which is to be heard by two Members, the party should have an opportunity of convincing either of them about the strength of its case. It is necessary that the Tribunal should near the parties at one and the same sitting, so that the case before the Tribunal may be thrashed out not only by the parties before the Tribunal but also among the Members of the Tribunal themselves.
The healing granted by one Member and concurrence given by another is, therefore, a method of hearing contrary to the provisions of Section 13 of the Board of Revenue Ordinance.
6. Learned counsel for the respondent urged that Clauses (a) and (b) of Section 13 (i) were declared to be subject to any Rules made in that behalf according to the opening words of Section 13, and the Rule which provides for hearing by a Member singly and concurrence thereafter by the other Member was, therefore, not invalid.
In the first place, the Rules to be framed' under any provision of the Act cannot be inconsistent with the provisions of the Act, and, therefore, any mode of hearing provided by the Rules which may be inconsistent with Clauses (a) and (b) of Section 13 cannot be a valid one. In the second place, the Rules are declared to have been made under Sub-section (2) of Section 13, and not under Sub-section (1) of that section.
7. Our answer to the question is, therefore, as follows:
'A decision given by one Member of the Board of Revenue after hearing parties and concurred by another Member of the Board of Revenue without hearing the parties is not valid even in the case of revision, when the decision is one allowing the revision and reversing the decision of the lower Court.'
8. The case will now be laid before the Division Bench for disposal in accordance with the above answer.