Rajasthan High Court

Smt Phoola Devi W/O Shri Matadeen vs Gyarsa Son Of Shri Chhotelal on 9 March, 2021

Bench: Mahendar Kumar Goyal

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 9601/2020
Smt. Phoola Devi W/o Shri Matadeen, aged about 78 Years,
Resident Of Village Kohrana, Tehsil Behror, District Alwar
(Rajasthan)
                                                          ----Plaintiff-Petitioner
                                    Versus
1.        Gyarsa Son Of Shri Chhotelal, Aged About 73 Years,
          Resident Of Village Kohrana, Tehsil Behror, District Alwar
          (Rajasthan)
2.        Dalip Singh S/o Shri Chhote Lal, Aged About 68 Years,
          Resident Of Village Kohrana, Tehsil Behror, District Alwar
          (Rajasthan)
                                                       Defendant-Respondents

3. Matadeen Son Of Shri Chhotelal, Aged About 83 Years, Resident Of Village Kohrana, Tehsil Behror, District Alwar (Rajasthan)

----Performa-Respondent

For Petitioner(s) : Mr. Virendra Singh Yadav For Respondent(s) : Mr. Gaurav Gupta

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order

09/03/2021

This writ petition under Article 227 of the Constitution of

India has been filed against the order dated 10.08.2020 passed by

the Board of Revenue, Rajasthan, Ajmer (for brevity "the Board")

whereby, the revision petition filed against the order dated

18.05.2018 passed by the Assistant Collector, Behror, Alwar

allowing the temporary injunction filed by the petitioner-plaintiff,

has been allowed and the matter was remanded back for decision

afresh.

Learned counsel for the petitioner submitted that the Board

erred in entertaining the revision petition inasmuch as an appeal

(2 of 5) [CW-9601/2020]

under Section 230 of the Rajasthan Tenancy Act, 1955

(hereinafter referred to as "the Act of 1955") lies before the

Revenue Appellate Authority against the order impugned dated

18.05.2018 passed by the Assistant Collector, Behror, Alwar in

exercise of its jurisdiction under Section 212 of the Act of 1955.

Learned counsel submitted that the Board further erred in passing

the order without issuing notices to the petitioner and without

calling the record from the learned trial Court. Referring the ad-

interim order dated 22.03.2017 passed by the trial Court in her

application under Section 212 of the Act of 1955, he submitted

that it was made absolute vide order dated 18.05.2018; but, on

account of clerical error, the date of the order came to be

mentioned as 22.03.2018 and had she was given an opportunity

to appear before the Board, she would have explained the same.

He, therefore, prayed for quashing the order dated 10.08.2020.

Learned counsel for the petitioner relied upon the judgment

of this Court dated 29.11.2019 in case of Kanaram & Ors.

versus Mahaveer & Ors. S.B. Civil Writ petition

No.19960/2019 in support of his submissions.

Per contra, learned counsel appearing for the respondent

Nos. 1 & 2/defendants submitted that the learned trial Court has

finally decided the application filed by the petitioner under Section

212 of the Act of 1955 in slip-shod manner, without even referring

as to how she was able to establish the prima-facie case, balance

of convenience and irreparable loss in her favour. He submitted

that in these circumstances, the Board did not err in setting aside

the same and remanding the matter back to the learned trial

Court for decision afresh. He, therefore, prayed for dismissal of

the writ petition.

(3 of 5) [CW-9601/2020]

Heard learned counsels for the parties and perused the

record.

Though, the approach of the Board in entertaining the

revision petition and setting aside the order dated 18.05.2018

without issuing notices to the respondents therein, cannot be

countenanced, however, a perusal of the order dated 18.05.2018

reveals that the learned trial Court has allowed the temporary

injunction application filed by the petitioner in most casual manner

by simply observing that the issues of prima-facie case, balance of

convenience and irreparable loss stand established in her favour

without referring the pleadings, evidence or submissions of the

parties in support thereof. This Court is in respectful agreement

with the judgment of this Court in case of Kanaram & Ors.

(supra); but, it is well established principle of law that if by

quashing an order passed without jurisdiction/illegally results into

restoring another illegal order, the Court would be loathe in

interfering with such order. Hon'ble the Apex Court of India has, in

case of Commissioner of Income Tax, Shimla versus

Greenworld Corporation, Parwanoo & another connected

matter reported in (2009) 7 Supreme Court Cases 69, held as

under:-

"66. It is now well settled that this Court in exercise of its extra-ordinary jurisdiction under Article 136 of the Constitution of India may, in the event an appropriate case is made out, either refuse to exercise its discretionary jurisdiction or quash both the orders if it is found that setting aside of one illegal order would give rise to another illegality."

(4 of 5) [CW-9601/2020]

A Full Bench of this Court has, in case of Jagan Singh

versus State Transport Appellate Tribunal, Rajasthan &

Anr., All India Reporter 1980 Rajasthan 1, held as under:-

"11. As we have already stated above, we do not feel inclined to decide this question in the facts and circumstances of this case; whether Sagruddin, non- petitioner No. 2, can be considered as a person aggrieved by the variation in the conditions of the petitioner's permit. We have already held above that the order of the Regional Transport Authority, whereby the variation in the conditions of the permit of the petitioner was allowed, was not legal and proper as it had been passed without following the procedure prescribed under Section 57, Sub-sections (3), (4) and (5). Assuming for argument's sake, that the non- petitioner No- 2, Sagruddin, had no locus standi to file an appeal or revision before the State Transport Appellate Tribunal against the order of the Regional Transport Authority dated May 27, 1978, the fact remains that the said order of the Regional Transport Authority is illegal and if we were to allow this writ petition and set aside the impugned order by the State Transport Appellate Tribunal, the result would be that the illegal order of the Regional Transport Authority would be restored. It may be noted that there has been no failure of justice in the present case and we would be justified in refusing to interfere unless we are satisfied that the justice of the case requires it. We are of opinion, that having regard to the facts of the case and the law bearing on the subject, we should decline to interfere.

12. In Gani Mohammed v. State Transport Appellate Tribunal, 1976 Raj LW 201, it was observed that while granting a writ of certiorari, this court would not exercise its discretion in such a manner which

(5 of 5) [CW-9601/2020]

would have the effect of restoring an illegal order passed by the Regional Transport Authority. As we have already pointed out above, the effect of setting aside the impugned order passed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to G. Venkateswara Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828 wherein the Supreme Court came to the conclusion that the State Government had no power under Section 72 of the Andhra Pradesh Panchayat Samitis & Zila Parishads Act to review its previous order, yet their Lordships refused to interfere with the order passed by the State Government upon such a review on the ground that quashing of that order would lead to restoration of an illegal order passed earlier by the State Government. In this connection, their Lordships further observed that the High Court rightly refused to exercise its extraordinary discretionary power under Article 226 of the Constitution of India. In this view of the matter, this writ petition deserves to be dismissed."

Since, the order dated 18.05.2018 passed by the learned

trial Court dehors the established principle of law for deciding the

temporary injunction application, this Court is not inclined to

interfere with the order passed by the Board quashing the same

and remanding the matter back to the learned trial Court for

decision afresh in accordance with law in exercise of its

supervisory jurisdiction under Article 227 of the Constitution of

India.