Rajasthan High Court
Aasiya W/O Harun vs Israil S/O Abdul on 4 October, 2021
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5664/2021
Aasiya W/o Harun, Aged About 52 Years, R/o Kethwara, Tehsil
Pahari, District Bharatpur.
----Petitioner
Versus
1. Israil S/o Abdul, R/o Kethwara, Tehsil Pahari, District
Bharatpur.
2. Reshmi W/o Navi Kha, R/o Ghagwari, Tehsil Pahari,
District Bharatpur.
3. State Of Rajasthan, Through Tehsildar Pahari, District
Bharatpur.
----Respondents
For Petitioner(s) : Mr. Gajendra Singh Rathore
For Respondent(s) : Mr. Pawan Sharma
JUSTICE DINESH MEHTA
JUDGMENT
04/10/2021
1. Petitioner has preferred present writ petition against the
order dated 04.03.2021, passed by learned Member of the Board
of Revenue in the application (for recalling the order dated
24.11.2020) filed by the petitioner-Aasiya.
2. The facts briefly stated are that the petitioner preferred a
second appeal before the Divisional Commissioner under Section
76 of the Land Revenue Act, in which the Divisional Commissioner
has passed an interim order dated 14.03.2019 and directed the
respondents to maintain status quo in relation to revenue record
and status of land.
3. Against the order aforesaid, the respondent No.1 herein
preferred a revision petition, that too after about 18 months.
(2 of 4) [CW-5664/2021]
4. The learned Member of the Board of Revenue has passed
order dated 24.11.2020 and set aside the interim order dated
14.03.2019 of the Divisional Commissioner.
5. Learned counsel for the petitioner argued that the impugned
order passed by the Board of Revenue is per se illegal and liable to
be quashed and set aside solely on the ground of non-observance
of principles of natural justice.
6. Elaborating his argument further, he submitted that the
learned Member of the Board of Revenue has on the very first
date of hearing, allowed the respondent's revision petition,
without even condoning the delay of about 18 months and
hearing the petitioner. He argued that the interim order dated
14.03.2019, which was in currency in the appeal filed by the
petitioner, has been annulled even without issuing any notice.
7. Learned counsel for the respondents supporting the
impugned order argued that the Divisional Commissioner, who was
required to dispose of the appeal within a period of 30 days has
failed to decide the appeal and thus, the Board of Revenue was
justified in setting aside the interim order granted on 14.03.2019.
8. Having heard learned counsel for the parties and upon
perusal of material available on record, this Court is shocked to
find that the learned Member of the Board of Revenue has set
aside an order without even issuing notice to the petitioner.
9. Indisputedly, the revision came to be filed by respondent-
Israil before the Board of Revenue against the order dated
14.03.2019, in the year 2020 (about 18 months of the interim
order). The revision aforesaid filed by the respondent No.1 was
not accompanied with an application under Section 5 of the
Limitation Act and regardless of this, the Member of Board of
(3 of 4) [CW-5664/2021]
Revenue has proceeded to allow the revision at the first stage,
without even issuing any notice to the present petitioner.
10. In the opinion of this Court, the approach adopted by the
Board of Revenue is unknown to law. Before setting aside an order
passed in petitioner's favour, the Board of Revenue was at least
required to hear him by way of issuing notice.
11. It is pertinent to mention that the present petitioner has
preferred an application under Order XLI Rule 21 of the Code of
Civil Procedure for recalling the order dated 24.11.2020 and to his
dismay, even such application has been dismissed by the learned
Member of Board of Revenue.
12. The reasons given by the learned Member Board of Revenue,
in his order dated 04.03.2021 are absolutely irrelevant;
unsustainable and contrary to the settled principles of law. The
learned Member has taken recourse to provisions of Order XXXIX
Rules 3A of the Code, but the same only gives a right to an
aggrieved party to prefer an appeal. But merely because an
appeal has been provided by the Code, it cannot be said that a
revision is maintainable and that too such revision can be allowed
without hearing the party, in whose favour an injunction has been
granted.
13. While rejecting petitioner's application for recalling the order,
the Board of Revenue has also observed that the appellant
(present petitioner) will be free to agitate her cause before the
Divisional Commissioner in her pending appeal. The fact that the
petitioner will have a right to agitage her cause, does not mean
that an ad interim injunction granted in favour can be set aside,
while giving the principles of natural justice a go by.
(4 of 4) [CW-5664/2021]
14. In view of the discussion aforesaid, the present writ petition
is allowed. Impugned order dated 24.11.2020, so also order dated
04.03.2021 passed by the Board of Revenue are hereby quashed
and set aside.
15. The Divisional Commissioner is directed to decide the appeal
within a period of three months from today. Till disposal of the
appeal, the interim order dated 14.03.2019 passed by the
Divisional Commissioner in petitioner's appeal shall continue.
(DINESH MEHTA),J
RAHUL-304
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