BASUDEB PRASAD MODI Vs. BISWANATH MODI

JUDGEMENT

(1.) THE genesis of these two writ petitions, analogously heard is a long standing dispute between two adjoining neighbours on both sides of a certain house (hereinafter referred to as the middle house) in Nayasarak in Cuttack Town, arising out of an application to the Executive Officer, Cuttack Municipality, for permission to make some additions and alterations in respect of the said middle house belonging to the petitioners herein. The adjoining owners (the contesting opposite parties herein) challenged the validity of an order of remand by the revenue Divisional Commissioner, Central Division, Orissa, in appeal from an appellate order passed by the District Magistrate Cuttack in his capacity as Chairman of the Municipal Council against the decision of the said Executive officer of the Municipality whereby the District Magistrate,--in modification of the permission granted by the said Executive Officer,--ordered that no additions should be allowed either in the back-ground or in the open verandah in the first floor and that alterations within the existing building were allowed. The Revenue Divisional Commissioner, in appeal being Municipal Appeals Nos. 6 and 7 of 1957-58 from the District Magistrate's said order remanded the case to the District Magistrate, Cuttack, for fresh enquiry and disposal according to law. It was against the said order of the Revenue Divisional Commissioner that a writ petition being O. J. C. No. 13 of 3953 was filed in this court for quashing the said order of remand. This Court,--by its Judgment dated: December 11 1959 made in the said writ petition (O. J. C. No. 13 of 1958) quashed the said order of remand made by the Revenue Commissioner and accordingly allowed the said O. T. C. No. 13 of 1958. Thereafter the petitioners made an application to the Board of revenue (who is stated to be suecessor-in-office of the Revenue Divisional commissioner by virtue of certain notification) praying before him to hear the said municipal Appeals Nos. 6 and 7 of 1957-58 on merits, because the previous order of remand of the Revenue Divisional Commissioner had been quashed by the High court as aforesaid. On the said application before the Board of Revenue for hearing on merits, the Board held that the High Court having quashed the order of the Revenue Divisional Commissioner, there is no question of either revival of the appeal proceedings before the Revenue Divisional Commissioner or the Board of revenue considering the matter on review and accordingly dismissed the petition as misconceived. It is against this Order of the Member, Board of Revenue, refusing to hear the appeals on merits that the present writ petitions have been filed for quashing the order of the Members Board of Revenue dated March 15, 1960 and to direct him to hear the said Municipal Appeals Nos. 5 and 7 of 1957-58 on merits.

(2.) THE only question for consideration in the present writ petitions, is whether it was incumbent on the Board of Revenue to take up the appeals and hear the same on merits after the previous order of remand made by the Revenue Divisional commissioner had been quashed by the High Court in the said writ petition, O. J. C 13 of 1958, on the ground that the Revenue. Divisional Commissioner did not deal with the merits of the case. The Board of Revenue took the view that it was open to the High Court

(3.) THE point which now arises, is whether after the quashing of the order of the revenue Divisional Commissioner, his successor, Board of Revenue can again take up the appeals and hear the same on merits. The settled position in law is that when the order of the inferior Tribunal on an application properly made to them is quashed by the High Court by a writ of certiorari on any ground which does not deal with the merits of the case it is not only permissible but it is also incumbent on the inferior Tribunal to take up the application and re-hear the same; if the order is quashed the inferior court or tribunal is left at large to pass any proper order in the light of the decision of the High Court; if, on the other hand, the High court refuses to rehear on the writ of certiorari and discharges the rule and dismisses the petition then the order of the inferior Court or tribunal stands and assumes the necessary finality Thus, it is evident that there is no finality until the case is reheard by the inferior tribunal; once the order is quashed it follows that the applicant will be able to go back to the inferior court or tribunal where an opportunity is to be given for the matter to be dealt with in the light of the judgment of the High Court (N. S. Sattar Sahib v. State of Madras, AIR 1952 Mad 605. M. D. Thakar v. Labour Appellate Tribunal, AIR 1957 Bom 46; Rex v. North umber-land, Compensation Appeal Tribunal, (1951) 1 KB 711 at P- 724.