SANGRAM SINGH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioner by this writ petition under Article 226 of the Constitution of India seeks to challenge the order of the Board of Revenue dated 9 -1 -1973 whereby the petitioner's restoration application in Jagir Appeal No. 21 of 1970 was dismissed in default and he also challenged the order dated 30 -4 -1973 whereby the review application against the order dated 19 -1 -1973 was also dismissed.

(2.) THE facts of the case material for the disposal of this writ petition lies in a narrow compass. The petitioner's appeal before the Board of Revenue was fixed for hearing on 19 -9 -1972. On that date the petitioner or his counsel were absent and so his appeal was dismissed in default. An application for restoration was presented on the ground that the petitioner's counsel Shri Sheo Narain Singh Chaudhary was present before the Board of Revenue up to 11.30, a.m., but he was called in Sessions Court and The D. B. before which his appeal was listed, was busy in State appeals so the petitioner's counsel expecting some time to be taken up in his appeal for hearing, went to the Sessions Court, but when be returned upto 1.00, p m., he was informed that his appeal was dismissed in default The application was accompanied with an affidavit of Shri Sheo Narain Singh Chaudhary. The Government Advocate made an endorsement on this application that he has no objection for restoration of the appeal. Subsequently, one more affidavit of Shri Laxmansingh Shaktawat, Advocate was presented Shaktawat was also the counsel for the petitioner before the Board of Revenue and he in his affidavit swore that he could not reach in time when the appeal was called, as he missed his bus at Bhilwara due to misconnection of Udaipur bus. Despite these affidavits and 'no objection' by the Government Advocate the Board of Revenue dismissed the application for restoration seeing that there does not appear to be any sufficient cause for restoration A review application was submitted, but the same was also dismissed.

(3.) ON behalf of (he petitioner Shri Gupta vehemently coutended that the Board of Revenue seriously e red in law in rejecting the petitioner's restoration application in as much as the Board of Revenue exercised its discretion most arbitrarily and capriciously and did not exercise its discretion on sound judicial principles He urged that there was sufficient cause for the petitioners bosh the counsel's absence at the time when the appeal was called Besides that the discretion was all the more wrongly exercised when the Government Advocate had no objection for restoration of the appeal. The learned Dy. Government Advocate could not successfully refute the contention of Shri Gupta and we find force in the submission of Shri Gupta. It cannot be said that the Board of Revenue exercised its discretion on sound and well established judicial principles. In the light of the facts as narrated above, the Board of Revenue should have allowed the application for restoration and restored the appeal to its original number. In our opinion, the orders of the Board of Revenue are cot sustainable in law and this writ petition thus deserves to be accepted.