ABDUL MAJID Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD the learned Counsel for the parties. The petitioner was allotted land in 1977. In 1982 a complaint was made that he was not cultivating the land, therefore, enquiry was ordered. On the basis of report of Tehsildar that he was not cultivating the land the order of cancellation of allotment was passed by the allotment authority on 3.6.87. Said order was passed in the presence of the advocate of the petitioner, but the same was not communicated to him. The petitioner came to know about the order only on 12.10.87 when he was told by Patwari. Immediately on the next date i.e. on 13.10.87 he proceeded to Bikaner and tried to contract his advocate, but could not find his advocate, therefore, he contracted another advocate and applied for the copy of the order which he obtained on 15.10.87 and at the earliest point of time without wasting any further time he filed appeal within two days i.e. on 17.10.87 before the appellate authority i.e. Revenue Appellate Authority which was dismissed on 23.4.88 on the ground of limitation as well as on merits. Aggrieved by that order the petitioner preferred second appeal before the Board of Revenue which ultimately dismissed the appeal on the ground of limitation only as the Board of Revenue was of the opinion that there was no affidavit from the advocate of the petitioner that he had not informed the petitioner about the order. Aggrieved by that order the petitioner filed this writ petition before this Court and prayed that the order at Annex. 4 dated 9.5.88 be quashed and set aside and the matter be remanded to the Board of Revenue to decide it afresh on merits.

(2.) LEARNED Counsel Shri Sharma relying upon the Supreme Court judgment reported in 1987 S.C. page 1353 vehemently submitted that the Board of Revenue was not justified in dismissing the appeal of the petitioner summarily only on the ground of limitation. He submitted that on technical ground of limitation the appeal ought not to have been dismissed. He submitted that the Board of Revenue ought to have decided the matter on merits. He also submitted that generally no advocate will come forward to file such affidavit that he failed to inform his client. Merely because the advocate of the petitioner has not. filed the affidavit in support of the petitioner's case that he was not informed by him would not be a ground to dismiss the appeal. It is true that the order was passed on 3.6.87 in the presence of advocate and according to the petitioner he was not informed by his advocate and he come to know only through Patwari on 12.10.1987 about the cancellation order. As soon as he came to know about the order without wasting any time he went to Bikaner and within five days i.e. on 17.10.1987 he filed appeal. There was a delay of hardly two months. The Board of Revenue ought to have appreciated the fact that no person would sit idle when he will come to know that his allotment order has been cancelled. It was a matter of life and death for a person and, therefore, the Board of Revenue ought to have entertained the second appeal and ought to have decided the same on merits and in accordance with law. However, learned Counsel Shri Joshi and Bhatnagar appealing for the private respondents vehemently submitted that the first appellate authority i.e. Revenue Appellate Authority dismissed the appeal of the petitioner on the ground of limitation as well as on merits, therefore, this Court should not interfere with the order when the said order was confirmed in appeal by the Board of Revenue. The practice of deciding the appeal on the ground of limitation as well as on merits has to be deprecated. If the appellate authority was not convinced then it could have dismissed the appeal on the ground of limitation only. If it decided to decide the appeal on merits then it ought to have condoned the delay and then dispose of the matter on merits. In Katiar's case the Hon'ble Supreme Court has also deprecated the practice adopted by the courts below to dispose of the matter on the technical ground of limitation and decide the same on merits. On the facts and circumstances of the case I am fully convinced that the delay of two months was satisfactorily explained. In un -due haste the Board of Revenue dismissed the second appeal on the ground of limitation. Therefore, the impugned order at Annex. 4 dated 9.5.88 is required to be set aside.

(3.) AT the first instance the parties may appeal before the Board of Revenue on 12.2.1997, thereafter, the Board of Revenue shall give a fix date to the parties and decide the appeal after hearing them. Till the Board of Revenue decide the case the status -quo to continue. There shall be no order as to costs.