V. Bhargava, J. - (1.) Dulichand has filed this petition under Article 226 of the Constitution with the prayer that this Court be pleased to issue a writ of certiorari, quashing and setting aside the orders of Judicial Members of the Board of Revenue dated the 26th of November 1951, and 9th December, 1952, in second appeal No. 84 of 1946 -47 (Bhikhey and Ors. v/s. Dulichand and others) and in review application No. 50 of 1951 -52 (Dulichand v/s. Bhikhey and others) respectively. There is a further prayer that opposite party No. 1, Judicial Members, Board of Revenue, be directed to re -hear and decide the second appeal afresh after giving reasonable notice and opportunity to the parties and after hearing their counsel on merits and according to law.
(2.) The facts given in the petition show that Bhikhey and others, opposite -parties Nos. 2 to 5 filed a suit for division of a holding under Sec. 49 of the U.P. Tenancy Act against the Petitioner and opposite -party No. 6 in the court of the Assistant Collector, First Class, Etah. The Assistant Collector, after proceedings in the suit, passed a final decree on 29th June, 1946, and divided the holding and the rent between the various parties to the suit. Opposite parties Nos. 2 to 5 were not satisfied with the shares allotted to them in the partition and, consequently, they filed an appeal in the court of the Commissioner, Agra Division, Agra, which was dismissed on 28th April, 1947. They preferred a second appeal in the Board of Revenue which came up for hearing on the 9th of Match, 1951. On that day, an application was filed in court which purported to be a compromise. This compromise was sent for verification to the lower court where the Petitioner refused to verify it. When it came back to the Board of Revenue, opposite parties Nos. 2 to 5 applied that the compromise be recorder and a decree passed in accordance with it. On the return of the compromise, the case was heard by one Member of the Board of Revenue, Shri J.O.N. Shukla, on the 20th of November, 1951. He passed his judgment on 22nd November, 1951, allowing the appeal and giving effect to the terms of the alleged compromise of the 9th of March, 1951. The case was then sent to another Member of the Board of Revenue, Sri T.N. Srivastava, on the 26th of November, 1951, who concurred with the order passed by Sri J.O.N. Shukla on the 22nd of November, 1951. Before giving his concurrence, Shri T.N. Srivastava did not give any hearing to any of the parties. The Petitioner, being aggrieved by these orders of 22nd November, 1951, and 26th November, 1951, by the two learned Members of the Board of Revenue, filed an application for review before the Registrar of the Board of Revenue on 14th December, 1951. That application was dismissed by one Member of the Board of Revenue on 9th December, 1952. The petition and the affidavit filed in support of it do not make it clear as to who that Member of the Board of Revenue was. Learned Counsel for the Petitioner, when asked, informed me that the application for review was dismissed by Shri Siddique Hasan, another Member of the Board of Revenue and not by either of the two Members who had passed orders on 22nd November, 1951, and 26th November, 1951. This was also admitted by the learned Junior Standing Counsel appearing on behalf of the Members of the Board of Revenue. The order of dismissal was passed summarily without giving any bearing to the Petitioner.
(3.) On these facts, it has been contended on behalf of the Petitioner that the order of Shri T.N. Srivastava dated the 26th of November, 1951, is liable to be vacated on the ground that it was passed by him without giving any hearing to the parties in the appeal. Learned Counsel contended that that or er(sic) was not validated and protected by the provisions of the U.P. Board of Revenue (Declaration of Procedure and Validation) Act, 1953, as that Act was ultra vires the U.P. Legislature because it contravened the provisions of Article 14 of the Constitution. Learned Counsel further contended that the order on the review application of the Petitioner passed on 9th December, 1952, was also void on two grounds: One ground was that it was passed by one Member of the Board of Revenue and not by the whole Board of Revenue which would mean all the Members of the Board of Revenue at that time. The second ground was that the order was passed without giving any opportunity to the Petitioner to be heard in support of that application ignoring the principles, of natural justice and was consequently void.;