Choudhary, J. - (1.) THIS is an application under Article 226 of the Constitution for a writ of certiorari quashing an order of the Board of Revenue dated 25th November 1953, and 22nd December, 1953. This order was the culmination of an application filed by the Petitioner under Section 175 of the U.P. Tenancy Act for ejectment of the opposite parties Murli Singh and Murari. Murari died during the pendency of the present writ petition and his legal representatives have been brought on record. The remaining Opposite party is the Board of Revenue.
(2.) THE proceedings under Section 175 were filed by the Petitioner against the said opposite parties before the Tahsildar of Hapur on 27th September, 1946. As the case was contested, it was transferred to the court of the Revenue Officer Hapur. The Revenue Officer dismissed the suit on 24th June, 1948 and the Petitioner filed an appeal against it before the Commissioner Meerut on 31st August 1948. The Commissioner allowed the appeal and ordered ejectment on 25th January, 1949. Against this decision of the Commissioner the aforesaid opposite parties went up in second appeal to the Board of Revenue. The Board of Revenue summarily rejected the second appeal on 5th June, 1949 under Section 268 of the Act. Thereupon the opposite parties filed on 25th June, 1949 an application for review of the judgment dated 5th June, 1949. The review application was admitted on 31st January, 1950 and notices for hearing were issued fixing 23rd November, 1953. On 25th November, 1953 Sri S.N. Mittra, a Member of the Board, set aside the order dated 5th June, 1949 and simultaneously allowed the appeal of the opposite parties and dismissed the Petitioner's suit. This order was concurred in by another Member of the Board, Sri A. Rauf, on 22nd December, 1953. The aforesaid decision of the Board of Revenue dated 25th November, 1953 and 22nd Dec, 1953 has been challenged before me on two grounds: (1) that in view of the provisions of Section 273 of the U.P. Tenancy Act the entire Board and not only two of its members, could have heard and disposed of the opposite parties' application for review, and (2) that while reviewing the order dated 5th June, 1949 the Board had no jurisdiction to allow the second appeal, specially without notice to the Petitioner. Neither of these contentions has any force. In support of the first ground the Learned Counsel for the Petitioner cited the case of Dulichand v. Judicial Members of the Board of Revenue, 1954 A.W.R. (H.C.) 581, where it was held by a single learned Judge of this Court that under Section 273 an application for review has to be decided by the entire Board of Revenue. A contrary view was held in another single Judge decision reported as Maktool v. The Board of Revenue, 1954 A.L.J. 430. The controversy has been set at rest by a Division Bench ruling of this Court in Civil Miscellaneous Writ No. 235 of 1953, decided on 5th April, 1955, where it has been held that it is open to the Board of Revenue to delegate the power of review in exercise of its appellate business under Rule 170 of the Rules framed under Section 293 of the U.P. Tenancy Act, 1939, except that the Board's delegated power of review cannot be exercised by a single Member, the concurrence of the second Member being necessary. The impugned order in the present case was not the order of a single Member but was concurred in by a second Member. It was therefore a valid order and the first ground taken on behalf of the present Petitioner fails.
(3.) AS regards the second ground, the allegation in the Petitioner's affidavit that he was not served with notice for the hearing of the review application on 23rd November, 1953 should be accepted, as it is admitted on behalf of the aforesaid opposite parties. The other contention of the Petitioner cannot however be accepted, namely, that his counsel, Sri Brij Bhan Kishore, happened to be present in court only because he had been appointed by the Petitioner to inspect the file of the case. The averment in the counter -affidavit of the opposite parties is that Sri Brij Bhan Kishore Advocate informed the court on 23rd Nov. 1953 that he had duly informed the present Petitioner about the date fixed for hearing, and that the Petitioner had given him no instructions for that date. The petitioner has not cared to file any affidavit of Sri Brij Bhan Kishore Advocate in support of his own allegation or to controvert the aforesaid allegation in the counter -affidavit of the opposite parties. The order of Sri S.N. Mittra, Member of the Board of Revenue, dated 25th November 1953, a copy of which has been filed by the Petitioner, appears to support the version contained in the counter -affidavit of the opposite parties. It was observed in this connection by Sri S.N. Mittra in his aforesaid order then the Learned Counsel for the Respondent (meaning the present Petitioner) had withdrawn as he had no instructions. The contention of the Petitioner that the order dated 25th November, 1953 was passed without notice to him cannot therefore be accepted.;