Brij Mohan Lall, J. - (1.) THIS is a petition by one Ghasitoo under Article 226 of the Constitution praying that this Court may quash an order passed by Sri S.N. Mitra, Judicial Member, Board of Revenue, U.P. Allahabad, on 30th July, 1953 and may stay the operation of the said order.
(2.) IT appears that one Saroop Singh instituted a suit under Section 183 of the U.P. Tenancy Act (XVII of 1939) against the Petitioner and several others. That suit was decreed by the trial court. On an appeal to the Commissioner the decision of the trial court was reversed and the suit was dismissed. Saroop Singh then filed a Second Appeal in the Board of Revenue which came up for hearing before Sri S.N. Mitra, Judicial Member of the Board of Revenue. Sri Mitra agreed with the view taken by the Commissioner and was of the opinion that the appeal should be dismissed. But Sri Mitra was conscious of the fact that in dismissing the appeal he was taking a view, on the question of interpretation of Section 246 of the U.P. Tenancy Act, which was inconsistent with a previous decision of the Board of Revenue. He was, however, desirous to have that previous decision overruled and he consequently referred the case to his colleague, Sri Rauf, for concurrence. The last two paragraphs of his judgment, which have been numbered as 9 and 10, are as follows: 9. The appeal has no force and must be dismissed with cost and counsel's fee of Rs. 40. 10. As it is proposed to overrule one of the Members of the Board, this case is sent to my learned colleague for concurrence. It may be mentioned at this stage that under Rule 170 of the Revenue Court Manual it is open to a learned Member of the Board to dismiss a second appeal himself without seeking the concurrence of any other colleague of his. If, however, it is desired to allow the appeal, he has to send the case to his colleague. If the colleague to whom the case has been referred agrees with the referring Member, the appeal is allowed. But if he differs, the appeal has to be dismissed. In the other words, it is not until both the Members agree that the decisions of the Commissioner can be upset.
(3.) GIVING the aforesaid two paragraphs of the judgment their plain meaning, it is obvious that Sri Mitra had finally made up his mind about dismissing the appeal, and he did not need the concurrence of his colleague for the purpose of dismissing the appeal. He could do so by his own order and, as a matter of fact, he purported to do so. The only object in referring the case to his colleague was to overrule the previous decision of the Board.;