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2005 DIGILAW 48 (UTT)

Sumitra Devi v. Manju Sharma

2005-02-23

B.S.VERMA

body2005
JUDGMENT Hon'ble B.S. Verma, J.-By the present Writ Petition, the petitioner has challenged the judgment and order dated 19.2.2001 passed by the Sub-divisional Officer/Assistant Collector, 1st Class, Laksar, District Hardwar (Annexure-2 to the Writ Petition) and the judgment and order dated 22.7.2002 passed by the Commissioner, Garhwal Division, Camp Dehradun. She further prayed for upholding the orders dated 18.10.1994 and dated 23.12.2000 passed by the Naib Tehsildar in mutation proceedings under Sections 34/35 of the D.P. Land Revenue Act. 2. Brief facts of the case are that the son of the petitioner, Vinod Kumar, died in the month of June, 1994. and the petitioner applied for mutation of her name in his place on 18.10.1994, being the widowed mother of the deceased Vinod Kumar. The Naib Tahsildar allowed the mutation application vide order dated 18.10.1994 thereby directed that the name of the petitioner be recorded in the revenue records. 3. Smt. Manju Sharma, the sister of the deceased Vinod Kumar, moved an application on 17.12.1999 for restoration to set aside the ex-parte order in favour of the petitioner Smt. Sumitra Devi on the ground that the mutation order passed in her favour was ex-parte and also alleged that Smt. Sumitra Devi remarried in the year 1978 with one Kishan Lal, hence she could not succeed deceased Vinod Kumar and could not get any share because of remarriage and she prayed for setting aside the order dated 18.10.1994 passed by Naib Thasildar. 4. The Naib 1ahsildar rejected the restoration application of the respondent no. 1 vide order dated 23.12.2000. Aggrieved by the said order, the respondent no. 1 preferred Appeal No.7 of 2001 under Section 210 of the U.P. Land Revenue Act before the Assistant Collector/UP Ziladhikari Laksar, who after hearing both the parties, allowed the restoration application by a reasoned order and held that no proclamation was issued according to the Rules as provided in Para 377 A of the Revenue Court Manual and also ignored the report of the Lekhpal regarding remarriage and observed that mutation order was passed in a very hasty manner and no proper reasons have been assigned to reject the restoration application of the respondent no. 1. Accordingly, the appeal preferred by the respondent no. 1 was allowed and the respondent no. 3 thereby set aside the ordered dated 23.12.2000 as well as mutation order dated 17.10.1994 by his order dated 19.2.2001. The respondent no. 1. Accordingly, the appeal preferred by the respondent no. 1 was allowed and the respondent no. 3 thereby set aside the ordered dated 23.12.2000 as well as mutation order dated 17.10.1994 by his order dated 19.2.2001. The respondent no. 3 directed the trial court to issue fresh proclamation to hear objections and after affording opportunity of adducing evidence to decide the mutation case on merit. Aggrieved by the impugned order, the petitioner preferred a Revision registered as Revision No. 14 of 2001 before the Commissioner. Garhwal Division Pauri, Camp Dehradun. The Commissioner also rejected the revisions preferred by the petitioner by a reasoned order and confirmed the order passed by Assistant Collector-respondent no. 3 vide order dated 22-7.2002, against which the petitioner has come up in the Writ Petition. 5. The restoration application of the sister of Vinod Kumar was allowed by the Assistant Collector on the ground that no proclamation had been issued according to the provisions of Revenue Court Manual, Para A-374 to Para A-377 and the Commissioner also confirmed the order on the same ground in the revisional proceeding and observed that no prejudice is caused to the petitioner, because the: Mutation Case is yet to be decided on merit and the petitioner has sufficient opportunity to contest on merit. A ground was taken by the respondents that the petitioner had remarried before the death of Vinod Kumar, hence she was not entitled to succeed to the deceased son. The order passed by the Assistant Collector as well as the Commissioner is based on facts as well as legal aspect and the mutation case is yet to be decided by Tahsildar concerned. 6. By the impugned order. the Assistant Collector in appellate jurisdiction under Section 210 of the Land Revenue Act remanded the case for a fresh decision observing that the mutation case be decided after hearing the objections of respondent, sister of Vinod Kumar, und after hearing the other party also. The petitioner is also at liberty the adduce her evidence on the fact that she had not remarried. This question is a question of fact. It can be decided only by taking evidence by the tahsildar concerned. The Assistant Collector has rightly observed that the proclamation was not issued as per para A-374 to A-377 of the Revenue Court Manual. The mutation is nullity if the proclamation has not been issued. 7. This question is a question of fact. It can be decided only by taking evidence by the tahsildar concerned. The Assistant Collector has rightly observed that the proclamation was not issued as per para A-374 to A-377 of the Revenue Court Manual. The mutation is nullity if the proclamation has not been issued. 7. In view of the discussion aforesaid, I am of the considered view that there is no illegality or infirmity in the impugned order. Moreover, no grave injustice or gross failure of justice has been occasioned by the impugned order to the petitioner. 8. The Writ Petition is devoid of merit and is accordingly dismissed.