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2009 DIGILAW 523 (UTT)

PUNNI v. SAMAY SINGH

2009-10-22

ALOK SINGH

body2009
JUDGMENT Case called out in the revised list. 2. None appears for the respondent, although Sri S.C. Bhatt, Advocate has filed Vakalatnama. His name is also shown in the cause list. 3. Order dated 20.10.2009 also shows that none was present for respondent on 20.10.2009 too. Hence, this court has no option except to proceed in absence of counsel for the respondent. 4. Heard Mr. Tapan Singh, learned counsel for the petitioner. Present writ petition is filed challenging the order dated 08.01.2004 passed by learned Board of Revenue, U.P. thereby accepting the recommendations made by ADM, Saharanpur for settling aside the order dated 06.05.1988 of Tehsildar, Roorkee by which learned Tehsildar recalled the ex parte proceedings order on the payment of Rs. 20/- as costs and opportunity of being heard was granted to the petitioner. 5. Brief facts of the case inter alia are that on the death of one Mr. Surja respondent – Samay Singh moved an application for mutation before learned Tehsildar, Roorkee on the basis of alleged WILL dated 18.06.1975. Learned Tehsildar at the first stage allowed the mutation application vide judgment dated 14.03.1983 observing WILL as a genuine document. Feeling aggrieved by the judgment dated 14.03.1983 allowing the mutation in favour of respondent herein, petitioner herein preferred an appeal before Assistant Collector First Class. Learned Appellate Court – Assistant Collector First Class vide judgment dated 08.08.1983 allowed the appeal and judgment passed by learned Tehsildar was set aside. Feeling aggrieved by the judgment passed by the learned Appellate Court dated 08.08.1983 a Revision was preferred by the respondent herein before learned Commissioner, Meerut, which ultimately went to Board of Revenue on the recommendation made by Revisional Court. Learned Board of Revenue vide judgment dated 14.08.1986 disposed of the Revision with a direction that the matter shall be heard afresh by learned Tehsildar and learned Tehsildar was further directed that case would be decided after giving opportunity of leading evidence and hearing afresh to the parties. 6. After the remand from the Board of Revenue learned Tehsildar proceeded with the matter and meanwhile passed an order on 26.04.1988 proceeding ex parte against the petitioner herein. Petitioner herein moved an application on 26.04.1988 to recall order dated 26.04.1988 so that she may also place her stand before the learned Tehsildar. 6. After the remand from the Board of Revenue learned Tehsildar proceeded with the matter and meanwhile passed an order on 26.04.1988 proceeding ex parte against the petitioner herein. Petitioner herein moved an application on 26.04.1988 to recall order dated 26.04.1988 so that she may also place her stand before the learned Tehsildar. Learned Tehsildar vide order dated 06.05.1988 allowed the application of the petitioner herein and pleased to grant opportunity of being heard to the petitioner herein subject to payment of Rs. 20/- as costs. This order of learned Tehsildar was put under challenge by the respondent here in before ADM, Saharanpur/Revisional Court under Section 219 of U.P. Land Revenue Act, 1901. 7. Learned Revisional Court made recommendation to the Board of Revenue vide judgment dated 27.02.1989 for setting aside the order dated 06.05.1988 passed bys learned Tehsildar. On the recommendation made by the Revisional Court, Board of Revenue took up the matter and passed impugned order thereby setting aside the order dated 06.05.1988 passed by learned Tehsildar, Roorkee by which learned Tehsildar has granted opportunity of being heard to the petitioner with costs of Rs. 20/-. 8. The main argument of Mr. Tapan Singh is that order passed by learned Tehsildar dated 06.05.1988 was perfectly correct because the court should grant opportunity of being heard and the learned Tehsildar granted opportunity of hearing on payment of Rs. 20/- consequently, he has committed no illegality therein. Otherwise also the Revisional Court should not have entered in the routine orders by which opportunity of being heard was granted to the parties. Second argument of Mr. Tapan Singh is that after creation of State of Utarakhand Board of Revenue, Uttar Pradesh, in view of Section 91 of the U.P. Reorganization Act, 2000 has no jurisdiction to pass impugned order. 9. As mentioned above, there is none to represent the respondent. 10. I have carefully examined the record and argument advanced by Mr. Tapan Singh, learned counsel for the petitioner. 11. Learned Tehsildar was absolutely within his jurisdiction while passing the order dated 06.05.1988 for granting opportunity being heard to the petitioner. It is a settled principle of law no one should be left unheard while deciding the case. Otherwise also refusing to grant opportunity of hearing to the parties before the Court would amount to grant walk over to the other party. It is a settled principle of law no one should be left unheard while deciding the case. Otherwise also refusing to grant opportunity of hearing to the parties before the Court would amount to grant walk over to the other party. Grant of opportunity of being heard to the parties of the case is a rule and denial there of is an exception. Applying the principle “none should be kept unheard” it can be safely said that learned Tehsildar was absolutely within his jurisdiction while passing the order dated 06.05.1988. Learned Revisional Court was not within its jurisdiction to interfere in the interlocutory order by which learned Tehsildar granted opportunity of being heard. No revision lies against the interlocutory order. In other words against the order by which no lis is decided no revision lies. Since learned Tehsidar had not decided any lis between the parties while passing the order, the Revision was not at all maintainable. 12. Not only this after creation of State of Uttarakhand learned Board of Revenue, Uttar Pradesh has absolutely no territorial jurisdiction over the matter. On this account also impugned order passed by Board of Revenue cannot be sustained. 13. Writ Petition is allowed. Impugned order dated 08.01.2004 passed by Board of Revenue, Uttar Pradesh is set aside. Learned Tehsildar is directed to decide the case on merit after giving opportunity to the parties of being heard. Costs easy.