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2012 DIGILAW 1094 (ALL)

Husain Ali and Others v. Fakrey Alam and Others

2012-05-08

A.P.SAHI

body2012
A.P. Sahi, J.;— This writ petition is yet another example of unscrupulous litigants, who clearly misuse and abuse the process of Court to gain their own ends. In the background of the case, therefore, this calls for a strict action in the matter. One Mohib Ullah admittedly the uncle of the petitioners died on 30.11.1993. Upon his death, the respondent No.1 - Fakrey Alam representing himself to be the son of Late Mohib Ullah, moved an application under Section 34 for mutation of his name against the holding in question. On coming to know of this step taken by the respondent No.1, the petitioners filed an objection. Ultimately, the authority proceeded to pass an order on 10.1.1995 rejecting the application of the petitioners and allowing the mutation application of Respondent No.1 - Fakrey Alam. Aggrieved, the petitioners preferred an appeal, which was dismissed on 9.6.1997. A revision was filed by the petitioners against the appellate order before the learned Commissioner, who allowed the same on 1.9.2007 on merits. The mutation in favour of the petitioners was, therefore, to be carried out in terms of the said order and simultaneously the order passed in favour of Respondent No.1 was set aside. The respondent No.1 thereafter moved an application for restoration, copy whereof is Annexure-4 to the writ petition, to which objections were taken by the petitioners on the ground that the matter had been heard and decided on merits and, as such, no restoration or review was permissible on the ground so taken. The restoration application, filed by respondent No.1, was rejected on 16.11.2007; copy whereof is Annexure-9 to the writ petition. The respondent No.1 filed a fresh application for restoration and re-hearing of the revision on 20.11.2007; copy whereof is Annexure-10 to the writ petition, which was entertained by the learned Commissioner and an interim order of status-quo was also passed thereon. It is the said order dated 20.11.2007 which is under challenge in this writ petition. During the pendency of the writ petition, an interim order was passed herein on 7.12.2007 directing the parties to maintain status-quo and prohibiting them from transferring the land in dispute till the next date of listing. It appears that Respondent No.1 filed a revision before the Board of Revenue against the order dated 16.11.2007. The Board allowed the revision on 22.12.2011, as such, petitioners, aggrieved by the said order, filed a review application. It appears that Respondent No.1 filed a revision before the Board of Revenue against the order dated 16.11.2007. The Board allowed the revision on 22.12.2011, as such, petitioners, aggrieved by the said order, filed a review application. It was brought to the notice of the Board that the fact of the pendency of this writ petition as well as the interim order passed herein was concealed. The matter was being contested before the High Court. The learned Member, who had allowed the revision on 22.12.2011, set aside the said order on 23.3.2012 and stayed further hearing in the revision on the ground that the matter was pending before this Court. These facts have been brought on record through a supplementary-affidavit which are undisputed. Mohd. Arif, learned counsel for the petitioners, submits that the entire action of the learned Commissioner and Addl. Commissioner in proceeding to entertain the restoration/review application dated 20.11.2007 is without jurisdiction. Sri S.F.A. Naqvi, on the other hand, contends that no proper opportunity of hearing had been granted when the order dated 1.9.2007 had been passed and, therefore, in order to do complete justice between the parties, it was necessary that the matter should have been restored and again heard on merits. Sri Naqvi submits that the answering respondent No.1 is the son of Late Mohib Ulla and that there was evidence in support of his contention which has been completely ignored, as such, the order dated 1.9.2007 was legally unsustainable. It is for this reason that the matter was directed to be heard again by the order impugned in the present petition. Replying to the aforesaid submission, Mohd. Arif submits that once the first restoration application had been rejected on 16.11.2007, the second restoration dated 20.11.2007 was even otherwise not entertainable. He contends that there was neither any error apparent on the fact of record nor there was any cause of fraud of misrepresentation so as to restore or review the earlier order dated 1.9.2007. He submits that the impugned order is patently without jurisdiction and the respondent No.1 had indulged into an activity which clearly amounts to misuse and abuse of the process of Court. He, therefore, submits that the writ petition deserves to be allowed with costs against the respondent No.1. Having heard learned counsel for the parties, it is evident that the revision filed by the petitioner was allowed on 1.9.2007. He, therefore, submits that the writ petition deserves to be allowed with costs against the respondent No.1. Having heard learned counsel for the parties, it is evident that the revision filed by the petitioner was allowed on 1.9.2007. A bare perusal of the recital contained therein leaves no room for doubt that the matter was decided after contest and after hearing the counsel for the parties. The allegation of Respondent No.1 that no proper opportunity had been given is, therefore, erroneous and against the weight of evidence on record. Learned Commissioner, therefore, had no power to entertain any restoration or review application. It is for this reason that when the restoration application was filed for the first time by the respondent No.1 on 12.9.2007 that the learned Commissioner rejected the same on 16.11.2007. In my opinion, the said rejection order became final as the petitioner did not challenge the same before any higher forum. The respondent No.1 had no occasion to move a second restoration/review application for the same cause of action. The learned Commissioner, therefore, grossly erred in proceeding to entertain the second review application and pass an order of status-quo thereon which order is impugned herein. In the opinion of the Court, the power of review of a quasi judicial or Administrative Authority can be invoked only if there is a statutory provision or in the event of any fraud or misrepresentation. In the instant case, there is nothing on record to assume that there is any fraud or misrepresentation. The orders dated 1.9.2007 and 16.11.2007 were both passed on merits. If the respondent No.1 was aggrieved by the said orders, he could have approached the higher forum. There was no power available to the authority for restoration or review of the said order. The learned Commissioner in entertaining the said application and then passing the interim order, committed a manifest error. The action is legally unsustainable and, as such, the impugned order deserves to be set aside. Apart from this, the other striking feature of this case is that the respondent No.1 indulged in misrepresenting facts before the Board of Revenue by filing a revision after the filing of the counter-affidavit in the present petition. The respondent No.1 was under an obligation to have mentioned these facts before the Board of Revenue and the Board of Revenue was obliged to take notice of such facts. The respondent No.1 was under an obligation to have mentioned these facts before the Board of Revenue and the Board of Revenue was obliged to take notice of such facts. The revision was filed against the order dated 16.11.2007. This order was passed rejecting the first restoration application. In such circumstances, the respondent No.1 is also guilty of concealment of facts before the Board of Revenue. The Board, therefore, rightly set aside its order dated 22.12.2011 and stayed any further hearing therein. The Board of Revenue could not have entertained the said revision when the same matter was directly engaging the attention of this Court. Accordingly, in the opinion of the Court, proceedings before the Board of Revenue also deserve to be consigned. Since the contest basically is as to whether the respondent No.1 is the son of Mohib Ullah or not, it shall be open to the respondent No.1 to establish his claim before the regular forum by filing a Suit and leading evidence in that regard. In view of the facts that have been brought on record, this writ petition deserves to be allowed with costs on the respondent No.1. Accordingly, the writ petition is allowed and the order dated 20.11.2007 (Annexure-10 to the writ petition) is quashed. It is held that learned Commissioner had no power to entertain the second restoration application. It is further found that the respondent No.1 has misused and abused the process of law in order to obtain the order from the Board of Revenue, as such, a cost of Rs. 5000/- is hereby imposed on the respondent No.1 to be payable to the petitioner within a month. _____________