Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2769 (ALL)

RAM DEEN v. COMMISSIONER, GORAKHPUR

2013-11-12

A.P.SAHI

body2013
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner and Sri Rajesh Kumar learned Standing Counsel. 2. Section 201 of the U.P. Land Revenue Act, 1901 provides for filing of a restoration application, if an ex parte order has been passed against a person arrayed in the proceedings. No appeal or revision will lie against such an order which is alleged to be ex parte and therefore the only remedy is to file a restoration application. 3. In the instant case, the Naib Tehsildar had passed an order whereas the restoration has been allowed by the Tehsildar. It is this part of the procedure which was questioned by the respondent in a revision which has been allowed by the learned Commissioner directing that the restoration shall be decided by the Naib Tehsildar. 4. Section 224 of the U.P. Land Revenue Act, 1901 is the charging section under which the State Government confers the powers on the Tehsildars and Naib Tehsildars. Section 231 of the U.P. Land Revenue Act, 1901 provides that the powers of a subordinate authority can be exercised by a superior authority. The Tehsildar is admittedly a superior officer to the Naib Tehsildar. 5. It is also to be noted that the powers that are to be exercised by the Tehsildar can also be exercised by the Naib Tehsildar on account of a conferment by virtue of Section 3 of the U.P. Land Laws Amendment Act No. 10 of 1961. Not only this the said amendment was brought about with retrospective effect and a validating clause was also added in order to ensure that any action taken by the Naib Tehsildar exercising the power of the Tehsildar be saved. It is thus clear that that the powers that are exercisable by the Tehsildar can also be exercised by the Naib Tehsildar and the converse is also true. 6. In the instant case the observation made in the impugned order is that the Board of Revenue has ruled that a restoration application will be entertained by the same Court which had passed the orders and not by any other Court. 7. A perusal of Section 201 would indicate that a rehearing can be conducted on proof of good cause of non-appearance, and the party moving the application satisfies the officer making the order that there has been failure of justice. 7. A perusal of Section 201 would indicate that a rehearing can be conducted on proof of good cause of non-appearance, and the party moving the application satisfies the officer making the order that there has been failure of justice. Such an officer may upon such terms as he thinks fit may revive the case. 8. It is thus clear that the words used by the Legislature in Section 201 are categorical that the restoration application has to be filed before the same presiding officer who had passed the order. The words are not the same Court but the same presiding officer. The presiding officer would naturally mean the persona designata functioning and not the officer by name. This has to be clarified that on account of the fact that the presiding officers of a particular Court keep on changing either due to retirement or otherwise any vacancy arising. Thus the Naib Tehsildar of the Court that passed the orders in the present case will be presumed to be the presiding officer entitled to entertain the restoration application. 9. Learned counsel for the petitioner submits that the said Court was vacant when the restoration application was filed and even when the order came to be passed by the Tehsildar. The submission therefore appears to be that the Tehsildar otherwise had jurisdiction to entertain the restoration application in the absence of the Naib Tehsildar. 10. Section 192 of the U.P. Land Revenue Act, 1901 confers a power to transfer cases to and from subordinates. There is nothing on record to indicate that the case had been actually transferred by invoking the powers under Section 192 to the Court of the Tehsildar who passed the order. There is nothing on record to indicate in the order of the Tehsildar that these orders were being passed on account of the Court of the Naib Tehsildar being vacant. 11. In such circumstances, the arguments advanced on behalf of the learned counsel for the petitioner cannot be accepted as Section 201 is categorical and therefore the conclusion drawn by the learned Commissioner that the restoration application had to be entertained by the same presiding officer does not suffer from any infirmity. 12. So far as the question of maintainability of the revision is concerned this aspect has already been considered in the order passed by this Court on 7.11.2013. 12. So far as the question of maintainability of the revision is concerned this aspect has already been considered in the order passed by this Court on 7.11.2013. The Khatauni which has been filed alongwith the supplementary-affidavit indicates the existence of the name of Abha Devi. Learned counsel for the petitioner disputes the capacity of Abha Devi and her rights on certain grounds. This by itself will not make the revision not maintainable or not entertainable. A revision can be filed provided a material irregularity is found particularly with regard to the jurisdiction of the officer to entertain an application. Abha Devi being mentioned and recorded in the Khatauni had a basis for filing the revision. The merits of her claim are a different aspect. 13. In the instant case the issue was the entertaining of the restoration application by the Tehsildar and passing an order on the same which otherwise was maintainable before the Naib Tehsildar himself. As noticed and held hereinabove, the restoration was to be considered and decided by the Naib Tehsildar except where Section 192 of the 1901 Act was invoked. 14. So far as the issue of the vacancy of the Court is concerned that can be looked into by the competent authority and in the event the Court of the Naib Tehsildar is vacant it is still open to the higher authority to invoke its power under Section 192 and then proceed to pass an appropriate order if the Naib Tehsildar is not available. In the circumstances, there is no occasion for this Court to interfere with the impugned orders. 15. The writ petition is dismissed with a direction that the restoration application may be disposed of as expeditiously as possible preferably within a period of six months.