Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1349 (ALL)

RAJJAB ALI v. ADDITIONAL COMMISSIONER FAIZABAD

2016-04-12

ANIL KUMAR

body2016
JUDGMENT Hon’ble Anil Kumar, J.—Heard Shri Anoop Srivastava-II, learned counsel for the petitioners, Shri Anant Chaudhary, learned Standing Counsel, Shri Raj Kumar Mishra, learned counsel for the opposite party Nos. 3 and 4 and perused the record. 2. Facts in brief of the present case are that in the instant matter, a dispute pertains to plot No. 488 area 1-4-0 situated in village-Jalalpur Tiwari, Pargana-Jagdishpur, Tehsil-Musafir Khana, District-Sultanpur and plot No. 491 of the petitioners is situated in surrounding area of plot No. 488. 3. Opposite party Nos. 3 and 4 filed an application under Section 28 of the Land Revenue Act, 1901 (hereinafter referred to as Act) before the Collector, Sultanpur/opposite party No. 2 for correction/cancellation of map relating to plot No. 488 on the ground that area of plot No. 488 has been shown less in the map. Thus, a case No. 237 under Section 28 of the Act has been registered before the Collector, Sultanpur. In the said matter, opposite party No. 2 called a report of the Chief Tracer, submitted on 2.2.2005. The same has been confirmed and an order dated 9.6.2005 has been passed for correction of the map. 4. Thereafter, petitioners filed an application for recall of the order dated 9.6.2005, it was rejected by order dated 5.9.2005 passed by the opposite party No. 2, this order has been challenged by the petitioners by filing Revision No. 2617 under Section 219 of the Act, the revision was allowed by order dated 27.4.2007 thereby directing the trial Court/opposite party No. 2 to hear and decide the matter in question on merit after taking into consideration the objections raised by the parties concerned. Accordingly, opposite party No. 2, by order dated 25.8.2008, confirmed the report dated 2.2.2005 submitted by the Chief Tracer and passed an order for correction of the map. 5. The order dated 25.8.2008 was challenged by the petitioner by filing revision under Section 219 of L. R. Act, which was dismissed by order dated 6.11.2009 passed by opposite party No. 1. 6. Aggrieved by the orders dated 25.8.2008 and 6.11.2009 passed by opposite party Nos. 2 and 1 respectively, the present writ petition has been filed. 7. 5. The order dated 25.8.2008 was challenged by the petitioner by filing revision under Section 219 of L. R. Act, which was dismissed by order dated 6.11.2009 passed by opposite party No. 1. 6. Aggrieved by the orders dated 25.8.2008 and 6.11.2009 passed by opposite party Nos. 2 and 1 respectively, the present writ petition has been filed. 7. Shri Anoop Srivastava-II, learned counsel for the petitioners while challenging the impugned orders submits that the report of Chief Tracer dated 2.2.2005 is an ex parte one, no opportunities have been given to the petitioners to raise their grievances against the said report which is basis of passing of the impugned order by the opposite party Nos. 1 and 2. As such, the same are in violation of the principles of natural justice, liable to be set aside. 8. Shri Raj Kumar Mishra, learned counsel for the opposite party Nos. 3 and 4 submits that when the matter came up for consideration before the opposite party No. 2 in the present case, the order dated 27.4.2007 passed in Revision No. 2617 by the revisional authority, opportunities were given to the petitioners to file their objections to the report of Chief Tracer dated 2.2.2005, but they had availed the same by challenging the said report on merit and opposite party No. 2, after taking into consideration the material on record, by order dated 25.8.2008 confirmed the report dated 2.2.2005 submitted by the Chief Tracer and passed order for correction of map. 9. Learned counsel for contesting respondents further submits that the petitioners neither in the pleadings before the opposite party Nos. 1 and 2 nor in the present writ petition have taken any ground that report submitted by Chief Tracer is not in accordance with law, as such, they cannot argue that the report submitted by Chief Tracer dated 2.2.2005 is not corrected. So, there is no illegality or infirmity in the impugned orders under challenge in the present writ petition. 10. Lastly, it is argued by Shri Raj Kumar Mishra, learned counsel for the respondents that the a proceeding under Section 28 of the Act is a summary proceedings, so if a person is aggrieved by the order passed therein, has got remedy to file suit before the competent authority, as such, the present writ petition filed by the petitioners is not maintainable, liable to be dismissed. In support of his argument, he has placed reliance on the judgment given by this Court in the case of Chet Ram and others v. State of U.P. Through Secretary Revenue U.P. At Lucknow and others, 2012(4) ADJ 582 , Brahma Deo and others v. Board of Revenue, U.P. and another, 1986 RD 302. 11. I have heard learned counsel for the parties and gone through the records. 12. In the instant case, an application under Section 28 of the Act has been moved by the petitioners for correction/cancellation of map before the opposite party No. 2. Accordingly, a case No. 237 under Section 28 of the Act has been registered before the Collector, Sultanpur in which Chief Tracer has submitted a report dated 2.2.2005 and taking into consideration the said fact, the order dated 9.6.2005 has been passed. Aggrieved by the said order, an application for recall has been moved, it was rejected by order dated 5.9.2005 passed by the opposite party No. 2. Thereafter, petitioners filed Revision No. 2617 under Section 219 of Land Revenue Act, which was allowed by order dated 27.4.2007 and matter was remanded back to decide afresh. And when the matter came up for consideration before the opposite party No. 2, from the perusal of the record, the position which emerges out is that petitioners have not raised any grievances on merit of the case. After taking into consideration the submission made by learned counsel for the parties and material on record, by order dated 25.8.2008 has been passed by the opposite party No. 2. In the said order, it is stated by the said authority that : Þeq[; vuqjs[kd dh vk[;k esa vafdr eki ds lEcU/k esa foi{kh ds }kjk dksbZ fof/k ,oa rdZ laxr vkifRr ugha dh x;h gSAÞ 13. Meaning thereby opposite party No. 2 has considered the grievances of the petitioners against the report dated 2.2.2005 submitted by Chief Tracer. So the submission made on behalf of the petitioners that no opportunities had been given to the petitioners to file their objections against the said report is contrary to the fact on record. In addition to the said facts, the order dated 25.8.2008 was challenged by the petitioners by filing revision under Section 219 of the Act before the opposite party No. 1. In addition to the said facts, the order dated 25.8.2008 was challenged by the petitioners by filing revision under Section 219 of the Act before the opposite party No. 1. The revisional authority while considering the matter, summoned the Chief Tracer and got the report dated 2.2.2005, verified and came to the conclusion that there is no illegality or infirmity in the report dated 2.2.2005 submitted by the Chief Tracer and passed an order dated 6.11.2009 with the following observations: ÞQStkckn fLFkr pdcanh dk;kZy; ls eq[; vuqjs[kd eks- Lokys dks cqykdj xkVk la- 488 ds vfUre Hkqfp= rFkk iqf"VÑr eSi esa tks vkÑfr gS eSus uki djkbZ blesa bl Hkqfp= ds iqf"VÑr o vfUre uD'kk esa tks eki gS mlh ds vuqlkj voj U;k;ky; esa eq[; vuqjs[kd dh vk[;k fnukad 2-2-2005 esa eki n'kkZ;k x;k gSA blls Li"V gS fd eq[; vuqjs[kd dh vk[;k fnukad 2-2-2005 esa tks eki n'kkZbZ x;h gS og xyr ugha gSAÞ 14. Keeping in view the above said facts and the provisions of Section 219 of the Land Revenue Act quoted herein below : “The Board of the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by any revenue Court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of the order passed or proceeding held and if such subordinate revenue Court appears to have - (a) exercised a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction so vested, or (c) acted in the exercise of jurisdiction illegally or with material irregularity, the Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be, many pass such order in the case as he thinks fit.” 15. The position which emerges out is that the aforesaid provision makes it clear that it is pari materia with Section 115 of the Code of Civil Procedure and the interference can be made by the Revisional Court only when there is an error of jurisdiction in the order of the subordinate authority i.e. either the subordinate authority exercised a jurisdiction which was not vested in him, or refused to exercise a jurisdiction, or acted in the exercise of jurisdiction illegality or with substantial irregularity. 16. In the instant matter, revisional authority on the basis of the material on record came to the conclusion that an order dated 25.8.2008 passed by opposite party No. 2 is perfectly valid while passing the order dated 6.11.2009 dismissing the revision. So I don’t find any illegality or infirmity in the same while exercising the power of judicial review under Article 226 of the Constitution of India. (See Abdul Gaffer v. H.S. Srinivasa Setty (dead) by Lrs., 2002 (1) ARC 129, Thakur Madan Mohanji Maharaj (Sri) and another v. VII Additional District Judge, Mathura and others, 2002 (1) ARC 47 and Basanti Bai (Smt.) v. VIth Additional District Judge, Kanpur and another, 2004 (2) ARC 718). 17. Further from the perusal of the record, it is not undisputed that the petitioners have not pleaded either before the revisional Court or before this Court in respect to their grievances against the report of Chief Tracer, so the said plea cannot be raised and argued by learned counsel for the petitioners at this stage in view of the law laid down by Hon’ble the Apex Court in the case of Ramesh Chandra Sharma v. Udham Singh Kamal and others, (1999) 8 SCC 304 , wherein it has been held that a plea, for which no foundation has been laid before the trial Court or Tribunal, cannot be entertained in writ jurisdiction. The said view was further reiterated in Gopichand Gupta v. Jain Plastic Industry, 2002 (5) SCC 274 , Andhra Pradesh State Electricity Board and others v. J. Venkateswara Rao and others, (2003) 1 SCC 116 and Sahadevan @ Sagadevan v. State, 2003 (1) SCC 534 . 18. The said view was further reiterated in Gopichand Gupta v. Jain Plastic Industry, 2002 (5) SCC 274 , Andhra Pradesh State Electricity Board and others v. J. Venkateswara Rao and others, (2003) 1 SCC 116 and Sahadevan @ Sagadevan v. State, 2003 (1) SCC 534 . 18. Moreover, it is settled law that proceedings under Section 28 of the Act are within the realm of a summary proceedings and if anyone is aggrieved by the order passed therein or the order passed in revision thereto, he has a remedy of filing a suit before the competent Court. Thus, the parties litigation under Section 28 of the Act, even after availing the remedy of revision, have an alternative remedy to get their rights adjudicated by filing suit.” (See Chet Ram and others v. State of U.P. Through Secretary Revenue U.P. At Lucknow and others, 2012(4) ADJ 582 ). 19. For the foregoing reasons, I don’t find any illegality or infirmity in the impugned order under challenge in the present writ petition and the writ petition is dismissed.