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2016 DIGILAW 3650 (ALL)

Dhananjay Tripathi v. Board of Revenue, Allahabad

2016-11-07

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta, J. – Heard counsel for the petitioner, learned standing counsel for respondent nos. 1, 2, 3 & 12, Sri K.K. Dubey for respondent nos. 4 & 7 and Sri R.P. Shastri on behalf of respondent nos. 5, 6, 8, 9, 10 & 11. With their consent, this writ petition is being disposed of finally without inviting a formal counter affidavit. 2. The petitioner, who is a purchaser pendente lite of the disputed property, which was subject matter of a suit under Section 229 B of the U.P. Z.A. & L.R. Act 1950 made an application seeking his impleadment in the suit. The trial court by order dated 8.1.2013 rejected the impleadment application holding that the sale in favour of the petitioner is hit by Section 52 of the Transfer of Property Act and also decreed the suit on the same date. Aggrieved thereby, the petitioner filed an appeal before the Commissioner, Gorakhpur Division, Gorakhpur. By order dated 14.3.2013, the appellate authority admitted the appeal and finding prima-facie case in favour of the petitioner also restrained the parties from creating third party rights in the disputed property. Aggrieved thereby, the contesting respondents filed a revision before the Board of Revenue, which was dismissed by order dated 23.4.2014. Aggrieved thereby, the contesting respondents filed Writ-B No. 34671 of 2014 before this Court. This Court declined to interfere in the matter, but liberty was granted to the contesting respondents to file application seeking recall of order dated 14.3.2013 passed by the Commissioner, Gorakhpur Division, Gorakhpur in the appeal filed by the petitioner. The operative part of the order of this Court is as under: - "Be that as it may, I am not inclined to interfere in this matter at this stage. The petitioner is at liberty to file an application seeking recall of the order dated 14.3.2013 passed by the Commissioner, Gorakhpur Division, Gorakhpur taking all those grounds which have been taken here in this writ petition. In case such an application is filed within a period of two weeks along with a certified copy of the order of this Court, the Commissioner before proceeding any further shall pass a reasoned and speaking order on the application of the petitioner. In case such an application is filed within a period of two weeks along with a certified copy of the order of this Court, the Commissioner before proceeding any further shall pass a reasoned and speaking order on the application of the petitioner. As an interim measure, it is provided that till the disposal of the petitioners' application neither any third party right shall be created nor the nature of the land shall be changed. With the aforesaid observation/direction the writ petition is disposed of." 3. The contesting respondents, on the basis of the liberty granted to them by this Court filed an application seeking recall of order dated 14.3.2013. The Commissioner, Gorakhpur Division, Gorakhpur by order dated 31.3.2016 rejected the said application holding that going into the issues raised therein, would amount to considering the controversy on merits, which was to be decided at the stage of hearing of the appeal. Aggrieved thereby, the contesting respondents filed a revision before the Board of Revenue, which has been allowed by impugned order dated 26.8.2016. It has been held by Board of Revenue that the sale deed in favour of the petitioner is hit by Section 52 of the Transfer of Property Act and consequently, the appeal at his instance was incompetent. Accordingly, the order dated 14.3.2013 admitting the appeal as well as subsequent order dated 31.3.2016 passed by Commissioner have been set aside. 4. Learned counsel for the petitioner submitted that the Board of Revenue transgressed the scope of revision in going into the issue relating to maintainability of the appeal. It is urged that the limited question which could have been considered by the Board of Revenue was whether the appellate authority was justified in rejecting the recall application dated 12.9.2014. It is further urged that without recording a finding that the vendor of the petitioner had knowledge of the injunction order, the Board of Revenue erred in holding that the sale was executed in violation of the same. 5. On the other hand, Sri K.K. Dubey and R.P. Shastri appearing on behalf of contesting respondents contended that in the memo of appeal, no ground has been raised to the effect that the petitioner or his vendor, had no knowledge of the injunction order. It is submitted that in such circumstances, the petitioner cannot be permitted to raise a new plea before this Court. It is submitted that in such circumstances, the petitioner cannot be permitted to raise a new plea before this Court. However, they could not dispute that the revision filed by the contesting respondents before the Board of Revenue was directed against the order of the Commissioner dated 31.3.2016 by which the Commissioner had refused to go into the question relating to the maintainability of the appeal as a preliminary question. They also very fairly conceded that the said issue has yet not been considered and decided by the appellate authority before whom the appeal was filed. They, therefore very fairly suggested that the appellate authority be directed to decide the said issue as a preliminary issue, as directed by this Court by order dated 6.8.2014 in Writ-B No. 34671 of 2014, to which Sri S.C. Verma, learned counsel appearing on behalf of petitioner also does not have any objection. 6. Accordingly, and in view of the statement of the learned counsel for the parties, as noted above, this writ petition is allowed. The impugned order of the Board of Revenue dated 26 August 2016 is quashed. The appeal filed by the petitioner shall stand restored to its original number and the Commission, Gorakhpur Division, Gorakhpur shall proceed to decide the issue relating to maintainability of the appeal, at the instance of the petitioner, as a preliminary point, within a period of one month from the date of production of a certified copy of this order by any of the parties. Petition Allowed.