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Allahabad High Court · body

2020 DIGILAW 25 (ALL)

Jagdish Prasad v. State of U. P.

2020-01-03

SALIL KUMAR RAI

body2020
JUDGMENT : Salil Kumar Rai, J. 1. Heard the Counsel for the parties. 2. The facts of the case are that petitioner No. 1 i.e. Jagdish Prasad filed an application for mutation praying that he, along with Bahadur and Bhudhoo i.e. the predecessor of petitioner Nos. 2 to 4, be recorded as tenure holder of Plot Nos. 91 & 92 after deleting the name of Sita Ram, Chedi Lal and Jag Lal i.e. respondent No. 4 and the predecessors of respondent Nos. 5 to 7. 3. On the aforesaid application of petitioner No. 1, Case No. 168 under section 34 of the U.P. Land Revenue Act, 1901 was registered before the Tahsildar, Chunar. The claim of the petitioner No. 1 was based on some family settlement dated 14.6.1986 allegedly entered into between the parties. The Tahsildar, Chunar vide his order dated 16.1.1987 allowed the application filed by petitioner No. 1 and directed that the petitioner No. 1 along with Bhudhoo and Bahadur i.e. the predecessor of petitioner Nos. 2 to 4 be recorded as tenure holder of the disputed plots after expunging the name of respondent No. 4 and the predecessor of respondent Nos. 5 to 7 from the revenue records. The order dated 16.1.1987 was passed on the ground that respondent No. 4 and the predecessors of respondent Nos. 5 to 7 had themselves filed an application dated 7.1.1987 admitting the case of the petitioners and Sita Ram had also admitted the case of the petitioners in his oral testimony given before the Tahsildar. Subsequently, the respondent No. 4 and predecessors of respondent Nos. 5 to 7 filed an application dated 10.3.1993 for recall of the order dated 16.1.1987. The Tahsildar vide his order dated 13.12.1999 allowed the said application and recalled his order dated 16.1.1987. The said order has been affirmed by the Board of Revenue vide its order dated 17.6.2011 passed in Revision No. 32 LR/99-2000 filed by the petitioners and the review application filed by the petitioners has been dismissed by the Board of Revenue vide its order dated 18.8.2011. The orders dated 13.12.1999, 17.6.2011 and 18.8.2011 have been challenged in the present writ petition. 4. The orders dated 13.12.1999, 17.6.2011 and 18.8.2011 have been challenged in the present writ petition. 4. The order dated 13.12.1999 has been passed by the Tahsildar on the ground that through Government Order No. 489/11-92 dated 20.1.1992, the revenue authorities had been prohibited from passing orders on mutation application on the basis of any family settlement allegedly entered into between the parties. The said Government Order has been annexed as Annexure No. SA-I to the Supplementary Affidavit. A perusal of the Government Order shows that it only prohibits mutation on the basis of agreement to sale, power of attorney and share certificates and there is no prohibition to pass appropriate orders for mutation on the basis of any family settlement entered into between the parties. 5. Apart from the aforesaid, the Explanation to section 34 of the U.P. Land Revenue Act, 1901 clearly provides that the word 'transfer' in section 34 includes a family settlement by which the holding or part of the holding recorded in the record-of-rights in the name of one or more members of that family is declared to belong to another or other members. 6. Thus, the reasons given by the Tahsildar in his order dated 13.12.1999 relying on the Government Order are apparently illegal and not sustainable. There is no finding in the order dated 13.12.1999 regarding opportunity of hearing to the respondents or their predecessors and regarding the application dated 7.1.1987 and also regarding the testimony of Sita Ram admitting the case of the petitioners. Such a finding was necessary as the order dated 16.1.1987 was passed relying on the alleged application dated 7.1.1987 and the oral testimony of Sita Ram. Evidently to that extent the order dated 13.12.1999 is also a non-speaking order. 7. For the aforesaid reasons, the order dated 13.12.1999 is contrary to law and is liable to be set aside. In its order dated 17.6.2011, the Board of Revenue has not considered the aforesaid aspect and as, in a very cryptic manner, dismissed the revision filed by the petitioners. The said order is also a non-speaking order. 8. For the aforesaid reasons, the orders dated 13.12.1999, 17.6.2011 passed by the Tahsildar, Chunar and the Board of Revenue are contrary to law and are liable to be set aside. The said order is also a non-speaking order. 8. For the aforesaid reasons, the orders dated 13.12.1999, 17.6.2011 passed by the Tahsildar, Chunar and the Board of Revenue are contrary to law and are liable to be set aside. The order dated 18.8.2011 passed by the Board of Revenue is merely consequential to the order dated 17.6.2011 and the same is also liable to be set aside. 9. The writ petition is allowed. The orders dated 13.12.1999, 17.6.2011 and 18.8.2011 are hereby quashed. The matter is remanded back to the Tahsildar Chunar to pass fresh orders in accordance with law and in light of the observations made in the present judgment on the recall application filed by the petitioners. The Tahsildar, Chunar, Mirzapur/Sonbhadra shall pass fresh orders on the recall application filed by the respondents within a period of six months from the date a certified copy of this order is produced before him. Till fresh orders are passed by the Tahsildar, Chunar, i.e. District Mirzapur/Sonbhadra, parties shall maintain status quo regarding the disputed plots.