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2022 DIGILAW 1515 (ALL)

Mahendra Singh v. Board of Revenue, Allahabad

2022-09-20

CHANDRA KUMAR RAI

body2022
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Sri Suresh Chandra Varma and Sri Ramesh Chandra, learned counsel for the petitioners, Sri Krishna Mohan, Sri Shiv Nath Singh, learned Senior Advocate and Sri Sher Bahadur Singh, learned counsel for respondent no. 3-Gaon Sabha. 2. Brief facts of the case are petitioners filed two suits under Section 229B of U.P.Z.A. & L.R. Act on the basis of lease deed executed in their favour by the erstwhile Zamindar on 22.6.1948 in respect of Khata No. 38 area 10.04 acres. Another suit was filed by Ayodhya. Suits were dismissed by the trial Court against which two appeals were filed i.e. Appeal Nos. 798/312 and 398/213 (Mahendra Singh vs. Gaon Sabha and Others). Additional Commissioner vide separate judgment dated 29.8.1984 dismissed both the appeals. Petitioner no. 1 as well as father of the petitioner no. 2 filed two second appeals which were numbered as Second Appeal No. 3 and 4 of 1984-85. Board of Revenue vide judgment and order dated 11.7.1990 allowed both the appeals and decreed both the suits. Gaon Sabha and State of U.P. were parties to the suit under Section 229B of the U.P.Z.A. & L.R. Act and they had full notice and knowledge of the entire proceeding. Gaon Sabha and State of U.P. filed Restoration Application No. 229 of 2009-10 (State vs. Ayodhya Prasad and Others), learned member of Board of Revenue recorded the finding that judgment dated 11.7.1990 was not ex-parte, as such, the same should be treated as review petition and should be placed before the Division Bench of the Board of Revenue, by the same order effect and operation of the order dated 11.7.1990 has been stayed. The matter was placed before the Division Bench of the Board of Revenue and they held that matter be placed before single member as the application is not review application and it can be treated only as restoration application, accordingly, the matter was again placed before single member of the Board of Revenue. The Board of Revenue vide order dated 18.6.1996 rejected the restoration application dated 11.7.1990 filed by State and Gaon Sabha. On 19.3.2013, two review applications were filed by DGC (Revenue) which were registered as Review Application Nos. 1/2012-13 and 2/2012-13. The Board of Revenue vide order dated 18.6.1996 rejected the restoration application dated 11.7.1990 filed by State and Gaon Sabha. On 19.3.2013, two review applications were filed by DGC (Revenue) which were registered as Review Application Nos. 1/2012-13 and 2/2012-13. Along with review application, the application for condonation of delay and affidavit were also filed, the deponent of the affidavit filed in the support of the review application as well as delay condonation application was not Pradhan of the Gaon Sabha, he was clerk of DGC (Revenue), who has filed his affidavit, review application were placed before the Division Bench of the Board of Revenue vide order dated 25.1.2013. Petitioners filed a Civil Misc. Writ Petition No. 64148 of 2013 against the order of Board of Revenue dated 25.1.2013. The writ petition was disposed of by this Court vide judgment dated 25.11.2013 with direction to decide the review application within two months from the date of production of certified copy of the order. Respondent no. 4, Ravindra also filed a Civil Misc. Writ Petition No. 5377 of 2013 before this Court which was dismissed vide order dated 19.9.2013 with a clear finding that there is no explanation of delay of 22 years. Division Bench of the Board of Revenue vide judgment dated 15.7.2015 allowed both the review applications setting aside the order dated 11.7.1990 passed in Second Appeal Nos. 3 and 4 and second appeal was restored to its original number, hence this writ petition. This Court while entertaining the writ petition at the admission stage has passed the following interim order dated 8.9.2015: “Notice on behalf respondent nos. 1 and 2 has been accepted by Chief Standing Counsel, on behalf of respondent no. 3 has been accepted by Sri Amresh Singh as well as Sri Rajesh Kumar and on behalf of respondent no. 4 has been accepted by Sri Rajesh Mishra. All the respondents are granted one month's time for filing counter affidavit. List in the week commencing 26.10.2015. Till the next date of listing the operation of the order of Board of Revenue dated 15.07.2015 shall remain stayed and parties shall maintain status quo on the spot.” 3. Learned counsel for the petitioners submitted that no sufficient cause has been shown for condonation of delay of 22 years in filing the review application against the order of Board of Revenue allowing the second appeal on merit. Learned counsel for the petitioners submitted that no sufficient cause has been shown for condonation of delay of 22 years in filing the review application against the order of Board of Revenue allowing the second appeal on merit. He further submitted that Board of Revenue has committed illegality while considering the review application taking into consideration the merit of the case also. He also submitted that none of the ground mentioned under Order 47 Rule 1 of Code of Civil Procedure was available but the Board of Revenue has allowed the highly time barred review application. He next submitted that State of U.P. and Gaon Sabha had every knowledge of the entire proceeding even they were heard by the Board of Revenue while the second appeal was allowed on merit in the year 1990, as such, the delay in filing the review application has been illegally condoned and review application has been illegally allowed by the Board of Revenue. He further submitted that Writ (B) No. 51377 of 2013 filed at the instance of respondent no. 4 against the order dated 11.7.1990 passed by Board of Revenue was rejected vide order dated 19.9.2013. Counsel for the petitioners placed reliance upon the judgment of this Court challenged in the case of Kanpur Development Authority through Chairman vs. Raksha Rani Agarwal (First Appeal Defective No. 50 of 2008) dated 9.12.2015 in which the first appeal filed with delay before the High Court was dismissed on the ground of limitation, the Paragraph Nos. 21 and 22 of the judgment rendered in Kanpur Development Authority (supra) are as follows: “21. Following various earlier decisions, some of which have been referred hereinabove, including State of Nagaland vs. Lipok AO (supra) in Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 , in Para 18 of the judgment, the Court said as under: “What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression ‘sufficient cause’ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.” “22. In our view, the kind of explanation rendered in the case in hand does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala-fide, the Court should be reluctant to refuse condonation. On the contrary, we find that here is a case which shows a complete careless and reckless long delay on the part of applicants which has remain virtually unexplained at all. Therefore, we do not find any reason to exercise our judicial discretion exercising judiciously so as to justify condonation of delay in the present case.” 4. On the other hand, counsel for the respondents submitted that the opportunity to State and Gaon Sabha was not properly afforded while deciding the second appeal vide judgment dated 11.7.1990, as such, when the State and the Gaon Sabha came to know about the same, the proceedings were initiated before the Board of Revenue. He further submitted that interest of the State and the Gaon Sabha is involved and the petitioners has get the order in respect of the State land so the judgment of Board of Revenue has been rightly reviewed by the subsequent order of the Board of Revenue. He further submitted that interest of the State and the Gaon Sabha is involved and the petitioners has get the order in respect of the State land so the judgment of Board of Revenue has been rightly reviewed by the subsequent order of the Board of Revenue. He placed reliance upon the judgments reported in Collector Land Acquisition, Anantnag and Others vs. Katji and Others, AIR 1987 SC 1353 and Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649 . On the basis of aforementioned judgment of the Apex Court, counsel for the respondents submitted that liberal view should be taken in respect to the delay condonation matter and in place of rejecting the application, appeal or revision on the technical grounds, the matter should be adjudicated on merit. Counsel for the respondents further submitted that filing of Writ (B) No. 51377 of 2013 is the manipulation of petitioners, as such, no reliance can be placed upon the same. 5. I have considered the argument advanced by learned counsel for the parties and perused the record. 6. There is no dispute about the fact that the suit under Section 229B of U.P.Z.A. & L.R. Act filed by the petitioners were decreed in the second appeal by the Board of Revenue vide judgment and order dated 11.7.1990 after hearing the counsel for the parties. Paragraph No. 5 of the judgment of Board of Revenue will be relevant for perusal which is as follows: “5. The learned counsel for the respondent has argued that the fact as is evident from the extracts from the Khasras and Khataunis filed by the parties, all go to show that the names of the plaintiffs have never appeared in revenue records and if some patta would have actually been executed the name of plaintiff their name must have been brought on record. The learned counsel for the respondent has further argued that evidently the land in dispute has remained recorded as Sanjar belonging to the Gaon Sabha including the revenue records pertaining to consolidation of holdings operations and there is non evidence that the plaintiffs have ever paid any land revenue for the land. The learned counsel for the respondent has further argued that evidently the land in dispute has remained recorded as Sanjar belonging to the Gaon Sabha including the revenue records pertaining to consolidation of holdings operations and there is non evidence that the plaintiffs have ever paid any land revenue for the land. In reply to the contentions of learned counsel for the appellant about the cancellation of the house the learned D.G.C. (R) has said that these contentions are irrelevant for this case nor there is any evidence for that effect.” 7. Perusal of Paragraph No. 5 of the judgment of Board of Revenue fully demonstrate that the judgment dated 11.7.1990 is not ex-parte against the Gaon Sabha and State. The first restoration application filed at the instance of the Gaon Sabha and State was rejected by the Board of Revenue and the second review application filed at the instance of the State and the Gaon Sabha after 22 years of the date of judgment of the Board of Revenue has been allowed, the judgment passed on merit by the Board of Revenue has been set aside. Since the Board of Revenue vide judgment dated 11.7.1990 has allowed the appeal on merit after hearing the counsel for the parties, as such, the State or Goan Sabha can challenge the judgment passed on merit by the Board of Revenue dated 11.7.1990 before the higher Court rather by way of restoration or review before the same Court even after 22 years. It is also material that respondent no. 4 challenged the order dated 11.7.1990 before this Court in the year 2013 which was dismissed by this Court vide order dated 19.9.2013 although counsel for the respondents submitted that filing of Writ (B) No. 5377 of 2013 is the manipulation of the petitioners. 8. The Board of Revenue has arbitrarily condoned the delay in filing the review application and allowed the review application without considering the provisions contained under Order 47 Rule 1 of the Code of Civil Procedure. The provisions of Order 47 Rule 1 of the Code of Civil Procedure are as follows: “1. Application for review of judgment: (1) Any person considering himself aggrieved: (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed. The provisions of Order 47 Rule 1 of the Code of Civil Procedure are as follows: “1. Application for review of judgment: (1) Any person considering himself aggrieved: (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed. (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation - The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.” 9. The Apex Court considering the provisions of Order 47 Rule 1 of Code of Civil Procedure as adjudicated the controversy of review jurisdiction in the following cases: 1. Haryana vs. Mohinder Singh and Others, JT 2002 (10) SC 197. Paragraph No. 5 of the judgment will be relevant which is as follows: “5. We have carefully considered the submissions of learned counsel appearing on either side. The division bench in the High Court, in our view, completely overstepped the limits of its review jurisdiction and on the face of it appears to have proceeded as though it is a rehearing of the whole petition which had been earlier finally disposed of. We have carefully considered the submissions of learned counsel appearing on either side. The division bench in the High Court, in our view, completely overstepped the limits of its review jurisdiction and on the face of it appears to have proceeded as though it is a rehearing of the whole petition which had been earlier finally disposed of. It has often been reiterated that the scope available for a litigant invoking the powers of review is not one more chance for rehearing of the matter already finally disposed of. The course adopted in this case by the High Court appears to be really what has been held by this Court to be not permissible. On this ground alone, without expressing any views on the merits of the claim, the order of the High Court dated 14.5.1999 is set aside and the original order dated 14.5.1998 shall stand restored. While noticing some of the submissions made on merits by either side, we consider it appropriate to place on record that even the learned counsel for the appellant could not seriously dispute the position that the respondents would at any rate be entitled to be placed on the 'first higher standard pay scale' and that to this extent atleast, the respondents' claim would deserve consideration. The appeals are allowed in the above terms. No order as to costs.” 2. Parsion Devi and Others vs. Sumitr Devi and Others, JT 1997 (8) SC 480. Paragraph No. 9 of the judgment will be relevant which is as follows: 9. Under Order 47 Rule 1 CPC a judgment may be open to review inter-alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected.” A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise.” 10. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected.” A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise.” 10. So far as case law cited by learned counsel for the respondent are concerned, it will be relevant to mention here that liberal view can be taken by the Court under the circumstances of the case so that matter can be adjudicated on merit. In the present case second appeal has been adjudicated once on merit vide judgment dated 11.7.1990, as such, for exercising review jurisdiction after 22 years there is no question of taking liberal view by the Court, as such, case laws cited by learned counsel for the respondents are not applicable in the present controversy. 11. Considering the ratio of law laid down by the Apex Court as well as by this Court and the fact that judgment dated 11.7.1990 was passed on merit after hearing both the parties, the review jurisdiction exercised by the Board of Revenue after 22 years from the date of the judgment passed by the Board of Revenue on merit is wholly without jurisdiction and cannot be sustained in the eye of law. The impugned judgment and order dated 15.7.2015 passed by Board of Revenue, Allahabad in Review Application Nos. 1 and 2 of 2012-13 is liable to be set aside and is hereby set aside. The original order of Board of Revenue dated 11.7.1990 shall stand restored. 12. The writ petition is allowed. 13. No order as to costs.