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2024 DIGILAW 1003 (ALL)

Rama Shanker v. Board of Revenue U. P.

2024-04-08

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Suresh Chandra Dwivedi, learned counsel for the petitioners, Mr. N. D. Shukla, learned counsel for respondent Nos. 4 to 6 as well as Mr. Hari Prasad Singh, Advocate in person who is impleaded as respondent No.3 in the instant petition. 2. Brief facts of the case are that respondent Nos. 3 to 6 filed an application under section 34 of U.P. Land Revenue Act, 1901 for recording their names on the basis of sale deed dated 15.01.1975/06.10.1977 executed by Smt. Sumariya in favour of Hari Prasad Singh and others. The aforementioned mutation case was registered as case No.87/52 before Naib Tehsildar, Meja, Allabahad. The Naib Tehsildar heard the matter and vide order dated 13.07.1978 rejected the mutation application filed by respondent Nos. 3 to 6. Against the order dated 13.07.1978 passed by Naib Tehsildar, respondent Nos. 3 to 6 filed an appeal under Section 210 of U.P. Land Revenue Act 1901 which was registered as Appeal No.2013 before Sub Divisional Magistrate, Meja, Allahabad. The aforementioned appeal was heard by Sub Divisional Magistrate, Meja, Allahabad and vide order dated 29.01.1979, the aforementioned appeal was dismissed. Respondent Nos.3 to 6 filed revision before Commissioner against the order dated 13.07.1978 and 29.01.1979 and the reference was sent by Additional Commissioner vide order dated 07.05.1980 before the Board of Revenue accordingly, reference was registered as reference case No.299 before Board of Revenue. In the aforementioned reference an order dated 07.05.1997 was passed by Board of Revenue by which reference was accepted and order of Naib Tehsildar as well as Sub Divisional Magistrate were set aside the as well as the names of respondent Nos. 3 to 6 were ordered to be recorded as vendees of Smt. Sumariya. Petitioners filed a restoration application against the order dated 07.05.1997 before Board of Revenue and the same was allowed vide order dated 18.11.2000 setting aside the earlier order dated 07.05.1997 and restored the reference case on its original number. The Board of Revenue vide subsequent order dated 01.03.2001 rejected the reference sent by the Additional Commissioner and maintained the order dated 13.07.1978 and 29.01.1979. Against the order dated 01.03.2001 passed by Board of Revenue respondent Nos. 3 to 6 filed review application before Board of Revenue which was registered as Review Application No.109/L.R.2000-2001. The aforementioned review application was rejected by Board of Revenue vide order dated 13.07.2001. Respondent Nos. Against the order dated 01.03.2001 passed by Board of Revenue respondent Nos. 3 to 6 filed review application before Board of Revenue which was registered as Review Application No.109/L.R.2000-2001. The aforementioned review application was rejected by Board of Revenue vide order dated 13.07.2001. Respondent Nos. 3 to 6 filed a second review application to recall the earlier order dated 13.07.2001 and 01.03.2001 which was registered as review application No.261/2000-2001. The Board of Revenue vide order dated 21.08.2001 granted interim order staying the earlier order dated 01.03.2001. Against the order dated 21.08.2001 petitioners filed a writ petition No.15684 of 2003 before this Court which was disposed of vide order dated 13.05.2005 with the direction to the Board of Revenue to decide the review application of the respondent within a period of two months. The Board of Revenue vide order dated 25.05.2006 allowed the second review application filed by respondent No.3, setting aside the order dated 01.03.2001 as well as directed to record the name of respondent Nos.3 to 6 in place of Smt. Sumariya. Hence this writ petition on behalf of the petitioner challenging the order dated 25.05.2006 passed by the Board of Revenue. 3. Civil Suit No.576 of 1976 filed by petitioners for cancellation of sale deed executed on 15.01.1975 and another Civil Suit No.944 of 1980 filed by petitioners for cancellation of Sale deed executed on 06.10.1977 are pending before Civil Court. 4. This Court vide order dated 15.06.2006 entertained the matter and issued notice to respondent Nos. 3 to 6 as well as stayed the operation of the order dated 25.05.2006 passed by Board of Revenue. In pursuance of the order dated 15.06.2006, respondent Nos. 3 to 6 have filed their counter affidavit and petitioners have filed their rejoinder affidavit. 5. Learned counsel for the petitioners submitted that Naib Tehsildar as well as Sub Divisional Magistrate has rightly rejected the mutation application filed by respondent Nos. 3 to 6 under Section 34 of U.P. Land Revenue Act 1901. He further submitted that the order passed by Naib Tehsildar as well as Sub Divisional Magistrate cannot be set aside by Board of Revenue in exercise of revisional jurisdiction rather the aggrieved party should avail remedy before regular court for declaration of their right. 3 to 6 under Section 34 of U.P. Land Revenue Act 1901. He further submitted that the order passed by Naib Tehsildar as well as Sub Divisional Magistrate cannot be set aside by Board of Revenue in exercise of revisional jurisdiction rather the aggrieved party should avail remedy before regular court for declaration of their right. He further submitted that Board of Revenue has decided the reference vide order dated 01.03.2001 rejecting the reference as such the order dated 01.03.2001 cannot be set aside on the basis of second review application filed on behalf of respondent Nos.3 to 6. He further submitted that exercise of jurisdiction by Board of Revenue on the basis of second review application is abuse of process of law. He further submitted that sale deed executed by Smt. Sumariya cannot be relied upon as she had no right to execute the sale deed in respect to the plot in question. He further submitted that sale deed in question was executed during pendency of civil suit as well as during period when the injunction was operating in the pending civil suit as such the Respondent No. 3 to 6 are not entitled to be recorded on the basis of sale deed executed by Smt. Sumariya. He further submitted that order passed by Board of Revenue is liable to be set aside and order passed by Tehsildar and Sub-Divisional Magistrate be affirmed. He further placed reliance upon judgment of Hon. Apex Court as well as of this court the particular of judgments are as follows: "(I) 1993 RD 12 Udai Raj Kumar and others v. Board of Revenue U.P. at Allahabad (II) 1989 RD 201 Ram Niwas and others v. Consolidation Officer and others (III) 1989 RD 281 Hari Ram v. D.D.C. Azamgarh and others (IV) 1996 RD 403 Kapil Dev S. Deputy Director of Consolidation, Faizabad and others (V) 2023 (16) RD 107 Supreme Court S. Madhusudan Reddy v. V.Narayana Reddy and others 6. On the other hand, Mr. N. D. Shukla, learned Counsel appearing for respondent Nos. 3 to 6 as well as Mr. Hari Prasad Singh, Advocate appearing in person submitted that writ petition arises out of mutation proceeding which are summary in nature as such the writ petition is not maintainable. On the other hand, Mr. N. D. Shukla, learned Counsel appearing for respondent Nos. 3 to 6 as well as Mr. Hari Prasad Singh, Advocate appearing in person submitted that writ petition arises out of mutation proceeding which are summary in nature as such the writ petition is not maintainable. They further submitted that sale deed executed by Smt. Sumariya has not been cancelled by any court of law as such the respondent Nos. 3 to 6 are entitled to be recorded on the basis of sale deed executed by Smt. Sumariya. They further submitted that petitioners' suit for cancellation of sale deed executed in favour of respondent Nos. 3 to 6 are pending before Civil Court. They further submitted that Board of Revenue has been given power to review their orders under Section 220 of U.P. Land Revenue Act 1901 now under Section 211 of U.P. Revenue Code, 2006 as such the impugned order cannot be assailed by the petitioners. They further submitted that Smt. Sumariya was recorded Bhumidhar of the land in dispute on the date of execution of sale deed in favour of Respondent Nos. 3 to 6. They further submitted that Smt. Sumariya had rightly executed the sale deed in favour of respondent Nos. 3 to 6. They further submitted that petitioners have no interest in the property in question as they are not heirs of Smt. Sumariya. They further submitted that petitioners and Smt. Sumariya have entered into compromise before Assistant Consolidation Officer in Case No. 35 in respect to Plot Nos. 62, 63, 64, 69, 236, 225. The aforementioned case No. 35 under Section 9 of U.P.C.H. Act was decided on the basis of compromise vide order dated 01.12.1971. They further submitted that aforementioned order dated 1.12.1971 passed by Assistant Consolidation Officer in Case No. 35 of 1971 was challenged by petitioners through Appeal No. 43/341/57/47 under Section 11 of U.P.C.H. Act which was dismissed by Assistant Settlement Officer Consolidation vide order dated 23.04.1985. The aforementioned orders dated 1.12.1971 and 23.04.1985 have attained finality as no revision or writ petition has been filed by the petitioners. They further submitted that in view of the order passed under section 9 of U.P.C.H. Act in respect to the right of Smt. Sumariya, the mutation case on the basis of sale deed executed by Smt. Sumariya in favour of respondent Nos. 3 to 6 cannot be rejected. They further submitted that in view of the order passed under section 9 of U.P.C.H. Act in respect to the right of Smt. Sumariya, the mutation case on the basis of sale deed executed by Smt. Sumariya in favour of respondent Nos. 3 to 6 cannot be rejected. They finally submitted that the writ petition is liable to be dismissed. They placed reliance upon judgment of this Court as well as Board of Revenue in support of their arguments. The particular of judgment are as follows: (I) 1973 AWR 279 Bhurey v. Pir Bux and others (II) Unreported judgment of Board of Revenue dated 30.01.1980 passed in review No. 260 (L.R.) 76-77/reference No.199 (L.R.) 1974-75 Smmt Rajiya Khatoon v. Hukumdar and others (III) 1992 RD 349 Murtaza Husain and others v. Zainab Bibi (deceased) and others (IV) 2022 (157) RD 325 Hukum Shree v. State of U.P. and others (V) 2021 (152) RD 744 Vivek Kumar Mishra v. Upper Commissioner (Administration) Varanasi Division and others (VI) 2021 (153) R.D. 661 Kanti Devi v. Additional Commissioner (Judicial) and others (VII) 2018 (140) RD 682 Rahmana Begum v. Board of Revenue U.P. and others 7. I have considered the argument advanced by learned Counsel for the parties and peruse the record. 8. There is no dispute about the fact that mutation application filed by respondent Nos. 3 to 6 on the basis of sale deed executed by Smt. Sumariya in favour of respondent Nos. 3 to 6 was dismissed by Naib Tehsildar, vide order dated 13.07.1978 and order was maintained in appeal, vide order dated 29.01.1979. There is also no dispute about the fact that Board of Revenue vide order dated 17.05.1997 through reference set aside the order of Naib Tehsildar as well as Sub-Divisional Magistrate and directed to record the name of respondent Nos. 3 to 6 on the basis of sale deed executed by Smt. Sumariya, but in restoration application order dated 17.05.1997 was set aside and vide subsequent order dated 01.03.2001 reference was rejected by Board of Revenue. There was also no dispute about the fact that first review application filed by respondent Nos. 3 to 6 was rejected, but in second review application, Board of Revenue has set aside the order dated 01.03.2001 and directed to record the names of vendees of Smt. Sumariya on the basis of sale deed. There was also no dispute about the fact that first review application filed by respondent Nos. 3 to 6 was rejected, but in second review application, Board of Revenue has set aside the order dated 01.03.2001 and directed to record the names of vendees of Smt. Sumariya on the basis of sale deed. There is also no dispute about the fact that Civil Suit No.576 of 1976 and 944 of 1980 filed by petitioners for cancellation of sale deed 15.01.1975/06.10.1977 are pending before Civil Court. 9. It is material to mention that during consolidation proceeding, the case under section 9 (A) (2) of U.P.C.H. Act was filed which was decided on the basis of compromise by which Smt. Sumariya was also ordered to be recorded in respect to the plot in question. The order of consolidation officer was maintained even in appeal and appellate order has attained finality. 10. The Civil Suit No. 576 of 1976 and 1944 of 1980 filed by petitioners for cancellation of sale deed executed on 15.01.1975/06.10.1977 are pending before Civil Court, as such further investigation about sale deed as well as any other dispute will be adjudicated in pending civil suit rather in writ petition arising out of mutation proceeding 11. In view of finality attached to appellate order by which Smt. Sumariya was ordered to be recorded in respect to plot in question the sale deed executed by Smt. Sumariya in favour of respondent Nos. 3 to 6 cannot be ignored in summary proceeding under section 34 of U.P. Land Revenue Act. The mutation application filed by respondent Nos. 3 to 6 on the basis of sale deed executed by Smt. Sumariya cannot be rejected by the Court exercising summary jurisdiction under section 34 of U.P. Land Revenue Act. The sale deed executed in favour of respondent Nos. 3 to 6 has been challenged by petitioners in civil suit which is pending before Civil Court since 1976 as such Court exercising jurisdiction under section 34 of U.P. Land Revenue Act cannot refuse the mutation on the basis of sale deed which has not been cancelled by any court of law till date. So far as the right of Smt. Sumariya is concern, the same has been recognized during consolidation proceeding whether on merit or on the basis of compromise. The sale-deed in question is under consideration before Civil Court. So far as the right of Smt. Sumariya is concern, the same has been recognized during consolidation proceeding whether on merit or on the basis of compromise. The sale-deed in question is under consideration before Civil Court. The parties are contesting mutation proceeding for last more than 46 years from the court of Tehsildar up to this Court which cannot be kept pending for unlimited period as civil Suit filed by petitioners are already pending before Civil Court. 12. So far as exercise of review jurisdiction is concern the board of revenue has been given power to exercise review jurisdiction as provided under Section 220 of U.P. Land Revenue Act, 1901 now under Section 211 of U.P. Revenue Code, 2006, as such the impugned order passed by Board of Revenue cannot be assailed by the petitioners on the ground that board of Revenue has no jurisdiction to review his judgment subject to the condition prescribed under law. 13. This Court in the case reported in 1985 RD 71 Paras Nath Singh v. Deputy Director of Consolidation and others has considered the scope of review and has held that any other passed without jurisdiction is a nullity and deserved to be quashed but if as a result of quashing of that order another illegal order would be restored then writ court would refuse to interfere with the impugned order. Paragraph No.21 of the judgment rendered in Paras Nath Singh (Supra) will be relevant for perusal which is as under: "21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order." 14. Considering the entire facts and circumstances of the case, no interference is required against the impugned order dated 25.05.2006 passed by Board of Revenue. The writ petition is dismissed. Considering the entire facts and circumstances of the case, no interference is required against the impugned order dated 25.05.2006 passed by Board of Revenue. The writ petition is dismissed. Needless to say that impugned order passed by Board of Revenue in mutation proceeding shall be subject to the adjudication of the dispute by Civil Court. 15. No order has to costs.