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2024 DIGILAW 1161 (ALL)

Mahendra Singh v. State of Uttar Pradesh

2024-04-30

MANISH KUMAR NIGAM

body2024
JUDGMENT : MANISH KUMAR NIGAM, J. 1. Heard learned counsel for the parties and perused the record. 2. This writ petition has been filed for the following relief: “i. Issue, a writ, order or direction in the nature of certiorari to quash the impugned order dated 02.11.2023, passed by board of Revenue, Uttar Pradesh at Prayagraj in Revision No. 41/2010-11/Moradabad u/s 333 U.P.Z.A. & L.R. Act and order dated 11.12.2023 passed by Board of Revenue, Uttar Pradesh at Prayagraj in Misc. Case No. 3909/2023/Moradabad (Naresh Pal Singh and another Vs. Mahendra Pal Singh and others) Annexure Nos. 1 and 2 to this writ petition).” 3. Brief facts of the case are that the petitioner filed a suit under Section 176 of the U.P.Z.A. & L.R. Act for partition against the respondent no. 7, the brother and co-tenure holder of the land in dispute. The aforesaid suit was decreed ex-parte on 30.01.1993, and a preliminary decree was passed. After that, by order dated 30.03.1994, a final decree was also passed. After the passing of the final decree, consolidation operations began in the village concerned on 05.08.1995. After coming to know about the ex-parte decree, a restoration application was filed by the respondent no 7 on 10.09.1999 for recalling the orders dated 30.01.1993 and 30.03.1994 passed by the trial court. The restoration application was allowed by the Court concerned by an order dated 23.12.1999. Since, in the meantime, consolidation operation began in the village involved, the proceedings of the suit were also abated by an order dated 23.12.1999. After the order dated 23.12.1999 was passed, allowing the restoration application and abating the suit, a recall application was moved by the petitioner on 05.12.2006. During this period, the property in dispute was sold by the respondent no. 7 in favour of respondent nos. 5 and 6. The restoration application filed by the petitioner was allowed by order dated 24.08.2007 passed by S.D.M. Sambhal, and the order dated 23.12.1999 passed by the then S.D.O. Sambhal allowing the restoration application was set aside. On 01.09.2007, a review application was filed by respondents nos. 5 and 6 to review the order dated 24.08.2007, which was allowed by the S.D.O., Sambhal, by its order dated 26.07.2010. By the order dated 26.07.2010, the earlier order dated 24.08.2007 was set aside, and the order dated 23.12.1999 was restored. On 01.09.2007, a review application was filed by respondents nos. 5 and 6 to review the order dated 24.08.2007, which was allowed by the S.D.O., Sambhal, by its order dated 26.07.2010. By the order dated 26.07.2010, the earlier order dated 24.08.2007 was set aside, and the order dated 23.12.1999 was restored. Against the order dated 26.07.2010, the petitioner filed an appeal (Appeal No. 23 of 2009-10) before the Deputy Commissioner, Moradabad. The said appeal was allowed by order dated 15.12.2010, setting aside the order dated 26.07.2010 and order dated 23.12.1999. The order dated 24.08.2007 was restored. Against the order dated 15.12.2010 passed by the Deputy Commissioner Moradabad, respondents nos. 5 and 6 filed Revision No. 41 of 2010/11, which was allowed by the Board of Revenue by its order dated 02.11.2023. The Board of Revenue set aside the order dated 15.12.2010 passed by Deputy Commissioner, Moradabad, Mandal-Moradabad, the order dated 26.07.2010, 24.08.2007 and 23.12.1999 passed by the S.D.O., Sambhal. The Board of Revenue held that orders dated 30.01.1993 and 30.03.1994 and the orders passed by the Consolidation Courts will remain intact. Both parties were given the liberty to raise the matter before the consolidation courts. Against this order dated 02.11.2023, a modification application was filed by respondent nos. 5 and 6, and the modification application was allowed by the Board of Revenue by order dated 11.12.2023. The Board of Revenue modified its earlier order dated 02.11.2023 to the extent that the Board of Revenue has set aside the order dated 15.12.2010 passed by the Deputy Commissioner, Moradabad and permitted the parties to raise their claim before the consolidation courts. The present writ petition has been filed against the orders dated 11.12.2023 and 02.11.2023 passed by the Board of Revenue. 4. The contention of learned counsel for the petitioner is that the order dated 11.12.2023 was an ex-parte order without providing any opportunity of hearing to the petitioner. Therefore, it has been passed in violation of the principles of natural justice and is liable to be quashed. It has been further contended by learned counsel for the petitioner that the initial restoration application filed by respondent no. 7, the predecessor in interest of respondents nos. 5 and 6, was not maintainable as the consolidation operations have begun. Therefore, it has been passed in violation of the principles of natural justice and is liable to be quashed. It has been further contended by learned counsel for the petitioner that the initial restoration application filed by respondent no. 7, the predecessor in interest of respondents nos. 5 and 6, was not maintainable as the consolidation operations have begun. It has also been contended by learned counsel for the petitioner that the appellate authority has rightly set aside the order dated 23.12.1999 allowing the restoration application of respondent no. 7. It has also been contended by learned counsel for the petitioner that the review application was not maintainable as there is no such provision under U.P.Z.A.& L.R. Act. 5. Per contra, Sri B.B. Jauhari, learned counsel appearing for the respondent, contended that the restoration application is maintainable against the orders passed ex-parte and will not be affected by the fact that the consolidation operations have begun in the area concerned. Therefore, the Court below was right in allowing the application filed by respondent no. 7 by its order dated 23.12.1999 and after that, abating the entire proceedings in view that the village in question came under consolidation operation. It has been further contended by Sri Jauhari that the recall application and the appeal filed by the opposite party were not maintainable as the consolidation operations were going on, and by order dated 23.12.1999, the suit itself was abated. 6. Before dealing with the question, it will be useful to quote here provisions of Section 5(2) of the U.P.C.H. Act, which runs as follows: “5(2) Upon the said publication of the notification under sub-section (2) of Section 4 the following further consequences shall ensue in the area to which the notification relates, namely: (a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceedings is pending stand abated.” 7. A bare reading of the provision above makes it clear that abatement of any suit or proceedings pending before any Court or authority, whether of first instance or an appeal reference or revision, is dependent on two situations, i.e. (i) the proceedings, should be for correction of records and any suit and proceedings should be in respect of declaration of the rights or interest in respect of any land lying in the area; (ii) for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the U.P.C.H. Act. On a bare reading of the provision above, it is crystal clear that it is only a suit or proceedings or the matter relating to the correction of records or if the proceedings are pending in respect to the declaration of right or in respect of the land that can be abated. 8. Certainly, in an application setting aside an ex-parte decree, the scope of the said application cannot be said to be for declaration/ adjudication of the rights of the parties as the Court has to examine the reason for the absence of the defendant on the date when the suit was decided ex-parte against him. In the aforesaid application, the Court is not supposed to go into the merits with respect to the claim of the parties. It cannot adjudicate their right, as the restoration application does not and cannot decide the rights and title of the parties; no other conclusion can be arrived at except that the restoration application can always be filed for recalling the ex-parte order even if, the area in question has come under the consolidation operations after issuance of notification under Section 4(1) U.P.C.H. Act. Thus, in my view, the application filed by the respondent no. 7 for recalling the orders dated 30.01.1993 and 30.03.1994, which were ex-parte was, maintainable and will not be affected by the fact that after passing the order orders dated 30.01.1993 and 30.03.1994, the village came under the consolidation operations. 9. This Court, in the case of Paras Nath Singh Vs. Board of Revenue (Civil Misc. 7 for recalling the orders dated 30.01.1993 and 30.03.1994, which were ex-parte was, maintainable and will not be affected by the fact that after passing the order orders dated 30.01.1993 and 30.03.1994, the village came under the consolidation operations. 9. This Court, in the case of Paras Nath Singh Vs. Board of Revenue (Civil Misc. Writ Petition No. 7480 of 1984) decided on 19.07.1985 held as under: “It is well-settled that an application for restoration is not covered by Section 5 of the Uttar Pradesh Consolidation of Holdings Act and, therefore, it cannot be abated under Section 5 of the Uttar Pradesh Consolidation of Holdings Act and if that be the position, the revision arising out of the restoration proceedings cannot also be abated. To hold otherwise would create an anomalous position. It was open to the petitioner to file a revision against the order restoring the suit, and if the Board of Revenue eventually allowed the revision application and set aside that order restoring the suit, it would be of no avail in case the suit itself had already been abated under Section 5 of the Uttar Pradesh Consolidation of Holdings Act on account of initiation of the proceedings under the Uttar Pradesh Consolidation of Holdings Act.” 10. This Court, in the case of Smt. Dhanpati (D) through L.R. Vs. This Court, in the case of Smt. Dhanpati (D) through L.R. Vs. Board of Revenue, Allahabad and others, (2003) 5 AWC 4296 has held as under: “Accordingly, the situation can be answered in the manner that even if against the order of the trial court setting aside the decree, appeal, revision/reference is pending before the higher Court, and there is no stay to the order of the trial court setting aside the decree then under the law, the suit is to be treated as alive and pending and thus if at this stage the notification under Section 4(2) of the U.P.C.H. Act takes place and an application is moved for abating the suit then irrespective of the time which may be taken by the Court in passing the order, abatement of the suit will be a necessary consequence but if there is a restraint by the Additional Commissioner or the Board of Revenue or by any other competent forum to the order of the trial court setting aside the decree then under the law the suit cannot be treated to be in a revived position, and thus, the parties will have to wait for the finality of proceedings, and it is only thereafter either of the situations may follow. On a consideration of aforesaid it appears that although the proceedings before the Additional Commissioner or before the Board of Revenue may be pending against the order of the trial court setting aside decree, which may be called as the restoration proceeding, not contemplated for the purpose of abatement under Section 5(2) of the U.P.C.H. Act as it talks about the pending proceeding for declaration or adjudication of the rights but for giving full meaning, keeping in mind intention with which the provision of abatement has been made, the Court can safely say that although the pending proceedings before the Additional Commissioner or the Board of Revenue arising out of the restoration proceedings can be said to be restoration proceedings but at the same time if there is no stay against the order of the trial court setting aside the decree then as under law the suit is to be treated in a revived position, there appears to be no impediment with the power of Court in not accepting the application of the party when it is moved for abatement of the suit on a notification under Section 4(2) of the U.P.C.H. Act. The abatement is to be made of the suit along with all the proceedings, which clearly means that the proceedings along with the suit are to be abated. Although the Additional Commissioner and the Board of Revenue are not ceased of the suit itself but, being the higher forum to the trial court they can be fully empowered to pass an order of abatement of the suit upon which the proceedings pending before them will automatically become infructuous.” 11. As by order dated 23.12.1999, not only were the orders passed in the suit dated 30.1.1993 and 30.03.1994 recalled, but the suit itself was abated in view of consolidation operations. Since the suit itself has been abated, therefore, I am of the view that the after order dated 23.12.1999 was passed by the S.D.O., Sambhal on an application moved by the petitioner, all other subsequent applications moved by either of the parties were not maintainable. Because orders recalling the order passed on restoration application would be of no avail in case the suit itself had already been abated under Section 5 of the U.P.C.H. Act on the ground of initiation of the proceedings under the U.P.C.H. Act. 12. Because orders recalling the order passed on restoration application would be of no avail in case the suit itself had already been abated under Section 5 of the U.P.C.H. Act on the ground of initiation of the proceedings under the U.P.C.H. Act. 12. Contention of learned counsel for the petitioner that the order dated 11.12.2023 passed by the Board of Revenue has been passed in violation of principles of natural justice and, therefore, is liable to be recalled. I am not impressed with the submissions made by the learned counsel for the petitioner. Even assuming that the order has been passed in violation of principles of natural justice, this Court will not set aside the order if, as a result of the same, another void/illegal order passed by the Court earlier stood revived. In view of the discussions made above, since the proceeding of the suit has already been abated by an order dated 23.12.1999 passed by S.D.O. Sambhal, no relief can be granted to the petitioner. 13. Learned counsel for the petitioner has also contended that the matter arising from the consolidation proceedings is pending before this Court, and if this petition is not entertained, the petitioner's rights will be prejudiced in the aforesaid proceedings. 14. No such prejudice will be caused as this Court has confined itself to the restoration application and the orders passed subsequent thereto and has not expressed any opinion on the merits of the claim of the respective parties. 15. In view of the same, the writ petition has no merits and is dismissed.