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2024 DIGILAW 202 (ALL)

Rakesh Kumar Sharma v. State of U. P.

2024-01-18

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. J.P. Singh, learned counsel for the petitioners, Mr. Sashi Kant Kushwaha, learned Standing Counsel for State-respondent Nos. 1 to 5, Mr. R.C. Singh, learned Senior Counsel assisted by Mr. Kamal Kumar Singh, learned counsel for respondent Nos.6 and 7 and Mr. Abhishek Krishna, learned counsel for respondent No.8. 2. Brief facts of the case are that in the Jild bandobast of 1872, plot Nos. 436, 437 and 438 situated in Mauza Kodar, Azmatpur, Mohal Tappa-Athausi, Pargana-Nizamabad, Tehsil-Nizamabad, District-Azamgarh were recorded in the name of Rambaksh, Parti Kadeem, Ahata Sthan-Sangat. With the passage of time, plot Nos. 251 and 252 were created from plot nos. 437 and 436. Plot nos. 248, 249, 251 and 252 were situated within Z.A. area. In the Jild bandobast of 1349 plot nos. 248/158, 249/168, 250 and 251 were recorded in the name of Rama Bibi widow of Govind Charan Khatri. After death of Rama Bibi, her son Dharamveer was recorded over the aforementioned plot nos. 248/158, 249/160, 250 and 251. Plot in dispute was purchased by predecessor in interest of the petitioner by way of registered sale deed executed on 13.01.1982 by recorded tenure holder Dharamveer. On the basis of aforementioned sale deed, name of petitioner nos. 1 to 4 have been mutated in the revenue records and petitioners came in possession over the same. Contesting-respondent IInd set filed an application under Section 38/19 of U.P. Revenue Code 2006 with the prayer that name of petitioners be expunged from plot in question and name of Guru Nanak Darbar-Respondent IInd set be recorded. On behalf of petitioners objections were filed in the aforementioned proceeding stating that proceedings are not maintainable as petitioners are recorded over the plot in question since long and the dispute regarding title cannot be adjudicated in the summary proceeding. Respondent No.4-Collector, vide order dated 25.9.2019 expunged the petitioners' entry along with others' entries in respect to the plot in dispute and ordered to record the name of respondent-IInd set/Guru Nanak Darbar. Against the order dated 25.09.2019 passed by Collector, petitioners filed an appeal under Section 38(1) of U.P. Revenue Code 2006 before Commissioner, which was registered as appeal No. 00360 of 2020 computerized Case No.C202015000000360. The aforementioned appeal was admitted by Additional Commissioner (Administration) and the same was dismissed vide order dated 12.05.2022. Against the order dated 25.09.2019 passed by Collector, petitioners filed an appeal under Section 38(1) of U.P. Revenue Code 2006 before Commissioner, which was registered as appeal No. 00360 of 2020 computerized Case No.C202015000000360. The aforementioned appeal was admitted by Additional Commissioner (Administration) and the same was dismissed vide order dated 12.05.2022. Against the order dated 12.05.2022 passed by Additional Commissioner, petitioner filed a revision before Board of Revenue under Section 210 of the U.P. Revenue Code 2006, which was registered as revision No.1603 of 2022. Respondent No.2-Board of Revenue heard the aforementioned revision and vide order dated 24.11.2022 dismissed the petitioners' revision, hence this writ petition on behalf of the petitioner for the following relief: "(I) to issue a writ, order or direction in the nature of certiorari quashing the orders impugned dated 25.09.2019, 12.05.2022 and 24.11.2022 passed by respondent Nos.4, 3 and 2 respectively (copies of impugned orders are enclosed as Annexure Nos.6, 8 and 10 respectively to this petition). (II) to issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the peaceful possession of the petitioners over the property in dispute." 3. Another revision No. 2335 of 2022 computerized case No.R20221506002335 filed by Sanjay and others against the same order of Collector and Additional Commissioner was dismissed by Board of Revenue, vide separate order dated 10.11.2022. Against the dismissal of revision, vide order dated 10.11.2022, Smt. Madhu Bala Sharma and ten others filed Writ B No. 2004 of 2023 before this Court which was heard and dismissed vide order dated 22.05.2023 with observation that petitioners can establish their right in suit under Section 144 of U.P. Revenue Code 2006. 4. Learned counsel for the petitioners submitted that the application/proceeding initiated under Section 38/19 of the U.P. Revenue Code 2006 in respect to the long-standing entry of the plot in question is not maintainable. He further submitted that question relating to title cannot be adjudicated by the court exercising summary jurisdiction. He further submitted that proceeding under Section 38 (1) of U.P. Revenue Code 2006 seeking correction of revenue record cannot be decided by the Collector. He further submitted that question relating to title cannot be adjudicated by the court exercising summary jurisdiction. He further submitted that proceeding under Section 38 (1) of U.P. Revenue Code 2006 seeking correction of revenue record cannot be decided by the Collector. He further submitted that a specific objection was taken before the Collector that in view of the provision contained under the Code and Rules framed there under the jurisdiction with respect to the correction of revenue entry under Section 38 (1) of U.P. Revenue Code read with Section 19 of U.P. Revenue Code 2006 cannot be exercised by Collector rather it can be entertained and disposed of by Sub-Divisional Officer. He further submitted that the petitioners raised point relating to error in jurisdiction in appeal and revision but Appellate Court/Revisional Court have illegally dismissed the appeal as well as Revision filed by petitioners. He submitted that petitioners are the bona fide purchaser from the recorded tenure holder and they are in possession on the basis of sale deed executed in the year 1982, as such, long-standing entries cannot be expunged in exercising of summary jurisdiction under Section 38 of U.P. Revenue Code 2006. He further submitted that revenue authorities have failed to appreciate long-standing entry in the revenue record cannot be correct under Section 38 (1) of UP Revenue Code 2006 rather the respondent-IInd set should initiate the proper proceeding for declaration of their right and title in respect of plot in question. He next submitted that disposal of earlier Writ-B No. 2004 of 2023 filed by different persons who were not revisionist along with the petitioners before the Board of Revenue although they were contesting along with the petitioners before the Collector and Additional Commissioner will not come in the way of petitioner to challenge the impugned orders on merit. He submitted that principle of constructive res judicata will not be applicable in the present matter. He further placed reliance upon judgments of Hon'ble Apex Court in order to demonstrate that principle of constructive res judicata will not be applicable in the present matter which are as under: "(1) AIR 1961 SC 1457 Daryao and others v. State of U.P. and others 2. AIR 1989 SC 1764 Piyari Bai v. Madan Gopal 3. AIR 2004 SC 2836 Ashok Layland Ltd. v. State of Tamil Nadu and another" 5. On the other hand, Mr. AIR 1989 SC 1764 Piyari Bai v. Madan Gopal 3. AIR 2004 SC 2836 Ashok Layland Ltd. v. State of Tamil Nadu and another" 5. On the other hand, Mr. R. C. Singh, learned Senior Counsel assisted by Mr. Kamal Kumar Singh appearing for respondent Nos. 6 and 7 submitted that instant writ petition cannot be entertained in view of order passed by this court in Writ B No. 2004 of 2023 by which the same controversy has been decided directing the other side to avail remedy under section 144 of U.P. Revenue Code 2006 in respect to the same order of Collector and Additional Commissioner. He further submitted that petitioners have filed their separate revision, but the order of Collector and Additional Commissioner are the same in both the writ petitions as such instant writ petition is barred by principle of constructive res judicata and the writ petition is liable to be dismissed. He further submitted that petitioners have got their name recorded in fraudulent manner over plot in question which belongs to respondent nos. 6 and 7 as such the jurisdiction has been rightly exercised under section 38/19 of U.P. Revenue Code 2006 expunging the petitioners' entry with respect to plot in question. He further submitted that Collector is the highest authority with respect of the maintenance of revenue entry as such the exercise of jurisdiction by the Collector will not make the impugned order illegal. He further submitted that writ petition filed by the petitioner be dismissed with liberty to initiate the regular proceeding in accordance with law. He further placed reliance upon the judgment of this Court passed in Writ C No. 25403 of 2020 Smt. Ramshree and three others dated 26.08.2021 in order to demonstrate that writ petition arising out of summary proceedings is not maintainable. 6. I have considered the arguments advanced by learned counsel for the parties and perused the record. 7. There is no dispute about the fact that petitioners along with others were recorded in the revenue record in respect to plot in question since 1982. There is no dispute about the fact that proceeding under Section 38/19 of U.P. Revenue Code 2006 has been initiated in the year 2018 which has been allowed by Collector vide order dated 25.09.2019 expunging the petitioners' entry and ordered to record the name of respondent-IInd Set over plot in question. There is no dispute about the fact that proceeding under Section 38/19 of U.P. Revenue Code 2006 has been initiated in the year 2018 which has been allowed by Collector vide order dated 25.09.2019 expunging the petitioners' entry and ordered to record the name of respondent-IInd Set over plot in question. There is no dispute that order passed by Collector has been maintained in appeal and revision. 8. In order to appreciate the controversy, the perusal of the order passed by this Court in Writ B No. 2004 of 2023 will be relevant which are as follows: "1. Heard Shri. Abhay Singh Tomar, learned counsel for the petitioners, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2, 3, 4 and 26 and Shri. Kamal Kumar Singh, learned counsel appearing on behalf of respondent No.5. 2. The case of the learned counsel for the petitioners is that the petitioners had purchased the property in dispute between the years 2002 to 2013. It is contended that the vendors of the sale deeds executed in favour of the petitioners were the recorded tenure holders since prior to coming into force of the U.P. Zamindari Abolition and Land Reforms Act, 1950. It is stated that in the years 2018, an application under Section 38 of the U.P. Revenue Code, 2006 was filed on behalf of the respondent Nos. 5 and 6 seeking correction and alleging that due to a fraud committed by the predecessor of the petitioners, the name of the respondent No.5 was deleted from the revenue records and the name of the predecessor of the petitioners was incorporated. 3. It is stated that the long standing entries of the predecessor of the petitioners is sought to be disturbed by the order impugned passed on the application under Section 38 of the Code, 2006. The order passed on the application under Section 38 of the Code has been upheld even by the Board of Revenue in the revision filed by the petitioners by the order dated 10.11.2020. 4. Learned counsel for the respondent No.5 has opposed the writ petition and stated that fraud was practiced by the predecessor of the petitioners which has been set right by the order impugned. 4. Learned counsel for the respondent No.5 has opposed the writ petition and stated that fraud was practiced by the predecessor of the petitioners which has been set right by the order impugned. It is further contended that given the provisions of Section 39 of the Code, 2006, it is for the petitioners to stake their claim, if any, before a Court of competent jurisdiction for declaration of their rights. 5. Having heard the learned counsel for the parties and perused the records, it is evident that the matter arises out of proceedings for correction of map/Khatauni. The proceedings themselves are summary in nature and do not confer any title on any person. Section 39 of the Code, 2006 does not debar any person from establishing her rights to the land by means of a suit under Section 144 of the Code, 2006 where an order has been passed by Revenue Court under the provisions of Section 38 of the Code, 2006. 6.No interference in writ jurisdiction is called for. However in the interest of justice and to prevent unnecessary complications in the matter, it is provided that for a period of two months from today, neither of the private parties shall create any third party rights with regard to properties in dispute. 7. With the aforesaid observations this writ petition is disposed of." 9. It is material that petitioner of earlier Writ-B No.2004 of 2023 and petitioners of instant writ petition have contested the proceedings together under Section 38 of U.P. Revenue Code, 2006 before Collector and common order dated 25.09.2019 was passed by Collector expunging the entries of petitioners of both the writ petition. Petitioners of both the writ petition have filed appeal under Section 38 (4) of U.P. Revenue Code, 2006 together before Commissioner against the order of Collector dated 25.09.2019 which was dismissed by Additional Commissioner vide order dated 12.05.2022. Against the order dated 12.05.2022 two revisions under Section 210 of U.P. Revenue Code, 2006 were filed before Board of Revenue. Petitioners of Writ B No. 2004 of 2023 have filed Revision No. 2335 of 2022 which was dismissed by Board of Revenue vide order dated 10.11.2022 and petitioners of instant petition have filed revision No.1603 of 2022 which was dismissed by Board of Revenue vide order dated 24.11.2022. 10. Petitioners of Writ B No. 2004 of 2023 have filed Revision No. 2335 of 2022 which was dismissed by Board of Revenue vide order dated 10.11.2022 and petitioners of instant petition have filed revision No.1603 of 2022 which was dismissed by Board of Revenue vide order dated 24.11.2022. 10. Since the order of Collector dated 25.09.2019 and Additional Commissioner dated 12.05.2022 are common in both the writ petition and writ B No.2004 of 2023 filed against the common order of Collector dated 25.09.2019 and Additional Commissioner dated 12.05.2022 has been dismissed with liberty to file suit under Section 144 of U.P. Revenue Code, 2006-2006 as such the instant writ petition filed for quashing the same order of Collector dated 25.09.2019, same order of Additional Commissioner dated 12.05.2022 as well as different revisional order dated 24.11.2022 will not make any difference that in the earlier writ B No. 2004 of 2023 different revisional order was challenged by different petitioners. 11. It is also material that earlier Writ B No. 2004 of 2023 was dismissed on merit after hearing learned counsel for the parties. 12. Considering the entire facts and circumstances of the case, the instant writ petition against the impugned orders dated 25.09.2019 passed by respondent No.4/Collector, order dated 12.05.2022 passed by respondent no.3/Additional Commissioner and order dated 24.11.2022 passed by respondent No.2/Board of Revenue arsing out of proceeding under Section 38 of U.P. Revenue Code, 2006 which are summary in nature cannot be entertained. The writ petition filed by petitioners is dismissed with liberty to the petitioners to file suit for declaration of their right with respect to plot in question.