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2024 DIGILAW 229 (ALL)

Binda Gupta v. State Of U. P.

2024-01-19

CHANDRA KUMAR RAI

body2024
JUDGMENT : (Chandra Kumar Rai, J.) 1. Heard Mr. Dharmendra Kumar Tripathi, learned counsel for the petitioner, Mr. Anjani Kumar Chaurasiya, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sudhanshu Pandey, learned Counsel for respondent Nos.5 and 6. 2. Brief facts of the case are that Smt. Lakhpatti, wife of Mahadev, was recorded tenure holder Arazi No.246 Area 0-11-1, 279 Area 0-6-0, 280 Area 0-14-10, and 281 Area 0-2-10. Total 4 plots Area 7-7-1. Lakhpati executed an unregistered will deed on 12.3.1996 in favour of Basanti, wife of Harihar Prasad, which was alleged to be registered subsequently on 16.11.2006. Two other unregistered will deeds alleged to have been executed by Lakhpatti in favour of Jai Prakash Jaiswal and Ravi Prakash Jaiswal. Lakhpatti died on 13.3.1996. The application under Section 34 of Land Revenue Act 1901 was filed on behalf of Basanti on the basis of unregistered will deed dated 12.3.1996. The aforementioned mutation application filed by Basanti was allowed vide order dated 12.3.1999. Against the order dated 12.3.1999, an application to recall the order dated 12.3.1999 was filed by Ravi Prakash Jaiswal on 24.5.1999. Jai Prakash Jaiswal also filed a recall application as a manager of the institution on 7.6.1999. The aforementioned restoration applications were heard and rejected by the Tehsildar vide order dated 16.7.2002. Against the order dated 16.7.2002 and 12.3.1999, an appeal was filed by Jai Prakash Jaiswal as a manager of the institution, which was dismissed vide order dated 11.6.2003. Jai Prakash Jaiswal challenged the aforesaid order dated 11.6.2003, 16.3.2002 and 12.3.1999 by way of revision before Commissioner, which was dismissed vide order dated 3.4.2000. Basanti has executed a registered sale-deed in favour of petitioner as well as one Smt. Prabha Devi on 3.6.2000. Petitioner along with Prabha Devi applied for mutation on the basis of the registered Sale deed dated 3.6.2000 in the place of Basanti Devi. Jai Prakash Jaiswal challenged the order dated 3.4.2006, 11.6.2003, 12.3.1999 and 16.7.2002 before this Court by Writ Petition No. 47801 of 2006 in which initially interim order was granted but after exchange of the affidavits, writ petition was heard finally and vide order dated 26.03.2012 dismissed the aforementioned writ petition with liberty to petitioner or any of the other claimants to the holdings of Smt. Lakhaptti Devi to file a regular suit for declaration of thier right. In pursuance of the order of this Court, petitioner filed a suit under Section 229-B of the U.P.Z.A & L.R. Act was filed by respondent no. 5-Mahadev Prasad Inter College through its manager which was registered as case no. T201302574316 before Sub-Divisional Officer. Notices were issued to the defendants in the aforementioned suit accordingly defendants have put in appearance in the suit. Trial court proceeded in the aforementioned suit ex-parte and dismissed the suit vide order dated 24.05.2018 is not maintainable. Against the order dated 24.05.2018, respondent No. 6 alleging himself to be manager of Mahadev Prasad Inter College filed an application for restoration along with prayer for condonation of delay as well as amendment/ impleadment. The Sub Divisional Officer vide Order dated 13.07.2020 issued notice on the applications and vide Order dated 02.06.2022 recalled the earlier order dated 24.05.2018. Against the order dated 02.06.2022, petitioner filed a restoration application dated 13.07.2022 along with the prayer of condonation of delay, but the aforementioned application was dismissed by Sub Divisional Officer vide order dated 12.09.2022. Against the order dated 02.6.2022 and 12.09.2022, petitioner filed an appeal before Commissioner, which was dismissed by respondent No3/Additional Commissioner vide order dated 6.4.2023. Second appeal filed by petitioner before respondent No. 2-Board of Revenue, was also dismissed, vide order dated 23.06.2023. After dismissal of second appeal by respondent No. 2-Board of Revenue, the matter was proceeded before the trial court. Accordingly, petitioner filed an application under Section 212 (2) of U.P. Revenue Code 2006 before Commissioner to transfer the suit under Section 229-B of U.P.Z.A.&L.R. Act from the Court of concern Sub Divisional Magistrate to any other court, as respondent No. 6 being practicing Advocate of Allahabad High Court, has created influence over the concern Sub Judicial Officer. Commissioner heard the transfer application and vide order dated 8.11.2023, dismissed the transfer application filed by petitioner. Petitioner challenged the order dated 8.11.2023 before respondent No. 2-Board of Revenue, which was registered as Case No. TA/3849/2023, Computerized Case No. AL20230257003849. The aforementioned transfer application/ Case was heard by respondent No. 2-Board of Revenue, who vide order dated 5.12.2023, rejected the transfer application, hence this Writ Petition. 3. Petitioner challenged the order dated 8.11.2023 before respondent No. 2-Board of Revenue, which was registered as Case No. TA/3849/2023, Computerized Case No. AL20230257003849. The aforementioned transfer application/ Case was heard by respondent No. 2-Board of Revenue, who vide order dated 5.12.2023, rejected the transfer application, hence this Writ Petition. 3. It is also material that petitioner has also challenged the order dated 6.4.2023, 2.6.2022, 12.9.2022 by way of Writ B No. 2531 of 2023, which was heard in presence of the parties and vide final order dated 25.07.2023, Writ Petition was finally disposed of, setting aside the order dated 02.06.2022, as well as all the consequential orders, and remitted the matter back before the Sub Divisional Magistrate to decide the restoration application afresh after affording opportunity of hearing of concern parties, considering application for condonation of delay and objections, if any, filed by the parties. In pursuance of the order of this court dated 25.07.2003 Sub Divisional Officer proceeded with the matter and passed the order dated 27.10.2023 which is under challenge before Commissioner. 4. Learned Counsel for the petitioner, submitted that respondent No. 4 is not proceeding in proper manner as such reasonable apprehension has arose in the mind of the petitioner that he will not get justice from the Court of respondent No. 4 as such matter may be transferred to any other Court, but the transfer application filed by the petitioner has been rejected in arbitrary manner. He further submitted that during pendency of the transfer application, the Writ Petition filed by petitioner against the order allowing the restoration application was heard and disposed of with direction to decide the restoration along with delay-condonation matter afresh, but respondent No. 4 again proceeded in arbitrary manner which strengthen, the apprehension of the petitioner that he will not get justice from the Court of respondent No. 4. He further submitted that petitioner has filed transfer application on the reasonable ground but the same has not been taken into consideration while deciding the transfer application. He submitted that impugned orders be set aside and matter may be transferred from the Court of respondent No. 4 to any other competent Court having jurisdiction. 5. He further submitted that petitioner has filed transfer application on the reasonable ground but the same has not been taken into consideration while deciding the transfer application. He submitted that impugned orders be set aside and matter may be transferred from the Court of respondent No. 4 to any other competent Court having jurisdiction. 5. On the other hand, Sudhanshu Pandey, appearing for respondent No. 6, submitted that transfer application has been filed with malafide manner as such the same has been rejected by Commissioner and the order has been maintained by Board of Revenue. He further submitted that suit under Section 229-B of U.P.Z.A.& L.R. Act filed by the institution cannot be dismissed without framing issues and giving parties to lead evidence. He further submitted that restoration application filed by contesting respondents has been allowed and suit has been restored to its original number as such there is no question of transfer the suit from one court to another court. He further submitted that suit for declaration will be decided after framing issues and giving parties to lead evidence as such he cannot be said that respondent No. 4 is proceeding in malafide manner. He submits that so far as the merits of the order are concern that will be examined in the appropriate forum and parties are challenging the order passed in the judicial side but no case for transfer is made out in the matter. He further submitted that no interference is required and Writ petition is liable to be dismissed. 6. I have considered the arguments advanced by the learned Counsel for the parties and perused the record. 7. There is no dispute about the fact that suit under Section 229-B of U.P.Z.A.&L.R. Act filed by respondent No. 5Mahadev Prasad Inter-College was initially dismissed as not maintainable but later on order has been set aside and suit has been restored to its original number, although the order restoring the suit to its original number is under challenge before the court concern. There is also no dispute about the fact that transfer application filed by petitioner under Section 212 (2) of U.P. Revenue Code 2006 has been dismissed by the Commissioner and the order has been maintained by Board of Revenue also. 8. There is also no dispute about the fact that transfer application filed by petitioner under Section 212 (2) of U.P. Revenue Code 2006 has been dismissed by the Commissioner and the order has been maintained by Board of Revenue also. 8. In order to appreciate the controversy involved in the matter, the perusal of the order passed by Commissioner rejecting the transfer application will be relevant for perusal which is as under: 9. The findings recorded by the Commissioner rejecting the transfer application has been maintained by Board of Revenue. 10. Considering the findings recorded by Commissioner as well as Board of Revenue while rejecting the transfer application filed by petitioner under Section 212 (2) of U.P. Revenue Code 2006, no case to transfer the proceeding of case under Section 229-B of U.P.Z.A.& L.R. Act is made out. Writ petition filed by the petitioner has no merit and the same is accordingly dismissed.