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2024 DIGILAW 460 (ALL)

Bachai Pandey v. State of U. P.

2024-02-12

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. Order on Civil Misc. Amendment Application No. 21 of 2022. 1. Heard counsel for the petitioner. 2. In view of the averment made in the affidavit filed in support of the application, the instant amendment application is allowed. 3. Counsel for the petitioner is permitted to make necessary amendment in the prayer clause of the writ petition. Order on Writ Petition 1. Heard Sri D.K. Pandey, learned counsel for the petitioner, Mr. Alok Kumar Srivastava, learned counsel for respondent no. 4, Mr. Anjani Kumar Chaurasiya, learned Additional Chief Standing Counsel for State-respondents and Mr. Azad Rai, learned counsel for respondent no. 3/ Gaon Sabha. 2. The brief facts of the case are that suit under Section 229B/176 of the U.P.Z.A. & L.R. Act has been filed by private respondent No. 4 which was registered as Case No. 88 of 1982. In the aforementioned suit petitioner's father was impleaded as defendant who filed objection regarding maintainability of suit being barred by Section 49 of the U.P. Consolidation of Holdings Act which was decided against the petitioner's father by trial court vide order dated 20.05.1982 holding that instant suit is not barred and it shall be decided on merit. Petitioner challenged the order dated 20.05.1982 through revision before Commissioner which was dismissed by Additional Commissioner vide order dated 25.05.1985. Petitioner's father filed revision before Board of Revenue which was registered as Revision No. 134 of 1984-85. The aforementioned revision filed by the petitioner was dismissed for non-prosecution on 18.08.1987 by Board of Revenue. The restoration application filed by the petitioner was again dismissed for non-prosecution on 08.08.1989. The second restoration application filed by petitioner was dismissed for non-prosecution on 30.01.991. The third restoration application was filed by petitioner with delay of 15 years on 13.09.2006 which was dismissed by Board of Revenue vide order dated 26.02.2007 on the ground of limitation. The review filed by petitioner has been dismissed vide order dated 30.10.2007. Hence, instant petition has been filed for following reliefs:- (i) to issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 26.02.2007 and 30.10.2007 passed by the Member, Board of Revenue (Annexure Nos."1" & "3". (ii) to issue a writ, order or direction in the nature of mandamus commanding the Member, Board of Revenue to condone the delay and restore the case to its original number. 3. (ii) to issue a writ, order or direction in the nature of mandamus commanding the Member, Board of Revenue to condone the delay and restore the case to its original number. 3. This Court vide interim order dated 09.07.2008 ordered that case may be finally heard but the judgment will not be delivered till the next date of listing which was extended up to 23.11.2008. 4. The counter affidavit & rejoinder affidavit are exchanged between the parties. 5. Learned counsel for the petitioner submitted that revision filed by the petitioner has been dismissed on the technical ground as such matter be sent back before the Board of Revenue to decide the revision on merit after condoning the delay in filing the restoration application. He further submitted that delay has been properly explained before the Board of Revenue but the Board of Revenue has not considered the delay condonation matter and rejected the restoration application as well as review application filed by the petitioner. 6. On the other hand, Mr. Alok Kumar Srivastava, learned counsel appearing for respondent no. 4 submitted that the suit for declaration filed in the year 1982 is still pending before the trial court. He further submitted that the revision was filed by the petitioner in order to linger on the proceedings of the suit. He further submitted that revision filed by the petitioner was dismissed in default and after 15 years the restoration application has been filed which has also been dismissed for non prosecution as such, petitioner is not entitled to any relief in the matter and the same is liable to be dismissed and the trial court be directed to conclude the proceeding in accordance with law. 7. I have considered the argument advanced by learned counsel for the parties and perused the record. 8. There is no dispute about the fact that the suit under Section 229B/176 of U.P.Z.A. and LR Act instituted at the instance of respondent No. 4 is pending before the trial court since 1982. There is also no dispute about the fact that issues relating to Section 49 of U.P. Consolidation of Holdings Act has been decided against the petitioner by trial court. There is also no dispute about the fact that issues relating to Section 49 of U.P. Consolidation of Holdings Act has been decided against the petitioner by trial court. There is also no dispute about the fact that the revision filed by the petitioner has been dismissed initially for non prosecution on 18.08.1987 and third restoration application filed with delay of 15 years has been dismissed on the ground of limitation. 9. In the instant matter the suit under Section 229B/176 of the U.P.Z.A. & L.R. Act filed by respondent No. 4 in the year 1982 is still pending before trial court & the issue relating to bar of Section 49 of U.P. Consolidation of Holdings Act was under challenge before Commissioner/Board of Revenue. The revision & restoration applications filed by petitioners were dismissed for non-prosecution but the third restoration application filed by petitioner with delay of 15 years has been rightly dismissed on the ground of limitation as petitioner is only interested to linger on the proceeding of suit filed in the year 1982. It is also material that there is no pleading in the writ petition as to how the suit filed by respondent No. 4 is barred under Section 49 of U.P. Consolidation of Holdings Act even the order passed by trial court has not been annexed along with the writ petition filed in the year 2008 which fully demonstrate that petitioner is abusing the process of law taking plea that petitioner has been denied hearing in revisional proceeding on technical ground. 10. So far as scope of proceeding/suit under Section 229B of U.P.Z.A. & L.R. Act is concern, this Court in the case of Pan Kumari vs. Board of Revenue, U.P. at Allahabad and others, reported in [ 2005 (99) RD 529 ] has held that suit under Section 229B of U.P.Z.A. & L.R. Act are of Special Character and even no limitation is provided for filing a declaratory suit before the Revenue Court. 11. Considering the entire facts and circumstances of the case, no interference is required against the impugned orders. 12. The writ petition is accordingly dismissed. 13. 11. Considering the entire facts and circumstances of the case, no interference is required against the impugned orders. 12. The writ petition is accordingly dismissed. 13. However trial court/respondent No. 5/Sub-divisional Officer, Chandauli, is directed to conclude the proceeding of the suit under Section 229 B/176 of the U.P.Z.A. and L.R. Act, after affording the opportunity of hearing to the parties as well as opportunity to lead evidence to the parties, expeditiously, preferably within a period of six months from the date of production of certified copy of this order before the trial court. The trial court shall also examine as to whether the issues have been framed in the suit or not as there is no pleading about the framing of the issues in the suit and suit under Section 229B of U.P.Z.A & L.R. Act cannot proceed without framing issues.