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2024 DIGILAW 496 (ALL)

Ram Zani v. State of U. P.

2024-02-15

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Order on C.M. Substitution Application dated 05.01.2024 In compliance of the order dated 01.02.2024, true copy of the substitution application in respect to the petitioner No.5 is on record. 2. Office is directed to allot fresh number to the instant application. 3. Heard learned counsel for the parties. 4. The instant application has been filed in respect to the petitioner No.5 with the prayer that her heirs are already on record as petitioner Nos.1 to 4. 5. The application is allowed. 6. Let the word deceased be mentioned against the name of petitioner No.5 and note be made that her heirs are already on record of the writ petition as petitioner No.1 to 4. Order on Writ Petition 7. Heard Mr. S.M. A. Abdy, learned counsel for the petitioners, Mr. Y.P. Singh, learned counsel for respondent Nos.1/1 to 1/5, 2/1, 5 and 6, Mr. Sunil Kumar Singh, learned counsel for gaon sabha and Dr. Govind Kumar Saxena, learned Additional chief Standing Counsel for the State-respondents. 8. Learned counsel for the petitioners submitted that second appeal filed at the instance of the petitioners arising out of suit under Section 229-B of U.P.Z.A.&L.R. Act is pending before the Board of Revenue being Second Appeal No.1511 of 2020(Ram Zani and others v. Amrit Singh and others). He further submitted that respondent No.5 filed a writ petition No.3063 of 2022 which was disposed of by this Court vide order dated 17.11.2022 directing the Board of Revenue to decide the second appeal within a period of two months from the date of production of the order before him. He further submitted that petitioners applied for recall of the order dated 17.11.2022 to the extent that Board of Revenue before deciding the second appeal, decide the application of the petitioners under Order 41 Rule 27 read with Section 151 C.P.C. and also record the findings about the sufficiency of service on other side. He further submitted that respondents have not filed copy of the order dated 17.11.2022 before Board of Revenue immediately after passing of the order date 17.11.2022. He further submitted that this Court vide order dated 11.08.2023 modified the earlier order dated 17.11.2022. He further submitted that respondents have not filed copy of the order dated 17.11.2022 before Board of Revenue immediately after passing of the order date 17.11.2022. He further submitted that this Court vide order dated 11.08.2023 modified the earlier order dated 17.11.2022. He further submitted that petitioners have filed the supplementary affidavit before the Board of Revenue annexing the copy of the order dated 17.11.2022, copy of the recall application dated 12.02.2023 as well as copy of the order dated 11.08.2023 but Board of Revenue is not proceeding according to the modified order passed by this Court. He submitted that Provisions of Code of Civil Procedure is applicable in proceeding under Section 229-B of U.P. Revenue Code, 2006, as such the Board of Revenue should proceed according to the provisions of Civil Procedure Code as well as according to the order passed by this court on 11.08.2023. He further placed copy of the impugned order passed by Board of Revenue in order to demonstrate that Board of Revenue is not interested to decide the pending application for additional evidence filed on behalf of plaintiff-appellant rather he is only interested to decide the appeal in arbitrary manner. He further submitted that the impugned order dated 24.11.2023 passed by Board of Revenue be set aside and Board of Revenue be directed to proceed according to the order passed by this Court dated 11.08.2023. He further submitted that second appeal has been admitted on 14.12.2020 and substantial questions of law have been framed in the second appeal 9. On the other hand, Mr. Y.P. Singh, learned counsel for the private respondents submitted that second appeal filed by the petitioners is pending before the Board of Revenue and Board of Revenue is proceeding to decide the second appeal in view of the order passed by this Court to decide the second appeal expeditiously. He submitted that pending application in appeal shall be decided by the Board of Revenue in accordance with law. He submitted that from perusal of the impugned order dated 24.11.2023 it cannot be said that Board of Revenue is not considering the order dated 11.08.2023 passed by this Court. He further submitted that no interference is required at this stage of the proceeding. 10. I have considered the arguments advanced by learned counsel for the parties and perused the record. 11. He further submitted that no interference is required at this stage of the proceeding. 10. I have considered the arguments advanced by learned counsel for the parties and perused the record. 11. There is no dispute about the fact that second appeal filed by the plaintiff-petitioners is pending before the Board of Revenue. There is also no dispute of fact that application under Order 41, Rule 27 of C.P.C. filed by plaintiff-petitioners is pending in second appeal before the Board of Revenue. 12. Since the second appeal filed by plaintiff-petitioners is pending before the Board of Revenue and the order passed by this Court on 17.11.2022 and 11.08.2023 are in operation, as such the perusal of the order are necessary,which are as under: Order dated 17.11.2022 "Heard learned counsel for the petitioner and leaned Standing Counsel appearing on behalf of State-respondents. The grievance of the petitioner is that his second appeal no. 1511 of 2020, computerized case no.AL202011173001511 (Ram Zani v. Amrit Singh), under Section 331(4) of U.P.Z.A. and L.R. Act is pending before the Board of Revenue, U.P. at Prayagraj (Allahabad) and not being decided. Learned counsel for the petitioner has made statement that parties are duly represented before the Board of Revenue aforesaid, but the second appeal is not being decided. The petitioner is respondent in second appeal before the Board of Revenue. This writ petition is disposed of directing the Board of Revenue aforesaid to decide the aforesaid second appeal within a period of two months from the date of production of certified copy of this order." Order dated 11.08.2023 1. Written submission filed by counsel for respondent nos. 2 to 5, Sri. S.M.A. Abdy, is taken on record. Order On Civil Miscellaneous Delay Condonation Application No. 02/2023. 1. Heard Sri. Sanjay Singh, learned counsel for petitioner and Sri. S.M.A. Abdy, learned counsel for respondent nos. 2 to 5. 2. Cause shown is sufficient; delay is condoned. 3. Delay condonation application is allowed. Order on Civil Miscellaneous Recall Application No. 03/2023 1. The recall application has been filed by counsel for respondent nos. 1. Heard Sri. Sanjay Singh, learned counsel for petitioner and Sri. S.M.A. Abdy, learned counsel for respondent nos. 2 to 5. 2. Cause shown is sufficient; delay is condoned. 3. Delay condonation application is allowed. Order on Civil Miscellaneous Recall Application No. 03/2023 1. The recall application has been filed by counsel for respondent nos. 2 to 5 on the ground that the order dated 17.11.2022 of this Court may be recalled that since notices on all the respondents have not been served and also the application under Order 41 Rule 27 read with Section 151 CPC filed by respondent is pending before the Board of Revenue, which has not been decided. 2. After hearing the rival contentions this court finds that the grievance of the counsel for respondent is that the service of notice on all the contesting respondents has not been completed before Board of Revenue, but taking shelter of the order of this Court dated 17.11.2022, the matter is being decided without affecting notice on all the necessary parties and without deciding the pending application under Order 41 Rule 27. 3. No reason for recall of the order is made out. The application is treated as modification application. 8. The order dated 17.11.2022 of the Court is modified to the extent that the Board of Revenue before deciding the case will decide the application of the petitioner under Order 41 Rule 27 read with Section 151 C.P.C., and also record the finding that all the parties have been served. 9. The application is disposed of. " 13. Considering the earlier orders passed by this Court it is very much established that Board of Revenue cannot proceed with the hearing of appeal unless the pending application under Order 41 Rule 27 of C.P.C. is disposed of in accordance with law. 14. Needless to say that second appeal cannot be decided without sufficient service of notice upon respondents. 15. Considering the earlier orders passed by this Court it is very much established that Board of Revenue cannot proceed with the hearing of appeal unless the pending application under Order 41 Rule 27 of C.P.C. is disposed of in accordance with law. 14. Needless to say that second appeal cannot be decided without sufficient service of notice upon respondents. 15. Considering the entire facts and circumstances of the case including earlier order passed by this Court, instant petition is finally disposed of directing the Board of Revenue/ respondent No.34 to decide the pending application in second appeal first and thereafter decide the second appeal on merit after affording opportunity of hearing to both the parties as well as recording the findings about the sufficient service of notice upon the respondents expeditiously preferably within a period of three months from the date of production of certified copy of this order before him. The Board of Revenue shall also examine the records of the court concern and if the records have not been received then Board of Revenue shall immediately summon the record of court concern by special messenger in accordance with law.