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2024 DIGILAW 959 (ALL)

Sahid Jamal v. State of U. P.

2024-04-03

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. R.C.Singh, learned Senior Counsel assisted by Mr. Kamal Kumar Singh, learned counsel for the petitioner, Mr. Rakesh Pande, learned Senior Counsel assisted by Mr. Amit Kumar Singh, learned Counsel for respondent No-5 and learned Standing Counsel for the State respondent No-1 to 4. 2. Respondent No-6 is stated to be proforma respondent, as such, notice to respondent No-6 is dispensed with. 3. With the consent of learned counsel for the parties, the writ petition is being heard & disposed of finally without inviting Counter-affidavit. 4. Brief facts of the case are that dispute relates to plot Nos-959, 960, 976, 977, 991,992, 1001/1, 1069, 1071,1075, 1077, 1072/1, 1078, 1079, 1106, 1121, 1125 & 988 total area 1.5050 hectare situated in Mauja-Sarahu, Pergana & Tehsil-Mau Nath Bhajan, District-Mau. According to petitioners, the family pedigree of petitioner's family is a under:- According to respondent No-5, her family pedigree was as under:- According to respondent No-5 petitioner are stranger to her family and the family pedigree of petitioners' is as follows:- According to petitioners, Iliyas has expired on 14.3.2001 but according to respondent no.4, Illiyas expired on 3.2.1982 and Smt. Kharu Nisha expired on 27.5.2005. The names of Ziyaul Hasan & Faizul Hasan were recorded on the basis of P.A.11 vide order dated 25.5.2001. Respondent No-5/Shamshu Nisha filed an application under Section-34 of U.P. Land Revenue Act, 1901/35 of the U.P. Revenue Code, 2006 on 5.3.2011 to record her name alongwith defendant No. 1/Kamarun Nisha in place of deceased father Iliyas after recalling the order dated 25.5.2001 passed on the basis of P.A 11. Petitioners' father filed their objection to the application dated 5.3.2011 filed by respondent no.5. Tahasildar heard the matter & reserved the judgment on 15.9.2018. Tahasildar recorded the statement of certain persons in the aforementioned mutation proceeding on 26.12.2018 & 30.12.2018, accordingly, a report was submitted by Lekhpal on 26.12.2018 in the aforementioned mutation case. Tahsildar vide order dated 1.1.2019 recalled the order dated 25.5.2001 passed on the basis of P.A-11 and directed to record the name of respondent Nos-5 & 6 in place of Iliyas after expunging the name of Ziyaul Hasan and Faizul Hasan. Tahsildar vide order dated 1.1.2019 recalled the order dated 25.5.2001 passed on the basis of P.A-11 and directed to record the name of respondent Nos-5 & 6 in place of Iliyas after expunging the name of Ziyaul Hasan and Faizul Hasan. Petitioners' father challenged the order dated 1.1.2019 through appeal before Sub Divisional Officer which was heard & allowed vide order dated 28.1.2019, setting aside the order dated 1.1.2019 passed by Tahasildar & remanded the matter before Tahasildar to pass fresh order on merit in accordance with law. Respondent No-5 challenged the appellate order dated 28.1.2019 through revision before Commissioner which was heard by Additional Commissioner (Judicial), Azamgarh Division Azamgarh and the same was allowed vide order dated 4.12.2019, setting aside the appellate order dated 28.1.2019 and remanded the matter before appellate Court for fresh decision of appeal in accordance with law. Petitioners' challenged the order dated 4.12.2019 through revision before Board of Revenue which was dismissed vide order dated 12.2.2014. Hence this writ petition on behalf of petitioners challenging the order dated 12.2.2024 passed by Board of Revenue and 4.12.2019 passed by Additional Commissioner & 1.1.2019 passed by Tahasildar. 5. Learned Senior Counsel for the petitioners submitted that Tahasildar has reserved the judgement/order in the mutation case on 15.9.2018 but recorded the statement of certain person on 26.12.2018/30.12.2018 which fully demonstrate that everything was done surreptitiously in clandestine manner. He further submitted that even in mutation proceeding, the Court is to proceed in accordance with law rather in arbitrary and ex parte manner. He further submitted that Sub Divisional Officer has rightly exercised the appellate jurisdiction in setting aside the order of Tahasildar dated 1.1.2019 and sent the matter back before Tahasildar to decide the mutation case afresh after affording opportunity of hearing to the parties in accordance with law. He further submitted that Additional Commissioner has illegally interfered with the appellate order dated 28.1.2019 & sent the matter back to appellate court to decide the appeal afresh. He further submitted that justice should not only be done rather it should appears to be done. He finally submitted that respondent No-5 has initiated mutation proceeding after more than 10 years from the date of death of Iliyas which creates doubt about the claim setup by respondent No-5, as such, the claim setup by respondent No-5 is liable to be rejected. 6. He finally submitted that respondent No-5 has initiated mutation proceeding after more than 10 years from the date of death of Iliyas which creates doubt about the claim setup by respondent No-5, as such, the claim setup by respondent No-5 is liable to be rejected. 6. On the other hand, learned Senior Counsel for respondent No-5 submitted that instant writ petition arises out of mutation proceeding by which matter has been remanded back before appellate court to decide the appeal afresh rather before court of Tahasildar where the matter has already been decided in accordance with law. He further submitted that appellate Court has decided the appeal in arbitrary manner and remitted the matter back before Tahasildar to decide the mutation case afresh which is abuse of process of law. He further submitted that basis of the appellate order dated 28.1.2019 is totally misconceived, as such, the same was rightly set aside in revision filed by respondent No-5 which requires no interference by this Court under Article 226 of the Constitution of India. He further submitted that no limitation has been provided for filing mutation application, as such, mutation application filed by respondent no.5 has been rightly entertained and decided by Tahasildar. 7. I have considered the arguments advanced by learned counsel for the parties and perused the record. 8. There is no dispute about the fact that the recorded tenure holder Iliyas expired and the names of Ziyaul Hasan and Faizul Hasan were recorded on the basis of PA-11 vide order dated 25.5.2001. There is also no dispute about the fact that respondent No-5/Shamshun Nisha filed an application on 5.3.2011, i.e., after about 10 years from the date of death of Iliyas for recalling the order of P.A-11 dated 25.5.2001 as well as to record her name along with respondent No-6 on the basis of succession. There is also no dispute about the fact that Tahasildar vide order dated 1.1.2019 ordered to record the names of respondent Nos. 5 & 6, setting aside the order dated 25.5.2001 passed on the basis of PA-11. There is also no dispute about the fact that Tahasildar vide order dated 1.1.2019 ordered to record the names of respondent Nos. 5 & 6, setting aside the order dated 25.5.2001 passed on the basis of PA-11. There is also no dispute about the fact that in appeal filed by petitioner's father, order of Tahasildar dated 1.1.2019 was set aside and matter was remanded back before Tahasildar to decide the mutation case afresh on merit but in revision filed by respondent No-5 the appellate order dated 28.1.2019 was set aside and matter was remanded back before appellate court to decide the appeal filed by petitioner's father afresh. There is also no dispute about the fact that revision filed by petitioners before board of revenue has been dismissed vide impugned order dated 12.2.2024. 9. The question which is to be decided in the instant petition is whether court of Tahasildar should decide the mutation case afresh in pursuance of remand order dated 28.1.2019 passed by the appellate court in appeal filed by petitioner's father or court of appeal should decide the appeal filed by petitioner's father afresh in pursuance of the remand order dated 4.12.2019 passed by Addititonal Commissioner in revision filed by respondent No-5. 10. In order to answer the question/controversy involved in the matter the proceeding which has taken place before court of first instance/Tahasildar is to be examined. 11. It is relevant to mention that on the death of Iliyas, names of Ziyaul Hasan and Faizul Hasan were recorded on the basis of P.A-11 on 25.5.2001 and respondent No-5 initiated proceeding after about 10 years for recording her name on the basis of succession which was registered as Case No-09135 of 2018 (Computerised Case No-T201815510109135), under Section-35 of U.P. Revenue Code, 2006. The Tahasildar on 15.9.2018 reserved the judgment after hearing the learned counsel for the parties and fixed 20.9.2018 for orders. The order-sheet of 15.9.25018 is as under:- "15.9.2018 12. Tahasildar after reserving the order in the case recorded statement of certain persons on 26.12.2018 & 30.12.2018 in Village Sarhu, Mohalla Nawapura and passed the final order of mutation on 1.1.2019 in favour of respondent nos. 5 & 6 without discussing the evidence of the petitioners. The order-sheet of 15.9.25018 is as under:- "15.9.2018 12. Tahasildar after reserving the order in the case recorded statement of certain persons on 26.12.2018 & 30.12.2018 in Village Sarhu, Mohalla Nawapura and passed the final order of mutation on 1.1.2019 in favour of respondent nos. 5 & 6 without discussing the evidence of the petitioners. The Sub Divisional Officer while deciding the appeal, has considered the entire aspect of the case, specially the manner in which the mutation case has been decided by Tahasildar, as such, the mutation order passed by the Tahasildar has been set aside and the case has been remanded back before Tahasildar to decide the mutation case afresh after affording proper opportunity of hearing to both parties. The Additional Commissioner while deciding the revision filed by respondent no.5, has remanded the matter to appellate court to decide the appeal afresh which is not proper exercise of revisional jurisdiction as there is categorical finding by appellate court that Tahasildar has decided the mutation case in arbitrary and ex parte manner. The relevant portion of the order of appellate court/Sub Divisional Officer dated 28.1.2019 is as under:- 13. The perusal of the judgment/finding of appellate court dated 28.1.2019 as well as the order-sheet dated 15.9.2018 of Tahasildar court coupled with the statement recorded on 26.12.2018 & 30.12.2018 in the village after reserving the judgment in the case, fully demonstrate that Tahasildar has decided the mutation case against the settled principle of law, as such, the order of Tahasildar has been rightly set aside by the appellate court and the matter has been sent back before the Tahasildar to decide the mutation case afresh and the order passed by the Addl. Commissioner dated 4.12.2019, remanding the matter before appellate court to decide the appeal afresh, is illegal as there is no proper exercise of jurisdiction by the court of first instance/Tahasildar under Section 35 of the U.P. Revenue Code, 2006. 14. It is correct that mutation proceeding is summary proceeding but it does not mean that Tahasildar can proceed against the basic principle of law to decide the mutation case. In the instant matter, the Tahasilar has reserved the order and after reserving the order, recorded the statement of certain persons in village, accordingly, allowed the mutation case in favour of respondent nos. In the instant matter, the Tahasilar has reserved the order and after reserving the order, recorded the statement of certain persons in village, accordingly, allowed the mutation case in favour of respondent nos. 5 & 6, placing reliance upon the alleged statement which is wholly illegal and arbitrary exercise of jurisdiction. 15. The answer to question as to whether the remand passed by the Sub Divisional Officer/appellate court dated 28.1.2019 is correct or remand order passed by the revisional court/Addl. Commissioner dated 4.12.2019 is correct, the answer is that remand order passed by the Sub Divisional Officer/appellate court dated 28.1.2019 is correct and matter is to be decided afresh by Tahasilar. 16. Considering the entire facts and circumstances of the case, the impugned order dated 12.2.2024 passed by respondent no.2 and 4.12.2019 passed by respondent no.3 are liable to be set aside and the same are hereby set aside. 17. The writ petition stands allowed. Respondent no.4 shall decide the mutation case afresh in pursuance of the order of the Sub Divisional Officer dated 28.1.2019, expeditiously, preferably within a period of 3 months from the date of production of the certified copy of this order before him.