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IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Lalita Devi And 2 Ors. – Appellants
Versus
Board Of Revenue U.P. Lucknow Thru Chairman And Ors. – Respondents
Misc. Single No.34797 of 2019
Decided on : 08-01-2020
Code of Civil Procedure, 1908 – Order 9 Rule 13, Section 96 (2) –Constitution of India, 1950 – Article 226 – Land Revenue Act – Section 34 – U.P. Land Revenue Act – Sections 210, 219 – Land Dispute – Alienation – Petition has been filed by petitioners challenging order passed by opposite party no.1-Board of Revenue, and also praying for direction to be issued to opposite parties to maintain status-quo and not alienate property in question – Held, Court feels that it is its duty to correct error of law occurring in the lower court record –Board of Revenue under some misconception of law, had come to the conclusion that the Recall application having been filed, no Revision was maintainable simultaneously –Supreme Court has settled position in law that when two remedies are available to a person aggrieved and there is no prohibition in law in pursuing of both the remedies simultaneously, then the person aggrieved can choose either to avail only one remedy or to avail both remedies to establish his rights – Order passed by the Board of Revenue is set aside –Order passed by the Additional Commissioner (Judicial), is affirmed – Writ petition allowed. (Paras 28 to 33)
Facts of Case:
Land Dispute – Alienation – Petition has been filed by petitioners challenging order passed by opposite party no.1-Board of Revenue, and also praying for direction to be issued to opposite parties to maintain status-quo and not alienate property in question.
Findings of Court:
Held, Court feels that it is its duty to correct error of law occurring in the lower court record –Board of Revenue under some misconception of law, had come to the conclusion that the Recall application having been filed, no Revision was maintainable simultaneously –Supreme Court has settled position in law that when two remedies are available to a person aggrieved and there is no prohibition in law in pursuing of both the remedies simultaneously, then the person aggrieved can choose either to avail only one remedy or to avail both remedies to establish his rights – Order passed by the Board of Revenue is set aside –Order passed by the Additional Commissioner (Judicial), is affirmed.
Result: Writ petition allowed.
JUDGMENT :
1. Heard the learned counsel for the parties and perused the record.
2. This petition has been filed by the petitioners challenging the order dated 30.10.2019 passed by the opposite party no.1-Board of Revenue, U.P., Lucknow and also praying for a direction to be issued to the opposite parties to maintain status-quo and not alienate the property in question i.e. Khata Nos.1484 and 1645 situated at Village Keshav Nagar (Paschim), Pargana, Budhapayar, Tehsil Mankapur, District Gonda.
3. Learned counsel for the petitioners Shri Indrajeet Shukla, has placed the brief facts related to the controversy for its better appreciation. It has been submitted that a dispute relating to Khata Nos.1484 and 1645 situated Village Keshav Nagar (Paschim), Pargana Budhapayar, Tehsil Mankapur, District Gonda arose. Smt. Lakpati widow of Ram Keval, was the undisputed recorded tenure holder of the land in question and after her death on 14.06.1992 by virtue of PA-11 entry the names of Ram Ratan and Ram Milan were recorded as legal heirs in the Revenue records. A Mutation proceedings by way of application was initiated by the opposite party no.3 Adhari wife of Ram Sughar as a result whereof an order dated 24.08.1994 was passed by the Naib Tehsildar without providing any opportunity of hearing to the recorded tenure holders Ram Ratan and Ram Milan. Since the recorded tenure holders Ram Ratan and Ram Milan were not provided any opportunity of hearing, they moved a restoration application seeking Recall of the order dated 24.08.1994. During the pendency of the restoration application, they died and the legal heirs were substituted by an order dated 02.12.2011. The restoration application was allowed setting aside the order dated 24.08.1994 and the next date fixed was 23.12.2011. On 23.12.2011, a general date was fixed for 20.07.2012 and on 20.07.2012, again a general date was fixed for 24.08.2012. On 08.08.2012 an order deciding the mutation proceedings was passed by the Naib Tehsildar, Babhanipayar, Tehsil Mankapur, District Gonda, on the basis of some spot inspection carried out on an application made by the opposite party no.3 on 26.06.2012. Neither the spot inspection was carried out in presence of the petitioners nor the date earlier fixed as 24.08.2012 was preponed and notice issued for the date to be fixed as 08.08.2012. A copy of the Spot Inspection and Enquiry report was never provided to the predecessor in the interest of the petitioners. In fact, the order dated 08.08.2012 was passed by the opposite party no.2 in favour of the opposite party no.3 in a fraudulent manner.
4. It has been submitted in Paragraph 12 of the petition that the Naib Tehsildar, Mankapur, had been transferred to Tehsil Nanpara District Bahraich, prior to 24.08.2012 and as such, before assuming charge at Tehsil Nanpara, District Bahraich, the order dated 08.08.2012 was passed to benefit the opposite party no.3 for extraneous consideration, although the date already fixed in the matter was 24.08.2012.
5. Since the order dated 08.08.2012 was ex-parte, a Recall application was filed. At the same time, the petitioner was advised that since the order dated 08.08.2012 was on the merits of the matter, directing recording of the opposite party no.3 as co-tenure holder of the property in question and had been passed fraudulently, the petitioner may also file Revision against such proceedings. A Revision was preferred by the predecessor in the interest of the petitioner and it was allowed by the order dated 07.04.2016 passed by the Additional Commissioner (Judicial), Devi Patan Mandal, Gonda.
6. Learned Additional Commissioner (Judicial), Devi Patan Mandal, Gonda while allowing the Revision had summoned the lower court record and recorded a categorical finding that the order dated 08.08.2012 was passed by the Naib Tehsildar, Mankapur, Gonda while he was under transfer and also when no date was fixed on 08.08.2012. In the order-sheet there was a clear indication that on 20.07.20
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