Birendra Singh vs Board of Revenue - 2022 Supreme(All) 1544

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1544

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
CHANDRA KUMAR RAI, J.
Birendra Singh and Others - Petitioners
Versus
Board of Revenue and Others - Respondents
Writ - B No. 45796 of 2017
Decided On : 23-12-2022

Advocates Appeared:
For the Petitioner: Suneel Kumar Rai, Basant Kumar Upadhyay, Saket Mani Tripathi.
For the Respondent: C.S.C., Madan Mohan, Prem Sagar Verma.

Headnote:
U.P Zamindari Abolition & Land Reforms Act, 1950 - Section-168-A – Code of Civil Procedure, 1908 - Order 9 Rule 13 - Constitution of India, 1950 - Article 348, (3), 226 - Restoration application - Declare sale-deed as illegal - Due to violation of Section-168-A of U.P.Z.A. & L. R. Act mutation applied by respondent No.6 were rejected by Tehsildar vide order - Held, Respondent No.6 in compliance of Government Notification deposited which is 2% of cost of land in dispute within time period of six month - Accordingly, mutation was also ordered in favour of petitioners and restoration application as well as revision filed by petitioners were dismissed in accordance with law - Judgment cited by learned counsel for petitioners are not applicable in present controversy as both judgment are of year while Section 168-A of U.P.Z.A. & L.R. Act has been omitted and State Government notification for validation of sale deed which was hit by Section 168-A of U.P.Z.A. & L.R. Act came into force - Civil Suit has been filed by respondent Nos.7, 9 and 10 (vendor of petitioners) to declare sale-deed of respondent No.6 as illegal, void and ineffective which is pending for adjudication before civil court - Petition dismissed.

JUDGMENT :

1. Heard Sri Suneel Kumar Rai, learned counsel for the petitioner, Sri Madan Mohan, learned counsel for contesting respondent Nos.6 and learned Standing Counsel for the State-respondents.

2. Brief facts of the case are that Khasara No.395 M measuring 1.06 hectare (2.68 acre) situated in Mauja Basai Sher Ghar, Bangar, Tehsil-Chhata, District-Mathura belong to one Munshi son of Ghanturi, who executed a registered sale deed on 21.11.1991 in favour of Basanta son of Bhajana. Another sale deed was executed by Basanta with respect to 0.82 acre in favour of Bhagwat son of Ghanturi and for 0.62 acre area sale deed was executed by Basanta in favour of Balram son of Maunsi. On 21.06.1993 Balram executed sale-deed in favour of respondent No.6 Basanta executed another sale deed on 07.02.1992 with respect to 0.62 acre area in favour of Harveer son of Munshi. On 07.05.1994 Mushi further executed sale deed with respect to 0.62 acre area in favour of one Bhanwar Singh and others who executed the sale deed in favour of respondent No.6 on 29.08.2000. Due to violation of Section-168-A of U.P.Z.A. & L. R. Act the mutation applied by respondent No.6 were rejected by Tehsildar vide order dated 30.06.2006. The revision filed by respondent No.6 against the order of Tahildar dated 30.06.2006 was dismissed by Additional Commissioner vide order dated 26.06.2008. Balram and others (Vendor of respondent NO.6 executed two sale deed in favour of petitioner's father on 23.07.2008 and 01.08.2008, the name of petitioner's father was accordingly mutated vide order dated 09.09.2008. Respondent No.6 filed an application to recall the order dated 09.09.2008 passed by the Tehsildar which was rejected vide order dated 09.06.2009 on the ground of pendency of Writ Petition No.47211 of 2008 Bhagwat Vs. State of U.P. And others, the order of status quo has been also passed by this Court in Writ Petition No.47211 of 2008. Respondent No.6 filed another mutation application dated 05.05.2010 on the basis of Government Notification dated 05.02.2010 by which bar of Section-168-A was lifted with condition of payment of Rs.1000/- or 2% of the cost of the land whichever is higher accordingly Upziladhikar vide order dated 22.05.2010 ordered that if respondent No.6 will deposit Rs.14420/- in treasury the sale-deed executed in his favour will become regular and legal.

3. Petitioners filed an application under Order 9 Rule 13 C.P.C. For recalling the ex parte order dated 22.05.2010 but the same was rejected vide order dated 04.04.2012 by Upziladhihar. Petitioners challenged the order dated 04.04.2012 through Revision before Board of Revenue which was dismissed in default on 16.11.2016 accordingly petitioners filed restoration application on 30.01.2017 which was dismissed by Board of Revenue vide order dated 04.08.2017 on the ground earlier passed on 30.11.2016 was on merit as such no interference was made against the order dated 30.11.2016 hence this writ petition.

4. This Court while entertaining the writ petition has passed the following orders dated 22.09.2017:-

"Heard learned counsel for the petitioner as well as learned Standing counsel appearing for the State respondents no. 1 to 5.

Issue notice to the respondents no. 6 to 10 fixing at an early date by registered post AD. Steps be taken within a week.

All the respondents are granted six weeks time to file counter affidavit. The petitioner shall have three weeks thereafter to file rejoinder affidavit.

List immediately thereafter."

5. In pursuance of the order dated 22.09.2017 respondent No.6 has put in appearance and filed his counter affidavit to the writ petition. Petitioners have filed their rejoinder affidavit also.

6. Counsel for the petitioners submitted that amendment made in Section 168-A of U.P.Z.A.& L.R. Act in 2010 does not have any retrospective effect as such mutation of respondent No.6 cannot be allowed on the basis of sale deed executed in favour of respondent No.6 which was void according to Section 168-A of U.