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IN THE HIGH COURT OF ALLAHABAD
SYED QAMAR HASAN RIZVI, J.
Akeedan – Petitioner
Versus
State of U.P. and Others – Respondents
Civil Misc. Writ Petition No. 11568 of 2023
Decided On : 27-04-2023
Writ - Mutation - U.P. Land Revenue Act, 1901; U.P. Revenue Code, 2006 - The court interpreted Sections 34, 35, and 231 of the U.P. Revenue Code, emphasizing the applicability of the old Act to pending proceedings and the necessity of jurisdictional competence in mutation matters.
Fact of the Case:
The petitioner, widow of Kallu alias Kallan, sought to restore a mutation order favoring the respondents, who claimed rights based on a Will. The Tehsildar allowed the restoration, but the Sub Divisional Officer reversed this decision, leading to the writ petition.
Finding of the Court:
The court found that the Tehsildar's restoration order was valid and that the Sub Divisional Officer acted beyond jurisdiction in reversing it. The court emphasized the need for substantial justice over technicalities.
Issues: Whether the writ petition was maintainable and whether the Sub Divisional Officer had jurisdiction to entertain the appeal against the Tehsildar's restoration order.
Ratio Decidendi: The court held that the restoration proceedings were valid under the old Act, and the Sub Divisional Officer's decision was flawed due to lack of jurisdiction and failure to consider substantial justice.
Result: The writ petition is allowed, quashing the orders of the Sub Divisional Officer and Commissioner, directing the Tehsildar to proceed with the restoration application.
JUDGMENT :
SYED QAMAR HASAN RIZVI, J.
1. Heard Sri Ramesh Chandra Tiwari and Sri Diwakar Prasad Tiwari, learned counsels for the petitioner and Sri Anshul Nigam, learned Standing Counsel for the State-respondent Nos. 1, 2 & 3. Sri H.N. Singh, leaned Senior Advocate assisted by Sri Jayant Prakash Singh, learned counsel for the respondent Nos. 4 to 8.
2. The present writ petition has been filed seeking a writ in the nature of certiorari to quash the impugned orders dated 15.3.2023 and dated 6.2.2023, passed by the Commissioner, Moradabad Division, Moradabad (respondent No. 2) and the Sub Divisional Magistrate, Sambhal (respondent No. 3), respectively.
3. The factual matrix of the case in brief is that admittedly the properties bearing Khata No. 77, plot No. 34/0.059 hectare, Khata No. 233 plot No. 173/0.146, Khata No. 235 plot No. 177/0.425 and Khata No. 236 plot No. 175A/0.032 and plot No. 176/0.016, total 0.048 from two plots and plot No. 175B/0.028, 176B/0.012 hectare total 0.040 from two plots situated at Mohalla Chaudhary Sarai, District Sambhal and Khata No. 81 plot No. 208/5/1.967 situated in Village Sher Khan Sarai and Khata No. 43 plot No. 34/0.623 situated at Bhawani Das Sarai, District Sambhal (hereinafter referred to as plots) were recorded in the name of Kallu alias Kallan, resident of Chaudhary Sarai, Sambhal, District Sambhal.
4. The petitioner is the wife of late Kallu alias Kallan and she is in continuous possession over the plots in question. While the respondent No. 4 to 7 are the nephews (sons of the brother) of late Kallu and the respondent No. 8 is the daughter of late Kallu. After the death of said Kallu alias Kallan, the respondent Nos. 4 to 8 (hereinafter collectively referred to as the respondents) instituted a case under Section 34/35 of the U.P. Land Revenue Act, 1901 for mutation in respect of the plots in question and the same was registered as Case No. 849, 850 and 851 in the year 2005 before the Tehsildar Sambhal. The aforesaid applications for mutation were filed by the respondents on the strength of a registered Will Deed dated 17.8.1998 in favour of the respondents. The Tehsildar Sambhal, vide order dated 29.4.2005 allowed the aforesaid mutation cases and accordingly, the names of the respondents were entered in the revenue record replacing the name of late Kallu alias Kallan.
5. The submission of the learned counsel for the petitioner is that the petitioner is continuously in peaceful possession of the properties in question since the life time of her husband and she had no knowledge of the aforesaid order of mutation dated 29.4.2005 until the year 2022. She for the first time came to know about the said mutation order dated 29.4.2005 through her counsel from a pending proceeding instituted by the private respondents under Section 31/32 (Zaheer Ahmad v. State). As soon as she became aware of the aforesaid order of mutation dated 29.4.2005, she immediately moved an application for restoration on 30.4.2022 on the ground that since the order dated 29.4.2005 passed by the Court of Tehsildar Sambhal, was an ex-parte order and the same was passed even without issuing any notices to the legal heirs of Kallu alias Kallan, as such, the same being an ex-parte order is liable to be recalled. On the aforesaid application dated 30.4.2022 for restoration, the Tehsildar Sambhal, issued notices to the private respondents. In pursuance to the said notices, the present respondent Nos. 4 to 8 appeared before the Court of Tehsildar and filed their objection against the aforesaid restoration application.
6. On the basis of the material available on record, the Tehsildar Sambhal vide order dated 19.12.2022, allowed the said restoration application preferred by the petitioner and recalled the earlier mutation order dated 29.4.2005 and fixed 27.12.2022 for the evidence in the case and also directed for the endorsement of the said order in the revenue record.
7. Against the aforesaid order dated 19.12.2022, the present respon
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