Allahabad High Court
Thakur Lal vs The Commissioner, Gorakhpur ... on 5 August, 2013
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - C No. - 13048 of 2011
Petitioner :- Thakur Lal
Respondent :- The Commissioner, Gorakhpur Division, Gorakhpur & Another
Counsel for Petitioner :- Poonam Dubey,Anup Kumar Srivastava,J.K.Srivastava
Counsel for Respondent :- C.S.C.,A.C. Srivastava,Ram Chandra Srivastava
Hon'ble Amreshwar Pratap Sahi,J.
This is a very peculiar proceeding, inasmuch as, the entry of the name of the Sarvarakars of a Trust running a Temple is under dispute.
The petitioner contends that the contesting respondent manipulated the entries by removal of the name of the petitioner and getting his name planted with the aid of the revenue officials illegally. An order was passed on 12th May, 2009 under which the said entry was carried out in respect of Khata No. 29, Village - Mehada, Pargana and Tehsil - Sadar, District - Deoria.
Aggrieved by the said order, the petitioner filed a miscellaneous application before the Commissioner, Gorakhpur Division, Gorakhpur. The Commissioner passed an order on 17th June, 2009 setting aside the said order of the Sub Divisional Officer dated 12.5.2009.
Unfortunately for this court, neither the petitioner nor the respondent has filed the copy of the order dated 12.5.2009.
A restoration application was filed by the respondents against the order dated 17.6.2009 before the Commissioner and a notice was issued on the one hand and simultaneously a detailed eight page order came to be passed recalling the order dated 17.6.2009 by the Commissioner.
The Court is surprised in the manner in which the correction of the entries or these proceedings have been carried out by the Sub Divisional Officer and the learned Commissioner who are not even aware of the fundamentals relating to the procedure of declaration of the office of a Sarvarakar of a temple trust.
Such declaration cannot be made in summary proceedings and the parties are to be governed by any litigation on the regular side being instituted for the said purpose. It appears that in relation to the dispute Second Appeal No. 1560 of 1977 is pending restoration before this Court.
The order dated 12th May, 2009 is not in challenge in this petition.
Learned counsel submits that the same had been challenged before the Commissioner.
In the opinion of the Court, all the proceedings before the Commissioner were without jurisdiction, and therefore, he has rightly passed the order dated 8.4.2010 recalling the earlier order passed by him. However any observation made by him is futile and cannot be taken advantage of by the parties to the prejudice of each other.
The correction of an entry, even if made, can be done under Section 33/39 of the U.P. Land Revenue Act, 1901 that too even after putting the parties to notice. The expunging of an entry cannot be heard by the Commissioner on a miscellaneous application. The order is appealable and revisable under the U.P. Land Revenue Act, 1901. No such proceedings have been undertaken and a very strange method of challenging an order through a miscellaneous application was adopted.
It is therefore clear that all the proceedings before the Commissioner proceeded without authority in law. In the circumstances, he rightly terminated the same vide order dated 8.4.2010.
The petitioner therefore may have a remedy before the appropriate forum provided the order dated 12th May, 2009 has been passed by the competent authority in accordance with rules. If the said order is also without jurisdiction, it is open to the petitioner to challenge the same in accordance with law.
So far as the present writ petition is concerned, the same cannot proceed without any evidence of the order dated 12.5.2009 which as stated hereinabove has not been brought on record by either of the parties, nor is the said order under challenge.
The question relating to expunging of entries or otherwise being a subject matter on the summary side under Section 33/39 of the U.P. Land Revenue Act, 1901 can be pursued by the aggrieved party in accordance with law. Even otherwise, if the parties are contesting through litigation in the second appeal, it would have been more appropriate to file an application in the said second appeal for any such grievance if the parties were being affected on account of any such claim.
The writ petition therefore is misconceived and the Commissioner having terminated the proceedings before him has rightly done so which does not call for any interference in view of the circumstances of the present case as indicated above.
The writ petition is therefore consigned to records without prejudice to the rights of the parties to contest it before the appropriate forum.
Order Date :- 5.8.2013
Sahu
