Allahabad High Court
M/S Nipun Builders And Developers ... vs Collector And 3 Others on 11 December, 2013
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 2
Case :- WRIT - C No. - 38193 of 2013
Petitioner :- M/S Nipun Builders And Developers Pvt. Ltd. And Another
Respondent :- Collector And 3 Others
Counsel for Petitioner :- A.K. Rai,Vishnu Kr. Singh
Counsel for Respondent :- C.S.C.,Girish Chandra Yadav,V.K.Jaiswal
Connected with
Case :- WRIT - C No. - 38205 of 2013
Petitioner :- M/S Nipun Builders And Developers Pvt. Ltd. And Another
Respondent :- Collector And 3 Others
Counsel for Petitioner :- A.K. Rai,Vishnu Kr. Singh
Counsel for Respondent :- C.S.C.,Girish Chandra Yadav
Hon'ble Tarun Agarwala,J.
The petitioner no.1 purchased the land in question by means of a registered sale deed dated 22.11.2006 from Surendra Kumar Mehra, pursuant to which the petitioner no.1 applied for mutation of its name in the revenue record by moving an appropriate application under section 34 of the Land Revenue Act. This application was allowed and the petitioner's name was mutated by an order dated 15.1.2007 passed in case no. 296 of 2007.
Respondent no.3 Ashok Kumar Beri filed a recall application purported to be one under section 201 of the Land Revenue Act for recall of the order dated 15.1.2007 alleging that the father of Surendra Kumar Mehra, namely, Harbans Lal had executed a sale deed in his favour by means of a sale deed dated 11.7.1977 and that he is in possession. This application was seriously opposed by the petitioner. The Tehsildar, after considering the matter allowed the recall application and recalled its order dated 15.1.2007 directing the parties to place necessary evidence for the purpose of mutation. The petitioner, being aggrieved by the said order, filed a revision under section 219 of the Act which was dismissed with the direction to the Tehsildar to decide the matter after hearing the parties concerned. The petitioner being aggrieved has filed the present writ petition.
The learned counsel for the petitioner submitted that the petitioner's name was mutated in the summary proceeding under section 34 of the Act and that a recall application could only be filed under section 201 who are parties to a case. The respondent no.3 being an outsider could not file such an application and consequently the order of the Tehsildar recalling the order and the revisional order are patently erroneous and are liable to be quashed.
The learned counsel for the petitioner further submitted that these are summary proceedings where names are mutated on the basis of possession as is clear from a reading of section 40 of the Act and that the respondent was not in possession.
The learned counsel for the petitioner further submitted that no effort was made by respondent no.3 to get his name mutated in the revenue record from 1977 onwards and therefore, such application for recall was a misuse of the provisions of law and was a tactic for black-mailing the petitioner who is a bonafide purchaser under the Transfer of Property Act.
Having heard the learned counsel for the parties and having perused the recall application and having considered the scope of section 201 of the Act, the court finds that the application under section 201 of the Act can only be filed by parties to a case. The petitioner was not a party and admittedly his name was not recorded in the revenue record. Such application could not be filed by the petitioner under section 201 of the Land Revenue Act.
However, it does not mean that the application for recall was not maintainable merely by mentioning a wrong provision. The jurisdiction of the authority to re-consider the application is not ousted. A perusal of the provisions of section 34, 39 and 40 of the Act makes it apparent that the Tehsildar is exercising quasi-judicial powers and has been given the power to settle the dispute and put a person in possession. Correction of mistakes in the annual register can be corrected upon an application being filed under section 40 of the Act.
The application for recall of respondent no.3 can be treated to be an application filed for this purpose under section 39 and such disputes are required to be considered under section 40 of the Act. The quasi-judicial authority has the power to recall its order.
Admittedly there is a registered sale deed in favour of respondent no.3. The respondent no.3 in his recall application contends that he is in possession. The fact as to who is in possession and who was not in possession is a question of fact which the Tehsildar will investigate under section 40 and thereafter the Tehsildar is obliged to correct its records and make necessary entries in the annual register.
In the light of the aforesaid the court is of the opinion that a prima facie case was made out by respondent no.3 and the authority rightly recalled its order permitting the parties to lead evidence. This court is not inclined to interfere in the impugned order. Dismissed.
Order Date :- 11.12.2013
Sh
(Tarun Agarwala, J.)
