Sahu Rameshwar Nath And 3 Others vs Board Of Revenue Lko. And 20 Others
2017 Latest Caselaw 7209 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33								AFR
 
Case :- WRIT - B No. - 36460 of 2015
 

 
Petitioner :- Sahu Rameshwar Nath And 3 Others
 
Respondent :- Board Of Revenue Lko. And 20 Others
 
Counsel for Petitioner :- Tarun Agrawal, Shri Ravi Kant
 
Counsel for Respondent :- C.S.C., Mahendra Pal Singh Gaur, Pratap Narain Gangwar, Siddharth Srivastava, Ved Mani Sharma
 

 
Hon'ble Manoj Misra,J.

Heard Sri Ravi Kant, learned Senior Counsel assisted by Sri Tarun Agrawal for the petitioners; learned Standing Counsel for the respondents 1 to 4; Sri Shashi Nandan, learned Senior Counsel assisted by Sri Siddharth Srivasvata for the contesting respondent no.5; Sri Ved Mani Sharma for the respondent no.12; and perused the record.

As the dispute in the present petition emanates from auction of a firm's property in favour of the fifth respondent, the remaining respondents are only proforma respondents and therefore with the consent of the learned counsel for the contesting respondent no.5 as well as other respondents who are represented, this petition is being finally decided at the admission stage itself.

Briefly stated facts of the case, relevant for deciding this petition, are as follows:

On 21.04.1980, a property of M/s Raghunandan Prasad Mohan Lal, a partnership firm, was subjected to an auction sale. The property sold was in Non- Z.A. Area, as a result, an objection was taken to the aforesaid auction under Section 173 of the U.P. Land Revenue Act before the Commissioner, Bareilly Division, Bareilly. The said objection was registered as Objection No.79 of 1980 and the same was rejected by order dated 09.12.1981 passed by the Commissioner, Bareilly Division, Bareilly. Against the order passed by the Commissioner, a revision under Section 219 of the U.P. Land Revenue Act was filed before the Board of Revenue which was dismissed by order dated 19.10.1985. The same is extracted herein below:-

"Order

This purports to be a revision under section 219 of the U.P. Land Revenue Act against the order dated 9.12.1981 passed by the learned Commissioner, Bareilly Division, in a proceeding for sale under rule 285-I of the U.P.Z.A. & L.R. Rules.

I have heard arguments on behalf of the parties in the light of a ruling of the Hon'ble High Court, reported in 1984 R.D. page 299.

This revision has been filed under section 219 of the U.P. Land Revenue Act. Under this section, the Board can entertain a revision only against the order of subordinate court. The rule of the Hon'ble High Court, cited above, clearly lays down that the order of the Commissioner passed in sale proceedings under the L.R. Act are orders of a revenue officer and not a revenue court.

The present revision is, therefore, dismissed as not maintainable."

In the meantime, it appears, Sahu Rameshwar Nath, who was a partner in the firm as also a receiver appointed over the property of the firm, had filed Writ-C No.15470 of 1981 against the auction. It appears that the writ court was informed by the then Additional Chief Standing Counsel that in respect of the same property, a suit is also pending and therefore the matter should not be examined in the writ jurisdiction.

On the aforesaid information, the writ court, by its order dated 16.01.1997, dismissed the writ petition as not maintainable.

Against the order dated 16.01.1997 passed in Writ-C No.15470 of 1981, a Special Leave Petition was filed before the Apex Court. However, the Special Leave Petition was withdrawn with liberty to file a review petition before the High Court.

Thereafter, a review application was filed before this Court which was registered as Review Application No.17931 of 1997. The said review application was disposed of by a division bench of this court by order dated 04.04.1997, which reads as follows:-

"Against the auction proceeding numerous objections has been raised and the same have been disposed of by the impugned order.

Learned counsel for the petitioner submits that the order passed by the authority concerned rejecting the objections has become final against which no statutory remedy is provided.

However, Shri Vinod Mishra, learned counsel for the State, disputes this legal position and submits that in various decisions the rule in this regard has been interpreted and against the rejection of the objections a revision is (sic) and it is directed that the petitioner may avail of the remedy provided, by filing a revision before the Board of Revenue.

If the petitioner files the revision within fifteen days from today, the same shall be entertained and disposed of in accordance with law on merits."

Pursuant to the liberty given by this court, the petitioner presented a fresh revision before the Board of Revenue, Lucknow, under Section 219 of U.P. Land Revenue Act.

The Board of Revenue, by the impugned order dated 27.05.2015, dismissed the revision on the ground that earlier a revision was preferred by the revisionist against the order dated 09.12.1981 passed by the Commissioner, Bareilly Division, Bareilly which was dismissed by order dated 19.10.1985 and, therefore, the second revision was not maintainable.

Assailing the order dated 27.05.2015 passed by the Board of Revenue, the present petition has been filed.

The contention of the learned counsel for the petitioner is that earlier the revision was dismissed as not maintainable and therefore the second revision was not barred by the principle of res judicata. It has been submitted that the Board of Revenue while dismissing the previous revision had not addressed the merits of the revision but had wrongly observed that the revision against the order of Commissioner would not be maintainable under Section 219 of the U.P. Land Revenue Act. It has been submitted that the Board while rejecting the earlier revision was under a misconception that the Commissioner while exercising his power in respect of objection to auction sale acted as a revenue officer and not as a court. It has been submitted that the above view is in the teeth of a Full Bench of this Court in Ram Swaroop Vs. Board of Revenue and others, 1990 RD 291, where it had been held that the Commissioner while dealing with an objection under Sections 173 and 174 of the U.P. Land Revenue Act, acts as a court in view of paragraph 911 of the U.P. Revenue Manual Part-VII, as amended in the year 1979, and, therefore, revision is maintainable under Section 219 of the U.P. Land Revenue Act. It has been submitted that since the Division Bench of this Court had required the Board of Revenue to decide the revision on merits, the Board of Revenue was bound by the order of the Division Bench and ought to have addressed the revision on merits and not to have dismissed the same by placing reliance on an earlier order dismissing the revision as not maintainable which was in the teeth of Full Bench decision of this Court. It has been submitted that the order passed by the Board of Revenue is erroneous in law and is liable to be set aside.

Sri Shashi Nandan, learned Senior Counsel, who had appeared on behalf of the auction purchaser (fifth respondent), has submitted that the order of the Division Bench of this Court on the review application was obtained without informing the Division Bench about the earlier dismissal of the revision preferred by the petitioner and therefore the order passed by the Division Bench was not binding on the Board of Revenue and the Board of Revenue was therefore justified in dismissing the revision on the ground that already revision had been dismissed. It has been submitted by him that proper course for the petitioner was to challenge the order dated 19.10.1985 passed on his earlier revision rather than to file a fresh revision. Under the circumstances, no fault can be found in the order of the Board of Revenue rejecting the subsequent revision.

I have given thoughtful consideration to the submissions of the learned counsel for the parties.

No doubt, there is substance in the contention of the learned counsel for the respondents that in the earlier proceedings before this Court, the petitioner ought to have informed the court about the order passed in his revision but that by itself would not be a ground to ignore the order passed by the Division Bench of this Court, particularly, when dismissal of the earlier revision preferred by the petitioner was not on merits but on an erroneous assumption that revision was not maintainable when, in fact, it was maintainable as held by a full bench of this Court in Ram Swaroop's case (supra).

Under the circumstances, even if the petitioner had not apprised the writ court, while pressing the review application, that the earlier revision preferred by the petitioner had been rejected as not maintainable, the Board of Revenue cannot take it as a ground not to decide the revision on merits and thereby disobey the direction given by this Court requiring the Board of Revenue to decide the revision on merits, which was, otherwise, maintainable as per the law laid down by a full bench of this court in Ram Swaroop's case (supra).

May be if the writ court had been apprised, either by way of a recall application or otherwise, that revision had already been dismissed, it may have either not passed the order as was passed or may have recalled its order dated 04.04.1997 passed on the review application. There is also a possibility that it may still have directed the revision to be decided on merits by ignoring the earlier order, keeping in mind the Full Bench decision of this Court as noticed above. At this stage, it would not be appropriate for this Court to speculate on that. However, what is important is that neither the auction purchaser nor any other party sought recall of the order dated 04.04.1997 and therefore the order dated 04.04.1997 has attained finality and has to be followed, keeping in mind that the earlier revision was not dealt on merits.

Seen from another angle, if this Court dismisses this petition and approves the order dated 27.05.2015 passed by the Board of Revenue, it will not only perpetuate an illegal order dated 19.10.1985 passed by the Board of Revenue but would also deprive the petitioner of his statutory right to challenge the auction. Such a situation should be avoided because the most fundamental legal principle, based on latin maxim Ubi Jus Ibi Remedium, is that where there is a right there is a remedy or that there is no wrong without a remedy.

In the instant case, the petitioner challenged the order of auction sale before this court which was relegated to alternative forum. The alternative remedy earlier sought was erroneously held not maintainable, and, thereafter, when direction was issued to the alternative forum to decide the issue on merits, the forum rebuffed the petitioner by saying that it has already taken a decision though erroneous but cannot sit over it. Approval of such an action would render the petitioner without a remedy, which cannot be countenanced. In fact, this Court would fail in its constitutional obligation if such a situation is not corrected.

Accordingly, this Court finds it appropriate to allow this petition and set aside the order dated 27.05.2015 passed by the Board of Revenue, U.P. at Lucknow with a direction to the Board of Revenue to restore the revision proceedings to its original number and decide the same on merits as directed by Division Bench of this Court vide order dated 04.04.1997 passed on review application No.17931 of 1997.

Considering that the matter has remained pending for over two decades only on technical issues, it is provided that the Board of Revenue shall proceed to decide the revision expeditiously, preferably, within a period of six months from the date of production of certified copy of this order before it, after giving opportunity of hearing to the parties concerned.

The petition stands allowed to the extent indicated above. There is no order as to costs.

Order Daste :- 22.11.2017

AKShukla/-