Mahavir Prasad And 5 Others vs The Board Of Revenue And 5 Others
2021 Latest Caselaw 9337 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - B No. - 543 of 2021
 

 
Petitioner :- Mahavir Prasad And 5 Others
 
Respondent :- The Board Of Revenue And 5 Others
 
Counsel for Petitioner :- Prem Sagar Verma,Madan Mohan
 
Counsel for Respondent :- C.S.C.,Alok Krishan Tripathi,Umesh Vats
 

 
Hon'ble Salil Kumar Rai,J.

Heard the counsel for the petitioners and Shri Umesh Vats, Advocate, representing the respondent No. 2, i.e., the contesting respondent.

Short counter affidavit filed on behalf of respondent No. 2 is taken on record.

Shri Madan Mohan, Advocate, representing the petitioners states that the matter be decided on the basis of the averments made in the writ petition and in the short counter affidavit and no rejoinder affidavit is required.

The present writ petition has been filed challenging the order dated 12.1.2021 passed by the Board of Revenue, U.P. at Lucknow (hereinafter referred to as, 'Board of Revenue') in Revision No. 2546/2019 whereby the Board of Revenue has admitted the revision filed by the contesting respondent Nos. 2 and 3 for hearing on merits.

The facts of the case are that against an order dated 2.6.2017 passed by the Tehsildar, Tehsil-Sadar, District-Agra in Mutation Case No. 852 of 2006-07 registered under Section 34 of the Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901'), the contesting respondent Nos. 2 and 3 filed Revision No. 765 of 2018-19 before the Commissioner, Agra Division, Agra (hereinafter referred to as, 'Commissioner') under Section 219 of the Act, 1901. In the aforesaid revision the contesting respondent Nos. 2 and 3 filed an application for permission to withdraw the said revision with liberty to file another revision after removing the alleged defects in the revision. While the said revision and withdrawal application were pending before the Commissioner, the contesting respondent Nos. 2 and 3 also filed a revision numbered as Revision No. 2546 of 2019 before the Board of Revenue on 14.11.2019. Notices were issued to the petitioner by the Board of Revenue in Revision No. 2546 of 2019. Subsequently, by order dated 24.2.2020, the first revision filed by the contesting respondent Nos. 2 and 3, i.e., Revision No. 765 of 2018-19 was dismissed as not pressed. The second revision, i.e., Revision No. 2546 of 2019 was argued before the Board of Revenue on admission and the Board of Revenue by the impugned order dated 12.1.2021 has admitted the said revision for hearing on merits.

It was argued by the counsel for the petitioner that by the order dated 24.2.2020 the first revision of the respondents, i.e., Revision No. 765 of 2018-19 was dismissed as not pressed, but no liberty was granted to the respondents to file a fresh revision either before the Commissioner or before the Board of Revenue. It was argued that in view of the aforesaid and in light of Section 219(2) of the Act, 1901, the second revision, i.e., Revision No. 2546 of 2019 before the Board of Revenue was not maintainable. It was argued that for the aforesaid revision, the impugned order dated 12.1.2021 passed by the Board of Revenue and the entire proceedings in the aforesaid revision in pursuance to the order dated 12.1.2021 are without jurisdiction and liable to be quashed. In support of his arguments, the counsel for the petitioner has relied on the judgement of this Court reported in Smt. Umman Bibi Vs. Board of Revenue, U.P. & Others, 2015 (7) ADJ 734.

Rebutting the argument of the counsel for the petitioner, the counsel for the contesting respondents has argued that in the withdrawal application filed by the respondents in Revision No. 765 of 2018-19, the contesting respondents had prayed that the revision be dismissed as withdrawn with liberty to the revisionists to file a fresh revision after removing the defects. It was argued that the order dated 24.2.2020 passed by the Additional Commissioner records that the Revision No. 765 of 2018-19 was dismissed as not pressed in light of the withdrawal application. It was argued that the order dated 24.2.2020 impliedly granted the respondents the liberty to file a fresh revision and, therefore, the second revision before the Board of Revenue, i.e., Revision No. 2546 of 2019 was maintainable and there is no illegality in the order dated 12.1.2021 and the writ petition was liable to be dismissed.

I have considered the submission of the counsel for the parties.

A perusal of the withdrawal application filed by the contesting respondent Nos. 2 and 3 in Revision No. 765 of 2018-19 shows that through the aforesaid application, the contesting respondent Nos. 2 and 3 had prayed that the revision be dismissed as withdrawn with liberty to file a fresh revision after removing the defects. However, a reading of the order dated 24.2.2020 passed by the Additional Commissioner (Judicial), Agra Division, Agra (hereinafter referred to as, 'Additional Commissioner') shows that through the aforesaid order, the revision was dismissed as not pressed, but there is no recital in the said order granting liberty to the contesting respondent Nos. 2 and 3 to file a fresh revision. Thus, no liberty was granted to the respondents to file a fresh revision against the order dated 2.6.2017 passed by the Tehsildar, Tehsil-Sadar, District-Agra.

In view of the law laid down by this Court in Smt. Umman Bibi (Supra), the second revision was not maintainable by virtue of Section 219(2) of the Act, 1901. The observations of the Court in the case of Smt. Umman Bibi (Supra) are reproduced below :-

"So far as the contention of learned counsel for the petitioner that the second revision preferred by the petitioner had come up for admission before the Board of Revenue on 21.2.2015 and at that time no revision was pending, as such, it cannot be treated to be a second revision and Board of Revenue has wrongly come to conclusion that it was not maintainable is concerned, suffice is to observe that the provision under Section 219 (2) of Land Revenue Act are very much clear. It is specifically provided that if an application for revision has been preferred before any of the authorities given, no further application by the same person shall be entertained, meaning thereby that once first revision was preferred by the petitioner which was dismissed as withdrawn without seeking any liberty to file revision again, the second revision was not maintainable. Even in the application for withdrawal the petitioner had not disclosed that he has preferred another revision before the Board of Revenue and do not want to pursue this revision. The application for withdrawal was filed simply on the ground that petitioner does not want to pursue the revision and it may be dismissed as withdrawn. The petitioner had not sought any liberty to file fresh revision, the first revision was, as such, dismissed as withdrawn without providing any liberty to file another revision. It is immaterial whether the second revision preferred by the petitioner had come up for admission on 21.2.2015 i.e., at the time when the first revision was already dismissed as withdrawn. Since no liberty was sought or given while withdrawing the first revision, as such, I am of the considered opinion that the second revision preferred by the petitioner was not maintainable. The larger Bench of the Board of Revenue by the impugned judgment and order has rightly come to conclusion that the second revision by the petitioner before Board of Revenue was not maintainable. The larger Bench was also right in dismissing the revision preferred by the petitioner as there was no question of remanding or sending the matter back to the authority who had made the reference to the larger Bench, once the larger Bench of the Board of Revenue had come to conclusion that the second revision was not maintainable."

For the aforesaid reasons, the order dated 12.1.2021 passed by the Board of Revenue is contrary to law and liable to be set aside and the proceedings before the Board of Revenue in Revision No. 2546/2019 are without jurisdiction.

The order dated 12.1.2021 passed by the Board of Revenue, U.P. at Lucknow in Revision No. 2546/2019 and entire proceedings in the said case are hereby quashed. The Board of Revenue, U.P. at Lucknow shall not hold any further hearing in Revision No. 2546 of 2019.

It is clarified that because the proceedings before the Tehsildar, Tehsil-Sadar, District-Agra in Mutation Case No. 852 of 2006-07 were under Section 34 of the Act, 1901, which do not finally decide the rights or title of the parties over the disputed property, therefore, any findings recorded by the Tehsildar in the said case shall not be binding in any suit or proceedings instituted by the respondents or any other person for declaration of his rights over the disputed property.

With the aforesaid observations, the writ petition is allowed.

Order Date :- 3.8.2021

Anurag/-