Allahabad High Court
Sanjeev Kumar vs Board Of Revenue And Others on 6 December, 2022
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 52
Case :- WRIT - B No. - 28534 of 2000
Petitioner :- Sanjeev Kumar
Respondent :- Board Of Revenue And Others
Counsel for Petitioner :- K.G.Srivastava,B.D. Mishra,Rahul Srivastava,Ram Krishna Koli,Vindeshwari Prasad
Counsel for Respondent :- C.S.C.,A.K. Sharma,B.D. Mishra,Babu Lal Ram,R.N. Sharma,R.N.Sharma,V.K.Singh
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Ram Krishna Koli, learned counsel for the petitioner, Sri Gyanendra Kumar, Advocate holding brief of Sri Babu Lal Ram, learned counsel for respondent no.4 & learned Standing Counsel for respondent no.1.
2. Nobody appeared on behalf of other respondents.
3. Brief facts of the case are that mutation proceedings were initiated in respect of the holding of one Bihari Lal situated in Village- Bitaunia Kalan, Gata No.380 area 0.644, Village- Amkheria, Gata No.159 area 0.59 and Gata No.186 area 4.17, Village- Aaspur, Gata No.241 area 1.17 and Village- Shahgarh, Gata No.431A area 0.29 and Gata No.431B area 1.34. All the cases were consolidated and Tahsildar vide order dated 14.3.1995 ordered to record the name of Nand Ram i.e. respondent no.2 on the basis of succession and the claim setup by the petitioner and the daughters of Bihari Lal was rejected. Against the order of the Tahsildar dated 14.3.1995, petitioner filed appeal under Section 210 of the Land Revenue Act and the appeal was dismissed vide judgment dated 15.1.1996. Against the order dated 15.1.1996, petitioner filed revision before the Commissioner and the Commissioner after hearing the parties and on the basis of evidence on record, allowed the revision filed by the petitioner, set aside the order of the courts below and ordered to record the name of the petitioner as Bhumidhar in respect to the plot in dispute vide order dated 20.11.1998. Against the revisional order dated 20.11.1998, respondent no.2 i.e. Nand Ram filed revision before the Board of Revenue under Section 219 of U.P. Land Revenue Act which has been disposed of ex-parte by the Board of Revenue vide order dated 5.2.1999 setting aside the order dated 20.11.1998 and sent the matter back before the Commissioner for fresh consideration on the ground of enforcement of Act No.20 of 1997, hence this writ petition.
4. This Court while entertaining the writ petition has passed the following interim order dated 5.7.2000:
"After hearing learned counsel for the petitioner, I am of the view that respondents be also heard at the time of admission.
Issue notice to respondents.
Until further orders, the effect and operation of the order dated 5.2.1999, shall remain stayed."
5. In pursuance of the order dated 5.7.2000 parties have put in appearance and filed their counter affidavit in the matter and the petitioner has filed his rejoinder affidavit.
6. Learned counsel for the petitioner submitted that the mutation matter has been finally decided by the Additional Commissioner while allowing the revision of the petitioner and rejecting claim of the contesting respondent. He further submitted that Additional Commissioner further ordered to record the name of the petitioner in respect to disputed plot in place of recorded tenure holder, Bihari Lal. He further submitted that against the order of the Additional Commissioner, a revision was filed by respondent no.2 and respondent no.1 i.e. Board of Revenue on cryptic ground as well as without any notice and opportunity of hearing to the petitioner, decided the revision and remitted that matter back before the Commissioner to decide the revision afresh on the basis of Act No.20 of 1997 although the revision which was filed much before the enforcement of Act No.20 of 1997 and the same was decided in accordance with law, as such, there is no question of remand to the Commissioner. Counsel for the petitioner placed reliance upon the judgment reported in 1999 (90) R.D. 467, Shri Ram Vs. Board of Revenue, U.P. and Others on point of enforcement of U.P. Act 20 of 1997 and submitted that impugned orders passed by the Board of Revenue is illegal.
7. I have considered the argument advanced by learned counsel for the parties and perused the record.
8. There is no dispute about the fact that the name of petitioner was ordered to be recorded in the proceeding under Section 34 of the U.P. Land Revenue Act while allowing the revision by Additional Commissioner vide order dated 20.11.1998 and the revision was filed before the Commissioner in the year 1996. Board of Revenue without notice and opportunity of hearing to the petitioner has allowed the revision, set aside the order dated 20.11.1998 and sent the matter back before the Commissioner on the ground of enforcement of U.P. Act No.20 of 1997.
9. Since the impugned order dated 5.2.1999 has been passed without notice and opportunity of hearing to the petitioner in whose favour order impugned dated 20.11.1998 was passed, as such, the impugned order dated 5.2.1999 is liable to be set aside on the ground of non-affording the opportunity of hearing to the petitioner.
10. Even on merit the impugned order passed by the Board of Revenue dated 5.2.1999 cannot be sustained in view of the law laid down in Shri Ram (supra), the paragraph no.2 of the judgment will be relevant, which is as follows:
"2. The impugned order dated 11.1.1999 has been passed by the Board of Revenue which has been filed as Annexure 2 to this writ petition without giving any opportunity of hearing to the petitioner. The U.P. Land Laws (Amendment) Act, 1997 (U.P. Act No. 20 of 1997) came into force on 18.8.1997 and Section 218 was omitted from the Land Revenue Act and Section 219 was substituted in the Act which gave power to the Board of Revenue or the Commissioner or the Additional Commissioner or the Collector, etc. to decide the revisions. The effect of this amendment was that w.e.f. 18.8.1997 the Commissioner or the Additional Commissioner had power to decide the revision. The revision was decided by Additional Commissioner by his order dated 16.11.1998 under the amended Section 219 which came into force on 18.8.1997. The Board of Revenue has remanded the matter to the Additional Commissioner or deciding it afresh as revision was filed before the Additional Commissioner before coming into force of U.P. Act No. 20 of 1997 were to be decided under the old Section 218 of the Land Revenue Act. This view of the Board of Revenue does not appear to be correct as in the amending Act itself, a transitory provision has been given under Section 10 which is being quoted below:
?Notwithstanding anything contained in this Act all cases referred to the Board under Section 218 of the U.P. Land Revenue Act, 1901, or under Section 333A of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 as they stood immediately before the commencement of the Act and pending before the Board on the date of such commencement shall continue to be heard and decided by the Board as if this Act has not been enacted.?
11. There is one more aspect of the case that mutation proceeding has been decided by the Additional Commissioner vide order dated 20.11.1998 for recording the name of petitioner in the place recorded tenure holder, as such, the same should be given finality and in case of any grievance to anybody against the order of mutation dated 20.11.1998 the remedy of suit will be available to the party concerned. The mutation proceeding which are summary in nature should not be kept pending for unlimited period.
12. Considering the entire facts and circumstances of the case, the impugned order dated 5.2.1999 passed by respondent no.1 i.e. Board of Revenue, Lucknow is liable to be set aside and the same is hereby set aside.
13. The writ petition stands allowed. The order of Additional Commissioner dated 20.11.1998 is hereby affirmed.
14. No order as to costs.
Order Date :- 6.12.2022
Rameez
