Gobardhan And 3 Others vs The Board Of Revenue And 5 Others
2022 Latest Caselaw 22672 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

																	       Court No. 52
 
						       Reserved on: 24.11.2022
 
						       Delivered on: 23.12.2022
 
				         WRIT - B No. - 1941 of 2019
 

 
Petitioners :- 			Gobardhan and 3 Others
 
Respondent :- 			Board of Revenue, U.P. & Others
 
Counsel for Petitioner:- 	Lalji Chaudhary
 
Counsel for Respondent :- 	C.S.C., S. Prakash Giri
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Lalji Chaudhary, learned counsel for the petitioners and Sri S. Prakash Giri, learned counsel for the contesting respondents.

2. Brief facts of the case are that respondent no.3 (Rajmani Tiwari), filed an application under Section 28 of the U.P. Land Revenue Act, 1901 before the Additional District Magistrate for map correction in respect of his plot no.272 area 1 bigha 8 biswa, which was registered as Case No. D19931667003 of 1993. In the aforesaid case, the Naib Tehsildar submitted his report dated 20.5.2000 before the Tehsildar stating that map of plot no.242 was made by the official of the consolidation department, showing the area as 0-4-10 less than its original area 1-8-0 and proposed for correction in the map. In the aforesaid case, petitioner no.1 and father of petitioner nos. 2 to 4 filed their objection dated 23.9.2004/30.9.2004 and prayed to reject the case under Section 28 filed by respondent no.3. The Naib Tehsildar appeared before the trial court and recorded his statement on 26.8.2010 in order to prove his report dated 20.5.2000, the Naib Tehsildar was also cross-examined before the court. Respondent no.2 (Collector, Bhadohi) has passed the order dated 27.1.2016 under Section 28 of the U.P. Land Revenue Act for map correction as prayed by respondent no.3 and affirmed the report dated 3.8.2000. The petitioner filed restoration application dated 30.6.2016 before respondent no.2 for recalling the order dated 27.1.2016, the ground of ex parte order. The restoration application was rejected vide order dated 8.1.2019 by respondent no.2. The petitioners challenged the order dated 8.1.2019 before the Board of Revenue under Section 219 of the U.P. Land Revenue Act, the revision was dismissed vide order dated 1.4.2019 by the Board of Revenue, hence this writ petition.

3. This Court while entertaining the writ petition, passed the interim order on 8.8.2019 which reads as under:-

"The contention of the learned counsel for the petitioner is that in case the correction of map in compliance with the impugned order of the Collector dated 27.01.2016 which the Collector has refused to recall vide his order dated 08.01.2019, also impugned, and both of which have been approved by the Board of Revenue, U.P., Lucknow in Revision No. 339 of 2019 vide order dated 01.04.2019 are allowed to stand his abadi in plot no. 243 that adjoins plot no. 242 comprising two rooms, a tin shed (baithka), three toilets constructed under the "Swachhta Abhiyan", 9 trees as well as a hand-pump and a tubewell would fall. Learned counsel for the petitioner submits that the Collector, Bhadohi is proceeding to enforce the impugned order, which is merely an order for map correction. He submits that in consequence of the correction, the petitioner's residential abadi is likely to be disturbed.

This Court provided opportunity to the Collector, Bhadohi twice to furnish effective instructions in the matter. Earlier, no instructions were passed on taking refuge behind the fact that the papers are with the Divisional Commissioner. After further orders were passed, the Collector sent instructions, which are prima facie utterly unsatisfactory. The substance of the matter is that the basic order of the correction has been passed without hearing the petitioner; it appears to have passed in haste, and, when the petitioner applied to the Collector to set aside the said and hear him on merits, the application was discarded by saying that the order made on 27.01.2016 was one made on merits.

A perusal of the impugned order dated 27.01.2016 shows that the case was disposed of in the absence of parties after the case was called on for hearing. It is recorded in the order dated 27.01.2016 to the following effect:

Thereafter, there are a few remarks indicating that the Collector had asked the parties to file their written argument which they did not file. All this goes to show that the Collector has deprived parties of opportunity of hearing. This is prima facie enough to say that the order dated 27.01.2016 is one passed ex parte on merits.

Admit.

Issue notice to the respondents returnable on 29.08.2019. Steps be taken within five days by RPAD.

Sri Aditya Keshari, learned Standing Counsel appearing on behalf of respondent nos. 1 and 2 is granted two weeks' time to file a return, in case they so desire.

List this petition for orders on 29.08.2019 along with an office report regarding service and status of pleadings.

Meanwhile, operation of the impugned order dated 01.04.2019 passed by the Board of Revenue in Revision No. 339 of 2019, the order dated 08.01.2019 passed by the Collector, Bhadohi in Case No. RST/02941/2016 'Vidya Dhar & others vs. State' and the order dated 27.01.2019 also passed by the Collector in Case No. D19931667003 'Rajmani vs. State' shall remain suspended and the Collector, Bhadohi is ordered not to enforce the impugned orders, in any manner whatsoever."

4. In pursuance of the order dated 8.8.2019, the contesting respondent no.3 has put in appearance and has filed his counter affidavit. The petitioner has also filed his rejoinder affidavit to the counter affidavit filed by respondent no.3.

5. Counsel for the petitioner submitted that objection filed by the petitioners to the application under Section 28 of the U.P. Land Revenue Act, filed by respondent no.3, was not considered at all and application has been allowed for map correction in cursory manner. He further submitted that respondent no.2 has not afforded proper opportunity of hearing to the petitioners before passing the order dated 27.1.2016, as such, the order will be treated as ex parte. He further submitted that respondent no.2 has passed the impugned order dated 27.1.2016 in absence of counsel for both the parties and decided the case on merits which is in violation of Order 41 Rule 17 of the C.P.C. He also submitted that during pendency of the O.S. No.69/1990, the present proceeding under Section 28 of the U.P. Land Revenue Act has been initiated in respect of plot no.191 and 242 which are adjacent to plot no.243 and plot no.243 is the subject matter of Civil Suit No.69/1990, accordingly, the counsel submitted that the proceeding under Section 28 should be stayed in view of Section 10 of the C.P.C. He further submitted that the revisional court has also failed to exercise his revisional jurisdiction in accordance with law.

Counsel for the petitioner placed reliance upon the judgment rendered in Special Appeal No.431/2017 along with Special Appeal No.440/2017 in which it has been held that if the writ petition has been dismissed on merits in absence of counsel for the petitioners, the order will be treated as ex parte against the petitioners.

6. On the other hand, counsel for the respondent submitted that writ petition arises out of proceeding under Section 28 of the Land Revenue Act which is summary in nature, as such, the writ petition under Article 226 of the Constitution of India is not maintainable. He further submitted that the proceeding under Section 28 of the U.P. Land Revenue Act has been initiated by respondent no.3 for correction of map in respect of his plot no.242 in which a report has been submitted by the Naib Tehsildar and the Naib Tehsildar was examined as well as cross-examined before the trial court and approved his report before the trial court, on the basis of the report, the order for map correction has been passed in accordance with law by the trial court. He further submitted that the order is not ex parte against the petitioners in any manner as against the application under Section 28 filed by the petitioners, the objection was filed by the petitioners, the Naib Tehsildar who submitted the report was cross-examined by counsel for the petitioner before the trial court, as such, it cannot be said that the proceeding before the trial court was conducted in ex parte manner. He further submitted that respondent no.3 is the applicant of the application under Section 28 of the U.P. Land Revenue Act and he is not aggrieved in any manner against the order passed by the trial court, as such, the petitioner cannot say that in absence of the counsel for the applicant, the application / case should be dismissed in place of contesting the same on merits. It is further submitted that so far as the pendency of the Civil Suit No.69/1990 for injunction filed by petitioners is concerned, that was in respect of plot no 243 and the proceeding under section 28 of the U.P Land Revenue Act was initiated by responded no. 3 in respect of Plot No 242, as such the argument advanced by the counsel for the petitioner is not correct that present proceeding for map correction should be stayed in view of the pendency of the civil suit.

7. I have considered the arguments advanced by the counsel for the parties and perused the records.

8. There is no dispute about the fact that the application under Section 28 of the U.P Land Revenue Act filed by responded no 3 was decided after considering the report of the Naib Tahsildar who has proved his report in accordance with law but the restoration application and the revision filed by the petitioners have been dismissed by the courts below. The suit no.69/1990 was filed for decree of injunction in respect of plot no. 243 & 191 while the application under Section 28 of the U.P. Land Revenue Act was filed by respondent no.3 for correction of map in respect of plot no.242.

9. Since the application under Section 28 of the U.P. Land Revenue Act filed by respondent no.3 has been decided by the trial court after considering the objection of the petitioners as well as the reports submitted by the Naib Tehsildar who was even cross-examined by the counsel for the other side (Petitioners) before the trial court, as such, the argument advanced by learned counsel for the petitioners that proceeding was conducted in ex parte manner, cannot be accepted. The relevant paragraph of the order passed by the trial court will be relevant in order to appreciate that proceeding was conducted after giving proper opportunity of hearing to the parties, which is as follows:-

पुकार के समय उभय पक्ष अनुपस्थित रहे। पत्रावली का अवलोकन किया उभय पक्ष को आदेश हेतु नियत तिथि 27.01.2016 के पूर्व तक लिखित बहस प्रस्तुत करने का आदेश हुआ। उभय पक्ष की ओर से लिखित बहस प्रस्तुत नहीं की गई। मैंने पत्रावली का सम्यक रूप से अवलोकन /परिशीलन किया। नायब तहसीलदार बालेनाथ ने दिनांक 26.08.2010 को न्यायालय में उपस्थित होकर, अपने द्वारा प्रेषित प्रस्तावित आख्या दिनांक 03.08.2000 की पुष्टि सशपथ बयान के माध्यम से किया। विपक्ष द्वारा आंशिक जिरह भी की गई। प्रस्तावित आख्या दिनांकित 03.08.2000 स्पष्टीकृत है, जिसे अस्वीकार किये जाने का कोई औचित्य प्रतीत नहीं होता। प्रश्नगत् भूखण्ड सं० 242 के नक्शे का घेरा 0-4-10धूर कम है। धारा 28 भू0 रा0 अधि0 में प्राविधानित है कि कलेक्टर को तथ्य की सूचना हो जाने पर नम्बरान के नक्शे का घेरा दुरूस्त बनाये रखने का दायित्व कलेक्टर का होता है। दीवानी न्यायालय के निर्णय दिनांक 28.02.1995 व अपीलीय न्यायालय के निर्णय 10.02.1999 से नक्शा-दुरूस्ती प्रकरण प्रभावी नहीं होता हैं क्योंकि नक्शा-दुरुस्ती प्रकरण का निस्तारण आकार पत्र 41, पुष्टिकृत नक्शा, बन्दोबस्ती नक्शा व बन्दोबस्ती इन्द्राज, आकार पत्र 45 से दुरूस्त होता है, नक्शा-दुरूस्ती में स्थलीय स्थिति का अवलोकन किया जाना विधिमान्य नहीं होता। किसी भूखण्ड के नक्शे का आकार छोटा या बड़ा संज्ञान में आने पर नक्शे की त्रुटि को कायम नही रखा जा सकता, इस प्रकार तहसीलदार द्वारा प्रेषित प्रस्तावित आख्या जो प्रस्तावित नक्शे की 3 प्रतियों के साथ संलग्न है, की पुष्टि की जानी उचित है, प्रस्तावित तीनों प्रतियों पर मेरे हस्ताक्षर है, जो आदेश का अंग होगा।

आदेश

ग्राम भमौरा ता. असनांव तहसील औराई के नक्शा-दुरूस्ती के संबंध में तहसीलदार द्वारा प्रेषित प्रस्तावित आख्या दिनांक 03.08.2000 जो संशोधित नक्शे के 3 प्रतियों के साथ संलग्न है, जिस पर मेरे हस्ताक्षर है, की पुष्टि की जाती है। परवाना भेजा जाय। वाद आवश्यक कार्यवाही पत्रावली अभिलेखागार में संचित की जाय।

दिनांक 27.01.2016                                                        (प्रकाश बिन्दु)
 
                                                                                  कलेक्टर भदोही।
 

 

10. So far as the pendency of Civil Suit No.69/1990 is concerned, it is material that the aforementioned suit was filed by the petitioner for injunction in respect of different plot nos. 191 & 243 which will be of no concern with the plot no.242 which is disputed in proceeding under Section 28 of the U.P. Land Revenue Act, as such, the arguments advanced by counsel for the petitioners that proceedings under Section 28 of the U.P. Land Revenue Act is in violation of Section 10 of the C.P.C. is also liable to be rejected.

11. Considering the entire facts and circumstances of the case, no interference is required against the impugned judgment.

12. The writ petition has no merit and the same is liable to be dismissed.

13. The writ petition is dismissed .

14. No order as to costs.

Order Date :- 23.12.2022

C.Prakash

(Chandra Kumar Rai,J.)