Allahabad High Court
Vijay Kumar vs Board Of Revenue And 6 Others on 29 July, 2022
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT - B No. - 1437 of 2021
Petitioner :- Vijay Kumar
Respondent :- Board Of Revenue And 6 Others
Counsel for Petitioner :- Girish Kumar Gupta
Counsel for Respondent :- C.S.C.,Ajay Kumar,Santosh Kumar Srivastava,Satendra Pratap Singh
Hon'ble Dinesh Pathak,J.
As per report dated 15.11.2021, submitted by Joint Registrar (Paper Book), Sri Ajay Kumar, learned Advocate has filed memo of appearance of respondent nos. 6 and 7. Sri S.P. Singh has received copy on behalf of respondent no. 4 Nagar Palika.
So far as notices issues to respondent no. 3 is concerned, it is reported that neither acknowledgment due nor undelivered cover/envelop has been received back.
In view of the above, notices to all the respondents are deemed to be served. Despite the order passed by this Court, till date no counter affidavit has been filed.
On last occasion i.e 17.07.2022, the matter was adjourned on the request of Sri Ajay Kumar, counsel for the respondent nos. 6 and 7.
Heard learned counsel for the petitioner and the learned Standing Counsel.
In view of the peculiar facts and circumstances of the present case and the order proposed to be passed in this matter, present writ petition is being decided finally at admission stage ex parte against the contesting respondents, who are not appearing despite service of notice.
A very short question involved in the present writ petition is as to whether the Board of Revenue has rightly quashed the order dated 31.01.2018 passed by the Up Ziladhikari (respondent no. 2) in restoration application moved on behalf of the petitioners, on the ground that it has been filed under the wrong provisions of law.
Facts culled out from the averments made in the writ petition reveals that Ram Chander (respondent no. 3) has filed a suit for declaration dated 29.11.2012 under Section 229-B of U.P.Z.A. & L.R. Act on the basis of the adverse possession. Aforesaid suit was decreed ex parte against the present petitioner, vide judgment dated 02.11.2016 passed by the Up Ziladhikari (respondent no. 2). It is further submitted that the petitioner is recorded tenure holder but, without serving him notice with respect to the case and without affording him opportunity of hearing, case has been decided ex parte. Feeling aggrieved against the judgment dated 02.11.2016, petitioner has filed restoration application dated 31.01.2018. Aforesaid restoration application was allowed vide order dated 19.12.2019. Having being aggrieved against allowing the restoration application, respondent no. 3 has filed revision before the Board of Revenue, who has allowed the revision at admission stage and quashed the order dated 19.12.2019 remitting the matter before the trial court to decide the restoration application afresh on the ground that it was filed and decided under the provision of U.P. Revenue Code, 2006, whereas the original suit was filed under Section 229-B of U.P.Z.A. & L.R. Act.
Perusal of record reveals that the suit was filed on 29.11.2012 under Section 229-B of U.P.Z.A. & L.R. Act and the same was decided vide ex parte order dated 02.11.2016. As per notification, provision of U.P. Revenue Code, 2006, as enunciated under Section 231(1) of U.P. Revenue Code, 2006, has been enforced since 11.02.2016. For the ready reference provisions of Section 231(1) of U.P. Revenue Code, 2006 are quoted herein below:-
"231.(1) Save as otherwise expressly provided in this Code, all cases pending before the State Government or any revenue Court immediately before the commencement of this Code, whether in appeal, revision, review or otherwise, shall be decided in accordance with the provisions of the appropriate law, which would have been applicable to them had this Code not been passed."
While deciding the revision, Board of Revenue has treated the restoration application to be filed under Section 144 of U.P. Revenue Code, 2006. Perusal of record reveals that the caption, as mentioned in the order dated 19.12.2019, shows that there is reference of Section 144 of U.P. Revenue Code, 2006. It appears that printing of the aforesaid section as caption in the order is a clerical error at the part of the office, inasmuch as present petitioner has not filed any suit for declaration under Section 144 of U.P. Revenue Code, 2006. He has simply moved a restoration application dated 31.01.2018 (Annexure No. 3) under Order 9 Rule 13 read with Section 151 C.P.C. to recall the order dated 02.11.2016 passed under Section 229-B of U.P.Z.A. & L.R. Act. Perusal of restoration application evinces that phrase "U.P. Revenue Code" is also mentioned coupled with Order 9 Rule 13 and Section 151 C.P.C. Mere referring Revenue Code does not make the restoration application defective inasmuch as provision of restoration application is enunciated under Order 9 Rule 13 of C.P.C.
Even assuming for the sake of argument that the restoration application was filed under the U.P. Revenue Code, 2006, a simple difference of nomenclature will not affect the right and title of the parties and not effect the jurisdiction of court concerned, whereas the Up Ziladhikari (respondent no. 2) was authority competent to decide the restoration application in either way. Therefore, citing wrong provision of law not sufficient if power exists otherwise in the same authority.
I am of the considered opinion that there is no jurisdictional error in passing the order dated 19.12.2019 allowing the restoration application moved on behalf of the petitioner. Learned Board of Revenue has illegally influenced with the caption of case as mentioned at the top of order dated 19.12.2019 and took it in a wrong perspective. Learned Board of Revenue has committed error in setting aside the order dated 19.12.2019 on the ground of its technicality that the restoration application should have been filed and decided under the U.P.Z.A. & L.R. Act. It is noteworthy to observe that by virtue of provision under Section 341 of U.P.Z.A. & L.R. Act, the provisions of C.P.C. has been made applicable in the proceedings under the U.P.Z.A. & L.R. Act and under the said provision restoration application has been filed on behalf of the petitioner, which cannot be treated to be filed under the U.P. Revenue Code, 2006.
In this conspectus, as above, I find substance in the present writ petition, which succeeds and is allowed.
Impugned order dated 07.12.2020 passed by the Board of Revenue is hereby quashed. Revision before the Board of Revenue is hereby restored to its original number and parties are relegated before the Board of Revenue to get the revision decided de novo. The Board of Revenue is hereby directed to decide the revision in accordance with law expeditiously, preferably within a period of ten months from the date of production of a certified copy of this order, after affording opportunity of hearing to the parties concerned.
Order Date :- 29.7.2022
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