Rakesh Kumar vs State Of U.P. Thru. D.M. Gonda And 4 ...
2023 Latest Caselaw 23543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:57325
 
 
 
Court No. - 18
 
Case :- WRIT - C No. - 7354 of 2023
 
Petitioner :- Rakesh Kumar
 
Respondent :- State Of U.P. Thru. D.M. Gonda And 4 Others
 
Counsel for Petitioner :- Pradeep Chandola
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Lavania,J.

Heard Sri Pradeep Chandola, learned Counsel for the petitioner and Sri Hemant Kumar Pandey, learned State Counsel.

In view of the order proposed to be passed by this Court, notice to the private-respondents is dispensed with.

The present petition has been filed for the following main reliefs:-

"(i) To issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned judgment and order dated 22.06.2023 passed by Additional Commissioner (Administration Second), Devi Patan Division, Gonda in Case No. 909/2023 (Computerized Case No. C2023800000909) Rakesh Kumar Vs. Government of U.P. contained in Annexure No. 1 to the writ petition.

(ii) To issue a writ, order or direction in the nature of certiorari thereby quashing the impugned judgment and order dated 01.11.2019 passed by the District Collector, Gonda in Case No. 52/2013-14 (Computerized Case No. D201808300000431), Govt of U.P. Vs. Mu. Mantoora contained in Annexure no. 2 to the writ petition.

(iii) To issue a writ, order or direction in the nature of mandamus commanding the official opposite parties no. 1 to 3 not to implement/execute the orders contained in Annexure No. 1 & 2 to the writ petition."

Brief facts of the case are to the effect that the petitioner has challenged the order dated 22.06.2023 passed by Additional Commissioner (Administration Second), Devi Patan Division, Gonda, in Case No. 909/2023, Computerized Case No. C2023800000909, (Rakesh Kumar Vs. Government of U.P.) filed under Section 333 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short "Act of 1950").

By the order dated 22.06.2023 the application for condonation of delay preferred by the petitioner seeking condonation of delay in preferring the revision challenging the order dated 01.11.2019 passed by Collector, Gonda in Case No. 52/2013-14, Computerized Case No. D201808300000431 (Government of U.P. Vs. Mu. Mantoora), which was passed under Section 166/167 of the Act of 1950, was rejected by opposite party no.2/Additional Commissioner (Administration Second), Devi Patan Division, Gonda.

The order dated 01.11.2019 passed by the opposite party no.3/ District Collector Gonda, whereby the opposite party no.3 allowed the claim of the State based upon the Section 157(AA) of the Act of 1950 and directed the revenue official to enter name of the State in the revenue record related to Gata No. 420M/0.121 Hect. situated at Village Ramwapur Hardopatti, Post Office Ranipur, Pargana, Tehsil and District Gonda, is also in issue.

In the proceedings before the opposite party no.3, the opposite party no.4/ Mu. Mantoora wife of late Chhitai and opposite party no.5/Jagdish Prasad S/o Rampher were party.

It would be apt to notice that petitioner was not the party before the opposite party no.3, in the proceedings in which the order dated 01.11.2019 favourable to the State was passed.

It would also to be noted that a perusal of order dated 01.11.2019 reflects that service upon opposite party no.4 (opposite party no.1 before the opposite party no.3) and opposite party no. 5 (opposite party no. 2 before the opposite party no.3), was sufficient, however, both these parties did not choose to appear before the opposite party no.3, in absence of these parties, the opposite party no.3 passed the order dated 01.11.2019.

It would also be relevant to be noted that name of opposite party no.4 Mu. Mantoora wife of late Chhitai, was recorded in the revenue record in place of her husband Chhitai and she became entitled to transfer the land in terms of Section 157(AA)(4) of the Act of 1950.

The said land, detailed above, was transferred to one Jagdish Prasad through registered sale deed dated 01.09.2006 and thereafter Jagdish Prasad through registered sale deed dated 31.03.2015 transferred the part of the said land i.e. Gata No. 420M in favour to the petitioner. This transfer by Jagdish Prasad in favour of the petitioner was made, after due permission by the Chief Revenue Officer, District Gonda, as appears from the order dated 11.03.2015 passed in Case No.-Case No. 52/2013-14, Computerized Case No. D201808300000431( Govt of U.P. Vs. Mu. Mantoora) under Section 157A of the Act of 1950, which is on record as Annexure No. 3, to the present petition.

After the aforesaid, the name of petitioner was entered in the revenue record, as is evident from Annexure No. 5, which is a copy of Khatauni of Fasli Year 1417-1422. However, despite of the name of the petitioner in revenue record, it appears that without indicating the transfer made by Jagdish Prasad in favour of the present petitioner, the Lekhpal concerned submitted a report dated 25.02.2019 for instituting the proceedings under Section 166 of the Act of 1950. Based upon this report dated 25.02.2019, the case was instituted and thereafter the Collector passed the order dated 01.11.2019.

It is stated that undisputedly, the order dated 01.11.2019 affecting the rights of the petitioner is an ex-parte order so far as it relates to the petitioner and challenging the order dated 01.11.2019, the petitioner preferred a revision alongwith an application for condonation of delay in filing the revision, specifically indicating therein that petitioner came to know about the order dated 01.11.2019 on 23.03.2023 as also that the order dated 01.11.2019 was passed without providing an opportunity of hearing to the petitioner.

It has further stated that the revisional authority without considering the grounds taken in the application seeking condonation of delay, has rejected the application for condonation of delay and consequently thereof also rejected the revision challenging the order dated 01.11.2019. In the aforesaid background of the case, the present petition has been filed.

Sri Pradeep Chandola, learned Counsel for the petitioner, assailing the order dated 22.06.2023 passed by opposite party no.2/Additional Commissioner (Administration Second), Devi Patan Division, Gonda, in Case No. 909/2023, Computerized Case No. C2023800000909, (Rakesh Kumar Vs. Government of U.P.), submitted that without considering the grounds taken in application seeking condonation of delay, the opposite party no.2 rejected the said application. Thus, the order is unsustainable in the eyes of law, as such indulgence of this Court is required.

The present petition has been opposed by Sri Hemant Kumar Pandey, learned State Counsel. He says that order dated 01.11.2019 and order dated 22.06.2023, are justified as revision was filed after more than 3 years i.e. much beyond the period of limitation prescribed under law for filing the revision.

In response thereof, learned Counsel for the petitioner submitted that order dated 01.11.2019 itself is unsustainable in the eyes of law, because the findings recorded by the authority concerned is not based upon the evidence. Moreover, the report of Lekhpal based upon which case was instituted is itself vague rather misconceived as even the Lekhpal has submitted its report merely on the basis of presumption. He says that report says, if the permission for transfer was not granted then the transfer of land was void. He further submitted that order impugned dated 22.06.2023 which at this stage is required to be taken note, is also not sustainable in the eyes of law, because in the order findings, after considering the grounds seeking condonation of delay, have not been recorded by the revisional authority. As such, indulgence of this Court is required. Prayer is to condone the delay and direct the revisional authority to hear the revision be heard on merits.

In support of his submission he has placed reliance on the judgment passed by this Court in Writ B No. 649 of 2023 (Smt. Adesh Kumari and 2 others Versus Board of Revenue, Lucknow and Others).

Considered the submission of learned Counsel for the parties and perused the records.

In order to come to the conclusion as to whether the order dated 22.06.2023 is sustainable, this Court is of the view that the contents of application seeking condonation of delay be taken note of. Accordingly, the same are extracted hereinunder:-

"lfou; fuosnu gS fd mijksDr fuxjkuh ek= 4 ekg 26 fnu foyEc ls izLrqr fd;k tk jgk gS fnukad 01@11@2019 vkns'k ls 3 lky fuxjkuh izLrqr dk le; gS tks fnukad 01@11@2022 dks iwjk gks tkrk gS bl izdkj ek= 4 ekg 26 fnu foyEc ls izLrqr fd;k tk jgk gS ftlds fuEu dkj.k bl izdkj ls gSA

;g fd mijksDr vkns'k dh tkudkjh fnukad 23@03@2023 dks gqvk gS bl izdkj **;fn vkns'k ikfjr djrs le; i{kdkj vFkok mldk vf/koDrk U;k;ky; esa mifLFkr ugha Fkk rks ifjlhek dh vof/k tkudkjh ds fnukad ls 'kq: gksxh** bl fof/k O;oLFkk 2005 vkj-,y-Vh- 2005 ist ua- 147 ls 151 rd esa Li"V fn;k gS bl izdkj fnukad 23@03@2023 vkns'k dh tkudkjh ds 'kq: gS tks vUnj fe;kn gS bl lUnHkZ esa ekuuh; lqizhe dksVZ us Hkh Lor% laKku ysrs gq, ih0vkbZ0,y0 ua0 564@2022 m0iz0 ljdkj esa fnukad 28@02@2022 ,oa 90 fnu dk vkSj le; fn;k Fkk ftlesa dksfoM 19 ds ifjlhek ekQ fd;k Fkk nksuksa fof/k O;oLFkk layXu fd;k tk jgk gSA fuxjkuhdrkZ us foyEc tku cw>dj ugha fd;k lgou xyrh gqbZ tks ekQ fd;s tkus ;ksX; gSA

vr% Jheku th ls iqu% fuosnu gS fd foyEc dks ekQ djrs gq, fuxjkuh dks xzkg~; djrs gq, fuxjkuh dks xzkg~; djus dh d`ik djsa ,oa fuxjkuh dks xq.k&nks"k ij fu.khZr djus dh d`ik djsaA "

It would also be appropriate to reproduce the relevant portion of order dated 22.06.2023 impugned herein, the same reads as under:-

"22&06&2023& i=koyh izLrqrA iqdkj djk;h x;hA mHk; i{k ds fo}ku vf/koDrk mifLFkr gSa] ftUgsa fuxjkuh dh xzkg~;rk ds fcUnqq ij lquk x;kA fuxjkuh i=koyh dk voyksdu fd;k x;kA fuxjkuhdrkZ ds fo}ku vf/koDrk }kjk vius dFku ds leFkZu esa vkj0,y0Vh0 2005 i`"B&147 dh fof/k O;oLFkk izLrqr dh x;h] ftldk Hkh v/;;u fd;k x;kA

mDr fuxjkuh voj U;k;ky; ftykf/kdkjh xks.Mk ds okn la[;k% Mh201808300000431 vUrxZr /kkjk&166@167 m0iz0 tehankjh fouk'k ,oa Hkwfe O;oLFkk vf/kfu;e] ceqdnek ljdkj cuke eq0 eUrwjk esa ikfjr vkns'k fnukad% 01&11&2019 ds fo:) fnukad% 27&03&2023 dks ;ksftr dh x;h gS] tks dkyckaf/kr gSA fuxjkuhdrkZ ds fo}ku vf/koDrk us fe;kn ekQh izkFkZuk&i= izLrqr dj fuxjkuh xzkg~; fd;s tkus ij cy fn;k x;k gSA ljdkj dh rjQ ls e.Myh; 'kkldh; vf/koDrk us fyf[kr vkifRr izLrqr djrs gq, vfHkdFku fd;k gS fd fuxjkuhdrkZ o vU; foi{kh earwjk dks uksfVl nh x;hA fuxjkuhdrkZ }kjk ysus ls badkj djus ij

uksfVl muds ?kj ds le{k xokgksa dh mifLFkfr esa pLik dh x;h] rRi'pkr fo}ku voj U;k;ky; us lquokbZ dk lE;d volj iznku djus ds ckn iz'uxr vkns'k ikfjr fd;sA oknxzLr Hkwfe dh [kkrsnkfj;ka earwjk iRuh fNVbZ vuqlwfpr tkfr dh dksjh gS] ftlds }kjk txnh'k izlkn iq= jke Qsjs vuqlwfpr tkfr ¼[kfVd½ fcuk l{ke vf/kdkjh@mi ftykf/kdkjh dh vuqefr ds fodz; i= fu"ikfnr fd;k x;k gSA /kkjk& 157,, (4) t0fo0 vf/kfu;e ds vURkxZr vkoafVr Hkwfe ds laca/k esa vuqefr vkKkid izkfo/kku gS] ftlds vHkko esa fu"ikfnr djk;k x;k fodz; i= /kkjk&166] 167 t0 fo0 vf/kfu;e ds vUrxZr Hkwfe jkT; ljdkj esa fufgr fd;s tkus dk vkns'k ikfjr fd;k x;k gS] tks fof/k lEer gksus ds dkj.k fuxjkuh fujLr gksus ;ksX; gSA vUr esa vkifRr Lohdkj dj fuxjkuh fujLr fd;s tkus ij cy fn;k x;k gSA fuxjkuhdrkZ ds fo}ku vf/koDrk ,ao e.Myh; 'kkldh; vf/koDrk ¼jktLo½ ds rdksaZ dks lquk x;k ,oa muds }kjk fyf[kr vkifRr@fof/k O;oLFkk dk v/;;u fd;k x;kA voj U;k;ky; ds vkns'k fnukad 01@11@2019 dk voyksdu fd;k x;k ,oa i=koyh ij miyC/k vfHkys[kksa dk ifj'khyu fd;k x;kA fuxjkuhdrkZ }kjk izLrqr fuxjkuh vR;f/kd dkycakf/kr gS ,oa fuxjkuhdrkZ }kjk izLrqr fe;kn ekQh izFkZuk&i= esa mfYyf[kr rF; larks"ktud ugha gSaaA

vr% fuxjkuh vR;f/kd dkyckf/kr gksus ds dkj.k fujLRk dh tkrh gSA fuxjkuh esa ;fn dksbZ LFkxukns'k ikfjr gS] rks mls okil fy;k tkrk gSA i=koyh okn vko';d dk;Zokgh nkf[ky&nQ~rj gksA "

A perusal of the contents of the application as also the order impugned, makes a point crystal clear that opposite party no.2 has not considered the grounds and pleas, taken by the petitioner in his application seeking condonation of delay, which includes the pleas based on the judgments referred in the application for condonation of delay itself.

Further, it is apparent from the facts of the case, indicated hereinabove, that order dated 01.11.2019 was passed in the proceedings/case in which the petitioner was not impleaded as a party and opposite party nos. 4 and 5 were party, who did not choose to appear in the proceedings/case, despite sufficient service of notice and the petitioner came to know about the same on 23.03.2023 and based upon the date of knowledge of order dated 01.11.2019 the revision alongwith application for condonation of delay was preferred and these facts have not been disputed by the side opposite.

Accordingly, considering the entire aspect of the case as also the law referred by learned Counsel for the parties as also the observations made by the Hon'ble Apex Court in the judgment passed in the case of Ram ji Das and Others Versus Mohan Singh, reported in 1978 ARC 496, according to which proper opportunity of hearing should be provided and doors of hearing should not be closed, this Court is of the view that delay is liable to be condoned and it is condoned accordingly. The order dated 22.06.2023 passed by opposite party no.2, is set aside.

The matter is remanded back to the opposite party no.2/Additional Commissioner (Administration Second), Devi Patan Division, Gonda to decide the case on merits, after affording full opportunity of hearing to the parties, but without granting any adjournment to either of the parties preferably within a period of six months from the date a certified copy of the order is placed before the authority concerned, if there is no other legal impediment in this regard.

The opposite party no.2 is directed to decide the case by applying his own mind on merits and would not be influenced by any of the observations made in the body of the order as only issue of conondation of delay has been taken note of.

It is also made clear that the Court has not examined the case of either of the parties on merits and the authority concerned shall be free to decide the matter strictly in accordance with law.

Order Date :- 28.08.2023

Jyoti/-