Allahabad High Court
Hitesh Kumar vs State Of U.P. And 5 Others on 27 January, 2023
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- WRIT - B No. - 3794 of 2022
Petitioner :- Hitesh Kumar
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Santosh Kumar Upadhyay,Vinod Kumar Upadhyay
Counsel for Respondent :- C.S.C
Hon'ble J.J. Munir,J.
The petitioner is aggrieved by an order of the Board of Revenue dated 26.10.2021, passed in Revision No. 3415 of 2006-07 reversing an order of the Additional Commissioner dated 15.09.2007 passed in Revision No.149 of 2006-07 preferred by the petitioner to the Commissioner against the Appellate order passed by the Sub-Divisional Officer in proceedings under Section 34 of the U.P.Z.A & L.R Act.
It appears that the petitioner's application for mutation based on a registered Will was allowed by the Tehsildar vide order dated 23.02.1993 passed in Mutation Case No.15/16/28 of 1993. By the said order the petitioner's name was directed to be mutated in the revenue records. The order of the Tehsildar dated 23.02.1993 was sought to be set aside by the respondent No.6 through a restoration application which was allowed by the Tehsildar vide order dated 29.12.1993. Subsequently, the Tehsildar by an order dated 18.11.2003 rejected the petitioner's case as well as that of respondent No.6, both of which were based on Wills, and instead, mutation was granted on the basis of succession in favour of respondent No.6. The petitioner has challenged the order dated 18.11.2003 by way of an appeal being Appeals Nos. 14 of 2003-04, 19 of 2003-04 and 20 of 2003-04 under Section 210 of the U.P. Land Revenue Act, 1901. The appeals were dismissed by the Sub-Divisional Officer, Sadar Muzaffar Nagar vide order dated 31.07.2007.
Aggrieved by the appellate order dated 31.07.2007, passed by the Sub-Divisional Officer, as well as the first Court's order, the petitioner preferred a Revision to the Commissioner, Saharanpur Division Saharanpur. The said Revision was numbered as 149 of 2007. It came up on assignment before the Additional Commissioner (Judicial), Saharanpur. The Additional Commissioner by the order impugned dated 15.09.2007, allowed the petitioner's Revision and set aside the orders dated 18.11.2003 and 31.07.2007. The order dated 23.02.1993 passed by the Tehsildar was restored.
Aggrieved by the order of the Additional Commissioner dated 15.09.2003, respondent No.6 carried a Revision to the Board of Revenue U.P. at Lucknow that was numbered on the Boards file as 3415 of 2006-07. This Revision, by the order impugned dated 26.10.2021 has come to be allowed and the order of the Additional Commissioner, dated 15.09.2007 set aside.
Learned Counsel for the petitioner Mr. V.K. Upadhyay, has addressed this Court extensively on the patent fallacies of the law vitiating the order impugned, but before this Court examines the validity of the order passed by the Board of Revenue, in our opinion, it is necessary to see whether the petitioner at all had a right to carry a Revision from the appellate order passed by the Sub-Divisional Officer in favour of respondent No.6.
In this regard, reference may be made to the provisions of Section 219 of the U.P. Land Revenue Act, 1901, which reads:
"219. (1) The Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by any revenue Court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of the order passed or proceeding held and if such subordinate revenue Court appears to have-
(a) exercised a jurisdiction not vested in it by law, or
(b) failed to exercise a jurisdiction so vested, or
(c) acted in the exercise of jurisdiction illegality or with material irregularity,
the Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be, pass such order in the case as he think fit.
(2) If an application under this section has been moved by any person either to the Board, or to the Commissioner, or to the Additional Commissioner, or the Collector or to the Record Officer, or to the Settlement Officer, no further application by the same person shall be entertained by any other of them."
A perusal of the aforesaid provision shows that the Board, the Commissioner, the Additional Commissioner, the Collector, the Record Officer, or the Settlement Officer are all vested with powers of revision against the orders passed by Court's subordinate to them provided the case is one in which no appeal lies or where it does lie, has not been preferred.
Here is a case where from the Tehsildar's order passed against the petitioner, an appeal lay to the Sub-Divisional Officer under Section 210 of the U.P. Land Revenue Act. Not only did an appeal lie from the order of the Tehsildar to the Sub-Divisional Officer under Section 210 of the Act, but the appellate remedy was availed by the petitioner albeit unsuccessfully. Thereafter, the petitioner chose to challenge the appellate order before the Commissioner in Revision under Section 219 of the Act. There is hardly doubt on a plain reading of the Statute that no Revision lies to the Commissioner or any higher Revenue Court in a case where an appeal lies and has been preferred. Here is a case where, as already remarked, an appeal lay from the Sub-Divisional Officer's order and has also been preferred to him unsuccessfully. The remedy of the petitioner, therefore, might have laid elsewhere from the order of the Sub-Divisional Officer, but he had no remedy open under Section 219 of the Act, before the Commissioner. The Board of Revenue in passing the impugned order has passed a judgment setting aside the Additional Commissioner's order on merits. That ought not to have been done. The Board of Revenue ought to have set aside the Additional Commissioner's order on the ground of maintainability alone.
Since this Court is of opinion that the order of the Board of Revenue ought to be upheld not as such, but on the issue of maintainability of the Revision before the Additional Commissioner, this Court does not think that notice need issue to the other side. However, if respondent No.6 feels aggrieved by this finding of the Court, it would be open to him to make an application in this decided petition.
Subject to the above clarification, and the opportunity extended to respondent No.6, this petition fails and is dismissed.
It is made clear that the dismissal of this petition will not preclude the petitioner from availing his remedies against the order passed by the Sub-Divisional Officer in appeal and the order under challenge before the Sub-Divisional Officer through such proceedings, as advised.
Order Date :- 27.1.2023
NSC
