Ram Naresh And Another vs Suvej Singh And 4 Others
2023 Latest Caselaw 25727 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:183700
 
Court No. - 52
 

 
Case :- WRIT - C No. - 28878 of 2023
 

 
Petitioner :- Ram Naresh And Another
 
Respondent :- Suvej Singh And 4 Others
 
Counsel for Petitioner :- Syed Mohammad Nazar Bokhari
 
Counsel for Respondent :- CSC,Sher Bahadur Singh,Vipin Kumar
 

 
Hon'ble Saurabh Srivastava,J.

1. Heard Sri Syed Mohammad Nazar Bokhari, learned counsel for the petitioners, Sri Vipin Kumar, learned counsel for the respondent No.1 and Sri Tarun Gaud, learned Standing Counsel appearing on behalf of respondent Nos. 2 to 4 and Sri Sher Bahadur Singh, learned counsel for the respondent No.5.

2. The present petition has been instituted against the order dated 15.01.2020, passed by the respondent No.3 and order dated 25.04.2023, passed by the respondent No.4, it is the case of the petitioner that the proceedings under Section 30 of U.P. Revenue Code, 2006 has been initiated for seeking correction of map only wherein certain discrepancies has been highlighted that Plot no. 22 has been mentioned two times with the fragmented line available in the map which reflects that there are two plots having the same number of 22.

3. The application preferred by the petitioners under Section 30 of U.P. Revenue Code, 2006 has been rejected by the respondent No.3 on the basis of proceedings initiated by the petitioners themselves under Section 28 of the U.P. Land Revenue Act and the same was also dismissed vide order dated 27.05.1998 and the same was challenged before the respondent No.4 which culminated into order dated 04.09.2001 dismissal against the petitioner.

4. Having being aggrieved with the order dated 15.01.2020, petitioners preferred the revision before the respondent No.4, under Section 210 of U.P. Revenue Code, 2006 and the same was decided on dated 25.04.2023 by affirming the finding and conclusion derived by the respondent No.3.

5. Learned counsel for the petitioners assailed both the orders amongst several other grounds inter alia precisely on the ground that the application under Section 30 of U.P. Revenue Code, 2006 cannot be dismissed only on the ground of res judicata, for substantiating his argument Sri Bokhari sought the attention of the Court over Section 30 of U.P. Revenue Code, 2006, which is reproduced herein below:

"Section 30 of U.P. Revenue Code, 2006

Maintenance of Map and Field Book

(1) The collector shall maintain in the manner prescribed a map and a field book (Khasra) for each such village and shall cause to be recorded therein annually or at such larger intervals as may be prescribed all changes in the boundaries of the village or survey numbers and shall also cause to be corrected any errors or omissions which are from time to time detected in such map or field book (Khasra).

(2) The minjumila numbers shall be divided physically in the manner prescribed in the revenue records including map and khasra shall be corrected accordingly."

6. It is the argument preferred by the learned counsel for the petitioners that the map and field book of the village has to be maintained on yearly basis by the Collector himself and as such the changes occurred from the earlier adjudication made over the application under Section 28 of Land Revenue Act preferred by the petitioners has now been sought to be amended/rectified through the application preferred under Section 30 of the Revenue Code, 2006 by the petitioners and as such the sole ground for rejecting the same only on the basis of res judicata is not maintainable in the eyes of law.

7. Per contra, Sri Vipin Kumar, learned counsel appearing for respondent No.1 vehemently opposed the prayer as made in the writ petition and disputed the stand taken by learned counsel for the petitioners by way of supporting the orders which impugned the present petition and submitted that on similar set of facts the earlier application preferred under Section 28 of Land Revenue Act by the petitioners has already been rejected and the same has been finalized by the orders passed by the respondent No.4 and after the gap of 20 years a fresh application has been preferred under Section 30 of U.P. Revenue Code, 2006, which was not maintainable and the same was rightly dismissed by the respondent No.3 and the same was uphold by the respondent No.4. For substantiating his argument, learned counsel for the respondent No.1 relied upon the judgment passed by the co-ordinate Bench of this Court in Writ B No. 428 of 2022 (Rammilan vs. State of U.P. Thr. Collector Ambedkar Nagar & Ors.), decided on 18.07.2022 and another judgment rendered by the co-ordinate Bench of this Court, passed in Writ Petition No. 295 of 2022, decided on 05.04.2022 in case of Smt. Kalawati vs. Board of Revenue and others 2022(4) ADJ 578.

8. In case of Smt. Kalawati (supra) co-ordinate Bench of this Court has held that learned counsel for the petitioner has not been able to point out any circumstances which may persuade this Court to entertain the writ petition in exception to the settled legal position that ordinarily orders passed in mutation proceedings are not to be interfered within the exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

9. Reliance has also been placed over the similar observation made in the case of Rudhra Mani Shukla vs. Subhash Kumar and Ors, 2017(3) ADJ 510, wherein it has been held that it is clear that although the writ petition arising out of mutation proceedings cannot be held to be non-maintainable but this Court does not entertain the writ petition under Article 226 of the Constitution due to reason that the parties have right to get the title adjudicated by regular suit and the orders passed in mutation proceedings are summary in nature.

10. Learned counsel for the respondent No.1 submitted that the proceedings initiated by the petitioners are summary in nature and such the writ petition is not maintainable.

11. The other judgment relied by the learned counsel for the respondent No.1 in case of Ram Milan (supra), wherein the question of res judicata has been considered and the co-ordinate Bench of this Court held which is quoted herein below:

"Thus, merely because the appellate Court has held that the principle of res judicata would be applicable would, in the opinion of this Court, not render the said order as being without jurisdiction inasmuch as the same could only be an error of law. It goes without saying that an order can only be beyond jurisdiction where an authority is not vested with the power to pass any order but in the instant case it is not that the authority was not vested with the power to pass an order and see for itself the illegality of an order dated 29.05.2014 as was challenged before it. Thus, this Court does not find that the alleged error of jurisdiction has been committed by the appellate Court while passing the impugned order dated 24.08.2021. On the same analogy merely because the Court in revisional jurisdiction in paragraph 5.10 has left it open for the petitioner to pursue other remedies, the same would not render the order passed by the Board of Revenue beyond jurisdiction. "

12. After having thoughtful consideration to the judgment passed in case of Smt. Kalawai (supra) wherein it has been held that writ under Article 226 is not maintainable arising out of the summary proceedings, but in the instant matter the order which impugned the present petition has been passed under Section 210 of the U.P. Revenue Code which is final in nature before the Revenue Authority since the concurrent jurisdiction has been provided under the same section that a summary application made in the section has been moved by any person either to the Court or the Commissioner, no further application by the same person shall be entertained by the other of them and as such the present petition has not covered with the dictum has drawn by the co-ordinate Bench of this Court in case of Smt. Kalawati (supra). Since the present petition has been preferred for challenging the order which is final before the Revenue Authorities and the same can be challenged in writ jurisdiction.

13. So far as the judgment of Ram Milan (supra) is concerned, the determination as drawn by the co-ordinate Bench of this Court is somehow little bit different with the analogy drawn by the learned counsel for the respondent No.1 and the same is apparent from the paragraph no.23, the extract of which is quoted above, wherein, it is crystal clearly defined that even an order can only be beyond jurisdiction wherein the authority is not vested with the power to pass any order, in the instant case it is not that the authority was not vested with the power to pass an order and see for itself the illegality of an order which is put under challenge and as such merely it was the Appellate Court has held that principle of res judicata would be applicable the other part of the order cannot be said to be illegal, whereas the principle of res judicata will not be applicable in Section 30 of Code of 2006. Since the maintenance has to be carried out by the Collector on yearly basis and the mistake can be possible in maintenance.

14. In view of aforementioned facts and circumstances as well as considering the memo of the revision preferred by the petitioners, wherein the detailed description has been elaborated with regard to seeking prayer as made under Section 30 of the U.P. Revenue Code, 2006 which has been negated by the respondent No.3 only on the ground of res judicata can be declared as bad in the eye of law.

15. The order dated 15.01.2020, passed by the respondent No.3 and order dated 25.04.2023, passed by the respondent No.4 are hereby set aside, matter is remitted back to the respondent No.3 for deciding afresh after given due opportunity of hearing to all concerned.

16. The writ petition stands allowed accordingly.

Order Date :- 21.9.2023

A. Tripathi