Mewalal And Others vs Board Of Revenue, U.P., Lko. Thru. ...
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Allahabad High Court

Mewalal And Others vs Board Of Revenue, U.P., Lko. Thru. ... on 6 August, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:45679
 
Court No. - 5
 

 
Case :- WRIT - B No. - 725 of 2025
 

 
Petitioner :- Mewalal And Others
 
Respondent :- Board Of Revenue, U.P., Lko. Thru. Chairman / Member And 3 Others
 
Counsel for Petitioner :- Surendra Kumar Mishra,Aman Agarwal
 
Counsel for Respondent :- C.S.C.,Mohan Singh
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Shri Surendra Kumar Mishra, learned counsel for the petitioners, learned Standing Counsel for respondents no. 1 and 2, Shri Mohan Singh, who has accepted notice on behalf of Land Management Committee- respondent no.3 and and Shri Yogesh Singh, who has filed his Vakalatnama on behalf of respondent no.4, which is taken on record.

2. By means of present writ petition, the petitioners have prayed the following relief:-

"i. issue a writ, order or direction in the nature of certiorari thereby quashing the impugned revisional order dated 22.08.2024, passed by the Board of Revenue U.P., Lucknow in Case No. REV/2433/2023, computerized case no. R20230404002433, "Mewalal and others Versus Bechuram" under Section 219 of U.P. Land Revenue Act, 1901 and order dated 07.10.2022 passed by the District Magistrate, Ambedkar Nagar in Case No. 728 of 2022, computerized case no. D202204040000728, under Section 219 of U.P. Land Revenue Act, 1901 as contained in Annexure No.1 and 2 to this writ petition."

3. It has been submitted that the dispute in the present case pertains to mutation of property situated at Gata No. 53 min, measuring area 1 biswa 17 dhur and gata no. 187/499 area 11 biswa 16 dhur situated at Village Husainpur, Pargana Akbarpur, Tehsil Jalalpur, (Earstwile Tehsil- Akbarpur), District Ambedkar Nagar.

4. The aforesaid land was recorded in the name of one Smt. Singari Devi, who is mother of the petitioners, in the revenue record. The respondent no.4 had claimed his title and right over the said land on the basis of sale deed dated 10.4.1987 executed by Smt. Singari Devi w/o Ram Dayal. It is on the basis of the sale deed dated 10.4.1987 that the respondent no.4 preferred an application under Section 34 of the Land Revenue Act, which was dismissed in default on 25.11.1987 and a recall application was moved on 29.9.1993, which was allowed ex-parte without issuing any notice to Smt. Singari Devi, by means of order dated 17.12.1993 and the matter was fixed for further hearing.

5. Smt. Singari Devi w/o Ram Dayal preferred an application for recall on 23.6.1995 for recalling of the order dated 17.12.1993, before the Naib Tehsildar. The Naib Tehsildar, after examining all the material on record and given an opportunity of hearing to the petitioner as well as respondent no.4, by means of the order dated 26.8.2021 recalled the order dated 17.12.1993 and restored the proceedings under Section 34 of the Land Revenue Act. The order dated 26.8.2021 was challenged in Revision by respondent no.4, namely, Bechu Ram s/o Late Jokhu, under Section 219 of the U.P. Land Revenue Act before the Collector, Ambedkar Nagar. The District Magistrate, Ambedkar Nagar was of the view that recall application was preferred after extremely long length of time, in 2021 and submitted that such delayed application should not have been accepted ignoring the fact that the delay was only two years and Naib Tehsildar has recalled the application only after 26 years ignoring that the delay was only of two years while he was of the opinion that the delay was of 28 years and therefore found that such long length of delay was not liable to be condoned and further dwelt upon the merit of the case and found that the sale deed on the basis of which mutation was sought by respondent no.4 is illegal and arbitrary, in as much as, the property for which the sale deed pertains was situated at Village Ruknuddinpur instead of Husainpur. In the light of the aforesaid discrepancy the revision was allowed and the order dated 26.8.2021 was set aside. In sum and substance, once the order dated 26.8.2021 has been set aside the order of mutation dated 17.12.1993 stood revived where the said property was mutated in favour of respondent no.4.

6. The petitioners being aggrieved by the order dated 7.10.2022 had preferred a revision before the Board of Revenue, which has been rejected by means of impugned order dated 22.8.2024 and accordingly by means of the present petition the order dated 22.8.2024 passed by the Board of Revenue as well as the order dated 7.10.2022 passed by the District Magistrate, Ambedkar Nagar has been challenged.

7. Learned counsel for the respondents has submitted that the present petition would not be maintainable in light of the fact that the orders passed bu Section 34 of the U.P. Land Revenue Act are not amenable to the writ jurisdiction and in such cases the aggrieved person should ordinarily be relegated to remedy of filing a declaratory suit for declaration of his title. Countering the preliminary objections, learned counsel for the petitioners submitted that a perusal of the judgment in the case of Smt. Kalawati Vs. Board of Revenue and others in Writ B No. 295 of 2022, itself would indicate that certain exceptions have been carved out for exercise of jurisdiction under Article 226/227 of the Constitution of India. He submits that in case it is shown that the order was without jurisdiction that in such a case the writ petition would be maintainable.

8. He submits that in the present case the application for recall was allowed by the Naib Tehsildar, by means of order dated 26.8.2021 and the matter was restored to be heard on merits but before any hearing to take place the order dated 26.8.2021 was subjected to revisional proceedings before the District Magistrate. The District Magistrate proceeded to consider and decide the case on merits after holding that unduly long period of delay has wrongly been condoned. In this regard it is noticed that in fact the delay in moving the recall application was only two years while the recall application itself was decided after 26 years, therefore the pendency of the recall application cannot be attributed to the petitioners and accordingly findings in this regard passed by the District Magistrate in revision proceedings is clearly perverse, illegal and arbitrary. The delay in fact was of two years, as was cogently explained in application for condonation of delay, which was filed on 23.6.1995. It was stated that the petitioners were not aware of the proceedings under Section 34 of the Land Revenue Act and accordingly was unable to move any application prior in time and therefore, it seems that the delay was satisfactorily explained and rightly considered by the Naib Tehsildar, while allowing the application vide order dated 26.8.2021.

9. It is further noticed that the Naib Tehsildar in the proceedings under Section 34 of the Land Revenue Act, had recalled his previous order and did not pass any order on merits after hearing both the parties. Accordingly in revisional jurisdiction it was not open for the District Magistrate to pass any order on merits, once he has held that the application for recall was delayed and hopelessly barred by time. Accordingly he has exceeded the jurisdiction vested in and walked in exercise in considering the rival contentions and passing the order on merits in favour of respondent no.4. I find that the said order has been upheld by the Board of Revenue on the same grounds.

10. It is for the aforesaid reasons, this Court is of the considered view that the order of District Magistrate Ambedkar Nagar as well as Board of Revenue suffers from jurisdictional error and in as much as, the delay has been condoned on wrong appreciation of facts. The delay in the present case was only of two years, where the Revisional Authority has decided the aspect considering the that the delay of 28 years.

11. Accordingly, it is for the aforesaid reasons, interference is required by this Court, in exercise of power under Article 226 of the Constitution of India.

12. In the light of the aforesaid discussion, the order dated 7.10.2022 as well as the order dated 22.8.2024 are illegal and arbitrary, therefore, quashed. The matter is remitted to Naib Tehsildar to decide the application under Section 34 of the Land Revenue Act, preferred by respondent no.4, with expedition in accordance with law.

13. Learned counsel for the petitioners submits that he shall file his objections within maximum period of three weeks from today. The petitioners shall also file their objections within two weeks thereafter and the Naib Tehsildar is directed to conclude the proceedings within the maximum period of three months, from the date a certified copy of this order is produced before him. The parties are undertaking to cooperate in the proceedings, before the Naib Tehsildar.

14. In the light of the above, the petition stands allowed.

15. Considering that this Court has directed to Naib Tehsildar to decide the matter within stipulated time with the consent of the parties. They shall maintain status-quo till the orders are passed by the Naib Tehsildar, on the application preferred by respondent no.4, as directed by this Court.

16. It is made clear that after passing appropriate orders, the interim protection shall cease to him.

.

(Alok Mathur, J.)

Order Date :- 6.8.2025

Muk