Mohan G. Manchandani vs Kayum
2022 Latest Caselaw 867 UK

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL

                        Writ Petition (MS) No. 696 of 2019

Mohan G. Manchandani.                                       .................Petitioner.

                                             -Versus-

Kayum
and others.                                                      .........Respondents.

Present:

Shri Mohan G. Manchandani, petitioner in person. Shri Suyash Pant, learned standing counsel for the State.

Date of hearing and judgment: March 23, 2022

Sri Sanjaya Kumar Mishra, ACJ.

1. By filing this writ petition, the petitioner, in person, has prayed to issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated on 29.08.2018 passed by Board of Revenue, Uttarakhand, Dehradun.

2. The facts of the case are that on 11.02.1988, the petitioner purchased a land, in question, from the legal heirs of Smt. Chanda Devi, who do not belong to scheduled caste and who were recorded Bhumihar of such land and the land fell under the category of Sankarmaniya 1 (ka), stated to be free from all encumbrances, constraints and restraints under the provisions of the Uttar Pradesh Zamindari and Abolition Act, 1950, (hereinafter refer to as UPZA & LR Act for brevity). In the year 1993, a survey bandobast was initiated by Revenue Authorities. The Revenue Authorities issued notices to all the concerned persons including the petitioner for correction of Category 9 entry. The petitioner filed his objection. Survey bandobast was taken up by Assistant Record Officer, 1st Class Magistrate (hereinafter referred to as "ARO" for brevity). Father of respondent no. 1 i.e. late Habib also

took part in the proceedings. After hearing the parties, the learned ARO vide order dated 13.12.1993 deleted the category 9 entry and rejected all the claims of respondent no. 1's father. The respondent no. 1 has not challenged that order till date and therefore, the petitioner claims that the order passed by the ARO has attained its finality and the title, right and interest of the petitioner over the land has become perfect by operation of section 9, 58 and 59 of the Limitation Act. The exclusive position of the petitioner over the land, in question, was confirmed by demarcation order dated 04.06.2009 passed by the Executive Magistrate and order of minarbandi dated 12.06.2015.

Then, respondent filed a Revenue Suit No. 24/2006-07 under section 229 of the UPZA & LR Act, which was dismissed by the Assistant Collector, 1st Class / SDM Dehradun by order dated 21.05.2012 on the ground that respondent never challenged the order dated 13.12.1993. An appeal was preferred by the respondent bearing Appeal No. 11 of 2013 & 14 under section 331 of the UPZA & LR Act before the Commissioner, Garhwal Region at Pauri. The Commissioner dismissed the appeal filed by respondent vide order dated 06.06.2014 on the ground that respondent never challenged the order dated 13.12.1993. The Appellate Court also found certain contradictions in the grounds.

The matter was carried to the Board of Revenue, Dehradun. On 25.03.2015, the Board of Revenue also dismissed the Second Appeal on the same ground. On 12.06.2015, the process of 'minarbhandi' was completed in compliance of District Magistrate's order dated 02.05.2015. The order passed by the learned Board of Revenue was assailed by the respondent before this Court by filing Writ Petition No. 1450 of 2015, which was decided on 27.11.2017. The order of the Second Appellate Court

was set aside and a direction was given to the Board of Revenue to consider the application under Order 41 Rule 27 of Code of Civil Procedure and decide the case of fresh. Petition was filed mainly on the ground that the application filed by the respondent under Order 41 Rule 27 of the Code was not considered by the Second Appellate Court. In fact, the learned Single Judge of this Court in second paragraph at page 3 of the judgment observed that this Court, at that stage, itself makes it very clear that looking to the tenacity of the argument extended by the learned counsel for the petitioner confined to ground (A), confined his findings only in relation to this ground agitated before the Second Appellate Court. The findings, which have been affirmed by Trial Court as well as First Appellate Court, are not being disturbed at all. Then, he passed the following order:

"In that view of the matter, the impugned order so far as it relates to the second appellate court only is quashed. The matter is remitted back to the second appellate court to decide the second appeal afresh, after taking into consideration the application under Order 41 Rule 27, without being influenced by any finding or observation made above. Since, most of the proceedings in the second appeal stand concluded, the second appellate appeal would be decided within a period of three months from today.

Subject to the above observation, writ petition partly succeeds. The judgment dated 25.03.2015, as passed by the Board of Revenue is quashed. The matter is remanded back to the Board of Revenue to decide the Second Appeal afresh in the light of considering application under Order 41 Rule 27 of the CPC."

3. Thus, after remand the learned Board of Revenue took up the matter fresh and addressed itself to answer three questions framed by it. The first issue framed by the Board of Revenue and decided by it in vernacular language is quoted as under:

**Ikz"u la[;k & 1% D;k vkyksP; okn esa fook|dksa dk fLFkjhdj.k vko";d Fkk ,oa fcuk fook|d fLFkj fd;s okn dk fuLrkj.k gks ldrk Fkk \**

Operative portion of issue no. 1 decided by the Board of Revenue:

**rnuqlkj fof/k dk ;g lkjoku iz"u bl vk"k; ls fofuf"pr gksrk gS fd okn iks'k.kh;rk dk fcUnq izkjfEHkd :Ik ls fcuk fook|d fLFkjhd`r fd;s fuLrkfjr fd;k tk ldrk gS ijUrq okn ds dkyckf/kr gksus ds iz"u dk fuLrkj.k izkjfEHkd :Ik ls fook|d fLFkjhd`r fd;s fcuk ugha gks ldrk gSA**

Issue no. 2 and 3 framed by the Board of Revenue read as under:

**iz"u la[;k & 02% D;k oxZ&09 dk bUnzkt fujLr gksus ds dkj.k okn iks'k.kh; ugha gS \

iz"u la[;k & 03% D;k v/khuLFk U;k;kyk;ksa ds fu.kZ; o vkKfIr fof/k dh n`f'V ls =qfViw.kZ ,oa rkfRod vfu;ferrk ls xzflr gSa \**

4. As far as, issue no. 2 is concerned, the Board of Revenue had decided that once the Category 09 objection has been rejected, thereafter, no dispute can be raised. While deciding issue no. 3, the learned Board of Revenue has held that as far as the question of disputed land belonging to a member of Schedule Caste person, its sale and purchase against the law is concerned, the Assistant Collector has called for a report from the Tehsildar but no such report has been received by the Assistant Collector. It did not form part of the record. In fact, the result of such an inquiry is not known to anybody. He observed that if the disputed land was of schedule caste person and it was sold by said scheduled caste person to a non scheduled caste person

without requisite compliance of law, then such a sale may be declared as void and for that reason a fresh trial is necessary and accordingly, the appeal was allowed in part and order passed by Original Court as well as Appellate Court were set aside and the matter was remanded to the court of Assistant Collector for retrial.

5. The petitioner, in person, would argue that the order passed by the Second Appellate Court is contrary to the order passed by this Court in WPMS No. 1450 of 2015 whereby the matter was remanded to the Second Appellate Court only for consideration of evidence filed under Order 41 Rule 27 of the Code. It is apparent from record that in the entire judgment passed by the Board of Revenue there has been no mention that there was any application filed by the respondent for additional evidence. He went on to decide the matter in complete violation of the order passed by this Court.

6. The second appellate court while deciding the appeal clearly went beyond the direction given by this Court in WPMS No. 1450 of 2015. Such a going beyond the order has resulted in improper exercise of jurisdiction by the Appellate Court. In the case of Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, the Hon'ble Supreme Court has observed that there is a very thin line between the principles that guided the writ petition under Article 226 of the Constitution and the writ petition under Article 227 of the Constitution. Such a distinction has been approved by the Hon'ble Supreme Court in the larger bench Radhey Shyam & another Vs. Chhabi Nath and others (2015) 5 SCC 423. The larger bench of the Hon'ble Supreme Court has held that the application under Article 226 of the Constitution of India is not maintainable against the order passed by the Civil

Court in a Civil Suit overruling the Surya Dev Rai (supra) but the principles of distinction has been approved by the latter judgment. In this case, the application is said to have been filed under Article 226 and 227 of the Constitution of India but it is, in fact, an application under Article 227 of the Constitution of India and as such, the provisions of Article 227 of the Constitution of India can be invoked or writ of Certiorari can be issued only to correct the jurisdictional excesses by subordinate Court against whose order the writ petition has been filed. In other words, a writ of Certiorari can be issued when jurisdictional excess is established. The supervisory jurisdiction shall be exercised only when there is jurisdictional error causing manifest injustice. The Hon'ble Supreme Court in the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa Vs. Giridhari Sahu and others (2019) 10 SCC 695 has also summarised the principles of writ of Certiorari.

7. A new issue has been raised, which was not raised or contested by any of the party either before trial court or the first appellate court that a man belonging to schedule caste has sold his lands in violation of Section 157A of the UPZA & LR Act. In fact, respondents are not coming forward to claim that the land, so purchased by the petitioner, was belonging to a scheduled caste person. It is not understandable why if no such issue was taken up and decided by the courts below and the matter was remanded back to the learned Assistant Collector for retrial. It is also nobody's case that the original tenure holder was a member of the scheduled caste category.

8. Moreover, the respondents are not contesting the matter and nobody has come forward to argue that the land, in dispute, is actually belonging to a schedule caste person and its sale is in

violation of section 157A of the UPZA & LR Act. In that view of the matter, this Court is of the opinion that the matter should be set at rest especially when the order passed by the learned Assistant Record Officer dated 13.12.1993 has attained finality and there is no material on record to prima facie show that land originally belongs to a scheduled caste person, who sold it violating the Section 157-A of the UPZA & LR Act. Thus, on the conspectus of the material available on record, this Court finds merit in the petition and the same is allowed against the government of Uttarakhand and ex parte against the private respondent. Impugned order dated 29.08.2018 passed by the Board of Revenue is hereby quashed.

(Sanjaya Kumar Mishra) Acting Chief Justice.

SKS