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RAJ KLUMAR KHATRI & OTHERS versus BOARD OF REVENUE U.P., ALLAHABAD & OTHERS

High Court of Judicature at Allahabad

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Raj Klumar Khatri & Others v. Board Of Revenue U.P., Allahabad & Others - WRIT - B No. 60856 of 2006 [2007] RD-AH 5623 (29 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CIVIL MISC. WRIT PETITION NO. 60856 OF 2006.

Raj Kumar Khatri and others                                                     ................Petitioners.

Versus

Board of Revenue, U.P. At Allahabad and others               .................Respondents.  

................

Hon'ble Anjani Kumar, J.

This  writ petition arises out of proceedings of suits filed by the plaintiff under Section 229-B of U.P.Z.A & L.R. Act (in short the Act). Petitioners are aggrieved by the impugned order passed by the Board of Revenue wherein the Board of Revenue has decided the second appeal filed before it against the petitioners. Learned counsel for the petitioner has submitted that a second appeal lies against the judgement and order of lower appellate court  in view of the provisions of Section 331 (4) of the Act which is reproduced below:

"331 (4) that a second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid"

Learned counsel for the petitioner has submitted that a perusal of Section 331 (4) demonstrates that a second appeal shall lie to the Board of Revenue on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.

Learned counsel for the petitioner further relied upon Section 341 of the Act which provides as under:

"341. Application of certain Acts to the proceeding of this Act.__

Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act, 1963 (XXXVI of 1963)] [including Section 5 thereof] shall apply to the proceedings under this Act."

On the strength of aforesaid two provisions and Section 100 of the Code of Civil Procedure read with sub-sections 3, 4 and 5 which are reproduced below counsel for the petitioner has submitted that a second appeal can be entertained and decided by Board of Revenue only when Board of Revenue while deciding the second appeal is satisfied that substantial question of law is involved in any case, thereafter second appellate authority shall formulate that substantial question. It is only after satisfaction of the second appellate authority that a substantial question of law is involved and formulation of the question so involved the second appeal shall be heard and decided.

Section 100. Second Appeal..............

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law  is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

Learned counsel for the petitioner has relied upon the decision of the Apex Court in a case reported in 2006 (101) RD 449 SC Gian Dass Versus Gram Panchayat, Village Sunner Kalan and others wherein the Apex Court relying upon earlier decision of the Court in the case of  Ishwar Dass Jain Versus Sohan Lal reported in 2000 (29) ALR 756 and the case of Roop Singh Versus Ram Singh reported in 2001 (92) RD 374 (SC) = 2000 (39) ALR 484. The para 11 of the case of Gian Dass (supra) the Apex Court has ruled as under:

"11. The plea about proviso to sub-section (5) of Section 100 instead of supporting the stand of the respondent rather goes against them. The proviso is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression "on any other substantial question of law" clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question."

Learned counsel for the petitioner has submitted that it was therefore, not open to the Board of Revenue to interfere with the second appeal without formulating substantial question of law as contemplated under Section 331 of the Act read with Section 100 (4) (5) of Code of Civil Procedure.

Learned counsel for the petitioner has further relied upon a decision of learned Single Judge of this Court reported in 2006 (100) RD 742; Ram Prakash and another Versus Ram Saran and others and in the case of Mohd. Islam and another Versus Board of Revenue and others reported in 2006 (100) RD 71. The decision relied upon by counsel for the petitioner reported in the case of Anil Kumar and others Versus Board of Revenue, U.P. at Meerut and others reported in 2005 (99) RD 425 wherein this Court relying upon the decisions of the Apex Court in the case of Kshitesh Chandra Purakrit and another Versus Santosh Kumar Purakrit and another reported in 1997 (5) SCC 433 and in the case of Sheel Chandra Versus Prakash Chandra reported in 1998 (89) RD 623 (SC) has taken similar view.

Learned counsel for the respondent in reply to the aforesaid argument advanced on behalf of counsel for the petitioner has submitted that the provisions of Section 100 of the Code of Civil Procedure became the part of the provisions of Section 331 of the Act in its present form on the principle of doctrine of legislation by reference and he therefore submitted that since the provisions of Section 100 of the Code of Civil Procedure in its present form has been brought on the statute by way of amendment in the Code of Civil Procedure in 1976 whereas the provisions of Code of Civil Procedure referred to in sub-section (4) of Section 331 of the Act refers to the provisions of Code of Civil Procedure as it stood before the amendment of 1976. Thus relying upon the decision reported in 1994 SC 169 in the case of Gauri Shankar Gaur and others Versus State of U.P. and others counsel for the respondent submitted that the argument advanced on behalf of the petitioner deserves to be rejected.

The Apex Court in the case of Gauri Shankar Gaur (supra) has laid down as under:

"Language of the section, apart, the Courts have a duty to construe the provisions of a statute to advance the cause of justice and facilitate the day to day working of the statute to serve the public interest and achieve the objective of social betterment."

Thus, from reading of Section 331 (4) read with Section 341, I am of the opinion that the argument advanced on behalf of counsel for the respondent cannot be accepted particularly in view of the law laid down by the Apex Court in the case of Gian Dass (supra)

In this view of the matter, I am of the opinion that the argument advanced on behalf of counsel for the petitioner in both the writ petitions deserves to be accepted. Both the writ petitions succeed and are allowed on this ground alone.

In these circumstances, without going into further with regard to the impugned order, this writ petition is allowed. The impugned order dated                           10.9.2006 passed by the Board of Revenue is hereby quashed. The matter is remanded back to the Board of Revenue to decide afresh in accordance with law and in view of the observations made by this Court in this judgement. The Board of Revenue is directed to decide the matter within six months from the date of presentation of certified copy of this order before it. However, the parties shall bear their own costs.

Dated: 29.3.2007.

HR


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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