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SMT. GEETA GHOSH W/O D.P.GHOSH versus STATE OF U.P.& OTHERS

High Court of Judicature at Allahabad

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Smt. Geeta Ghosh W/o D.P.Ghosh v. State Of U.P.& Others - WRIT - C No. 15786 of 1992 [2004] RD-AH 1412 (16 November 2004)

 

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 on 01.09.2004

Delivered on 17.11.2004

Civil Misc. Writ Petition No. 15786 of 1992

Smt. Geeta Ghosh W/o Sri D.P.

Ghosh .... Petitioner

Versus

State of U.P. & others ... Respondents

Hon'ble V.K.Shukla,J.

Brief facts giving rise to instant writ petition is that petitioner claim himself to be the  Sirdar of plot no. 35 situated at Village Pamen Patti Uparhar, Pargana and Tehsil- Chail, Allahabad. Contention of the petitioner is that he deposited 20 times of land revenue of the land and Bhumidhari sanad was granted in his favour in case no. 334 through sanad no. 499/371089 on 14.07.1970. In the year 1973 orders were passed in R-6 directing that said land to be recorded in the name of Central Defence Department. Pursuant to the same name of Central Defence Department was recorded. Petitioner's contention is that in the year 1979 he acquired knowledge of the said entry being made in favour of Central Defence Department, then application was moved for correcting entries in the revenue record. On the said application proceeding under Section 33/39 of Land Revenue Act was undertaken and thereafter on 20.04.1979 order was passed for correcting the record. In the year 1987 Additional District Magistrate (Rural) Allahabad moved an application purporting to be Under Section 137-A of U.P. Zamindari Abolition & Land Reforms Act 1950, in the Court of Additional Collector, Chail, Allahabad for setting aside of the Bhumidhari sanad which has been obtained by the petitioner. To the said application objections were filed and thereafter said application was allowed. Aggrieved against the same appeal had been preferred and said appeal was allowed and thereafter revision had been preferred before Board of Revenue. Said revision has also been allowed. Against which writ petition has been filed.

To this writ petition counter affidavit has been filed and therein claim of the petitioner has been vehemently disputed and it has been contended that D.P. Ghosh, is not a Sirdar and thus by no stretch of imagination Bhumidhari sanad could have been granted to him. It has also been asserted that this is clear case of fraud and misrepresentation and at no point of time in respect of land in question any Notification for abolition of Zamindari in urban area had been done, as such by no stretch of imagination any Bhumidhari sanad could have been conferred and as such view taken by Board of Revenue is correct view and warrants no interference by this Court.

To this counter affidavit rejoinder affidavit has been filed  and therein it has been asserted that D.P. Ghosh was recorded as     Sirdar  and after paying 20 times of land revenue of the land, Bhumidhari sanad was granted to him and further application in question was moved after 17 years and said application did not disclose any fact of fraud and misrepresentation and coupled with this said application was incompetent and further there was nothing on record to suggest the land in question was ever recorded in the name of Central Defence Department prior to 1973 as such writ petition is liable to be allowed.

After pleading inter se parties have been exchanged present writ petition has been taken up for final disposal with the consent of the parties.

Sri Krishan Mohan, Advocate, has appeared for the petitioner and learned Standing Counsel has appeared for the respondents.    

Sri Krishan Mohan, Advocate, has assailed the validity of the order by contending that application itself on which order has been passed was clearly not maintainable and further said application had moved by Additional District Magistrate (Rural), without compling with the provision as contained under Section 79 Code of Civil Procedure read with Order 27 Rule 3 of Code of Civil Procedure and further details of fraud and misrepresentation has not been given as is envisaged under Order IV Rule 6 of Code of Civil Procedure and as such entire proceeding is totally without jurisdiction.

Learned Standing Counsel on the other hand contended that finding of fact which has been returned by the Board of Revenue goes to root of the matter and title suit is still pending and is to be adjudicated, as such no interference shall be made in the present writ petition and in case any interference is made in the present writ petition then it would amount to revival of another illegal order, as such writ petition be dismissed as it has been framed and drawn and further entire proceeding be subject to the title suit which is pending inter se parties.

On the basis of arguments which has been advanced, factual position which is emerging in the present writ petition is that Bhumidahari Sanad had been granted in favour of the petitioner after paying 20 times land revenue and said order had not been challenged. In the year 1973 i.e. after 3 years name of Central Defence Department was recorded. After six years, petitioners applied for correction of entries and said application was allowed on 20.04.1979. After eight years application had been moved under Section 137-A of U.P. Zamindari Abolition & Land Reforms Act 1950 by A.D.M. (R.A). Said application had been allowed thereafter appeal preferred against the same by petitioner has been allowed and thereafter revision preferred against the same by respondents has also been allowed. Argument which has been advanced by the petitioner pointing out various infirmities in the impugned order are correct, inasmuch as, in the present case provision under which application has been moved namely Section137 A of U.P. Zamindari Abolition & Land Reforms Act 1950, same did not exist in the stature book on the day when application has been moved. Details and the way and manner in which fraud and misrepresentation has been practiced has also not been specified. The other argument which has been advanced on behalf of the petitioner has also force, inasmuch as the ground on which appeal has been allowed, same has not at all been adverted to by the revisional court neither the question of revision being maintainable has been gone into. In normal circumstances impugned order would have been quashed but as in the present case in entire body of the writ petition finding of fact, which has been returned on the basis of documentary evidence, same has not at all been disputed as such it is presumed that said finding are correct and not disputed. It is writ apparent that at no point of time in fact any notification had been issued for abolition of the zamindari in the urban area where land in question is situated. Nothing has been brought on record before this Court that zamindari had been be abolished and the rights of the petitioner had accrued. Precise finding of the fact has been mentioned in the impugned order that without there being any notification under Section 8 and 9 of U.P. Urban Area Zamindari Abolition and L.R. Act 1956 land in question cannot be presumed to be agricultural land. As all these finding has not been questioned, even though petition is liable to succeed but this Court refuses to exercise it equitable jurisdiction, inasmuch as, same will amount to revival of another illegal order.

In this connection, it would be relevant to note that time and again view has been taken that, even if, the order is illegal but quashing of the same would revive another illegal order, then court can  refuse to exercise its discretion under Article 226 of the Constitution of India. In the case of Gadde Venkateswara Rao Versus Government of Andhra Pradesh and others reported in AIR 1966 S.C. 828, it has been held that High Court was right to refuse its exercise of extraordinary discretionary power under Article 226 of the Constitution of India, in the circumstances of the case, even though, order made on 18.4.1963 by Government was bad.

Thereafter Hon'ble Apex Court in the case of  Mohd Swalleh Versus IIIrd A.D.J. reported in AIR 1988 S.C. 94   has expressed the view. Para 13 which is quoted below:-

13. Court considered the action of the State   Government under the Andra Pradesh  Panchayats  Samithis and Zila Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an  order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if the High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power"

Similar view had been taken in the case of  Maharaja Chintamani Sasran Nath Shahdeo Versus State of Bihar and others reported in  (1999) 8 SC 16 by holding that , even if, member of the Board of Revenue had power to issue direction for giving notice for refund of the excess amount paid no exception can be taken to the said order, if it  is found that  legally appellant was paid excess compensation under the Act.

Recently in the case of Chandra Singh  Vs. State of Rajasthan, J.T. reported in 2003 (6) page 20. In paragraph 38 of the aforementioned judgment, the Hon'ble Apex Court categorically opined that the action of the State and the High Court was illegal, but even then the Hon'ble Apex Court refused to exercise its discretionary jurisdiction vested in it. In this regard reference may be had to paragraphs 38, 40, 41, 42, 43 and 44 of the judgment in case of Chandra Singh (supra):

"38   We have, therefore, no option but to hold that the actions on the part of the High Court or the State in compulsorily retiring the appellants herein were illegal.

40. However, our aforementioned findings did not lead to a conclusion that the appellants would be entitled to a discretionary  relief.

41.  In the event, even assuming that there is some force in the        contention of the appellants, this Court will be justified in following Taherakhatoon V. Salambin Mohammad JT 1999(2) SC 45; and (1999) 2 SCC 635 wherein this Court declared that even if the appellants contentions is right in law having regard to the overall circumstances of the case, this Court would be justified in declining to grant relief under Article 136 while declaring the law in favour of the appellants.

42.     Issuance of writ of certiorari is discretionary remedy( See Chaman Lal Binnai V. CIT, West Bengal, AIR 1970 SC 645). The High Court and consequently while exercising its extraordinary jurisdiction under Articles 226 or 32of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done [ See S.D.S Shipping Pvt. Ltd. V. Jay Container Services Co Pvt. Ltd & Ors (2003) 4 Supreme 44. Such a relief can be denied, interalia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Article 142 of the Constitution of India is entitled to pass such order which will be complete justice to the parties."

43. We have been taken through the annual confidential reports as against the appellants. Having gone through the same, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction in favour of the appellant. This Court in Brij Mohan Gupta's case (supra) has also refused to exercise its discretionary jurisdiction in favour of the appellant although the order of the High Court was found liable to be set aside being not in accordance with law.

44. This Court said that this principle applies to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter. So even after the appeal is admitted and special leave is granted, the appellant must show that exceptional and special circumstances exist, and that, if there is no interference, substantial and grave injustice will result and that the case has features of sufficient gravity to warrant a review of the decision appealed against on merits. So this Court may declare the law or point out the lower courts' error, still it may not interfere if special circumstances are not shown to exist and the justice of the case on facts does not require interference or if it feels the relief could be moulded in a different fashion."

Thus, as no rebuttable material has been brought on record, as such present writ petition is dismissed. It is made clear that title suit in respect of this very property is pending inter se parties as such the order impugned in present writ petition shall abide with the final outcome of suit and any observations made in the present judgment shall not effect the hearing of case and concerned Court, shall proceed to decide the same at the earliest, without being influenced by the observations made.

With these observations present writ petition is dismissed.

No orders as to cost.

Date:17.11.2004

Dhruv

         

                                               


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