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SHAKIL & OTHERS versus NASHIR KHAN & OTHERS

High Court of Judicature at Allahabad

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Shakil & Others v. Nashir Khan & Others - WRIT - C No. 17738 of 1997 [2005] RD-AH 1342 (17 May 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Court No.24

Civil Misc. Writ Petition No.17738 of 1997

Shakeel Ahmad and others Vs. Nashir Khan and others

***

Hon. V.C.Misra, J.

Mr. N.K. Trivedi, Advocate along with Mr. M.C. Dwivedi, Advocate, learned counsel for the petitioners and Mr. S.N. Singh, learned Counsel for the respondents are present.

The facts of the case in brief are that the petitioners Shakeel Ahmad and others filed a mutation application under Section 34 of the U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act, 1901) on 18.4.1994 on the basis of civil court judgment dated 27.10.1983 passed in Original Suit No.456. The Tehsildar allowed the mutation application on 23.6.1994, which was challenged by the respondents Nashir Khan, and others through their restoration application, which was allowed on 12.8.1994. Being aggrieved by the order dated 12.8.1994 the petitioners Shakeel Ahmad and others filed a revision before the Additional District Magistrate, which was rejected on 9.2.1995. The petitioners Shakeel Ahmad Khan and others filed a second revision before the Board of Revenue, which was allowed on 1.3.1995 without affording any opportunity of hearing to the respondents- Nashir Ahmad Khan and others thereafter filed a restoration application No.4/94-95 before the Board of Revenue for recalling the order dated 1.3.1995. As per record, after hearing learned counsel for the parties and perusing the entire record the Board of Revenue vide its order dated 1.2.1996 recalled its exparte order dated 1.3.1995 and restored the case to its original number and fixed it for final hearing. After hearing both the parties on merits the Board of Revenue rejected the second revision on merits filed by the petitioners Shakeel Ahmad vide its order-dated 2.4.1997.

The petitioners being aggrieved by the order dated 2.4.1997 filed the present writ petition, however, order dated 1.2.1996 recalling the order dated 1.3.1995 and restoring the case to its original number was not challenged in the writ petition which was allowed by this Court on 2.5.2000 on the ground that once the order dated 1.3.1995 had already been passed, a second order in the same revision could not be passed. A review application was filed by the respondents against the order dated 2.5.2000 before this Court which was also rejected by this Court vide order dated 15.7.2002. It seems that the order dated 2.5.2000 was passed by this Court in the absence of any knowledge of the fact that the order dated 1.3.1995 had already been recalled by the Board of Revenue vide order dated 1.2.1996 and the revision had already been restored to its original number and the impugned order dated 2.4.1997 was passed afresh. The matter went to the Hon'ble Supreme Court and the Hon'ble Apex Court vide its order dated 14.11.2003 while allowing the Civil Appeal No.9033-9034 of 2003 set aside the orders dated 2.5.2000 and 15.7.2002 passed by this Court in the instant writ petition with the observations that the writ petition be restored to the file of the High Court and the same be disposed off on merits as expeditiously as possible.

Learned counsel for the petitioners has submitted that the Tehsildar on 23.6.1994 while taking into consideration the decision dated 27.10.1983 passed in Civil Appeal no.79 of 1979 by which the suit for injunction against the opposite parties was decreed upheld the ownership as well as possession of the petitioners and directed the name of the applicants to be mutated in the revenue record expunging the names of the opposite parties and the said decision of the Tehsildar was affirmed by the Board of Revenue while allowing the Revision no.27 of 1995, and  besides the order of the appellate Court dated 27.10.1983 there also exists an order of Additional Sessions Judge passed in Criminal Revision No.306 of 1987 with regard to the proceedings under Section 145 of the Code of Criminal Procedure, which was in favour of the petitioners and was binding on the respondents Nishar Khan and others who had claimed possession and title over the property, in question. The second submission of the learned counsel for the petitioners is that while passing the order-dated 2.4.1997, the Board of Revenue ignored the mandatory provision of Section 220 (3) of the Act which provides that a single member vested with all or any of the powers of the Board shall not have power to alter or reverse a decree or order passed by the Board or by any member other than himself and thus, the said order dated 2.4.1997 was wholly without jurisdiction more so since rights and title of the parties had already stood decided by the competent courts and no interference by the Board of Revenue was called for.

Learned counsel for the petitioners in support of his submissions relied upon the decision of this Court rendered in Puran Singh Vs. Board of Revenue and others (2004 (1) A.W.C. 853). Learned counsel for the respondents has placed reliance upon the decisions rendered in the cases of Om Prakash and another Vs. Additional Tehsildar, Gyanpur (1993 R.D.170), Magai and another Vs. Board of Revenue and others (2002 RD 365), Narain Singh and another Vs. Additional Commissioner, Meerut and others (1999 A.C.J. 816), Kunwar Gulab Singh, Advocate Vs. District Judge, Lucknow and others (1978 A.R.C. 496 (S.C.), Sri Sripat Narain Rai Vs. Board of Rrevenue, U.P. and others (1999 RD (1569), State of U.P. through Collector, Agra Vs. Board of Revenue at Lucknow and others (1993 RD-206) and Balwant Singh Vs. Daulat Singh (dead) by L.rs. and others (JT 1997 (5) S.C. 703).  

Having heard learned counsel for the parties at length and perused the record of the case, I find that the order-dated 1.2.1996 passed by the Board of Revenue reads as under:-

Heard the learned counsels for the parties and perused the file.

It is clear from the perusal of the order-dated 1.3.1995 that the said order was passed without affording opportunity of hearing to the respondents. In the eye of law there is established provisions for providing opportunity of hearing to the respondent. The grounds raised in the restoration application are enough and sufficient. It is therefore, the recall application is allowed and the order-dated 1.3.1995 is recalled and the case is restored to its original number. The case is fixed for final hearing on 4.1.1996 and the original record be summoned.

This order-dated 1.2.1996 was not challenged and became final, inconsequence of which the order-dated 1.3.1995 did not exist. Since the order dated 1.2.1996 has not been challenged in the writ petition by which the earlier order dated 1.3.1995 has been recalled, the provisions of Section 220 (3) of the U.P. Land Revenue Act does not come into play while challenging the order dated 2.4.1997. Thus the grounds nos.1,2 and 3 raised in the writ petition being based on Section 220 (3) of the U.P. Land Revenue Act are not found to be valid.

Section 220 of the U.P. Land Revenue Act reads as under:-

220. Power of Board to review and alter its order and decrees.-

(1) The Board may review, and rescind, alter or confirm any order made by itself or by any of its members, in the course of business connected with settlement.

(2) No decree or order passed judicially by it or by any of its member shall be so reviewed except on the application of a party to the case made within a period of ninety days from the passing of the decree or order, or made after such period if the applicant satisfies the Board that he had sufficient cause for not making the application within such period.

(3) Member not empowered to alter each other's orders.- A single member vested with all or any of the powers of the Board shall not have power to alter or reverse a decree or order passed by the Board or by any member other than himself.

I find that it would be giving too wide scope to the provisions to hold that the member who originally passed the ex parte order could only consider the restoration of the case to its original number after recalling the ex parte order and not any other member having jurisdiction at the time when the application came up for hearing. Sub clause (3) (supra) relates to situation when the order passed is not ex parte and is sought to be recalled and revision to be restored to its original number. The jurisdiction for recalling an ex parte order and restoring it to its original number may also lie with the member having territorial jurisdiction at the point of time to hear the case on merits. The orders dated 9.2.1995 and 12.8.1994 are not under challenge before this Court directly by way of appeal or revision, and were subjected to proceedings in the first instance before the Board of Revenue.

I further find that the proceedings pertain to Section 34 of the U.P Land Revenue Act, which are summary in nature. It is settled law and there are catena of decisions on the point holding that no writ petition is maintainable challenging the said summary proceedings. The effect of the impugned orders dated 2.4.1997 passed by the Board of Revenue and 9.2.1995 passed by the Additional District Magistrate, rejecting the revision filed by the petitioner challenging the order dated 12.8.1994 passed by the Tehsildar is only to the extent that the order passed by the Tehsildar earlier allowing the mutation application of the petitioner exparte on 23.6.1994 has been set aside and directions have been given to decide the mutation application afresh after hearing both the parties.

In the present case, I am unable to find any material in this writ petition to show that any injustice has been caused to the petitioner at all by the above said orders. While passing the order-dated 1.2.1996 (though not challenged in writ petition), the learned single Member of the Board of Revenue, even if had acted in excess of jurisdiction vested in him by virtue of Section 220 (3) of the Land Revenue Act, the exercise of such jurisdiction being equitable and just and would not have resulted in manifest injustice as it did not violate the principles of natural justice. Substantial justice has been done in the case and an ex- parte order which the Board of Revenue consider to be wrong has been set aside with the consequence that revision has been restored to its original number. Thus, the last ground no.4 that impugned order is not consistent with the natural justice is also not made out. No other ground has been raised in the writ petition.

The petitioners has also not been able to demonstrate before this Court that the impugned order suffers from any other illegality or any sufficient cause exists for issuance of a writ of certiorari. Proceedings by way of certiorari are "not of course", as discussed in the case of A.M. Allison and another Vs. B.L. Sen and others reported in AIR 1957 S.C. 227.

Under the above said facts and circumstances of the case, I find that the petitioners are not entitled to any relief as claimed and this Court refuses to interfere in the order exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is accordingly dismissed, but in all the circumstances of the case the parties shall bear their own costs.

May 17, 2005

Hasnain


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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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