Allahabad High Court
Ram Bujharat And Others vs Addil. Commissioner (Administration) ... on 16 July, 2024
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:48080 Court No. - 8 Case :- WRIT - C No. - 6111 of 2024 Petitioner :- Ram Bujharat And Others Respondent :- Addil. Commissioner (Administration) 2nd, Devi Patan Division, Gonda And Others Counsel for Petitioner :- Faiz Ahmad Khan Counsel for Respondent :- C.S.C.,Pankaj Gupta Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioners. Notice on behalf of respondent nos.1 and 2 has been received by the office of learned Chief Standing counsel. Sri Pankaj Gupta learned counsel has received notice on behalf of respondent no.3-Gaon Sabha.
Under challenge are the two orders dated 24.05.2024 passed by the Additional Commissioner (Administration) IInd Devi Patan Mandal, Gonda in exercise of his powers under Section 210 of U.P. Revenue Code, 2006 whereby the order of mutation passed by the Nayab Tehsildar Balrampur (West) dated 11.12.2019 has been upheld.
Sri Faiz Ahmad Khan learned counsel for the petitioners submits that the dispute-in-question related to the property initially recorded in the name of Sri Lautan. It is the case of the petitioners that Sri Lautan had executed a registered Will dated 22.04.1998 in favour of Sri Pyare (father of the present petitioners).
Simultaneously, another claim in respect of the property of Lautan was raised by his widow Kamla Devi who got her name mutated on the basis of succession on 25.09.2000. Soon thereafter, on 27.09.2005, she executed a sale deed in favour of the private respondent no.4-Tilakram.
Sri Tilakram instituted a mutation application claiming right in the property on the basis of sale deed executed by Kamla and in the aforesaid backdrop the petitioners were also claiming their rights on the basis of registered Will dated 22.04.1998 executed by Lautan in favour of Sri Pyare. Both the proceedings were carried on simultaneously and in the year, 2009 both the cases i.e. one application filed by Pyare and other filed by Tilakram, both were consolidated.
It is the case of the petitioners that Sri Pyare died on 14.01.2014, thereafter, an application was moved by the present petitioners for substitution which was allowed on 20.08.2018. It is also stated that after the order of substitution was passed, two dates were fixed, on which dates no substantial hearing could take place rather the dates were deferred and fixed for 14.09.2018. On the said date, a request for adjournment was made which was not acceded, as a result the opportunity to the petitioners to lead evidence was closed and the matter was thereafter listed on 18.09.2018. On the next date i.e. 18.09.2018 the petitioners moved an application for recall of the order passed by which opportunity to lead evidence was closed, however, it is stated that instead of deciding the said application and affording an opportunity to the petitioners, the Nayab Tehsildar vide its order dated 11.12.2019 decided the mutation case on merits without deciding the application of the petitioners for recall and in this view of the matter the petitioners have been severely prejudiced as they could not contest their case on merits.
After the passing of the order by the Nayab Tehsildar on merits dated 11.12.2019, the petitioners moved an application for recall before the Nayab Tehsildar and simultaneously also preferred a revision before the Additional Commissioner.
It is further submitted that the petitioners had agitated before the Court of Commissioner that they have been severely prejudiced, inasmuch as they had pressed their application for recall of order rather the Nayab Tehsildar entered into merits rejected the application for recall and in the same breath rejected the mutation case of the petitioners while allowing the case of mutation of private respondent no.4-Tilakram.
In these circumstances, the revisional court ought to have taken a more reasonable view rather the revisional court also dismissed the revision holding that the same was not maintainable on account of fact that the petitioners are said to have filed an appeal and, moreover, an application for recall was also moved.
Sri Khan learned counsel for the petitioners has also vehemently urged that this fact which has been taken note of by the revisional court that the petitioners had filed an appeal was absolutely incorrect, inasmuch as no appeal had been filed by the petitioners and this has also been stated categorically in para-35 of the writ petition.
In the aforesaid backdrop, it is urged that not only the petitioners have been deprived of opportunity of hearing and to lead their evidence they have been non-suited on the issue of maintainability by the revisional court. It is also inappropriate inasmuch as once the order passed by the Nayab Tehsildar was without jurisdiction, it was well within the rights of the revisional court to have considered the same and it was not justified in dismissing the revision as not maintainable.
For the aforesaid reasons, it is urged that the two orders are bad in eyes of law and are liable to be set aside.
The Court has considered the submissions of learned counsel for the petitioners and has also perused the material on record. On a pointed query being put to learned counsel for the petitioners, as to the fact that once they moved an application before the Nayab Tehsildar for recall, then under what circumstances they preferred the revision and how could both proceedings be contested simultaneously.
It has been answered by the learned counsel for the petitioners, by saying, that in case, if the party has more than one way to assail an order they are entitle to do so.
However, despite the aforesaid statement, the question that still arises is the fact that even if two modes are possible to assail the order whether both the remedies can be pursued simultaneously or the party would be required to elect on one of the remedies.
In support of his submissions, the learned counsel for the petitioners has relied on the judgment of co-ordinate Bench of this Court in Lalita Devi vs Board of Revenue U.P. Lucknow; AIRONLINE 2020 ALL 536 to buttress his submissions that if there are two remedies available to a person and there is no prohibition in law in pursuing both the remedies simultaneously then such an aggrieved person can choose either to avail both the remedies or any one of them. It is, thus, urged that in view thereof, even though the petitioners had filed an application for recall before the Nayab Tehsildar and a revision before the respondent, they were legally entitled to pursue both the remedies and they could not be non-suited on the ground of maintainability as their application for recall was pending before the Nayab Tehsildar.
Having considered the aspect of the matter, this Court has reminded of a decision of the Apex Court in Jitendra Singh Vs. State of Madhya Pradesh and others; 2021 SCC Online SC 802 wherein the Apex Court has categorically held that writ petitions generally arising out of mutation proceedings which are of summary nature are not maintainable. This aspect has also been considered by the co-ordinate Bench of this Court in the case of Smt. Kalawati Vs. Board of Revenue; 2022 SCC Online All 193 wherein coordinate Bench while referring to the earlier decisions on the aforesaid point had reviewed the entire case law and has culled out certain exceptions under which a petition under Article 226 of the Constitution of India would be maintainable even though arising out of summary proceedings.
Before proceeding any further, it will be relevant to notice the decision of the Apex Court in case of Jai Singh vs Union of India and others; (1977) 1 SCC 1 and in case of Bank of India vs Lekhimoni Das and ors; (2000) 3 SCC 640 wherein it has been held that parallel remedies in respect of the same matter cannot be pursued at the same time. It may be true that in case, if against one order a party has a remedy of invoking two forums he may do so but the same cannot be pursued simultaneously, in case, if one has an impact on the other. This aspect was noticed by the Apex Court in case of Rabindra Singh vs. Financial Commissioner Cooperation Punjab and ors; (2008) 7 SCC 663 wherein it was held that in case, if a party has a remedy of invoking two forums against one order and an order is passed by the higher forum then it is not open for the parties to proceed in the other forum. In the instant case, though learned counsel for the petitioners has relied upon a coordinate Bench decision of this Court in Lalita Devi (supra) but the facts of the said case are different as shall be evident from paras-26 to 28 of the said report where the Court has noticed that an order passed by the Board of Revenue was patently illegal and in case, if the order of the Board of Revenue was not interfered with then it would amount to restore an illegal, fraudulent order passed by Nayab Tehsildar. In such circumstances, the coordinate Bench noticed that a person can choose either to avail one remedy or the other to establish his rights. Hence, the said case of Lalita Devi (supra) is not of much help to the petitioners.
Be that as it may, in the instant case, it would reveal that even though the petitioners had moved an application for recall against the order dated 18.09.2018 and though the Nayab Tehsildar did not find appropriate to recall the order it went on to decide the mutation case on merits.
The fact that the petitioners, thereafter, filed a revision and did not indicate that their application for recall of the order was pending before the Nayab Tehsildar, the revision though would be maintainable but prior to passing of the order, it was the duty of the petitioners to have inform the Court or at least while they were pursuing the remedy of revision they could have withdrawn or not pressed their application for recall but the same has not been done. The entire contention of the petitioners that they had been prevented from contesting their case on merits, it seem would reveal that these are summary proceedings of mutation which neither decide any right, title or interest of the parties and it is only for the fiscal purposes that the names are mutated. The issue of title claimed by the petitioners on the basis of Will which necessarily would require evidence for proving the Will and the petitioners have a remedy in terms of Section 144 of the U.P. Revenue Code, 2006 to get their rights declared and is available. In such circumstances, this Court is not inclined to entertain the petition as the petitioners have adequate remedy in terms of Section 144 of the Code, 2006.
There is another way to look at the issue at hand inasmuch as even though if the orders are set aside to relegate the parties for getting their rights decided in summary proceedings under Section 34 of the Code of 2006 and that too after 24 years is also not justiciable, inasmuch as the parties may conserve their resources if they have to in light of contesting their respective rights in the regular forum rather than in summary proceedings. Admittedly, no evidence had been led either by Sri Pyare during his life time who had been contesting the proceedings since the year, 2000 or thereafter by his successors in respect of proving the Will as required in terms of Section 68 of the Indian Evidence Act and Section 66 of Indian Succession Act. Now, relegating the parties permitting them to lead evidence in summary proceedings which would be subject to orders passed in regular proceedings would be like pushing the parties to litigate ad infinitum which would not be in public interest. Accordingly, this Court is of the opinion that instead of entertaining the instant petition, it will be in the ends of justice that the parties, if so choose, may get their rights decided from regular forum and needless to say that any order passed on the regular side by the competent court would abide in so far as the mutation order is concerned.
For the aforesaid reasons, the petition is not entertained by the Court and is, accordingly, dismissed. No order as to costs.
It is made clear that in case if the petitioners choose to file the regular proceedings, any observation of this Court in the instant case may not come in the way of the petitioners as it has been only examined for the limited purposes of ascertaining the rights to maintain the petition arising out of a summary proceedings.
Order Date :- 16.7.2024 Harshita