Allahabad High Court
Smt. Ann Marie Kalra vs State Of U.P. Through Prin. Secy. ... on 9 November, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- MISC. SINGLE No. - 20098 of 2020 Petitioner :- Smt. Ann Marie Kalra Respondent :- State Of U.P. Through Prin. Secy. Revenue And Ors. Counsel for Petitioner :- Shyam Mohan Pradhan,Kamini Jaiswal,Rajesh Chandra Mishra Counsel for Respondent :- C.S.C.,Tej Singh Hon'ble Jaspreet Singh,J.
Heard Sri Jaideep Narain Mathur, learned Senior Advocate along with Sri Shyam Mohan Pradhan, learned counsel for the petitioner, Sri R.K. Singh, learned Additional Advocate General for the State-respondent nos. 1, 2 and 3 and Sri Tej Singh who has accepted notice on behalf of respondent no. 4.
A mention was made before the Court on 04.11.2020 regarding the fresh petition being filed in the Registry of the Court which may be taken up on an early date as it involved dispossession. In view of the aforesaid, the permission was granted and thus, the instant petition has been placed before the Court today.
Sri Jaideep Narain Mathur, learned counsel for the petitioner submits that by means of the instant petition, the petitioner challenges the order dated 14.08.2020 passed by the Sub Divisional Officer/Assistant Collector, 1st Class, Sadar, Lucknow in Case No. 07636 of 2020. He has submitted that the predecessors-in-interest of the petitioner namely Sri Krishna Kumar Kalra was the auction bidder in whose favour the Plot No. 93 was settled and a sale certificate was duly registered in his name on 07.02.1970, a copy of which has been brought on record as Annexure No. 3. It has further been submitted that Sri Kalra had been exercising his rights as the exclusive owner of the aforesaid property over which he had raised residential construction and had been residing therein.
Sri Mathur further submits that one Sri Laxmi Narain had challenged the right of Sri Krishna Kumar Kalra by instituting proceedings under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act which was dismissed by means of the judgment dated 12.11.1971 in favour of Sri Krishna Kumar Kalra and even the appeal preferred by Laxmi Narain before the Additional Commissioner, Lucknow bearing Appeal No. 138 was dismissed by means of judgment dated 19.05.1973. Even the second appeal No. 19 (z) of 1973-74 before the Board of Revenue at Allahabad was dismissed on 29.08.1979. Thus, the rights of Sri Krishna Kumar Kalra, the husband of the petitioner stood confirmed and till date neither there has been any challenge to the said judgment and decree nor the sale certificate issued in favour of Sri Kalra has been revoked or set aside.
Sri Mathur submits that only on 29.09.2020, the son of the petitioner became aware of some order passed by the Revenue Authorities for expunging the name of Sri Krishna Kumar Kalra over Plot No. 93 situate in Village Ziamau, Lucknow. Thereafter information was sought and it revealed that an order had been passed on 14.08.2020 in Case No. 07636 of 2020. From the inspection of the aforesaid proceedings, it revealed that on 28.07.2020 upon an application made by the Gaon Sabha to the Sub Divisional Officer, Sadar, Lucknow indicating that incorrect entries over Plot No. 93 situate at Village Jiamau have been entered which was referrable to Laxmi Narayan and Krishna Kumar Kalra and as the same were fictitious, the said entries were to be corrected.
In pursuance thereof the Tehsildar is said to have submitted its report on the same day to the effect that the said entries in the name of Laxmi Narain and Krishna Kumar Kalra were without any basis and accordingly were liable to be corrected. The SDO has submitted a similar report on 31.07.2020, in furtherance thereof, the Sub Divisional Magistrate directed a case to be registered on 06.08.2020.
Sri Mathur further urges that the aforesaid case moved with unprecedented expedition, inasmuch as, upon the case being registered on 06.08.2020, the next date fixed was 10.08.2020, no service was affected and the Court concerned directed the matter to be listed on 13.8.2020 with a direction for publication to be effected. The record does not indicate as to how the publication was affected but nevertheless on 13.08.2020 the matter listed was thereafter fixed for 14.08.2020 and after hearing the counsel for the Gaon Sabha, the impugned order has been passed.
Sri Mathur has assailed the impugned order on various grounds including that the order passed is wholly without jurisdiction, inasmuch as, the property belonging to the erstwhile evacueee namely Barristor Mohd. Waseem was governed by the Evacuee Property Act which is the Central Legislation. Thereafter the said property was acquired under The Displaced Persons (Compensation & Rehabilitation) Act, 1954 which is also a Central Legislation and thereafter it was put to auction. It has further been submitted that in any case the State Government would not have a right over the said property and thus proceedings at the behest of the SDM is without jurisdiction.
Sri Mathur has also submitted that the proceedings initiated under Section 33/39 of the U.P. Land Revenue Act is also misplaced, inasmuch as, the said Act has been repealed. Sri Mathur has also submitted that the impugned order has been passed throwing all the principal of natural justice to the winds, inasmuch as, within a period of 10 days, the entire proceedings have culminated in a final order without bothering to ascertain whether the affected parties were even served or not.
It has also been submitted that Sri Krishna Kumar Kalra expired about 2 years ago on 27.10.2018 and the petitioner being his wife has succeeded to his property. No notice was either issued to the petitioner and more so the alleged address at which the notices is said to have been issued is of Latouche Road where the petitioner did not reside, hence, the entire proceedings are an eye-wash and since the order has been passed against a dead person, the order cannot be sustained and as such the impugned order deserves to be set aside.
Sri R.K. Singh, learned Additional Advocate General for the State has raised an objection regarding the maintainability of above writ petition and submits that the petitioner has appropriate remedy of filing an appeal/revision before the Commissioner, Lucknow Division, or can even assail the impugned order by filing a petition before the Board of Revenue.
Sri R.K. Singh has further submitted that at the behest of one Sri Ahsan Ahtishan, the impugned order was challenged before the Board of Revenue in Revision bearing No. 1128 of 2020 and the Board of Revenue by means of the order dated 16.10.2020 has stayed the operation of the order dated 14.08.2020. It has been submitted by Sri Singh that the petitioner can raise all the objections before the appropriate forum and the present writ petition on account of alternative remedy is not maintainable.
The Court has considered the rival submissions and also perused the record, though, the parties have raised number of questions for adjudication, however, the fact remains that the impugned order has been passed against a dead person.
Sri R.K. Singh learned Additional Advocate General could not dispute the fact that the name of Sri Krishna Kumar Kalra has been directed to be expunged and on the date of the institution of the proceedings as well as on the date of passing of the order i.e. 14.08.2020 Sri Krishna Kumar Kalra had already died. Sri Singh also could not dispute the fact that once Sri Krishna Kumar Kalra had already expired in the year 2018, therefore, there could not have been any sanctity to the alleged service of the proceedings on the persons concerned nor any sanctity could be attached to the order passed against a dead person.
In view of the aforesaid facts and circumstances and after noticing the submissions of the respective parties at length and without taking the respective plea on merits, this Court while leaving all plea open to the respective parties, is of the opinion that since the order has been passed against a dead person which cannot be sustained, hence, ends of justice would be served by setting aside the impugned order in so far as the present petitioner alone is concerned and the parties may be relegated to the Court of SDO concerned. The SDO concerned shall be at liberty to issue fresh notice to the petitioner at her address mentioned in the petition. The petitioner shall be entitled to raise all pleas before the SDO who shall consider and decide the same in accordance with law and shall pass a fresh order only after providing full and adequate opportunity of hearing to the parties.
It is made clear that the Court has not adjudicated the case of either of the party on merits and this order has been passed simpliciter as the impugned order has been passed against a dead person.
In view of the aforesaid, the order dated 14.08.2020 in so far as it relates to the petitioner alone is set aside.
The writ petition stands allowed, however, there shall be no order as to costs.
Order Date :- 9.11.2020 Asheesh