Allahabad High Court
Awadhesh Kumar Singh And Others vs Board Of Revenue U.P. Lucknow And 2 ... on 29 April, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- WRIT - B No. - 1001256 of 2007 Petitioner :- Awadhesh Kumar Singh And Others Respondent :- Board Of Revenue U.P. Lucknow And 2 Others Counsel for Petitioner :- B.K.Singh,Brijesh Kumar Singh Counsel for Respondent :- C.S.C.,Anand Kumar,Anant Kumar,Shiv Shankar,Virendra Misra Hon'ble Jaspreet Singh,J.
Heard Shri B. K. Singh, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Shri Virendra Mishra, learned counsel appearing for private respondents.
The order under challenge in the instant petition is dated 21.12.2006 passed by the Board of Revenue arising out of mutation proceedings.
The original tenure holder, namely Smt. Naurangi Devi had initially executed a Will in favour of Smt. Mannu Devi, the original respondent no.3 (who died during the pendency of the petition and is now represented by her legal heirs). Smt. Naurangi Devi also executed another Will in favour of the petitioner, subsequently on 05.06.1978. On 21.06.1978, Naurangi Devi died and thereafter Smt. Mannu Devi filed an application for mutation before the Nayab Tahsildar for seeking mutation of her name on the basis of the registered Will dated 15.04.1975.
The said application was contested by the present petitioner who objected that Smt. Naurangi Devi had executed a subsequent Will in their favour dated 05.06.1978 and also pointed out that the said Will executed in favour of Mannu Devi was executed by practicing fraud and the same was being cancelled.
The Nayab Tahsildar after permitting the parties to lead evidence and upon hearing them by means of order dated 31.05.1985 passed an order of mutation in favour of the present petitioners.
Against the order dated 31.05.1985 Smt. Mannu Devi filed a time barred appeal on 11.04.1989 alongwith an application seeking condonation of delay. The Sub Divisional Magistrate by means of order dated 31.08.1992 dismissed the appeal both on the grounds of limitation as well as on merits.
Being aggrieved by the order dated 31.08.1992, again after five days Smt. Mannu Devi moved an application for review and by means of order dated 05.09.1992, the Sub Divisional Magistrate set aside the order dated 31.08.1992 and also set aside the order dated 31.05.1985 which was the initial mutation order passed in favour of the petitioners.
The petitioner thereafter preferred a revision under Section 218 of the U.P. Land Revenue Act which came to be allowed on 07.02.2005, against which the private respondent Mannu Devi filed a petition under Section 219 of the U.P. Land Revenue Act which in turn has been allowed vide order dated 21.12.2006 which is the order under challenge before this Court in the instant petition.
Submission of the learned counsel for the petitioner is that under the U.P. Land Revenue Act the subordinate authorities/court have not been conferred with the power to review this order. The only power of review which has been conferred is on the Board of Revenue which is the highest Court. In the instant case, once a mutation order was passed in favour of the petitioner on 31.05.1985 and the respondent no.3 had filed a time barred appeal which was dismissed on merits on 31.08.1992 and the Sub Divisional Magistrate who did not have the jurisdiction or the authority in law to entertain a review petition at the behest of the respondent no.3 allowed the review and set aside the order dated 31.08.1992 and 31.05.1985.
It has been pointed out that on the very same day the review has been allowed as a result not only the order of dismissal of appeal dated 31.08.1992 was set aside but even the original mutation order passed by the Nayab Tahsildar dated 31.05.1985 was also set aside which was a clear over stepping of jurisdiction.
It is further urged that this error was corrected by means of order dated 07.02.2005 but the Board exceeded its jurisdiction in allowing the revision of the private respondent by means of order dated 21.12.2006 ignoring that the order which was impugned dated 05.09.1992 was completely without jurisdiction as a result by setting aside the same, another illegal order has been revived and this exercise of jurisdiction by the Board of Revenue is clearly de-hors the provisions of law.
Refuting the aforesaid submission, Shri Virendra Mishra, learned counsel for the private respondent submits that the instant mutation proceedings do not confer right, title or interest and merely by the order dated 21.12.2006 the matter has been remanded to the Nayab Tahsildar to consider the effect of the two conflicting Wills, one in favour of the petitioner and other in favour of the private respondent and in any case the order of remand does not prejudice any person and the matter can be decided by the Nayab Tahsildar where the mutation case is pending. It is thus urged that the writ petition is not maintainable and the parties may be relegated to get their rights decided after leading evidence before the Nayab Tehsildar.
The Court has heard the learned counsel for the parties and also perused the material on record.
A fact which cannot be disputed is that under the U.P. Land Revenue Act 1901, the Court of Nayab Tahsildar and the Sub Divisional Magistrate have not been conferred with the power to review its order.
A power of review is a specific jurisdiction which has to be conferred on the authority by law. Since, the Land Revenue Act does not confer such powers, it cannot be assumed that the Sub Divisional Magistrate could have treated an application for review and could passe the order dated 05.09.1992.
It is also to be noticed that there is a distinction between the power of review and recall which has been succinctly noticed by the Apex Court in the case of Asit Kumar Kar Vs. State of West Bengal and others : (2009) 2 SCC 703 as under:
"6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party."
The said judgement of Asit Kumar Kar (supra) has been followed in the judgment of Vishnu Agarwal Vs. State of Uttar Pradsh and another : (2011) 14 SCC 813.
In the instant case, the appeal of the private respondent was dismissed on merits as well as for being barred by limitation after hearing the parties by means of a detailed order dated 31.08.1992. In absence of any specific power to review its order, the Sub Divisional Magistrate was not competent to entertain the application of review. Thus, the exercise of power by the Sub Divisional Magistrate in entertaining the review application and passing the order dated 05.09.1992 was completely beyond jurisdiction. This order was corrected in revision by means of order dated 07.02.2005.
Unfortunately, this aspect of the matter has not been noticed by the Board of Revenue while passing the impugned order dated 21.12.2006. Though there is a reference to the submission noticing the aforesaid contention but the Board of Revenue instead of addressing this issue has considered the matter of the validity of the two Wills and remanded the matter for decision.
The effect of the order dated 21.12.2006 is that an illegal order dated 05.09.1992 has been revived which could not be done. In this view of the matter, this Court is of the considered opinion that the order dated 21.12.2006 is erroneous and could not have been passed especially when the order dated 07.02.2005 had clearly held that the Sub Divisional Magistrate did not have the jurisdiction to review.
The record also indicates that the private respondent no.3 has already filed a suit before the appropriate Court of Sub Divisional Magistrate, Sadar Sultanpur seeking declaration of rights in respect of the property in question based on the Will executed in favour of the private respondent dated 15.04.1975 and bearing No.95, a copy of which has been brought on record as annexure no.S.C.A.2 alongwith the supplementary-affidavit filed by the private respondents on 09.01.2019.
This Court finds that the issue of validity of the Will will be considered before the Sub Divisional Magistrate on the regular side and since the parties have already put in appearance, this Court deems appropriate that the proceedings of regular suit pending before the Sub Divisional Magistrate, Sadar Sultanpur be expedited and an endeavour be made by the court concerned to decide the same after affording full opportunity of hearing to the parties preferably within a period of eight months from the date a copy of this order is placed before the court concerned. The mutation entries in favour of the petitioner shall follow the order passed on the regular side.
With the aforesaid, the petition is allowed. The impugned order dated 21.12.2006 passed by the respondent no.1 as contained in annexure no.1 to the writ petition is set aside. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 29.4.2022 ank