Allahabad High Court
Rang Nath Baba Alias Ranganand vs Member (Judicial) Board Of Revenue U.P. ... on 11 August, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:162686 RESERVED Court No. - 1 Case :- WRIT - B No. - 924 of 2020 Petitioner :- Rang Nath Baba Alias Ranganand Respondent :- Member (Judicial) Board Of Revenue U.P. And 5 Others Counsel for Petitioner :- Anil Kumar Rai,Samarth Sinha,Vishnu Singh Counsel for Respondent :- C.S.C.,Arvind Srivastava,I. N. Singh,Rudra Pratap Singh,Sriprakash Singh Hon'ble Jayant Banerji,J.
1. Heard Shri G.K. Singh, learned Senior Advocate assisted by Shri Vishnu Singh, learned counsel on behalf of the petitioner, learned Standing Counsel appearing on behalf of the respondent Nos. 1, 2, 3 and 4 and Shri Arvind Srivastava, learned counsel appearing on behalf of the respondent No.5.
2. Notice was issued to the respondent No.6 by registered post with acknowledgement due fixing 9.2.2021 but neither the undelivered cover nor acknowledgement has been received back. As such, notice on respondent No.6 is deemed sufficient.
3. Under challenge in the present writ petition is the order dated 29.6.2018 allegedly passed by the Revenue Inspector on the basis of an alleged report made by the Lekhpal on that very day in proceedings for mutation filed by the respondent No.5 in respect of plot Nos. 547, 551 and 553 in khata No.526 in village- Bhagwanpur, Pargana- Dehat Amanat, Tehsil- Sadar, District- Varanasi, whereby, the name of the respondent No.5 was directed to be mutated on the basis of succession.
Further under challenge is an order dated 9.9.2019 passed by the Additional City Magistrate (II), District- Varanasi, in an appeal filed under Section 35(2) of the U.P. Revenue Code, 20061 bearing case No.03892 of 2019 filed by the respondent No.5 against the petitioner. In this appeal an order dated 7.1.2019 passed by the Tehsildar, Sadar, Varanasi, has been challenged .
Also under challenge is the order dated 26.2.2020 passed by the Board of Revenue U.P. at Lucknow in Case No. REV/2146/2019/ Varanasi, Computerized Case No. R20191470002146, (Rangnath Baba Vs. Saderu Maharaj), filed by the petitioner against the order dated 9.9.2019 passed by the Additional City Magistrate (II), Varanasi, whereby the revision has been dismissed.
4. This case has a checkered history. The petitioner filed a mutation application on 29.11.2017 in the Court of the Tehsildar, Sadar, Varanasi, on the basis of a registered will-deed dated 21.6.2017 stated to be executed by Shri Muktanand Maharaj @ Vimuktanand, seeking mutation under the provisions of Section 33/34 of the Code, 2006 in respect of the aforesaid plots. It is admitted that the aforesaid application for mutation was rejected right up to the stage of revision before the Board of Revenue and against the order passed in revision by the Board on 26.2.2020 (enclosed in Annexure No.7 to the writ petition) a review application was filed which is stated to be pending.
5. It appears that a separate application dated 18.06.2018 was filed by the respondent No.5 for mutation under Section 33(1) of the Code, 2006 before the Revenue Inspector seeking mutation of his name as successor of the aforesaid Muktanand Maharaj @ Vimuktanand. On the aforesaid application, a photocopy of which has been enclosed along with other documents as Annexure No.9 to the writ petition, an alleged report dated 29.06.2018 was submitted by the Lekhpal. Under this report and on the same day, an alleged order was passed by the Revenue Inspector for recording the succession in terms of the Lekhpal's report. Thereafter, on coming to know of the mutation in favour of the respondent no.5, the petitioner filed an objection/complaint dated 13.12.2018 before the District Magistrate, Varanasi, for setting aside the order dated 29.6.2018 passed by the Revenue Inspector. By an order dated 7.1.2019, the Additional Sub-Divisional Officer, Sadar, directed the Tehsildar to take steps in accordance with law on the application for mutation of the respondent no.5 after considering the evidence. Accordingly, on 7.1.2019 the Tehsildar directed that a case to be registered and a proclamation be issued fixing 12.1.2019. Against that order, an appeal was filed by the respondent No.5 which came up before the Additional City Magistrate (II), Varanasi. This appeal was allowed on 9.9.2019 and the order of the Tehsildar of 7.1.2019 was set aside, while observing that the parties can seek their remedy in the then pending appeal filed by the petitioner in respect of the mutation proceedings initiated by the petitioner.
6. Against the aforesaid appellate order dated 9.9.2019, the aforesaid revision was filed in which the impugned order dated 26.2.2020 was passed and which is enclosed as Annexure No.25 to the writ petition.
7. It appears from the order sheet of this writ petition that original records of the mutation case were summoned by this Court and a detailed order was passed on 17.11.2020. The Court observed as follows:
"In view of the above, this court is of the opinion that the aforesaid act on the part of the respondents is illegal. Once it is found that the order dated 29.06.2018 is forged order, the appellate as well as the Revisional Authority were duty bound to decide the aforesaid controversy."
8. The contention of the learned counsel for the petitioner is that the properties in dispute in both mutation proceedings are the same. In respect of the petitioner, the mutation application has been rejected despite their being a registered will on record on the ground that since the owner of the plots is a Society, the name of the 'sevayat' can only be incorporated under order of a competent court. However, the name of the respondent No.5 has been mutated by the impugned order dated 29.06.2018 on the basis of succession in respect of very same plots of land in dispute. It is contended that the finding of this Court in the interim order dated 17.11.2020 reflects that the order dated 29.6.2018 is a forged document and, therefore, the mutation order has to be set aside. It is contended that the orders in appeal and revision cannot be sustained.
9. Shri Arvind Srivastava, learned counsel at the outset has stated that the proceedings under challenge before this Court are mutation proceedings which are summary in nature and the name of a person is mutated for the sole reason of determining the person who is liable to pay land revenue in respect of the land in question. It is contended that no substantive right or title are infringed in mutation proceedings and, therefore, the writ petition is not maintainable. Learned counsel has cited a plethora of judgements in support of this contention, they being, Jaipal V. Board of Revenue2; Balwant Singh Vs. Daulat Singh and others3; Suraj Bhan Vs. Financial Commr. and others4; Narasamma Vs. State of Karnataka and others5; Harish Chandra Vs. Union of Indian and others6; Karan Singh Vs. State of U.P. and others7; Kamlesh Kumar Vs. Board of Revenue and others8
10. Secondly, it is contended with reference to paragraph No.23 of the counter affidavit filed on behalf of the respondent No.5, that the petitioner has no locus standi to challenge the entry made in favour of the respondent No.5 by means of the order dated 29.6.2018. It is contended that the petitioner, under the circumstances, is not a person aggrieved. In support of his submission learned counsel has relied upon a judgement of the Supreme Court reported in, Adi Pherozshah Gandhi Vs. H. M. Seervai9.
11. The learned counsel has sought to point out the conduct of the petitioner in the mutation proceedings. He has stated that despite his mutation application being rejected initially, the petitioner moved yet another application dated 13.12.2018 before the District Magistrate on the administrative side in respect of the order of mutation dated 29.06.2018, which was registered as a case and proceedings were initiated that resulted in passing the order of 7.1.2019. It is stated that the petitioner has no claim whatsoever to maintain this writ petition given the fact that the mutation proceedings initiated at his behest stood concluded by means of the revisional order dated 26.2.2022 that is enclosed as Annexure No.7 to the writ petition. The learned counsel has referred to the averments made from paragraph No.17-A to 22 of the counter affidavit to contend that there is an elaborate procedure provided for uploading of orders on website of the Revenue department and, therefore, it cannot be said that the order dated 29.6.2018 was a fraudulent order as the order still appears on the website. It is contended that the mutation was also effected in the revenue records which evinces that the order was made in accordance with law. It is further contended that the order of mutation dated 29.6.2018 existing on the website of the Board can only be there if the website is accessed by the competent official duly authorized to access the website using his password.
12. Having heard the rival contentions of the learned counsel for the parties and on perusal of the record, it appears that:
(i) Mutation proceedings were initiated by the petitioner with regard to the property in dispute on the basis of a registered will dated 21.6.2017, before the court of the Tehsildar, Sadar, Varanasi which was registered as Case No. 11880 of 2017 (Computerized Case No. T20171470300111880). In that case, the respondent no. 5 filed his objections. The Tehsildar recorded a finding that the name of the testator is recorded as "Sevayat" and therefore, given the fact that it was recorded in the will that the petitioner has been made lifelong trustee of Shree Paramhans Ashram and therefore, it was held that the property in dispute belongs to a trust. It was held that therefore, the provision of Section 111 of the Code, 2006 is attracted and thus the court would have no jurisdiction to direct mutation on the basis of the aforesaid will deed.
Against the aforesaid order of the Tehsildar dated 26.4.2018, an appeal was filed by the petitioner being Case No. 11462 of 2018 (Computerized Case No. T201814700111462) under Section 35(2) of the Code, 2006. By a judgment and order dated 27.12.2019, the appellate court upheld the order of the Tehsildar dated 26.4.2018.
Both the order of the Tehsildar and of the Sub-Divisional Officer dated 26.4.2018 and 27.12.2019 were challenged in a revision before the Board of Revenue, Uttar Pradesh at Lucknow which was registered as Case No. REV/458/2020/Varanasi (Computerized Case No. R2020147000458). By an order dated 26.2.2020, the revision was dismissed.
(ii) An application for mutation was filed by the respondent no. 5 on 18.06.2018.
(iii) On the application filed by the respondent no. 5, it is alleged that the Lekhpal submitted his report in favour of the respondent no. 5 on 29.6.2018 and under which, the Revenue Inspector on 29.6.2018 itself directed that succession be registered as per the Lekhpal report.
(iv) The petitioner filed a representation dated 13.12.2018 before the District Magistrate Varanasi for setting aside the order dated 29.6.2018 passed by the Revenue Inspector as the same was illegal.
(v) On the aforesaid application of 13.12.2018, the Revenue Inspector and the Lekhpal were summoned with the record on 26.12.2018.
(vi) A letter dated 12.12.2018 was written by the Lekhpal to the Sub Divisional Officer, Tehsil Sadar, Varanasi stating that no report with regard to the succession was submitted by him on 29.6.2018 to the Revenue Inspector (City) and neither did the Revenue Inspector (City) pass order on 29.6.2018. That succession was not recorded in the register of the Revenue Inspector. It was, therefore, requested that the fabricated report and the order be set aside and the previous entries be restored.
(vii) On record is another report dated 3.1.2019 written by the Revenue Inspector (City) in which it was written that with regard to the property in dispute, for recording any succession no report was placed before him by the Lekhpal and neither did he pass any order of succession. It was stated that the entire proceedings of succession is fraudulent which is necessary to be set aside.
(viii) On 7.1.2019, a letter was sent by the Additional Sub-Divisional Officer, Sadar, Varanasi to the Tehsildar, Sadar, Varanasi referring to the reports of the area Lekhpal and the Revenue Inspector in which they had stated that the proceedings for succession is fraudulent and it be set aside. It is noted in the letter that the Tehsildar had himself passed an order on 26.4.2018 dismissing the case of the petitioner under Section 34/35 of the U.P. Revenue Code, 2006 on the ground that the land in question belongs to a Trust. It was stated that the order of the Revenue Inspector, in this view of the matter is not in accordance with the law. It is further stated that since the Tehsildar has the authority to set the order aside, therefore, the original application with evidence was sent to the Tehsildar with the direction to take action in accordance with law.
(ix) On 7.1.2019, the Tehsildar, Sadar, Varanasi appended his signature to a rubber stamped order on the back side of the aforesaid letter of the Additional Sub-Divisional Officer dated 7.1.2019, which order reads as follows:
"वाद दर्ज रजिस्टर होकर घोषणा पत्र दिनांक 12.1.2019 के लिए जारी हो "
"Proclamation be issued for 12.1.2019 after registering the case." (translation by court)
(x) An Appeal No. 965 of 2019 was filed by the respondent no. 5 under Section 35(2) of the Code, 2016 against the aforesaid order of the Tehsildar dated 7.1.2019, whereby, the proclamation was directed to be issued.
(xi) An objection was filed by the petitioner on 7.6.2019 in which it was stated, inter alia, that the order of the Tehsildar dated 7.1.2019 is an interlocutory order and therefore, the appeal is liable to be dismissed. It was stated that the court had no jurisdiction to hear the appeal.
(xii) It is stated in paragraph no. 36 of the writ petition, which is not disputed by the respondent, that in the proceeding before the Tehsildar, the Tehsildar sent the entire file of the case to the Additional City Magistrate-II, Varanasi where the appeal filed by the respondent no. 5 was pending.
(xiii) By the order impugned dated 9.9.2019, the appeal was allowed and the order of 7.1.2019 was set aside. Aggrieved against the aforesaid appellate order the petitioner filed a revision before the Board of Revenue, Uttar Pradesh at Lucknow which was dismissed by the impugned order dated 26.2.2020 while observing that earlier the Appeal No. 11462 of 2018 (Rang Nath Baba Vs. Khaderu) was decided by the Sub-Divisional Officer on 27.12.2019 and therefore, there was no occasion to keep the revision pending.
13. The appellate court in the operative part of its order dated 9.9.2019 observed as follows:
"उभय पक्ष के विद्वान अधिवक्तागण द्वारा प्रस्तुत अपनी-अपनी लिखित बहस व उसके साथ संलग्न विधि व्यवस्थाओं के आलोक में पत्रावली का परिशीलन किया गया। अवर न्यायालय की पत्रावली के अवलोकन से स्पष्ट है कि न्यायालय उपजिलाधिकारी सदर, वाराणसी द्वारा दिनांक 07.01.2019 को तहसील सदर वाराणसी को एक पत्र जारी किया गया कि "कृपया रंगनाथ बाबा के संलग्न प्रार्थना पत्र का अवलोकन करें, जो कि इस आशय से दिया गया है कि राजस्व निरीक्षक शहर के आदेश दिनांक 29.06.2018 जो कि राजस्व संहिता 33(1) के तहत पारित किया गया है, जो निरस्त होने योग्य है। मेरे द्वारा प्रकरण की जांच की गयी। गाटा संख्या 547/0.563. व 551/553/0.304 स्थित ग्राम भगवानपुर परगना देहात अमानत तहसील व जिला वाराणसी के बाबत उद्वरम खतौनी 1421-1426फ० उक्त ग्राम के खाता संख्या 526 पर राजस्व निरीक्षक के आदेश की वरासत है, जिसे राजस्व निरीक्षक द्वारा दिनांक 29.06.2018 को पारित किया गया है, क्षेत्रिय लेखपाल व राजस्व निरीक्षक की आख्या मेरे द्वारा प्राप्त की गयी है दोनो में कहा है कि वरासत की प्रश्नगत कार्यवाही फर्जी है जिसे निरस्त किया जाय। यहा यह भी विचारणीय है कि आपको न्यायालय द्वारा रंगनाथ बाब बनाम श्री मुक्तानन्द महाराज का वाद संख्या टी०20171470300011180 धारा 34/35 राजस्व संहिता 2006 दिनांक 26.04.2018 को यह कहते हुये निरस्त कर दिया गया कि भूमि न्यास की है। अतः हस्तान्तरण का अधिकार इस न्यायालय को नहीं है इस प्रकार यह स्पष्ट है कि राजस्व निरीक्षक के जिस आदेश का अंकना अभिलेख में हुयी है, वह विधि संगत नहीं है। चुकि इसे निरस्त करने का क्षेत्राधिकारी आपको है। अतः मूल प्रार्थना पत्र मय साक्ष्य सहित संलग्नकर आपको इस निर्देश के साथ प्रेषित किया जा रहा है कि इस पर नियमानुसार कार्यवाही करें"।
अपर उपजिलाधिकारी सदर, वाराणसी की उक्त आख्या दिनांक 07.01.2019 के आधार पर अवर न्यायालय द्वारा धारा 34/35 राजस्व संहिता 2006 के तहत वाद दर्ज कर घोषणा पत्र निर्गत किये जाने का आदेश पारित है जिससे क्षुब्ध होकर यह अपील प्रस्तुत की गयी है। वादग्रस्त सम्पत्ति के खातेदार की मृत्यु हो चुकी है। अवर न्यायालय की पत्रावली पर तहसीलदार सदर वाराणसी वाद संख्या टी०20171470300111880 रंगनाथ बाबा बनाम श्री मुक्तानन्द महाराज धारा 34/35 उ०प्र० राजस्व संहिता 2006 में पारित निर्णय/आदेश दिनांक 26.04.2018 से यह स्पष्ट है कि प्रश्नगत विवादित आराजियात नम्बर 545 रकबा 0.563 हे० व 551/553 रकबा 304 हे० मौजा भगवानपुर परगना देहात अमानत वाराणसी के बाबत पंजीकृत वसीयतनामा दिनांक 21.06.2017 जिसे मुक्तानन्द महाराज उर्फ विमुक्तानन्द ने रंगनाथ बाबा उर्फ रंगानन्द के हक में तहरीर किया है के आधार पर प्रस्तुत उक्त नामान्तरण वाद को पक्षों को सुनकर गुण-दोष पर दिनांक 26.04.2018 पारित करते हुये नामान्तरण प्रार्थना पत्र को निरस्त कर दिया गया। पत्रावली पर उपलब्ध तथ्यों से यह भी स्पष्ट है कि उक्त आदेश दिनांक26.04.2018 के विरूद्ध अपील उपजिलाधिकारी सदर वाराणसी के न्यायालय में विचाराधीन है। इस तथ्य के आधार पर अपीलार्थी द्वारा कहा गया कि जिस वसीयतनामा के आधार पर नामान्तरण वाद पूर्व में निरस्त हो चुका हो, उसी वसीयतनामा के आधार पर पुनः प्रस्तुत नामान्तरण वाद द्वितीय नामान्तरण वाद की श्रेणी में आता है, के आधार पर प्रस्तुत है जो कथन विधि के अनुसार सही है। क्योंकि प्रश्नगत आराजी के मृतक खातेदार की वरासत/वसीयत के आधार पर कार्यवाही अपीलस्तर पर विचाराधीन है के रहते हुये उन्ही तथ्यों के आधार पर पुनः धारा 34/35 राजस्व संहिता के तहत दूसरा वाद योजित किये जाने का आदेश दिनांक 07.01.2019 विधिक नहीं है। अतः प्रस्तुत अपील विधिक दृष्टिकोण से स्वीकार किये जाने योग्य है।
आदेश अतः उपरोक्त विवेचना के आधार पर प्रस्तुत अपील दिनांकित 07.02.2019 स्वीकार करते हुये अवर न्यायालय का आदेश दिनांक 07.01.2019 निरस्त किया जाता है। पक्षगण पूर्व से विचाराधीन नामान्तरण वाद (अपील) में अपना-अपना तथ्य/ साक्ष्य प्रस्तुत कर अनुतोष प्राप्त कर सकते है। आदेश की प्रति के साथ अवर न्यायालय की पत्रावली वापस की जाय। वाद आवश्यक कार्यवाही अपील पत्रावली दाखिल दफ्तर की जाय।
14. Thus in the order dated 9.9.2019, the appellate court referred to the order dated 26.4.2018 passed by the Tehsildar in the mutation case instituted by the petitioner and observed that against that order of 26.4.2018, an appeal is pending in the court of the Sub-Divisional Officer and therefore, a fresh application for mutation on the basis of the will of the deceased would come under the category of a second case for mutation and therefore, the order of 7.1.2019 is illegal and therefore, from a legal point of view the appeal deserves to be allowed. Accordingly, the order dated 7.1.2019 was set aside and it was directed that the parties place the facts and the evidence before the appellate court where the mutation case was pending.
15. In the revision filed against the appellate order dated 9.9.2019, the revisional court, in the impugned order dated 26.2.2022, while referring to the appeal filed by the petitioner in respect of the mutation proceeding, observed that the appeal had been decided on 27.12.2019 and therefore, there was no reason to keep the revision pending.
16. Following the letter of the Additional Sub-Divisional Officer to the Tehsildar, Sadar on 7.1.2019 bringing to his notice that the order dated 29.6.2018 was not in accordance with law, the Tehsildar on 7.1.2019 itself had issued instructions for registration of the case and for issuance of proclamation fixing 12.1.2019. The issuance of proclamation is done under Rule 34 of the U.P. Revenue Code Rules, 2016, which reads as under:
"34. Issue of Proclamation [Section 35(1)].- (1) In the following cases relating to transfer of any land, the Tahsildar shall issue a Proclamation in R.C. Form-12 before making an order of mutation:-
(a) On receipt of a report from the Revenue Inspector under section 33(2)(b).
(b) On receipt of an application under section 33(3), including the case where the succession is claimed on the basis of a will.
(c) On receipt of a report regarding, transfer of land under section 34;
(d) On receipt of an intimation from the registering authority under section 36(1).
(e) On facts of succession or transfer otherwise coming to his knowledge.
Note: "The date fixed for hearing in the proclamation shall not be less than 30 days from the date of its issuance."
(2) Every such proclamation shall be announced by beat of drum in the village concerned, and its copies shall be pasted on the notice board of the tahsil as well as of the Bhumi Prabandhak Samiti. The Tahsildar shall give written notice thereof to all persons who appear to him to be interested in the mutation, including co-tenure holders, if any.
(3) If the proclamation is based on transfer referred to in Section 34, a copy of the same shall also be served on the transferor.
(4) Soon after issuing the proclamation, the Tahsildar shall also call a report from the Registrar Kanungo dealing with the mutation work. The Registrar Kanungo shall submit his report on the basis of the existing entries in the Khatauni and the mutation register and other particulars involved in the mutation including the nature and extent of the interest transferred and the details of the holdings.
(5) If after the expiry of the period specified in the proclamation, no objection is filed and after perusing the report of the Registrar Kanungo and other materials available on the record, the Tahsildar is satisfied that the claim regarding succession or transfer is in accordance with the provisions of the Code, he shall, subject to the provisions of sections 36(2) and 89(2), pass the order for mutation and direct that the Record-of- Rights to be amended accordingly.
(6) If the case of mutation is disputed, the Tahsildar shall decide the dispute on merits, after summary inquiry on the basis of material available on the record, after affording opportunity of hearing to the parties concerned, in accordance with the provisions of the law.
(7) The Tahsildar shall make an endeavour to decide the undisputed case of mutation within the period of 45 days from the date of the registration of the case and the disputed case of mutation within the period of 90 days and if the proceeding is not concluded within such period the reason for the same shall be recorded.
(8) In all cases of mutation, the Revenue Officer passing the mutation order shall specify the precise entry which is to be made in the Record-of-Rights."
Therefore, as is evident from the provision aforesaid itself, issuance of a proclamation by the Tehsildar has no direct or immediate adverse affect on the concerned party.
17. In the case of Shyam Sel and Power Limited and another Vs. Shyam Steel Industries Limited10 while considering, inter alia, whether the order of a Single Judge of the High Court could, under the facts and circumstances, be construed as a "judgment" under Letters Patent of the High Court, the Supreme Court referred to the judgment of Shah Babulal Khimji Vs. Jayaben D. Kania11 in which the Supreme Court observed that a judgment can be of three kinds, (i) a final judgment, (ii) a preliminary judgment, and, (iii) an intermediary or interlocutory judgment. It observed that every interlocutory order cannot be regarded as a judgment but only those orders would be judgment which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. The Supreme Court in Shyam Sel then observed as follows:
"22. It could thus be seen that both the judgments of S. Murtaza Fazal Ali, J. as well as A.N. Sen, J. in Shah Babulal Khimji [Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8], have a common thread that, as to whether an order impugned would be a "judgment" within the scope of Clause 15 of the Letters Patent, would depend on the facts and circumstances of each case. However, for such an order to be construed as a "judgment", it must have the traits and trappings of finality. To come within the ambit of "judgment", such an order must affect vital and valuable rights of the parties, which works serious injustice to the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a "judgment". If such is permitted, the floodgate of appeals would be open against the order of the Single Judge."
18. In the present case, the order dated 7.1.2019 passed by the Tehsildar, that was impugned in the appeal, is a rubber stamped order directing registration of the case and issuance of proclamation. It does not affect any vital or valuable rights of the parties or which works serious injustice to the party concerned. The order does not have the traits and trappings of finality. It is pertinent to mention here in the case of Shah Babulal Khimji, which judgment, has been relied upon by the Supreme Court in Shyam Sel, the definition of the word 'judgment' and 'decree' appearing in Section 2 of the Code of Civil Procedure, 1908 were relied upon.
19. Under the circumstances, the appeal against the aforesaid order of 7.1.2019 that was decided by the impugned order dated 9.9.2019 was not maintainable and the Additional City Magistrate-II had no jurisdiction to decide the same. Consequently, the impugned order dated 9.9.2019 passed by the Additional City Magistrate-II is hereby quashed. Since, the appellate order dated 9.9.2019 has been quashed, therefore, the impugned order dated 26.2.2020 passed by the Board of Revenue in Case No. REV/2146/2019/Varanasi (Computerized Case No. R20191470002146) cannot stand and is hereby quashed.
20. It appears from the record that the Tehsildar who had made the order/instruction on 7.1.2019 directing registration of the case and for issuance of proclamation had forwarded the entire file before the appellate authority, who was the Additional City Magistrate-II. Therefore, it appears that matters before the Tehsildar remain in abeyance and no order has been passed as to the validity of order of the Revenue Inspector dated 29.6.2018. Doubtless, it is the Tehsildar, who can record a finding of the fact as to the validity of the order dated 29.6.2018 inasmuch as disputed question of facts are involved which would require recording of evidence. This Court would be hesitant to enter into the realm of adjudication of disputed questions of fact.
21. Under the circumstances, the respondent no. 3-Tehsildar, or the competent authority, is hereby directed to take a decision, in accordance with law in the pending mutation proceeding regarding which he had directed on 7.1.2019 for its registration and issuance of proclamation. It is noted that the impugned order dated 29.6.2018 was passed ex-parte and, apparently, no restoration application has been filed by the petitioner. However, the Tehsildar would have inherent power under Section 151 of the C.P.C. to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
22. As regards the scope of Section 151 of the C.P.C., in the case of K.K. Velusamy v. N. Palanisamy12, the Supreme Court has observed as follows:-
12. The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions [see Padam Sen v. State of U.P. [AIR 1961 SC 218 : (1961) 1 Cri LJ 322] , Manohar Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] , Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] , Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava [AIR 1966 SC 1899] , Nain Singh v. Koonwarjee [(1970) 1 SCC 732] , Newabganj Sugar Mills Co. Ltd. v. Union of India [(1976) 1 SCC 120 : AIR 1976 SC 1152] , Jaipur Mineral Development Syndicate v. CIT [(1977) 1 SCC 508 : 1977 SCC (Tax) 208 : AIR 1977 SC 1348] , National Institute of Mental Health & Neuro Sciences v. C. Parameshwara [(2005) 2 SCC 256] and Vinod Seth v. Devinder Bajaj [(2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212] ]. We may summarise them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.
(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
23. It is made clear the Tehsildar would decide the case on its own merit without being influenced by any orders or observations made by this court in this writ petition.
24. This writ petition is allowed to the extent mentioned above and subject to the observations herein contained.
Order Date :- 11.8.2023 k.k.tiwari/A.V. Singh (Jayant Banerji, J.)