Allahabad High Court
Shambhunath Rai vs Board Of Revenue on 15 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 52 WRIT - B No. - 10829 of 1984 Petitioner :- Sambhunath Rai Respondent :- Board of Revenue Counsel for Petitioner:- Vishnu Singh Counsel for Respondent :- C.S.C., R.P. Shukla Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Vishnu Singh, learned counsel for the petitioners, learned standing counsel for respondent nos. 1 & 4 and Sri R.P. Shukla, counsel for respondent nos. 2 & 3.
2. Brief facts of the case are that petitioner was granted patta on 13.11.1966. Proceeding for cancellation of petitioner's patta was initiated on the basis of report of Supervisor Kanungo dated 24.11.1970. The Additional Commissioner, Ballia rejected the application as not maintainable vide order dated 16.9.1978, recording finding of fact that patta cancellation proceeding initiated against the petitioner's patta were dismissed by the trial court vide order dated 24.5.1969 & 18.7.1972. It is also mentioned by the trial court that Commissioner has confirmed the order of the trial court vide order dated 14.11.1972 and present application has been filed after 9 year of grant of patta. Against the order of the Additional Commissioner dated 16.9.1978, State filed revision which was also dismissed vide order dated 26.3.1981 by Additional Commissioner, Varanasi Division, Varanasi. Against the order of the Additional Commissioner, a revision was filed before Board of Revenue which was also dismissed vide judgment dated 27.1.1983. Against the judgment of Board of Revenue dated 27.1.1983, a review petition was filed which has been allowed vide impugned order dated 9.7.1984, setting aside the order passed by the court below and the matter was remanded to the court of Additional Collector for disposing of the case afresh, hence this petition.
3. While entertaining the writ petition, this Court vide order dated 30.7.1984, admitted the writ petition and passed the following interim order on 30.7.1984:-
"Issue notice.
In the meantime, until further orders of this Court, the operation of the order dated 9.7.1984, impugned in this petition, shall remain stayed."
4. In pursuance of the order dated 30.7.1984, issuing notice to the respondents, no counter affidavit has been filed either by the State or the Gaon Sabha.
5. Counsel for the petitioner submitted that patta was granted in favour of the petitioner long back in the year 1966 and the proceedings initiated for cancellation of patta, was rejected by the trial court twice, hence the 3rd application initiated was dismissed by trial court as not maintainable and the order was maintained in revision by the Commissioner as well as by the Board of Revenue but the Board of Revenue while exercising the review jurisdiction, has allowed the revision and remanded the matter for fresh consideration of patta cancellation application. He further submitted that the exercise of review jurisdiction by the Board of Revenue was wholly illegal as there was no error apparent on the face of record in respect to the earlier order passed by the Board of Revenue on merit. He also submitted that no counter affidavit has been filed by the respondents in the writ petition for the last more than 38 years before this Court, hence the averment made in the writ petition are to be accepted and the writ petition is to be allowed. He further submitted that patta was executed in favour of petitioner in the year 1966 (more than 56 years before), as such, fresh consideration of patta cancellation application by the trial court, will be an abuse of process of law.
7. On the other hand, the learned standing counsel supported the impugned order passed by the Board of Revenue and submitted that the order impugned is a remand order, as such, the petitioner will have ample opportunity to raise his objection before the courts below.
8. I have considered the arguments advanced by the learned counsel for the parties and perused the records.
9. There is no dispute about the fact that patta was granted in favour of the petitioner on 13.11.1966 and the proceeding for cancellation was decided firstly by the trial court on three occasion and order was confirmed by the first revisional court as well as by the Board of Revenue at the first instance but while exercising power of review, Board of Review has allowed the revision and remanded the matter back before the trial court to decide the patta cancellation application afresh.
10. Since the petitioner was granted patta in the year 1966 and have matured their right in respect to plot in dispute, as such, fresh consideration of patta cancellation application after expiry of more than 56 years, will be an abuse of process of law.
11. Record further reveals that the patta cancellation application was repeatedly rejected by the trial court and the Commissioner has dismissed the revision filed by the State, the revision filed before the Board of Revenue was also dismissed at the first instance, as such, the exercise of review jurisdiction is wholly illegal, especially on the third application for cancellation of petitioner's patta which is barred by limitation also.
12. This writ petition was entertained in the year 1984 and the operation of the order passed by the Board of Revenue was stayed but no counter affidavit has been filed by the State or the Gaon Sabha till date, as such, there is no option except to accept the averment made in the writ petition.
13. Considering the entire facts and circumstances, the impugned order dated 9.7.1984, passed by the Board of Revenue is liable to be set aside and the same is hereby set aisde.
14. The writ petition stands allowed. The patta granted in favour of the petitioner is hereby affirmed.
No order as to cost.
Order Date :- 15.11.2022 C.Prakash (Chandra Kumar Rai, J.)