Allahabad High Court
Kusum And Another vs State Of U.P.Throu.Prin.Secy.Revenue ... on 17 November, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- MISC. SINGLE No. - 16998 of 2020 Petitioner :- Kusum And Another Respondent :- State Of U.P.Throu.Prin.Secy.Revenue Lucknow And Ors. Counsel for Petitioner :- Vipin Kumar Mishra Counsel for Respondent :- C.S.C Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioners. Notice on behalf of the respondents No.1 and 2 has been accepted by the office of the Chief Standing Counsel.
Learned Additional Chief Standing Counsel has drawn attention of the Court to the order passed by a Coordinate Bench of this Court dated 15.10.2020. It has been submitted that the respondents had raised a question of maintainability of the above writ petition inasmuch as the petitioners have an adequate and statutory remedy of filing an appeal in terms of the U.P. Land Revenue Code and for the said reason, the petition is not maintainable.
Learned counsel for the petitioners was required to address the Court on the maintainability of the petition.
Learned counsel for the petitioners submits that the impugned order which has been passed by the respondent No.2 dated 25.09.2019 is wholly without jurisdiction. It has been submitted that the predecessor of the petitioner along with Satya Narain had purchased the property in question by means of the registered sale-deed and thereafter on the basis of the aforesaid deed, the name of the predecessor of the petitioner No.1 as well as Satya Narain the petitioner No.2 was duly mutated on 30.06.1986.
Learned counsel further submits that an application for restoration/recall of the order dated 30.06.1986 was moved on 27.11.2012, but without issuing any notice nor notice was served on the petitioners (including their predecessor) nor the delay of 25 years was condoned and the impugned order has been passed. It has further been submitted that in the meantime, Shri Laxmi Narain one of the original party had expired, then the private-respondents No.3 and 4 had made an application for substitution, however, the same remained pending on the record, but no order was passed, as such the impugned order has been passed against the dead person which also renders the same to be a nullity.
Learned counsel for the petitioners further submits that the impugned order also suffers from vice of the concealment of the fact inasmuch as the private-respondents had assailed the sale-deed by filing the civil suit for its cancellation, which was dismissed in the year 2005. However, an appeal was preferred which was allowed by the first appellate Court in the year 2010 against which the present petitioners had preferred a second appeal which is pending and engaging attention of the High Court where the respondents No.3 and 4 have also put in appearance but the factum of the pendency of the second appeal has also been concealed and thus, the impugned order being wholly without jurisdiction is liable to be set aside and in the aforesaid circumstances, the present petition may be entertained.
Considering the rival submissions, it may be true that the ground on which the petitioners are assailing the impugned order may have merits which can be examined even by the appellate authority, however, the fact remains that the learned counsel could not dispute the fact that assuming if the impugned order is treated to be passed under Section 34 of the U.P. Revenue Code then the petitioners to have a remedy of filing an appeal under Section 35(2) of the U.P. Revenue Code and even a revision in terms of Section 210 of the U.P. Revenue Code. However, since the proceedings were initiated under the Land Revenue Act, therefore, the petitioners have a right of appeal under the corresponding Act in terms of Section 210 of the Land Revenue Act and the revisional jurisdiction under Section 219 of the Land Revenue Act.
In view of the aforesaid, this Court of the opinion that since the petitioners have an adequate statutory and efficacious remedy, thus, it is not an extraordinary case where this Court may exercise its discretion in entertaining the aforesaid petition. Accordingly, the writ petition is dismissed on the ground of availability of adequate statutory remedy. It is made clear that the Court has not examined the merits of the case and only on the ground of alternative remedy, the petition has been dismissed. The petitioners shall be at liberty of raising all their pleas which are available to them before the appropriate authority either in the revision or appeal as may be advised to them.
With the aforesaid, the writ petition is dismissed.
Order Date :- 17.11.2020 Rakesh/-