Allahabad High Court
Ashok Kumar vs State Of U.P. And 5 Others on 8 February, 2023
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - B No. - 257 of 2023 Petitioner :- Ashok Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Prem Sagar Verma,Madan Mohan Counsel for Respondent :- C.S.C.,Avinash Chandra Srivastava,Jay Prakash Singh,Shyam Mani Shukla Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the petitioner, learned standing counsel representing respondents No. 1, 2 & 3, learned counsel for the respondent No. 6, Gaon Sabha, learned counsel for the respondent No. 4, learned counsel for the private respondent No. 5 and perused the record.
2. In view of the peculiar facts and circumstances of the present case and the order proposed to be passed by this Court hereunder, this Court proceeds to decide instant writ petition finally at the admission stage itself, with the consent of the learned counsel for the parties present, without calling for their respective affidavits.
3. The petitioner has shown his grievances against the order dated 8.8.2022 passed by the Board of Revenue (respondent No. 2) remitting the matter before the learned Additional Commissioner to decide the revision filed on behalf of the petitioner on merits after affording opportunity of hearing to the parties concerned.
4. Facts culled out from the averments, as made in the writ petition, are that the petitioner has filed a suit for declaration under Section 229B of UP Zamindari Abolition and Land Reforms Act, 1950 (in brevity, UPZA and LR Act) claiming his right and title on the basis of succession being grand son of Ganeshi. The suit was dismissed vide order dated 31.8.2009 passed by the Sub-Divisional Officer, Agra. Having been aggrieved, the petitioner has filed a revision before Additional Commissioner (Administration), Agra Division, Agra, who has allowed the revision vide its order dated 11.11.2013 acknowledging the right and title of the petitioner over the property in question. Against the order dated 11.11.2013, States of UP and others have preferred a revision before the Board of Revenue, which was dismissed by order dated 23.8.2016, as such, the proceedings under Section 229B of UPZA and LR Act has culminated vide order dated 23.8.2016 passed by the Board of Revenue. At belated stage, Smt. Guddi Devi (respondent No. 5) has moved a miscellaneous application dated 13.3.2018 to modify the order dated 11.11.2013 passed by the Additional Commissioner to the effect that she may also be declared co-tenure holder along with the present petitioner (Ashok Kumar). During the pendency of such application, subsequent application dated 24.7.2018 has been moved on behalf of the respondent No. 5 to not press the modification application dated 13.3.2018. Subsequently, on 29.10.2018, a miscellaneous application has been moved in the nature of written argument on behalf of the respondent No. 5. After considering the parties at length, learned Additional Commissioner, vide order dated 30.3.2019, has rejected the application dated 13.3.2018 moved on behalf of the respondent No. 5 and affirmed the earlier order dated 11.11.2013. Against the order dated 30.3.2019, by which the recall application was rejected, a restoration application dated 8.4.2019 has been moved on behalf of the respondent No. 5. After considering the matter in detail, learned Additional Commissioner has rejected the subsequent restoration application dated 8.4.2019, vide its order dated 28.4.2022. Having been aggrieved, the respondent No. 5 has filed a revision before the Board of Revenue against the order dated 28.4.2022. The Board of Revenue, vide impugned order dated 8.8.2022, has quashed the order dated 28.4.2022 and remitted the matter before the learned Additional Commissioner to decide the revision on merits.
5. A very short point has been raised on behalf of the petitioner with respect to the final observation made by the Board of Revenue, by which the revision before the Additional Commissioner has been ordered to be decided on merits. It has been submitted that against the order dated 30.3.2019, rejecting the earlier recall application dated 13.3.2018, a restoration application was filed on 8.4.2019. Learned Additional Commissioner has rejected the restoration application dated 8.4.2019, vide its order dated 28.4.2022, therefore, the subject matter of revision filed before the Board of Revenue on behalf of the respondent No. 5 was only the merits of the order dated 28.4.2022, which was passed on the restoration application dated 8.4.2022. In the light of the aforesaid facts, learned counsel for the petitioner submits that the Board of Revenue at the most could remit the matter for decision on the restoration application dated 8.4.2019, however, he has illegally remitted the matter to decide the revision on merits.
7. Learned counsel for the contesting respondents No. 5 has contended that the Board of Revenue has rightly remitted the matter to decide the revision on merits considering the right and title of the respondent No. 5 over the property in question. It is submitted that the case of the respondent No. 5 has never been considered at this stage, therefore, the respondent No. 5 may be given an opportunity of hearing to defend her case.
8. Having considered the rival submissions advanced by the learned counsel for the petitioner and perusal of record, it reveals that the respondent No. 5 has filed the revision dated 17.5.2022 assailing the order dated 28.4.2022, which was passed on the restoration application dated 8.4.2019. The Board of Revenue has allowed the revision and quashed the order dated 28.4.2022. While passing the impugned order dated 8.8.2022, the Board of Revenue has not made any observation with respect to the quashing the orders dated 30.3.2019 and 11.11.2013. In this view of the matter, the Board of Revenue has allowed to stand both the aforesaid orders, which was passed against the respondent No. 5. Quashing the order dated 28.4.2022 passed on the restoration application dated 8.4.2019, will result in revival of the restoration application dated 8.4.2019.
9. In this conspectus as above, remitting the matter to decide the merits of the revision, by the Board of Revenue, is not justifiable in the eye of law. If the Board of Revenue was of the view that the respondent No. 5 may be heard on the merits of the revision, it should have made an observation with respect to quashing the orders dated 30.3.2019 and 11.11.2013.
10. I find substance in the instant writ petition, as such, the instant writ petition succeeds and is partly allowed. The order dated 8.8.2022 passed by the Board of Revenue is modified to the extent that after quashing the order dated 28.4.2022, the restoration application dated 8.4.2019 is restored to its original number which shall be heard and decided on merit by the learned Additional Commissioner after affording opportunity of hearing to the parties concerned.
Order Date :- 8.2.2023 vinay