Allahabad High Court
Ashu vs State Of U P And 7 Others on 11 November, 2019
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.9 Case :- WRIT - C No. - 29080 of 2019 Petitioner :- Ashu Respondent :- State Of U P And 7 Others Counsel for Petitioner :- Santosh Kumar Srivastava,Alka Srivastava Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Sa,Vinod Kumar Hon'ble Jayant Banerji, J.
Heard learned counsel for the petitioner. Shri J.N. Maurya, learned Chief Standing Counsel appears for the respondent nos.1, 2, 3 and 5. Shri Mahesh Narain Singh, learned counsel has accepted notice on behalf of the respondent no.6. Shri Vinod Kumar, learned counsel states that he has filed his vakalatnama on behalf of the respondent nos.6, 7 and 8 but the same is not on record. Office is directed to place it on record.
Though Shri Amrendra Nath Singh, learned Senior Advocate appearing on behalf of the respondent nos. 6, 7 and 8 prays for time to bring on record the fraud that has been played by the petitioner in obtaining "the order of mutation dated 26 November 2018", however, in view of the order proposed to be passed, the case is not being adjourned.
This writ petition has been filed with the following prayer:-
"(i) Issue, an appropriate writ, order or direction in the nature of Certiorari quashing the impugned judicial order dated28.301.2019 passed by the Tehsildar, Tehsil-Khekra, District Baghpat.
(ii) Issue an appropriate writ, order or direction in the nature of Mandamus restraining the respondents from interfering in the peaceful use and possession of the petitioner over the land in dispute."
The contention of the learned counsel for the petitioner is that the mutation application filed by the petitioner came to be allowed by the respondent no.3, Tehsildar, on 26 November 2018 after due proclamation and no objection was filed by any person. Thereafter, the respondent nos.6 to 8 filed a recall application dated 21 December 2018 which is pending. However, an application was moved by the respondent nos.6 to 8 on the administrative side before the Sub-Divisional Officer, Khekra who directed the respondent no.3 to amend the mutation order dated 26 November 2018. The Tehsildar, by an administrative order dated 28 January 2019, stayed the operation of the mutation order dated 26 November 2018.
On 22 October 2019, this Court passed the following order:-
"Although, the matter has been called out in the revised list, Shri Mahesh Narain Singh, counsel for the Gaon Sabha has not appeared.
Initially, when the petition came up before this Court, the following order was passed on 16.09.2019- " Heard learned counsel for the petitioner and Shri Mahesh Narain Singh for the Gaon Sabha as also the learned Standing counsel for the State-respondents.
The contention of counsel for the petitioner is that a mutation order passed in his favour has been stayed on misc. application filed on Tehsil Diwas on 28.01.2019.
It is stated that a Judicial Order could not be stayed by a purely administrative order.
Learned Standing Counsel is directed to obtain instructions in the pending mater positively by the next date fixed, failing which, the Tehsildar, respondent no.3, who has passed allegedly administrative order shall appear in person.
Put up as fresh on 01.10.2019."
The matter was again taken up on 01.10.2019, when the following order was passed -
"Vide order dated 16.09.2019, learned Standing counsel had been directed to obtain instructions in the matter. The instructions that have been received, copy whereof has been produced and is taken on record merely states that there was no Tehsil Diwas on 21.08.2019.
Let the entire record of mutation case No.T201811080200832, Ashu Vs. Vipin and others be produced.
The concerned Tehsildar shall also be present in Court along with the said record on that date.
Put up as fresh on 22.10.2019."
Consequent to the order dated 01.10.2019, learned Standing Counsel has produced the entire record of the mutation case and I have perused the same.
Challenge in the writ petition is to the order dated 21.08.2019. By this order, a mutation order dated 26.11.2018 in favour of the petitioner has been stayed and the parties have been directed to maintain status-quo on the spot.
Initially, the contention of counsel for the petitioner was that an application appears to have been filed on Tehsil Diwas and the impugned order dated 28.01.2019 was passed, exparte.
However, since the instructions received were to the effect that 28.01.2019 was not a Tehsil Diwas, the original record had been summoned.
Learned Standing counsel has reiterated that 28.01.2019 was not a Tehsil Diwas. He has submitted that the order dated 28.01.2019 has been passed on a misc. application filed by the opposite party in Court.
The application on which, the order dated 28.01.2019 has been passed on its reverse is an undated application. There is no endorsement thereon that its copy was served upon the petitioner. This application also does not bear any Stamp. The application is in the form of a letter and does not bear any case number.
Admittedly, the order passed thereon is exparte because it is recorded that only the applicant has been heard.
From the above noted facts, it is clear that the Sub Divisional Officer Khekhda, District Bagpat entertained this application on 28.01.2019. He had directed the Tehsildar in writing,to exparte, modify the order dated 26.11.2018 recorded on the Khatauni. In pursuance of the above direction and after hearing only he applicant, the operation of the mutation order dated 26.11.2018 has been stayed by the Tehsildar and the parties directed to maintain status-quo.
From the facts, this Court is under no doubt that the Sub Divisional Officer and the Tehsildar have resorted to extra judicial proceedings, to stay a judicial order.Their approach and the manner in which, the application has been entertained and disposed of smacks of arbitrariness.
In any case, the Sub Divisional Officer had no jurisdiction to issue directions to the Tehsildar as to the manner he should decide an application or a judicial proceeding.
Under the circumstances, I issue a show cause notice to Shri Pulkit Garg, Sub Divisional Officer and Shri Raghuvansh Kumar Verma, Tehsildar, who is present in person to show cause notice as to why action should not be proposed against them for having, in an extra judicial manner interfered with, a judicial order and that to, exparte without any notice or information to the petitioner.
Reply to this show cause notice shall be filed on or before 11.11.2019, on which date, this matter shall come up in the additional cause list.
In the meantime, not only the impugned order dated 28.01.2019 passed by the Tesildar shall remain stayed, the Collector, Baghpat is directed to ensure that no judicial work is performed by the aforesaid Tehsildar and the Sub Divisional Officer, until further orders are passed by this Court after considering their replies to the show cause notice above.
Put up in the additional cause list on 11.11.2019.
The original record produced by learned Standing Counsel may be returned. However, a photostat copy of the application and the various orders passed thereon on 28.01.2019 both, on the margin and on the reverse of the application, shall be retained on record."
Pursuant to the order of this Court dated 22 October 2019, two affidavits of compliance have been filed today by the Chief Standing Counsel, one of Pulkit Garg, who has been posted as the Sub-Divisional Officer/Joint Magistrate, Tehsil-Sadar (the then Sub-Divisional Officer/Joint Magistrate, Tehsil-Khekra), District Baghpat, and the other of Yaduvansh Kumar, presently posted as Tehsildar, Tehsil-Khekra, District Baghpat.
In the affidavit of compliance filed by the Sub-Divisional Officer, Pulkit Garg, it is stated as follows:-
"1. That the deponent is presently posted as Sub-Divisional Officer/Joint Magistrate, Tehsil-Sadar, (then, Sub-Divisional Officer/Joint Magistrate, Tehsil-Khekra), District Baghpat and he has been directed to reply the show cause notice issued by the order dated 22.10.2019 passed by this Hon'ble Court in aforesaid writ petition and as such he is fully acquainted with the facts of the case and now giving reply to the show cause notice as under by means of this affidavit.
2. That the present affidavit is being filed giving explanation to show cause notice issued against the deponent by order dated 22.10.2019 passed by this Hon'ble Court in aforesaid writ petition.
3. That it is respectfully submitted that the deponent is an I.A.S. Officer of 2016 batch and as such after completing the training and probation period on 30.09.2018, his first appointment has been made on 24.10.2018 as Sub-Divisional Officer/Joint Magistrate, Tehsil-Khekra District Baghpat and as such the deponent joined on the aforesaid post on the same day i.e. on 24.10.2018.
4. That during the appointment on the post of Sub-Divisional Officer/Joint Magistrate, Tehsil-Khekra District Baghpat as stated above, an application has been moved before the deponent by one Rajpal son of Khacheru Resident of Village Laliyana Tehsil-Khekra District Baghpat stating therein that for the Plot Nos.28, 29 and 30, total area 1.6250, the applicant is co-tenure holder and a case for Kurra/faat is pending before the competent court and as such during pendency of the case as stated above, the co-tenure holders namely Nitin and Vipin sons of Tek Chand have transferred applicant's share of the disputed land fraudulently. Due to without knowledge of the applicant, the mutation order has been obtained by the petitioner (Ashu), and it has been lastly prayed that the share of the applicant may be returned back, and the mutation order be cancelled and the mutation order dated 26.11.2018 may be stayed.
5. That on the aforesaid complaint/application, feeling exparte mutation order dated 26.11.2018 has been passed, the deponent for avoiding the multiplicity of unnecessary litigations and with a view to do the justice directed to Tehsildar, Khekra by order dated 28.01.2019 to amend the mutation order dated 26.11.2018 in accordance with P.D. order dated 07.12.2018.
6. That the order/direction dated 28.01.2019 has been passed by the deponent in disposal of the complaint/application as stated above, during his initial/first appointment having short experience in respect thereof, in goodfaith. There was no, otherwise, intention of the deponent in passing the order/direction dated 28.01.2019, to intervene in the judicial proceeding by an administrative order. Post the order dated 28.01.2019, it was expected by Tehsildar, Khekra to comply with it only as per law. However, if by order/direction dated 28.01.2019 passed by the deponent the judicial conscience of this Hon'ble Court has been hurt, the deponent is tendering his unconditional apology before this Hon'ble Court and as such begs to be pardoned for same submitting that such type of fault/mistake will not be repeated in future by the deponent.
7. That it is expedient in the interest of justice that the present affidavit in reply to the show cause notice in compliance of the order dated 22.10.2019 passed by this Hon'ble Court may be kept on record and the same may be considered with sympathy, so that justice may be done."
It is pertinent to note that paragraph nos.2 to 6 of the aforesaid affidavit are sworn on the basis of record.
The affidavit of compliance filed by the Tehsildar, Yaduvansh Kumar, states as follows:-
"1. That the deponent is presently posted as Tehsildar, Tehsil-Khekra, District Baghpat and he has been directed to reply the show cause notice by order dated 22.10.2019 passed by this Hon'ble Court in aforesaid writ petition and as such he is fully acquainted with the facts of the case and giving reply to the show cause notice as under by means of this affidavit.
2. That the present affidavit is being filed explaining show cause notice issued against the deponent by order dated 22.10.2019 passed by this Hon'ble Court in aforesaid writ petition.
3. That it is respectfully submitted that a case under section 34/35 of the U.P. Revenue Code, 2006 is pending as Case No.000832 of 2018 (Ashu Vs. Vipin & others) filed by the petitioner (Ashu). However, by order dated 26.11.2018 passed by the deponent the name of the petitioner (Ashu) was mutated in place of Vipin and Nitin (vendors).
4. That it is further respectfully submitted that against the order dated 26.11.2018 passed by the deponent a restoration application No.00036 of 2019 has been filed by Dharm Pal and others under section 209 (ज) of the U.P. Revenue Code, 2006 in respect to property in dispute in which by order dated 21.12.2018 passed by the deponent notices have been issued to the parties concerned.
5. That during the pendency of the aforesaid restoration application before the deponent and a misc. application for granting an ad-interim order has been moved before the Sub-Divisional Magistrate, Khekra, District Baghpat by Dharm Pal and others, the respondents no.6 to 8, in respect to property in dispute on 15.01.2019, though, the aforesaid application ought to have been filed (legally) before the deponent as such the Sub-Divisional, Magistrate by its order dated 28.01.2019 passed on the aforesaid application directed to the deponent to amend the order dated 26.11.2018 on the basis of order dated 07.12.2018 (final decree passed in case under section 116 of the U.P. Revenue Code, 2006 between the parties).
6. That after the direction dated 28.01.2019 as stated above the respondent no.6 to 8, on the same day, filed the aforesaid application along with the direction dated 28.01.2019, before the deponent. The application over which the direction dated 28.01.2019 has been passed, though, was unstamped, has been kept on record, however, the deponent considering the direction given by Sub-Divisional Magistrate, Khekra and also seeing the record has passed an order dated 28.01.2019, staying the order dated 26.11.2018 passed in favour of the petitioner, in the interest of justice.
7. That it is respectfully submitted that the deponent has passed the order dated 28.01.2019, considering the situation on spot for maintaining law and order in as much as the vendors of the petitioner (Ashu) have already transferred the land in excess of their share by sale deed dated 17.10.2018 (which was not in accordance with the share of final decree dated 07.12.2018).
8. That as stated above the deponent has passed the order dated 28.01.2019 considering the situation on spot relating to dispute regarding the possession of the disputed land for, maintaining the situation of law and order. There was no, otherwise, intention of the deponent in passing the order dated 28.01.2019 and to injure the interest of any party. However, if by order dated 28.01.2019 passed by the deponent the judicial conscience of this Hon'ble Court has been hurt, the deponent is tendering his unconditional and unqualified apology before this Hon'ble Court and begs to be pardoned for the same submitting that such type of fault/mistake will not be repeated in future by the deponent.
9. That it is expedient in the interest of justice that the present affidavit in reply to the show cause notice in compliance of the order dated 22.10.2019 may be kept on record and the same may be considered amicably at the time of hearing of the case, so that justice may be done."
It is pertinent to note that in this affidavit, paragraph nos.2 to 8 have been sworn on the basis of record.
Learned Chief Standing Counsel has stated that in view of the order dated 22 October 2019 passed by this Court, no orders have been passed by the concerned authorities pursuant to the application on which an endorsement was made by the Sub-Divisional Officer on 28 January 2019. The Tehsildar, by his order dated 28 January 2019, stayed the operation of the order of mutation dated 26 November 2018 and directed the parties to maintain status quo over the property in dispute. Against the said order of the Tehsildar, the present writ petition has been filed.
Admittedly, an application was filed under Section 209(h) of the U.P. Revenue Code 20061 for restoration in respect of the aforesaid mutation order dated 26 November 2018. On that restoration application, by an order dated 21 December 2018 passed by the Tehsildar, notices were issued to the parties concerned. It is during the pendency of the aforesaid restoration application, an application for granting an ad interim order was moved by the respondent nos.6 to 8 with respect to the property in dispute before the Sub-Divisional Officer, Khekra. The order dated 26 November 2018 passed by the Tehsildar Khekra with respect to the property in dispute directing mutation in favour of the petitioner was subject matter of an application filed before the Tehsildar Khekra on which notices were issued to the petitioner. That proceeding is purportedly under the proviso to Section 209(h) of the Code. The order passed by the Tehsildar on 28 January 2019 directing the parties to maintain status quo, which is a subject matter of the present writ petition, is passed pursuant to a direction of the Sub-Divisional Officer. However, this order does not appear to be part of the proceedings for restoration inasmuch as it is not an order passed on the order-sheet of the restoration proceedings. The order passed by the Sub-Divisional Officer (Pulkit Garg) on 28 January 2019 has chosen to overlook the express provisions of the proviso to Section 209(h) of the Code. The Tehsildar himself, by passing the order dated 28 January 2019 which is not on the order-sheet of the restoration case but on the reverse of the application filed on behalf of the respondent nos.6 to 8, has also acted contrary to law. Both the aforesaid officers, Pulkit Garg and Yaduvansh Kumar, have acted arbitrarily and illegally.
In view of admissions made in the two affidavits of compliance filed today, this Court cannot but hold that the direction of the Sub-Divisional Officer dated 28 January 2019 as well as the order dated 28 January 2019 passed by the Tehsildar Khekra are wholly illegal. The contrition and apology appearing in the two affidavits filed today, which are affirmed on the basis of record, are only a result of the deed of the officers being exposed by the petitioner.
In such circumstances, this writ petition is allowed and the order dated 28 January 2019 passed by the Tehsildar, Tehsil-Khekra, District Baghpat (respondent no.3) is quashed. The Tehsildar, Khekra before whom the application for restoration is pending shall proceed to decide the same expeditiously and, in accordance with law, preferably within a period of two months from the date of filing of a certified copy of this order before him, after providing an opportunity of hearing to all concerned including the respondent nos.6 to 8.
The learned Chief Standing Counsel shall forthwith communicate this order to the respective Disciplinary Authorities of the officers concerned that is, Pulkit Garg and Yaduvansh Kumar, for their perusal and necessary action.
Date :11.11.2019 SK (Jayant Banerji, J)