# Lalita Devi & Ors v. Board of Revenue U.P., Lucknow & Ors

- **Citation:** (2020) 1 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-08
- **Case number:** Misc. Single No. 34797 of 2019
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalita-devi-ors-v-board-of-revenue-u-p-lucknow-ors-45687
- **Pages:** 9

## Headnote

A. Challenging-impugned order-passed
illegally-without notice on prescribed
date-without
informing
petitionernormally writ jurisdiction not exercised in
matters
arising
out
of
mutation
proceedings- in the case-if not-would
amount to restoring illegal order.

B. When two remedies available no
prohibition
is
pursuing
both
simultaneously-aggrieved
person
can
choose either one or both remedies.

C. Held, This Court is aware that normally
extra ordinary writ jurisdiction is not
exercised in matters arising out of
mutation
proceedings.
In
this
case,
however, the order passed by the Board
of Revenue, if not, interfered with by this
Court in equity jurisdiction would amount
1 All. Lalita Devi & Ors. Vs. Board of Revenue U.P., Lucknow & Ors.
381
to restoring an illegal and fraudulent
order dated 08.08.2012 passed by the
Naib Tehsildar.

D. This Court also feels that it is its duty
to correct an error of law occurring in the
lower court record. The Board of Revenue
under some misconception of law, had
come to the conclusion that the Recall
application having been filed, no Revision
was maintainable simultaneously. The
Supreme Court has settled the position in
law that when two remedies are available
to a person aggrieved and there is no
prohibition in law in pursuing of both the
remedies simultaneously, then the person
aggrieved can choose either to avail only
one remedy or to avail both remedies to
establish his rights.

E. The order passed by the Board of
Revenue dated 30.10.2019 is set aside.
The order passed by the Additional
Commissioner
(Judicial),
Devi
Patan
Mandal,
Gonda,
on
07.04.2016
is
affirmed. The parties are directed to
approach the Naib Tehsildar who shall
consider the matter on merits and decide
the same strictly in accordance with law
within a period of three months from
today.

Writ Petition allowed. (E-8)

List of cases cited: -

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
market committee on the other. That
being so, the Act is not completely bereft
of a machinery nor can it be said that the
observations made by this Court in Ram
Chandra Kailash Kumar's case (supra)
have gone unheeded. All that we need to
add is that in order to make the Board's
revisional power more effective and its
exercise more transparent and credible,
the Board would do well to delegate the
power of hearing and disposal of the
revision
petitions
to
a
senior
and
experienced officer who is well-versed in
dealing with legal issues concerning
assessment and/or determination of the
liability under the Act. Beyond that it is
neither necessary nor proper for us to say
anything. Question No. 1 is answered
accordingly." (emphasis added)

35. The power of Revision when
delegated to Director by virtue of Section
33 becomes a function to be performed by
Director under Act, 1964 and, therefore,
Director can authorize any other Officer to
perform all or any of his functions under
Act, 1964 which includes delegated
powers to be performed by Director under
Section 32 of Act, 1964. In view thereof I
find myself unable to accept the contention
of learned counsel for petitioners that
power exercised by Deputy Director in
deciding Revision is bad in law as he had
no jurisdiction to decide Revision and
Director had no power to authorize Deputy
Director to decide Revision.

36. The issues, formulated above, are
answered against petitioners.

37. Since this Court has not been
addressed on merits of issue as to whether
demand raised from petitioners was valid
or not, hence, I have not gone into that
issue at all.

38. No other point has been argued.

39. The writ petitions lack merit.
Dismissed.

40. Interim order, if any, stands
vacated.
----------
(2020)1ILR 380

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 34797 of 2019

Lalita Devi & Ors. ...Petitioners
Versus
Board of Revenue U.P., Lucknow & Ors.
 ...Respondents

Counsel for the Petitioners:
Indrajeet Shukla, P.K. Shukla

Counsel for the Respondents:
C.S.C., Mohd. Waris Farooqui

A. Challenging-impugned order-passed
illegally-without notice on prescribed
date-without
informing
petitionernormally writ jurisdiction not exercised in
matters
arising
out
of
mutation
proceedings- in the case-if not-would
amount to restoring illegal order.

B. When two remedies available no
prohibition
is
pursuing
both
simultaneously-aggrieved
person
can
choose either one or both remedies.

C. Held, This Court is aware that normally
extra ordinary writ jurisdiction is not
exercised in matters arising out of
mutation
proceedings.
In
this
case,
however, the order passed by the Board
of Revenue, if not, interfered with by this
Court in equity jurisdiction would amount
1 All. Lalita Devi & Ors. Vs. Board of Revenue U.P., Lucknow & Ors.
381
to restoring an illegal and fraudulent
order dated 08.08.2012 passed by the
Naib Tehsildar.

D. This Court also feels that it is its duty
to correct an error of law occurring in the
lower court record. The Board of Revenue
under some misconception of law, had
come to the conclusion that the Recall
application having been filed, no Revision
was maintainable simultaneously. The
Supreme Court has settled the position in
law that when two remedies are available
to a person aggrieved and there is no
prohibition in law in pursuing of both the
remedies simultaneously, then the person
aggrieved can choose either to avail only
one remedy or to avail both remedies to
establish his rights.

E. The order passed by the Board of
Revenue dated 30.10.2019 is set aside.
The order passed by the Additional
Commissioner
(Judicial),
Devi
Patan
Mandal,
Gonda,
on
07.04.2016
is
affirmed. The parties are directed to
approach the Naib Tehsildar who shall
consider the matter on merits and decide
the same strictly in accordance with law
within a period of three months from
today.

Writ Petition allowed. (E-8)

List of cases cited: -

1. Vijay Shanker V. Additional Commissioner
(Administration), Lucknow Division & Ors. W.P
No.7719 (M/S) of 2014

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(1) Heard the learned counsel for the
parties and perused the record.

(2) This petition has been filed by the
petitioners challenging the order dated
30.10.2019 passed by the opposite party
no.1-Board of Revenue, U.P., Lucknow
and also praying for a direction to be
issued to the opposite parties to maintain
status-quo and not alienate the property in
question i.e. Khata Nos.1484 and 1645
situated
at
Village
Keshav
Nagar
(Paschim), Pargana, Budhapayar, Tehsil
Mankapur, District Gonda.

(3)

Learned
counsel
for
the
petitioners Shri Indrajeet Shukla, has
placed the brief facts related to the
controversy for its better appreciation. It
has been submitted that a dispute relating
to Khata Nos.1484 and 1645 situated
Village Keshav Nagar (Paschim), Pargana
Budhapayar, Tehsil Mankapur, District
Gonda arose. Smt. Lakpati widow of Ram
Keval, was the undisputed recorded tenure
holder of the land in question and after her
death on 14.06.1992 by virtue of PA-11
entry the names of Ram Ratan and Ram
Milan were recorded as legal heirs in the
Revenue records. A Mutation proceedings
by way of application was initiated by the
opposite party no.3 Adhari wife of Ram
Sughar as a result whereof an order dated
24.08.1994 was passed by the Naib
Tehsildar
without
providing
any
opportunity of hearing to the recorded
tenure holders Ram Ratan and Ram Milan.
Since the recorded tenure holders Ram
Ratan and Ram Milan were not provided
any opportunity of hearing, they moved a
restoration application seeking Recall of
the order dated 24.08.1994. During the
pendency of the restoration application,
they died and the legal heirs were
substituted by an order dated 02.12.2011.
The restoration application was allowed
setting aside the order dated 24.08.1994
and the next date fixed was 23.12.2011.
On 23.12.2011, a general date was fixed
for 20.07.2012 and on 20.07.2012, again a
general date was fixed for 24.08.2012. On
08.08.2012 an order deciding the mutation
382 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings was passed by the Naib
Tehsildar,
Babhanipayar,
Tehsil
Mankapur, District Gonda, on the basis of
some spot inspection carried out on an
application made by the opposite party
no.3 on 26.06.2012. Neither the spot
inspection was carried out in presence of
the petitioners nor the date earlier fixed as
24.08.2012 was pre-poned and notice
issued for the date to be fixed as
08.08.2012. A copy of the Spot Inspection
and Enquiry report was never provided to
the predecessor in the interest of the
petitioners. In fact, the order dated
08.08.2012 was passed by the opposite
party no.2 in favour of the opposite party
no.3 in a fraudulent manner.

(4) It has been submitted in
Paragraph 12 of the petition that the Naib
Tehsildar, Mankapur, had been transferred
to Tehsil Nanpara District Bahraich, prior
to 24.08.2012 and as such, before
assuming charge at Tehsil Nanpara,
District
Bahraich,
the
order
dated
08.08.2012 was passed to benefit the
opposite
party
no.3
for
extraneous
consideration, although the date already
fixed in the matter was 24.08.2012.

(5) Since the order dated 08.08.2012
was ex-parte, a Recall application was
filed. At the same time, the petitioner was
advised that since the order dated
08.08.2012 was on the merits of the
matter, directing recording of the opposite
party no.3 as co-tenure holder of the
property in question and had been passed
fraudulently, the petitioner may also file
Revision against such proceedings. A
Revision was preferred by the predecessor
in the interest of the petitioner and it was
allowed by the order dated 07.04.2016
passed by the Additional Commissioner
(Judicial), Devi Patan Mandal, Gonda.

(6)

Learned
Additional
Commissioner
(Judicial),
Devi
Patan
Mandal,
Gonda
while
allowing
the
Revision had summoned the lower court
record and recorded a categorical finding
that the order dated 08.08.2012 was passed
by the Naib Tehsildar, Mankapur, Gonda
while he was under transfer and also when
no date was fixed on 08.08.2012. In the
order-sheet there was a clear indication
that on 20.07.2012 only a general date has
been given and the matter had been fixed
for
24.08.2012.
The
Additional
Commissioner (J), Devi Patan Mandal,
Gonda, had recorded a finding that the
parties were not informed that the matter
would be taken up on 08.08.2012. The
Additional Commissioner (J), Gonda, also
found that after 23.12.2011 only general
dates had been fixed in all contested
matters including the matter under his
consideration by the Naib Tehsildar Court
and no hearing on merits had taken place.
Learned
Additional
Commissioner
(Judicial), Devi Patan Mandal, Gonda set
aside the order dated 08.08.2012 and
remanded the matter to the Trial Court for
adjudication on merits.

(7)

Against
the
order
dated
07.04.2016, the opposite party no.3 filed a
Revision No.933 of 2016 on 25.04.2016.
The said Revision has been allowed by the
impugned order dated 30.10.2019 by the
Board of Revenue only on the ground that
the Recall application was pending against
the order dated 08.08.2012 before the Naib
Tehsildar and simultaneously a Revision
had been filed by the predecessor in the
interest of the petitioners before the
Additional Commissioner (Judicial), Devi
Patan Mandal, Gonda. It was observed by
the Member (Judicial) of Board of
Revenue that two remedies against one
order
were
not
permissible
to
be
1 All. Lalita Devi & Ors. Vs. Board of Revenue U.P., Lucknow & Ors.
383
prosecuted simultaneously. The order of
the Additional Commissioner (Judicial),
Devi Patan Mandal, Gonda on its merits
with regard to the finding of fraudulently
getting the matter pre-poned and the order
being passed on 08.08.2012 behind the
back of the petitioners was not set aside or
interfered with.

(8) It has been submitted by the
learned counsel for the petitioners that
without setting aside the finding recorded
by the First Revisional Court, the Second
Revisional Court i.e. Board of Revenue
only interfered with the order because
under some misapprehension of law it was
of the opinion that a Recall application
before the Trial Court and a Revision
before
the
Higher
Court
was
not
permissible
simultaneously.
The
observation of the Board of Revenue is
against the law settled by the Supreme
Court in Bhanu Kumar Jain Vs. Archana
Kumar and Others reported in 2005 (All.)
C.J. 715. The Supreme Court has observed
that a person aggrieved by an order passed
ex-parte may file application under Order
9 Rule 13 for Recall, and at the same time
file an Appeal and pursue both the
remedies simultaneously. The statutory
right on filing an Appeal cannot be
curtailed and the circumstances mentioned
by the Court in Paragraphs 24 to 28 of the
judgment, although relate to an Appeal,
also apply in case of Revision before a
Superior Court, challenging the illegal and
fraudulent proceedings of lower court.
Paragraphs 24 to 25 of the judgment
rendered by the Hon'ble Supreme Court
say that an Appeal against an ex-parte
decree in terms of Section 96 (2) of the
CPC could be filed on such grounds as the
material on record in the ex-parte
proceedings in the suit by the plaintiff
cannot entail a decree in his favour, and
also that the Suit could not have been
posted for ex-parte hearing. In an
application under Order 9 Rule 13 of the
Code,
apart
from
questioning
the
correctness or otherwise of an order
posting the case for ex-parte hearing, it is
open to the defendant to contend that he
had sufficient and cogent reasons for not
being able to attend the hearing of the suit
on the relevant date.

(9) This Court perused the judgment
in Bhanu Kumar Jain (Supra) Paragraph
26 of the judgment rendered in Bhanu
Kumar Jain (Supra), the Supreme Court
had observed that a party aggrieved
against the ex-parte decree has two clear
options, one, to file an Appeal and another
to file an application for setting aside the
order in terms of Order 9 Rule 13 of the
CPC. He can take recourse to both the
proceedings simultaneously but in the
event the Appeal is dismissed as a result
whereof the ex-parte decree passed by the
Trial Court merges with the order passed
with the order passed by the Appellate
Court, having regard to Explanation
appended to Order 9 Rule 13 of the Code,
a petition under Order 9 Rule 13 would not
be maintainable.

(10) To summarize the law as settled
by the Hon'ble Supreme Court, it may be
observed that the right of Appeal is not
taken away by filing an application under
Order 9 Rule 13 of the CPC. If an Appeal
is dismissed as a result of which the exparte decree merges with the order of the
Appellate Court a Recall application
against the order passed by the inferior
Court would not be maintainable.

(11) It has moreover been submitted
by
Shri
Indrajeet
Shukla,
that
the
Additional Commissioner (Judicial), Devi
384 INDIAN LAW REPORTS ALLAHABAD SERIES
Patan Mandal, Gonda, noted the illegality
and procedural impropriety in the order
dated 08.08.2012 being passed by the Naib
Tehsildar and having set it aside, had only
remanded the matter to Naib Tehsildar to
consider afresh on merits and thus
substantial justice had been done and it
was open to both the parties to participate
before the Trial Court of Naib Tehsildar
with regard to the mutation proceedings
pending before him. Such order should not
have been interfered with by the Board of
Revenue in such a cursory manner and on
a misconception of law.

(12) Shri Mohd. Arif Khan, learned
Senior Advocate assisted by Shri Mohd.
Waris Farooqui has appeared on behalf of
the respondent no.3. He has raised a
preliminary
objection
regarding
maintainability of the writ petition saying
that the said writ petition arises out of
orders passed in mutation proceedings.
Ordinarily, this Court does not entertain
the writ petition against such orders as
mutation proceedings are the summary
proceedings and it is open for the parties to
get their rights adjudicated by filing a
regular proceeding either in Revenue
Courts or in Civil Court for declaration of
their rights. He has pointed out Paragraph
12 of the counter affidavit to say that Ram
Ratan and Ram Milan, the predecessor in
interest had filed a Regular Suit No.38 of
2010 (Ram Kishore and Another Vs. Smt.
Adhari and others) which was subjudice
before the Civil Judge (Senior Division),
Gonda, and therefore, this writ petition
should not be entertained.

(13) Learned counsel for the
respondent no.3 has also pointed out that
the petitioner no.1 has sold out the
property to one Balram, her brother on
25.05.2016 and mutation of the name of
Balram has already been ordered by the
Naib Tehsildar in the Revenue Record on
16.09.2016. Against the order dated
16.09.2016 an Appeal was filed by the
respondent
no.3
which
has
been
entertained and the order dated 16.09.2016
has been stayed by the Appellate Court on
13.12.2016. Against the order passed by
the Appellate Court dated 13.12.2016 the
petitioners have filed a Revision which is
pending before the Court of Additional
Commissioner where the order passed by
the Appellate Court has been stayed.

(14) It has been submitted that the
petitioners have no locus to challenge the
order dated 30.10.2019 as they have
already sold out the property to one
Balram.

(15) The learned counsel for the
respondent no.3 has also submitted that by
the order passed by the Board of Revenue
impugned in this petition, only the order
passed by the Additional Commissioner
has been set aside and the petitioners have
been asked to go to the Trial Court to
pursue
their
restoration
application
pending
against
the
order
dated
08.08.2012.
There
would
be
ample
opportunity to the petitioners to get their
case thrashed out on merits before the
Naib
Tehsildar
in
the
restoration
application.

(16) Learned counsel for the
respondent has also referred to Section 210
of the U.P. Land Revenue Act to say that
the
Revision
before
the
Additional
Commissioner filed under Section 219 by
the petitioners was not maintainable. It has
been submitted that against an order
passed by the Assistant Collector, First
Class or Second Class i.e. against an order
passed by the SDM or the Tehsildar, an
1 All. Lalita Devi & Ors. Vs. Board of Revenue U.P., Lucknow & Ors.
385
Appeal would lie and not a revision. The
exception carved out under Sub-Section 6
of Section 210 would also not be available
as
the
order
impugned
before
the
Additional Commissioner was passed
under Section 34 of the Land Revenue Act
and not under Section 33.

(17) It has also been submitted that
the petitioners assignee Balram has not
been arrayed as a party and the facts
regarding the petitioners having sold off
the property to Balram has been concealed
before this Court. The transferee is the real
brother of the petitioner no.1 Smt. Lalita.

(18) On merits it has also been submitted
that initially Gayadeen was the recorded tenure
holder. He had two sons Ramai and Ram Keval.
Ram Keval married Lakpati while Ramai had
tow sons, Ram Ratan and Ram Milan. Lakpati
and Ram Keval had one daughter Smt. Adhari
who has been arrayed as respondent no3. On the
other hand, Smt. Lalita is claiming through Babu
Lal and Annu Lal, the sons of Ram Kishore who
is claiming through Ram Ratan the son of Ramai.
It is a dispute between two branches of the same
family one represented by the predecessor in
interest of Smt. Lalita i.e. Ram Ratan and Ram
Milan and the other represented by the opposite
party no.3 Smt. Adhari. Smt. Adhari being the
daughter of Ram Keval was deprived of her
ancestral property by getting the name of Ram
Ratan and Ram Milan alone recorded in the
Record of Rights through the proceedings under
PA-11, therefore, the mutation application was
rightly filed by Smt. Adhari and the order passed
by the Naib Tehsildar on 08.08.2012 directs
recording of the name of Smt. Adhari also as cotenure holder, and such order should not be
interfered with in writ jurisdiction.

(19) Learned counsel for the
petitioners Shri Indrajeet Shukla, on the
other hand, in his reply has submitted that
this Court in Awadhesh Singh Vs.
Additional Commissioner and Others
Writ-C 13751 of 2005 decided on
04.08.2017 has mentioned. The exceptions
where this Court can interfere even in
orders passed in mutation proceedings. It
has been observed by this Court that where
an
order
has
been
passed
without
jurisdiction or that it confers rights against
the settled position in law, an order passed
in mutation proceedings can be interfered
with in writ jurisdiction. This Court has
relied upon a judgment in Vijay Shanker
V.
Additional
Commissioner
(Administration), Lucknow Division &
Ors. passed in Writ Petition No.7719
(M/S) of 2014. This Court had carved out
the exceptions in Paragraph 15 of the
judgment in Vijay Shanker (Supra) where
it was held that remedy of writ jurisdiction
under Article 226 of the Constitution of
India can be available where the order
passed is absolutely without jurisdiction,
where the order passed is against an entry
made in pursuance of the order passed by
the Regular Court, where the Courts have
not considered the matter on merits like
where the Courts have passed the orders
on restoration application etc., where the
order has been obtained by fraud or by
fabricating the documents.

(20) Learned counsel for the
petitioners has emphasized the third and
fourth
grounds
mentioned
in
Vijay
Shanker (Supra) available for the writ
petitioners to approach this Court in writ
jurisdiction against the order passed in
mutation proceedings.

(21) With regard to the second
preliminary objection raised by the learned
counsel for the respondent no.3, learned
counsel for the petitioners has relied upon
on Shardamma Vs. Mohammed Pyrejan
386 INDIAN LAW REPORTS ALLAHABAD SERIES
(D) through L.R.s & Another reported in AIR
2015 (SC) 3747; 2016 (1) SCC 730, where the
Supreme Court has observed that an assignee
can approach the court independently to protect
the right of the assignee. The High Court had
held that Shardamma, the plaintiff had
transferred her interest in favour of her daughter
during the pendency of the First Appeal and
therefore, she had lost her right to continue the
Appeal for the benefit of her daughter, who in
turn had transferred the property in favour of a
third person. The High Court had held that the
appellant had lost her right to continue the
Appeal. The Supreme Court over ruled the
High Court and held that merely by assignment
or release of the rights during the pendency of
the Appeal, one does not lose the right to
continue the Appeal, the Assignee may move
an application for impleadment, but his failure
to do so will not entail the dismissal of the Suit
or the Appeal. The Assignee can continue the
proceedings for the benefit of the Assignee. The
Supreme Court observed on the basis of the
judgment rendered by Jaskirat Datwani Vs.
Vidyavati & Ors. reported in [2002 (5) SCC
647], that even if no step is taken by assignee,
suit may be continued by the original party and
the person upon whom the interest has devolved
will be bound by the decree, particularly when
such party had the knowledge of the
proceedings and still failed to file any
application for being heard.

(22) It has been submitted by the learned
counsel for the petitioners that the petitioner no.1
Smt. Lalita Devi may have sold off her property
to her brother Balram but her rights to selling off
the property are still to be determined and she can
only transfer a right that she herself possesses to
her Assignee, as a vendor cannot transfer a better
right to her transferee.

(23) It has also been submitted that
the Regular Suit filed by the Ram Milan is
for a Permanent Injunction restraining the
respondents
from
interfering
in
the
peaceful possession of the petitioners'
predecessors Ram Milan and Ram Ratan.
There is no suit filed for declaration of
rights of the parties, and said suit for
permanent injunction shall take its own
course whereas the mutation proceedings
in this case have been initiated for
recording of name in the Revenue records.

(24) It has also been submitted that
the Additional Commissioner's orders had
directed the parties to appear before the
Trial Court i.e. the Court of Naib Tehsildar
to thrash out the matter on merits in the
mutation proceedings. Such order need not
have been interfering with by the Board of
Revenue on misconceived grounds as it
directs for participation of both the parties
before the Trial Court.

(25) Learned counsel for the
petitioners has also stated that under
Section 219 of the U.P. Land Revenue
Act, a Revision can be filed not only
against the "order" but also against the
"proceedings" and in a case where no
Appeal lies or even where Appeal lies but
has not been preferred. In this case, a
Revision was filed against the illegality
and impropriety of the procedure followed
by the Naib Tehsildar in his making a spot
inspection on the application made by the
respondent no.3 behind the back of the
petitioners, not giving copy of the spot
inspection report to the petitioners and
preponing date without notice to the
petitioners from 24.08.2012 to 08.08.2012
and passing orders on merits of the case.

(26) This Court has considered the
arguments raised by the learned counsel
for the parties. This Court finds from the
record that the Additional Commissioner
(Judicial), Devi Patan Mandal, Gonda, had
1 All. Lalita Devi & Ors. Vs. Board of Revenue U.P., Lucknow & Ors.
387
summoned the lower court record and had
found therefrom that on 20.07.2012 a
general date had been given in all the cases
of 24.08.2012. No application was moved
for preponing the a date by either of the
parties. The Naib Tehsildar Mankapur, had
been transferred from Mankapur, Gonda to
Tehsil Nanpara, District Bahraich before
the date fixed on 24.08.2012. Without
their being any date fixed on 08.08.2012,
the Naib Tehsildar had passed the order
impugned in favour of the respondents to
the Revision for their names be recorded
as co-tenure holders in the records of
rights. The order-sheet had been produced
before him and having perused the ordersheet, he had found that only general dates
had been given in all the cases and the last
date
fixed
on
the
order-sheet
was
24.08.2012. Only a general date having
been fixed, the matter was not heard on
merits from 23.12.2011 onwards. Since
March, 2012 to 24.08.2012 the Court of
Naib Tehsildar had in fact not heard a
single matter on contested mutation
applications,
filed
before
him.
The
Additional Commissioner had found that
the order was passed behind the back of
the Revisionists and without following the
procedure in a fraudulent manner. The
order passed by the Naib Tehsildar was set
aside and the matter had only been
remanded before the Trial Court to
consider afresh on merits after giving
opportunity to both the parties to be heard.

(27) This Court is aware that normally
extra ordinary writ jurisdiction is not
exercised in matters arising out of mutation
proceedings. In this case, however, the order
passed by the Board of Revenue, if not,
interfered with by this Court in equity
jurisdiction would amount to restoring an
illegal and fraudulent order dated 08.08.2012
passed by the Naib Tehsildar.

(28) This Court also feels that it is its
duty to correct an error of law occurring in
the lower court record. The Board of
Revenue under some misconception of
law, had come to the conclusion that the
Recall application having been filed, no
Revision
was
maintainable
simultaneously. The Supreme Court has
settled the position in law that when two
remedies are available to a person
aggrieved and there is no prohibition in
law in pursuing of both the remedies
simultaneously, then the person aggrieved
can choose either to avail only one remedy
or to avail both remedies to establish his
rights.

(29) The order passed by the Board of
Revenue dated 30.10.2019 is set aside. The
order
passed
by
the
Additional
Commissioner
(Judicial),
Devi
Patan
Mandal, Gonda, on 07.04.2016 is affirmed.
The parties are directed to approach the Naib
Tehsildar who shall consider the matter on
merits and decide the same strictly in
accordance with law within a period of three
months from today.

(30) It is made clear that no
unnecessary adjournments shall be given
to either of the parties.

(31) Let a copy of this order be sent
to
the
Additional
Chief
Secretary,
Department of Revenue, Government of
Uttar Pradesh by the office of the Chief
Standing Counsel and also by the Registry
to take appropriate action against the then
Naib
Tehsildar
Babhanipayar,
Tehsil
Mankapur, District Gonda, who had
passed the order dated 08.08.2012 for
extraneous considerations and behind the
back of the parties and, to initiate the
disciplinary proceedings against the said
Officer.
388 INDIAN LAW REPORTS ALLAHABAD SERIES

(32) Till the decision of the matter by
the Naib Tehsildar concerned, the parties
shall maintain the status-quo as on date
with regard to the property in dispute.

(33) Writ petition stands allowed.
----------
(2020)1ILR 388

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Misc. Single No. 35143 of 2019

Poonam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Surendra Pratap Singh, Amit Kumar Singh

Counsel for the Respondents:
C.S.C.

A. U.P. Panchayat Raj Act, 1947-section
95 (1) (g)-U.P. Panchayat Raj (Removal
of pradhan, Up-Pradhan and Members)
Enquiry Rules-section 2 (c) -District
magistrate
has
power
to
seize
the
financial and administrative power of
Petitioner-Gram Pradhan-upon receiving
a report from District Panchayat Officerduring pendency of proceedings u/s 95
(1) (g).

Held, On a bare perusal of the aforesaid Full
Bench decision the Court finds that while a
report submitted by any other public servant
who does not fall within the definition of
'enquiry officer' under Rule 2(c) of the Rules
1997 cannot be made the basis for any action
involving
cessation
of
financial
and
administrative powers of the Gram Pradhan
and constitution of a Three Member Committee
for discharging his duties and such a report can
only be made basis for ordering a preliminary
inquiry in terms of Rules 1997 by an inquiry
officer defined in Rule 2(c) thereof, a report
submitted by an officer who is either the
District Panchayat Raj Officer or any other
district level officer and falls within the
meaning of 'inquiry officer' as defined in Rule
2(c) of the Rules 1997 can be acted upon by
the District Magistrate ipso facto for the
aforesaid purpose, meaning thereby, even if
any preliminary inquiry had already been
ordered by him earlier by any other officer or it
had not been ordered, on receipt of any such
report by a District Panchayat Raj Officer or
any other District level officer who falls in the
definition of 'inquiry officer' under Rule 2(c),
whether or not he had been appointed to
function as inquiry officer, can be made the
basis by the District Magistrate to seize
financial and administrative powers of the
Gram Pradhan and to form a three member
Committee for discharging his functions. (Para
8)

Writ Petition dismissed. (E-9)

List of cases Cited: -

1. Vivekanand Yadav Vs. State of U.P. &
others, 2010 (10) ADJ 1

2. Ambesh Kumar v. State of U.P., Writ Petition
No.20971 (MS) of 2018

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. By means of this writ petition the
petitioner- Gram Pradhan has challenged
an order passed by the District Magistrate,
Sultanpur on 26.11.2019 seizing the
financial and administrative powers of the
petitioner and constituting a three Member
Committee under the proviso to section
95(1)(g) of the U.P. Panchayat Raj Act
1947 for performing the duties of the
office of Gram Pradhan during the
pendency of the proceedings under section
95(1)(g).