# Ram Deen v. Commissioner Gorakhpur & Ors

- **Citation:** (2014) 1 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-01
- **Case number:** Civil Misc. Writ Petition No.59939 of 2013
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-deen-v-commissioner-gorakhpur-ors-42902
- **Pages:** 4

## Headnote

U.P. Land Revenue Act 1901 Section 201readwith U.P. Land Laws Amendment Act
No.
10
of
1961-Section-3-Power
of
restoration-can be exercised by the same
court-who decided case ex-parte-order
passed
by
Naib
Tehsildar-restoration
allowed by Tehsildar-can not be justified
unless power under section 192 invoked.

Held: Para-13
In the instant case the issue was the
entertaining of the restoration application
by the Tehsildar and passing an order on
the
same
which
otherwise
was
maintainable before the Naib Tehsildar
himself. As noticed and held hereinabove,
the restoration was to be considered and
decided by the Naib Tehsildar except where
Section 192 of the 1901 Act was invoked.

## Text

218 INDIAN LAW REPORTS ALLAHABAD SERIES
the sons from (I) to (XII) above. As such
Jagannath, Amar Nath and Raj Nath who
were born to Smt. Ram Pyari, after her
becoming widow comes either in the
category of Punerbhava or Parasava and
were his body born sons. Supreme Court in S
P S Balasubramariyam Vs. Suruttayan, AIR
1992 SC 756, Challamma Vs. Tilaga, (2009)
9 SCC 299 and Madan Mohan Singh Vs.
Rajni Kant, (2010) 9 SCC 209 held that
living in relation for long time and giving
birth to a child, raise a presumption of
marriage. The Hindu Widow's Remarriage
Act, 1856 has come in to force as such Smt.
Ram Pyari, being a widow was not disable to
remarry. In the absence of widow and Auras
son of Kanhai, Jagannath, Amar Nath and
Raj Nath are entitled to inherit Kanhai.
Supreme Court in Amireddi Raja Gopala
Rao v. Amireddi Sitharamamma, AIR 1965
SC 1970 held that a concubine was not
disqualified from claiming maintenance by
reason of the fact that she was a Brahmin.
The claim of a concubine who was a
respectable woman of the Brahmin caste and
her illegitimate sons for maintenance was
allowed. No doubt, a Pratiloma connection is
denounced by the Smriti-writers and the
Commentators, and before the Hindu
Marriages Validity Act, 1949 (Act 21 of
1949) Pratiloma marriages between a Sudra
male and a Brahmin female were declared
invalid but even those cases recognise that a
Brahmin concubine in the exclusive and
continuous keeping of a Sudra until his death
was entitled to claim maintenance.

In this case, if Smt. Ram Pyari was a
Brahmin, then she belongs to same caste
and in other case, there was Anuloma
connection and not pratiloma.

22. In view of the aforesaid
discussions, the writ petition succeeds and is
allowed. It is held that the findings in the
previous
judgments
that
Kanhai
was
'Brahmin' (Hindu) by caste and died
unmarried; The petitioners failed to prove
that Smt. Jhulari was the wife of Kanhai and
they were sons of Smt. Jhulari and Kanhai;
Jagannath, Amar Nath and Raj Nath were
born to Smt. Ram Pyari, who was widow of
Ram Nath, due to her illegitimate relation
with Kanhai, are the findings on issues
relating to the facts and operate as resjudicata. However, the findings that children
born to Smt. Ram Pyari, due to her union
with Kanhai were illegitimate children and
not entitled to inherit Kanhai are findings on
the legal issues and the previous judgments
in this respect would not operate as resjudicata, in the subsequent proceedings, in
respect of other properties. The impugned
orders of Consolidation Officer (respondent-3)
dated
01.12.2012,
Settlement
Officer
Consolidation (respondent-2) dated 06.03.2013
and
Deputy
Director
of
Consolidation
(respondent-1) dated 23.05.2013 are modified
accordingly.
The
Consolidation
Officer
(respondent-3) is directed to conclude trial on
other issues and pass final order after allowing
the parties to lead their evidence.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No.59939 of 2013

Ram Deen...... Petitioner
Versus
Commissioner Gorakhpur & Ors......
 ...Respondents

Counsel for the Petitioner:
Sri R.C. Maurya

Counsel for the Respondents:
C.S.C.
1 All] Ram Deen Vs. Commissioner Gorakhpur & Ors.
219
U.P. Land Revenue Act 1901 Section 201readwith U.P. Land Laws Amendment Act
No.
10
of
1961-Section-3-Power
of
restoration-can be exercised by the same
court-who decided case ex-parte-order
passed
by
Naib
Tehsildar-restoration
allowed by Tehsildar-can not be justified
unless power under section 192 invoked.

Held: Para-13
In the instant case the issue was the
entertaining of the restoration application
by the Tehsildar and passing an order on
the
same
which
otherwise
was
maintainable before the Naib Tehsildar
himself. As noticed and held hereinabove,
the restoration was to be considered and
decided by the Naib Tehsildar except where
Section 192 of the 1901 Act was invoked.

(Delivered by Hon'bleAmreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the
petitioner and Sri Rajesh Kumar learned
Standing Counsel.

2. Section 201 of the U.P. Land
Revenue Act, 1901 provides for filing of a
restoration application, if an ex-parte order
has been passed against a person arrayed in
the proceedings. No appeal or revision will
lie against such an order which is alleged to
be ex-parte and therefore the only remedy is
to file a restoration application.

3. In the instant case, the Naib
Tehsildar had passed an order whereas the
restoration has been allowed by the
Tehsildar. It is this part of the procedure
which was questioned by the respondent
in a revision which has been allowed by
the learned Commissioner directing that
the restoration shall be decided by the
Naib Tehsildar.

4. Section 224 of the U.P. Land
Revenue Act, 1901 is the charging section
under which the State Government
confers the powers on the Tehsildars and
Naib Tehsildars. Section 231 of the U.P.
Land Revenue Act, 1901 provides that the
powers of a subordinate authority can be
exercised by a superior authority. The
Tehsildar is admittedly a superior officer
to the Naib Tehsildar.

5. It is also to be noted that the powers
that are to be exercised by the Tehsildar can
also be exercised by the Naib Tehsildar on
account of a conferment by virtue of Section
3 of the U.P. Land Laws Amendment Act
No. 10 of 1961. Not only this the said
amendment
was
brought
about
with
retrospective effect and a validating clause
was also added in order to ensure that any
action taken by the Naib Tehsildar exercising
the power of the Tehsildar be saved. It is thus
clear that that the powers that are exercisable
by the Tehsildar can also be exercised by the
Naib Tehsildar and the converse is also true.

6. In the instant case the observation
made in the impugned order is that the
Board of Revenue has ruled that a
restoration application will be entertained
by the same court which had passed the
orders and not by any other court.

7. A perusal of Section 201 would
indicate that a rehearing can be conducted
on proof of good cause of nonappearance, and the party moving the
application satisfies the officer making
the order that there has been failure of
justice. Such an officer may upon such
terms as he thinks fit may revive the case.

8. It is thus clear that the words used
by the Legislature in Section 201 are
categorical that the restoration application
has to be filed before the same presiding
officer who had passed the order. The
220 INDIAN LAW REPORTS ALLAHABAD SERIES
words are not the same court but the same
presiding officer. The presiding officer
would
naturally
mean
the
persona
designata functioning and not the officer
by name. This has to be clarified that on
account of the fact that the presiding
officers of a particular court keep on
changing either due to retirement or
otherwise any vacancy arising. Thus the
Naib Tehsildar of the court that passed the
orders in the present case will be
presumed to be the presiding officer
entitled
to
entertain the
restoration
application.

9. Learned counsel for the petitioner
submits that the said court was vacant
when the restoration application was filed
and even when the order came to be
passed by the Tehsildar. The submission
therefore appears to be that the Tehsildar
otherwise had jurisdiction to entertain the
restoration application in the absence of
the Naib Tehsildar.

10. Section 192 of the U.P. Land
Revenue Act, 1901 confers a power to
transfer cases to and from subordinates.
There is nothing on record to indicate that
the case had been actually transferred by
invoking the powers under Section 192 to
the court of the Tehsildar who passed the
order. There is nothing on record to
indicate in the order of the Tehsildar that
these orders were being passed on account
of the court of the Naib Tehsildar being
vacant.

11. In such circumstances, the
arguments advanced on behalf of the
learned counsel for the petitioner cannot
be accepted as Section 201 is categorical
and therefore the conclusion drawn by the
learned Commissioner that the restoration
application had to be entertained by the
same presiding officer does not suffer
from any infirmity.

12. So far as the question of
maintainability
of
the
revision
is
concerned this aspect has already been
considered in the order passed by this
court on 7.11.2013. The Khatauni which
has
been
filed
alongwith
the
supplementary affidavit indicates the
existence of the name of Abha Devi.
Learned
counsel
for
the
petitioner
disputes the capacity of Abha Devi and
her rights on certain grounds. This by
itself will not make the revision not
maintainable or not entertainable. A
revision can be filed provided a material
irregularity is found particularly with
regard to the jurisdiction of the officer to
entertain an application. Abha Devi being
mentioned and recorded in the Khatauni
had a basis for filing the revision. The
merits of her claim are a different aspect.

13. In the instant case the issue was the
entertaining of the restoration application by
the Tehsildar and passing an order on the
same which otherwise was maintainable
before the Naib Tehsildar himself. As
noticed and held hereinabove, the restoration
was to be considered and decided by the
Naib Tehsildar except where Section 192 of
the 1901 Act was invoked.

14. So far as the issue of the vacancy
of the court is concerned that can be
looked into by the competent authority
and in the event the court of the Naib
Tehsildar is vacant it is still open to the
higher authority to invoke its power under
Section 192 and then proceed to pass an
appropriate order if the Naib Tehsildar is
not available. In the circumstances, there
is no occasion for this court to interfere
with
the
impugned
orders.
1 All] Mahipat Singh Vs. State of U.P. and Ors.
221

15. The writ petition is dismissed
with a direction that the restoration
application may be disposed of as
expeditiously
as
possible
preferably
within a period of six months.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 11.12.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 64953 of 2013

Mahipat Singh... Petitioner
Versus
State of U.P. and Ors... Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra Dwivedi

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Right to
protection
of
life-petitioner's
brother
murdered-petitioner also residing in same
village-applied
for
five
arms
licenserejected on ground-name of such person
having danger to life not disclosed-appeal
also got same fate-writ court earlier
quashed both order with specific directionagain
on
same
ground
application
rejected-amounts to contempt-can not be
relegated to approach before appellate
authority-order quashed with cost of Rs.
20,000/-.

Held: Para-6
In
the
instant
case,
the
District
Magistrate has mechanically, without
any application of mind and without
considering the observations of the writ
court
has
again
passed
an
order
rejecting the petitioner's application for
grant of an arms licence solely on the
ground that there was no perception of
threat to the life of the petitioner. Such
reasoning adopted by the respondent is
patently erroneous and against the
provisions of Section 14 of the Arms Act.
Even otherwise, the court finds that
sufficient reasons have come on record
to indicate the fear of the petitioner of
his life where his real brother was
murdered by some assailants, and that,
by itself, is a sufficient ground. It is not
necessary that the petitioner should
intimate the District Magistrate the
name of the persons against whom he
has a threat. It is sufficient for the
petitioner to indicate the reasons.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner's brother was
murdered in the village where the
petitioner
was
also
residing.
The
petitioner feared for his life and with this
unfounded fear that he may also be
murdered by unknown assailants and in
order to protect his life which is a
fundamental right under Article 21 of the
Constitution, applied for an arms licence
under the Arms Act, 1959.

2. The fact that his brother died is
admitted by the respondents. The fact that for
this purpose the petitioner had applied is also
admitted but due to short-sightedness, the
District Magistrate refused to grant a licence
and rejected his application on the ground that
there was no threat to his life. The petitioner
filed an appeal which was also rejected and
consequently, the petitioner filed Writ Petition
No. 58060 of 2011 which was allowed by a
judgement dated 11.10.2011. The writ court
quashed the order of the District Magistrate
and the appellate order and directed the
District Magistrate to re-decide the matter in
accordance with the observations made in the
judgement. For facility the extract of the
judgement is quoted hereunder :-

"7. This Court in Pawan Kumar Jha
Vs. State of U.P. and others 2010(10)