# Ram Naval v. The Board of Revenue and others

- **Citation:** (2006) 3 ILRA 1277
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-04-19
- **Case number:** Civil Misc. Writ Petition No. 17382 of 2006
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naval-v-the-board-of-revenue-and-others-40702
- **Pages:** 4

## Headnote

Sri V.K. Singh,
Sri Vimlendu Tripathi
Sri Rahul Sripat
S.C.
U.P.
Consolidation
of
Holdings
Act-
Section-5
(2)-Abatement
of
revision
arises out from Restoration Application
in suit under 229-B of U.P.Z.A. 8C L.R.
Act- if stay has been granted in revision
against the order allowing Restoration-
suit would revive and the suit would
abate-but if no stay granted-No question
of abatement.

Held- Para 5

However the ratio of the case only is that
if there is an order in the revision against
the
restoration
order
staying
the
operation of the restoration order the
suit would not revive and the subsequent
issuance
of
the
notification
under
Section 4 of the Act would have no effect
on the pending revision, which would not
abate. This view does not affect the view
that I am taking.
Case law Discussed:
1985 R.D. 163
1992 R.D. 100
2003 (5) AWE-4296

## Text

3All] Ram Naval V. The Board of Revenue and others 1277
sub-rule (4) of Rule 9 of the Pension
Rules does not contemplate a situation
where judicial proceedings have been
instituted prior to the superannuation of
the Government servant and are continued
after his superannuation, we are of the
considered opinion that the order of
provisional pension as provided in Rule
69 of the Rules could not have been
passed and instead the regular pension
ought to have been given. It may be
mentioned here that under Rule 8 of the
Pension Rules future good conduct is an
implied condition of every grant of
pension and its continuance and if the
pensioner is convicted of a serious crime
or is found guilty of grave misconduct,
the appointing authority may, by order in
writing withhold or withdraw a pension or
a part thereof, whether permanently or for
a specified period. Thus, the authorities
have been given sufficient powers to
withhold or withdraw the pension either
in full or in part, permanently or for a
specified period in case of conviction of a
pensioner in a serious crime or he being
found guilty of grave misconduct.

23. The question still arises as to
whether
the
petitioner
should
be
compensated by award of interest for
wrongful withholding of the pension. In
the case of O.P. Gupta v. Union of India
and others, (1987) 4 SCC 328 the Apex
Court has held as follows:

"Normally, this Court, as a settled
practice, has been making direction for
payment of interest at 12 per cent on
delayed payment of pension. There is no
reason for us to depart from that practice
in the facts of the present case."

24. We do not find any good ground
for not compensating the petitioner for
withholding the payment of full pension
for a period of about five and a half years,
we, therefore, hold that the petitioner is
entitled for the interest at the rate of 10%
per annum on the difference amount after
30 days as and when it became due and
till the date of its actual payment.

25. In view of the foregoing
discussion, we are of the considered
opinion that the orders dated 1.5.2003,
filed as Annexure No.3 to the writ petition
and passed by the Senior Superintendent
RMS 'C' Division Gaya, respondent No.3
and the orders dated 23rd July, 2004
passed by the Tribunal, filed as Annexure
No.10 to the writ petition, cannot be
sustained and are set aside.

26. The writ petition succeeds and is
allowed. A writ of mandamus is issued
directing
the
Director
of
Accounts
(Postal) Patna-1, respondent No.2, to
release full pension of the petitioner
including arrears along with interest as
mentioned above within three months
from the date a certified copy of this order
is filed before the said respondent no.2.
However, the parties shall bear their own
costs.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.4.2006

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 17382 of 2006

Ram Naval

...Petitioner
Versus
The Board of Revenue and others

 ...Respondents
1278 INDIAN LAW REPORT ALLAHABAD SERIES [2006
Counsel for the Petitioner:
Sri A. Chaturvedi,
Sri R.S. Mishra

Counsel for the Respondents:
Sri V.K. Singh,
Sri Vimlendu Tripathi
Sri Rahul Sripat
S.C.
U.P.
Consolidation
of
Holdings
Act-
Section-5
(2)-Abatement
of
revision
arises out from Restoration Application
in suit under 229-B of U.P.Z.A. 8C L.R.
Act- if stay has been granted in revision
against the order allowing Restoration-
suit would revive and the suit would
abate-but if no stay granted-No question
of abatement.

Held- Para 5

However the ratio of the case only is that
if there is an order in the revision against
the
restoration
order
staying
the
operation of the restoration order the
suit would not revive and the subsequent
issuance
of
the
notification
under
Section 4 of the Act would have no effect
on the pending revision, which would not
abate. This view does not affect the view
that I am taking.
Case law Discussed:
1985 R.D. 163
1992 R.D. 100
2003 (5) AWE-4296

(Delivered by Hon'ble Janardan Sahai, J.)

1. A suit under Section 229-B of the
U.P.
Zamindari
Abolition
&
Land
Reforms Act was filed by Binda and
Lalita transferors of respondent no.6
against
the
petitioner
and
other
defendants. The suit was decreed. An
appeal was filed by the petitioner, which
was allowed, and the suit was remanded
to the trial court for fresh decision.
According to the petitioner the suit was
dismissed in default but it was restored on
26.10.1976
and
that
it
was
again
dismissed on 21.4.1977 but was restored
on 18.8.1997 and that thereafter on that
date itself the trial court passed a
compromise decree. The factum of
restoration as well as of the compromise
between the parties is disputed by Shri
Rahul Sripat counsel for respondent no.6.
This dispute about the facts however does
not have any bearing on the controversy
requiring decision in this writ petition and
therefore the dispute about these facts can
be left here. An application for setting
aside the compromise decree was filed by
respondent no.6 on 2.5.2000, which was
allowed by the trial court by its orderdated 24.6.2002. The trial court took the
view that no notice was served upon the
respondent no.6 the transferee and that
consolidation proceedings were going on
when the compromise decree was passed,
a finding, which in effect is that the
compromise order could not have been
passed as the suit had abated. Against the
order of the trial court the petitioner
preferred a revision, which was allowed
by the Additional Commissioner. The
Additional Commissioner took the view
that the consolidation proceedings started
in the year 1986 and the revision in
proceedings for setting aside the decree
therefore would not abate. Against the
order of the Additional Commissioner, a
revision was preferred by respondent
no.6. The Board of Revenue in its
impugned order dated 28.2.2006 has
taken the view that as the consolidation
proceedings had started in the year 1986
the revision ought to have been abated
and it passed an order abating the revision
as well as the suit. Aggrieved the present
writ petition has been filed.

2. I have heard Shri R.S. Mishra,
counsel for the petitioner and Shri Rahul
3All] Ram Naval V. The Board of Revenue and others 1279
Sripat counsel for respondent no.6.
Counter and rejoinder affidavits have
been exchanged in this petition and the
counsel for the parties agree that the writ
petition may be disposed of finally.

3. The only controversy involved in
the present case is whether the Board of
Revenue was right in taking the view that
the
proceedings
had
abated.
The
restoration application was filed by
respondent no.6, which was allowed by
the trial court. The law upon the point that
a restoration application does not abate on
the issuance of a notification under the
Consolidation of Holdings Act is settled,
but doubt has been raised upon the
question whether a pending appeal or
revision arising out of an order allowing
restoration would abate. In Sheo Pujan
Singh and another Vs. Smt. Bhagesara
Kunwari and others (1985 RD 163) it
has been held that restoration application
and revisions arising there from do not
abate under section 5 (2) of the U.P.
Consolidation of Holdings Act. Section 5
(2) of the Act provides for abatement of
proceedings relating to correction of the
records and of cases in which declaration
of rights over land is involved. An
application for restoration or to set aside
an ex parte decree does not by itself
involve a declaration of rights of the
parties over land as what is to be decide in
these proceedings is whether sufficient
cause for absence has been shown and
therefore such an application does not
abate under section 5(2)(a) of the Act. An
application for setting aside a compromise
decree too does not involve declaration of
rights over land.

4. The question which however has
arisen in this case is if an ex parte decree
or a compromise decree is set aside and
the suit is restored but a revision against
the order of restoration is pending
whether the suit and the revision against
the restoration order would abate on
account of notification under section 4
being issued or on account of pendency of
consolidation proceedings. The language
of Section 5 of the Act is clear that unless
there is an order of abatement passed the
suit does not automatically abate. Upon
this point counsel for the petitioner has
cited the case of Ram Charit Singh Vs.
Dy. Director of Consolidation, Azamgarh
and others, 1992 RD 100 in which it has
been laid down that there is no automatic
abatement and it is only when an order of
abatement is passed that the suit or
proceedings abate. This proposition is not
disputed by counsel for the respondents. It
is nobody's case that any order for
abatement of the suit had been passed.
The result therefore is that the suit had not
abated in this case. An appeal or revision
against the order of restoration or of
setting aside a compromise decree is a
continuation
of
the
restoration
proceedings. It is well settled that an
order, which is challenged in appeal puts
the order impugned into jeopardy. If
subsequently the appeal/ revision is
allowed the consequences of the order set
aside would, unless there are indications
otherwise in the statute, be set at nought
either automatically or on an application
filed by the party in whose favour the
appellate order is passed and the parties
would be restituted to their original
position. The intention of the legislature is
clear firstly Section 5 (2) (a) does not
provide for abatement of the restoration
application or of an appeal or revision
arising out of a restoration application
which means that the appeal or revision
whether against an order rejecting or
allowing a restoration application would
1280 INDIAN LAW REPORT ALLAHABAD SERIES [2006
have to be decided on merits. This is also
clear from the fact that it is only when an
order of abatement is passed that the suit
abates.
There
being,
no
automatic
abatement, it cannot be said that there was
any automatic revival of the suit in
consequence of the order of restoration.
The order of the restoration having been
put into jeopardy in the revision, it cannot
be said that the revision would become
infructuous in the absence of anything to
the contrary in Section 5 (2). The view
that I take is also in line with the decision
in Sheo Poojan Singh's case (supra) cited
by the petitioner's counsel.

5. Counsel for the respondents relied
upon a Single Judge decision of this court
in Smt. Dhanpati (D) Through L.R. Vs.
Board of Revenue & Others 2003 (5)
AWC, 4296. In that case a compromise
decree was set aside on an application
filed by one of the parties. Against that
order a revision was filed in which
operation of the order restoration was
stayed and also further proceedings in the
suit. On these facts this court took further
proceedings in the suit. On these facts this
court took the view that as the operation
of the order of restoration had been stayed
and also the proceedings, the suit did not
revive and consequently there was no
abatement on account of notification of
consolidation operations. It is no doubt
true that this court expressed the views
that if no stay order is passed in the
revision against the restoration order the
suit would revive in consequences of the
order of restoration and would abate
under section 5 (2) (a). However the ratio
of the case only is that if there is an order
in the revision against the restoration
order staying the operation of the
restoration order the suit would not revive
and the subsequent issuance of the
notification under Section 4 of the Act
would have no effect on the pending
revision, which would not abate. This
view does not affect the view that I am
taking.
The
case
is
therefore
distinguishable. For these reasons, the
writ petition is allowed. The orders dated
15.4.04 and 28.2.06 passed by the Board
of Revenue are aside. The Board of
Revenue is directed to decide the revision
on merits expeditiously and if possible
within six months from the date a
certified copy of this order is produced
before it.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2006

BEFORE
THE HON'BLE R.P. MISHRA, J.
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 282 of 1999

Kewla Prasad

...Petitioner
Versus
Bank of Baroda & others ...Respondents

Counsel for the Petitioner:
Sri S.C. Dwivedi
Sri Radhey Shyam
Sri R.S. Dwivedi

Counsel for the Respondents:
Sri V.B. Singh
Sri U.P. Singh
Sri D.K. Pandey
Sri Manoj Kumar
Sri A.K. Rathore
Sri C.S. Singh
Sri Vimlesh Srivastava

Constitution
of
India,
Article
226Recovery
of
loan
for
purchase
of
Trakker- not under state sponsored
scheme-cannot be recovered as arrears
of land revenue.