High Court
Case Details
Court No. - 52 Case :- WRIT - B No. - 2541 of 2022 Petitioner :- Abhishek Singh And 3 Others Respondent :- Board Of Revenue And 34 Others Counsel for Petitioner :- Shyam Lal Yadav,Aprajit Yadav Counsel for Respondent :- C.S.C,Azad Rai,Guru Prasad,Shravan Kumar,Vijay Shanker Chaurasia Hon'ble Chandra Kumar Rai,J.
Legal Reasoning
9. This Court in the case of Paras Nath Singh vs. Deputy Director of Consolidation and others 1985 R.D. 71 has held as follows in para Nos. 21, 22 and 23:- "21. It is, no doubt, correct to say that any order passed without jurisdiction is a nullity and deserves to be quashed. But if as a result of quashing that order another wrong and illegal order would be restored, this Court would refuse to interfere with the impugned order which appears to be quite proper equitable and just order. As mentioned above, the power under Article 226 of the Constitution is devised to advance justice and not to thwart it. To me it appears to be well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order. 22. In this view of the matter I am of the opinion that no case is made out for interference by this Court in exercise of Jurisdiction under Article 226 of the Constitution and looking to the facts and circumstances of the Case I find that the impugned order dated 18-1- 1984 is quite, just and proper order and its quashing would result in restoring the order which is evidently wrong and illegal. 1, therefore, do not find it to be a fit case for interference by this Court in exercise of powers under Article 226 of the Constitution. 23. In the result, the writ petitions fails and is, accordingly, dismissed. I, however, direct the parties to bear their costs." 10. In view of the ratio of law laid down in Paras Nath (supra) as well as on the facts and circumstances of the case, no interference is required against the impugned order. 11. Accordingly, the writ petition is disposed of directing the Up- Ziladhikari Phoolpur, Prayagraj to decide the petitioners' application dated 13.10.2020 afresh after affording opportunity of hearing to both the parties expeditiously preferably within a period of four weeks from the date of production of certified copy of this order before him. Date :- 30.9.2022 C.Prakash Digitally signed by CHANDRA PRAKASH Date: 2022.10.02 13:25:10 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1. Mr. Vijay Shankar Chaurasiya and Guru Prasad Madan have put in appearance by filing joint Vakalatnama on behalf of respondent nos. 4 & 5 which is kept on record. 2. Heard Mr. Shyam Lal Yadav, Advocate assisted by Mr. Aprajit Yadav, counsel for the petitioners, Mr. Vijay Shankar Chaurasiya and Guru Prasad Manda, counsel for respondent nos. 4 & 5, Mr. Azad Rai, counsel for respondent no.3- Gaon Sabha and learned standing counsel for respondent nos. 1 & 2. 3. Brief facts of the case are that respondent nos. 4 & 5 instituted a suit under Section 116 of the U.P. Revenue Code, 2006 on 23.9.2020 in respect of plot no.75, area 0.1830 hectare, plot no. 81, area 0.1600 hectare and plot no.99, area 0.1830 hectare. The trial court granted interim order on 1.10.2020 to the effect that parties shall maintain the status quo till the next date i.e. 7.11.2020. Petitioner no.1 has filed an application before the trial court on 13.10.2020 that interim order dated 1.10.2020 has been illegally passed in the suit as the village in question has already been notified under Section 4(2) of the U.P. Consolidation of the Holdings Act, as such, the trial court has no jurisdiction to entertain the suit under Section 116 of the U.P. Revenue Code, 2006. The trial court vide order dated 15.10.2020 dismissed the suit filed by the respondents and vacated the interim order. Against the order dated 15.10.2020, respondent nos. 4 & 5 filed the appeal under Section 207 of the U.P. Revenue Code, 2006 on the ground that order is without jurisdiction and the same has been passed without affording opportunity of hearing to them an the date was also preponed. Respondent no.2 without issuing notice to the petitioners has allowed the appeal vide order dated 8.1.2021, accordingly, the petitioners filed revision before respondent no.1 against the order dated 8.1.2021 and the respondent no.1 has dismissed the revision. Hence, this writ petition. 4. Counsel for the petitioners submitted that suit under Section 116 of the U.P. Revenue Code, 2006 filed by respondent nos. 4 & 5 was not maintainable as the village in question was under consolidation operation, accordingly, the interim order granted in the suit was also illegal. He further submitted that the application filed at the instance of the petitioners was rightly allowed and the suit as well as the interim order passed in the suit was rightly dismissed / vacated by the trial court. He also submitted that appeal under Section 207 of the U.P. Revenue Code, 2006 filed by respondent nos. 4 & 5 was barred by Section 209(h) of the U.P. Revenue Code, 2006. He placed reliance on Section 209(h) of U.P. Revenue Code, 2006 which is as follows:- "209 Bar against certain appeals.- Notwithstanding anything contained in sections 207 and 208, no appeal shall lie against any order or decree: (a)....... (b)....... (c)....... (d)....... (e)....... (f)........ (g)....... (h) where has been passed ex-parte or by default:" He further submitted that the appellate order was passed without any notice / opportunity of hearing to the petitioners, as such, the appellate order is wholly illegal. He also submitted that the revision filed on behalf of the petitioners before respondent no.1 against the ex parte appellate order has been dismissed arbitrarily without considering the case of the petitioners. 5. On the other hand, counsel for respondent nos. 4 & 5 submitted that order passed by the trial court dated 15.10.2020 was ex parte, even the date was preponed without any notice to respondent nos. 4 & 5 and in arbitrary manner the suit of the respondent nos. 4 & 5 have been dismissed. He also submitted that appeal filed by respondent nos. 4 & 5 against the order of the trial court was allowed and matter was remanded back before the trial court to decide the matter afresh after affording opportunity of hearing to the parties. He submitted that although the Additional Commissioner has not afforded opportunity of hearing to the petitioners in passing the order dated 8.1.2021 but it is also a fact that trial Court while passing the order dated 15.10.2020 has not afforded opportunity of hearing to respondent nos.4 & 5, as such, in the interest of justice the matter should be sent back to the trial Court to consider and decide the petitioners' application dated 13.10.2020 afresh affording opportunity of hearing to both the parties which has been ordered under appellate order dated 8.1.2021. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that suit for partition under Section 116 of the U.P. Revenue Code, 2006 has been filed by respondent no.4 & 5 in respect of the disputed plots and the suit has been dismissed by the trial Court without affording opportunity of hearing to the respondent nos. 4 & 5 and preponing the date fixed in the trial Court. Accordingly, the Additional Commissioner has set aside the order of the trial Court and sent back the matter to the trial Court to decide the matter afresh, although the order of the Additional Commissioner was passed without any notice to the petitioners. The revision filed before the Board of Revenue/respondent no.1 at the instance of petitioners has been dismissed. 8. Since the first order dated 15.10.2020 passed by the trial Court, dismissing the suit of respondent nos.4 & 5 was passed without opportunity of hearing to respondent nos.4 & 5 and the appellate order dated 8.1.2021 was passed by the Additional Commissioner, without affording opportunity of hearing to the petitioners and the matter was remanded back to the trial Court to decide the matter afresh on merit, as such, in the interest of justice in place of setting aside the order dated 8.1.2021 and remanding the matter back to the respondent no.2 / Additional Commissioner, it will be appropriate to remit the matter back before the Up-Ziladhikari, Prayagraj, who has passed the order dated 15.10.2020 dismissing the plaintiff's suit without affording opportunity of hearing to respondent nos.4 & 5.