Allowed

The Muzaffarnagar New Mandi Goshala and Another v. the Commissioner and 3 Ors.

Allahabad HC19 Jul 2019WRIC/6642/2014

Case brief

AI extract

What is this about?

This writ petition challenged a Sub-Divisional Officer's order restoring a land entry to a Gaon Sabha, despite a final appellate decree in favor of the petitioner. The High Court held that the Sub-Divisional Officer lacked jurisdiction to render the final judicial verdict ineffective and set aside both the Sub-Divisional Officer and Commissioner's orders, leaving the matter open for legal recourse

What did the court decide?

The orders of the Sub-Divisional Officer restoring the suit and the Commissioner rejecting the revision were set aside.

The Muzaffarnagar New Mandi Goshala… — Constitutional and Fundamental Rights | Allahabad HC (2019)

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Court No.23

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WRIT - C No.6642 of 2014

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The Muzaffar Nagar New Mandi Goshala and another

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Vs.

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The Commissioner, Moradabad Division, Moradabad and others

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Hon'ble Rohit Ranjan Agarwal,J.

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Heard learned counsels for the parties.

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By means of this writ petition, the petitioner has questioned the propriety and correctness of the order passed by the SubDivisional Officer, Bijnor restoring the suit bearing no.13 of 1998 filed initially by the petitioner under Section 229-B of the U.P.Z.A. & L.R. Act treating the decree of the appellate court dated 29.11.2001 as ineffective.

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Briefly stated facts of the present case are that the petitioner was recorded as Goshala over the land in suit, however, the entry of Goshala came to be expunged and the land came to be recorded Dariyakhurd and thus, as if vested in Gaon Sabha. Resultantly, petitioner initiated a suit under Section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter to be referred as 'Act, 1950') which was registered as O.S. No.13 of 1998. The suit however, got dismissed from the court of first instance vide order dated 29.12.2000 (Annexure 4 to the writ petition). Against the said order, the petitioner preferred a regular appeal before the Commissioner. In appeal, the Additional Commissioner finally passed the judgment on 29.11.2001 (Annexure 5 to the writ petition) decreeing the suit and directing that the name of the petitioner be recorded over the land in question. The said judgment passed by the Additional Commissioner (Judicial), Moradabad was never put to

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challenge at any forum and thus became final between the petitioner and Gaon Sabha for the purposes of title of land.

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It so happened that in some matter of fraudulent entries being made over public utility land, this Court in Writ Petition No. 47176 of 2009, Dina Nath v. State of U.P. and others had passed a detailed order and also issued a general direction to all the Collectors of all the districts of State to reopen such cases where names of private persons entered in the revenue records either on the basis of old pattas or adverse possession over Gaon Sabha land and correct the illegality by taking suo moto action. The operative portion of the order passed in writ petition by this Court is reproduced hereunder:

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"Accordingly, all the Collectors of all the Districts in the State are directed to reopen such cases where names of private persons are entered in revenue records on the basis of old pattas or adverse possession over Gaon Sabha land and correct the illegality by taking suo motu action. However, no orders shall be set aside without issuing notice and hearing affected persons. If notice through registered post is not served then it may be served through publication in the newspaper also. If it is found that some Consolidation Officer or S.O.C. or D.D.C. has done similar thing, then the action must be proposed to be taken against him also.

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Supreme Court has held that fraud vitiates even most solemn proceedings vide Mahboob Sahab Vs. Syed Ismail and others, AIR 1995 SC 1205 (Para-9), United India Insurance Company Vs. Rajendra Singh, AIR 2000 SC 1165 and A.V. Papaya Sastry Vs. Government of A.P. and others, AIR 2007 SC 1546 (Para-39).

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Learned counsel for the petitioner has cited an authority of this Court reported in Baba Bhola Nath VS. D.D.C. Jaunpur, 2004 (97) RD 548 holding that in case first restoration application is dismissed on merit, then the second restoration application is not maintainable as it amounts to review and as held in Shivraji Vs. D.D.C. Allahabad and others, 1997 RD 562 (F.B.), consolidation authorities including D.D.C. has got no power to review.

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The said authorities are not applicable to the facts of the instant case as earlier restoration application was dismissed by D.D.C. in default as stated in Para-11 of the writ petition.

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With the above observations, writ petition is disposed of.

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Office is directed to supply a copy of this order free of cost to Sri N.P. Pandey, learned standing counsel, within three days, who shall send it to the Secretary concerned and to all the Collectors of all the Districts in the State."

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It appears, on the basis of said direction (supra), some report was called for and Tehsildar submitted a report to the Sub-Divisional Officer, Bijnor on 14.03.2011 (Annexure 6 to the writ petition) and in the said report there was a recommendation made by the Tehsildar for suo moto action in respect of the entry of the land in question. The report was submitted on the premise that the High Court has directed for restoration of such entries which at some earlier point of time stood in the name of Gaon Sabha or as a public utility land. On the basis of said report, the Sub-Divisional Officer issued notice on 14.03.2011 and in response to the notice the petitioner put in appearance and he explained before the Sub-Divisional Officer that the decree passed in suit under Section 229-B of Act, 1950 had attained finality in view of the order of Commissioner (Judicial), Moradabad passed on 29.11.2001 and therefore, in the absence of any restoration application being filed before the Commissioner, there was no question of reopening the suit proceedings by the SubDivisional Officer. However, the Sub-Divisional Officer relying upon the order of High Court (supra), proceeded to hold that the order of Commissioner has got rendered ineffective in view of the general direction issued by High Court and therefore, treated the order of Commissioner dated 29.11.2011 as ineffective and passed the order restoring the entry of the Gaon Sabha over the land in question in the revenue records.

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Being aggrieved against the order, the petitioner preferred a revision before the Commissioner. The Commissioner also rejected the revision simply on the ground that the entire exercise has been

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carried out in compliance of the directions of this Court issued on 08.09.2009 and therefore, it was out of question to interfere with the same. However, it was further observed that the restoration of the case by the Sub-Divisional Officer is only an interlocutory order and therefore, the revision was not maintainable.

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The argument advanced by learned counsel for the petitioner is that the Sub-Divisional Officer has manifestly erred in restoring a suit which had attained finality by the judgment of the appellate court. According to him, the doctorine of merger applies and the judgment and order passed by the trial court merged in the judgment and order of the appellate court and therefore, it is stood decreed under the orders of the appellate court.

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Stretching the argument further, it is argued that if at all the case was to be recalled then it was to be recalled by moving an appropriate restoration application before the court concerned by whose judgment the suit has been decreed. It is further contended by learned counsel for the petitioner that the order of the High Court has wrongly been interpreted to mean that all such decrees passed by the competent Courts have become ineffective. He argues that question of a wrongful entry in revenue records by administrative authorities is something different and cannot be treated at par with the entries that have come to be made by virtue of a decree passed by a court of law.

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Per contra , the argument advanced by learned Standing Counsel is that the Gaon Sabha entry was very much there prior to the decree of lower appellate court namely the Commissioner in the present case, and it is argued that the Commissioner instead of framing any issues or point for determination, finally decreed the suit which is a void decree and if a decree is void the same always be treated as ineffective. It is further submitted that the intention of the High Court in issuing the general direction was very much complied

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with in its letter and spirit and it cannot be said that the authorities have in any manner committed any manifest error in passing the orders.

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Having heard learned counsels for the parties and their arguments across the Bar and having perused the record, I find one thing admitted to the parties that there was a regular suit under Section 229-B of the Act, 1950 instituted by the present petitioner before the court of first instance namely the Sub Divisional Officer. The suit, though was dismissed but appeal was entertained and in appeal a final judgment was passed. The appellate authority namely the Commissioner, in the present case, while passing the judgment has decreed the suit and directed that the entries and the names of the petitioner should be entered into revenue records. Thus, the Commissioner not only in its ultimate finding has come to conclude that the land was bhumidhari land of the petitioner but also directed the execution of his own order.

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From the perusal of judgment of this Court, which has been relied upon by the Tehsildar in making recommendation for expunging entry and reopening the suit by the Sub Divisional Officer, I find that the judgments directs for reopening of cases where names of private persons are entered in the revenue records on the basis of either old pattas or adverse possession in respect of Gaon Sabha land. Reopening of cases means opening of a case only in accordance with the procedure prescribed. The procedure prescribed in cases of administrative entries are definitely different than the cases in which judicial verdict has taken place. I can understand, if an entry has been made under the orders of Supervisor Kanoongo or by any other officer on the basis of some report of the revenue authorities, the said case can always be opened by such administrative officer, but where the entries have been directed to be made under a judicial verdict by a court

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established by law, then in such circumstances unless such judicial verdict is set aside or the order is recalled by the court which had passed the order on a duly instituted restoration / recall application, such final verdict or judgment cannot be rendered to be ineffective.

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There is yet another argument advanced by learned Standing Counsel that the fraud vitiates every solemn proceeding. In the considered opinion of the Court while recording a finding of fraud as a question of fact, it needed determination. Unless parties heard on the point only by the court concerned where it is said that fraud has been committed or collusive decree has been obtained, an authority below in rank or the court below in hierarchy is certainly not entitled to restore the case.

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In the present case, the Commissioner had finally passed a judgment. The only course open for the respondent State authorities or the Gaon Sabha was to have filed a recall / restoration application before the Commissioner or even the authorities could have filed revision or appeal as might be advised by their respective solicitors, but under no circumstances there lay any power with the administrative officer or authority to hold that as per general direction issued, a judgment passed by a court of law was rendered ineffective. Thus, the order passed by Sub-Divisional Officer cannot be sustained on this count alone.

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Even otherwise, I find that it is the Sub-Divisional Officer who has restored the suit. Once a suit stood decreed in appeal, it was only open for the appellant authority to have restored the case. Since there was no restoration or recall application filed or even otherwise no recommendation even for a suo moto action has been made before the Commissioner, the Sub-Divisional Officer has certainly exceeded its jurisdiction in passing the order impugned.

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Under the circumstances, on the count also, the order passed

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by Sub-Divisional Officer cannot be sustained in law. Since the very basic order passed by Sub-Divisional Officer restoring the suit, suffers from inherent lack of jurisdiction, no amount of order passed in revision or appeal can remedy the wrong and under such circumstances, the order passed by the Commissioner is also liable to be set aside.

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Accordingly the order passed by the Sub-Divisional Officer dated 9.11.2012 in Case No. 13/10-11 and of the Commissioner dated 16.01.2014 passed in Revision No. 46 of 12-13 are hereby set aside.

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It is however, left open for the respondents to proceed in accordance with law, if they are so advised against the judgment and decree passed by the Commissioner decreeing the original suit of the present petitioner bearing No. 13 of 1998.

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The writ petition stands allowed to the above extent.

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Dated:19.7.2019 AKJ

The Muzaffarnagar New Mandi Goshala and Another v. the Commissioner and 3 Ors.

Case brief

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The Muzaffarnagar New Mandi Goshala and Another v. the Commissioner and 3 Ors.

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