Allowed

Masiuddeen Khan v. Board of Revenue, Lucknow Thru. Chairman and Others

Allahabad HC16 Feb 2024/156/2024

Case brief

AI extract

What is this about?

This writ petition challenged an order by the Board of Revenue that decided a second appeal on merits without framing substantial questions of law. The petitioner argued the authority lacked jurisdiction as the lower appeal was dismissed on procedural grounds regarding condonation of delay. The Court allowed the petition, setting aside the impugned order and remanding the matter.

What did the court decide?

Impugned order dated 01.12.2023 set aside. Matter remanded to respondent no.1 to pass fresh order within six months after hearing parties.

Masiuddeen Khan Vs Board of Revenue, Lucknow… — Writ and Judicial Review | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:13988

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Court No. - 7

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Case :- WRIT - B No. - 156 of 2024 Petitioner :- Masiuddeen Khan Respondent :- Board Of Revenue, Lucknow Thru. Chairman And Others

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Counsel for Petitioner :- Tanay Hazari,Alka Verma Counsel for Respondent :- C.S.C.,Mohan Singh,Vashu Deo Mishra

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Hon'ble Saurabh Lavania,J.

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Heard learned counsel for the petitioner, Shri Hemant Kumar Pandey, learned Standing Counsel for State-respondent no.1, Shri Shri Vashu Deo Mishra, learned counsel for the private-respondent no.2/Diwakar Prasad Awasthi (contesting respondent), in whose Second Appeal No. SA/678/2022/Barabanki the impugned order dated 01.12.2023 was passed, and Shri Mohan Singh, learned counsel for Gaon Sabha/respondent no.7.

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In view of order proposed to be passed this Court is of the view that no prejudice would be caused to the respondent nos. 3 to 6 and to the view of this Court even on appearance the respondent nos. 3 to 6 would not be in position to dispute the facts and in view of the order proposed to be passed the matter would be heard and decided a fresh and accordingly, the notices to respondent nos. 3 to 6 are dispensed with and with the consent of the Counsel for the parties, who are present before this Court, this petition is being decided at admission stage.

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Under challenge in the present petition is the order dated 01.12.2023 (Annexure No. 1 to the petition) passed by respondent no.1/Board of Revenue at Lucknow in Second Appeal No. SA/678/2022/Barabanki, Computerized Case No. R2022041200678 (Diwakar Singh Awasthi Vs. Smt. Tara Devi and Others), instituted under Section 208 of U.P. Revenue Code, 2006 (in short "Code of 2006").

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The brief facts of the case which are relevant for the purpose of disposal of the present petition are to the effect that an appeal under Section 207 of Code of 2006 was filed by one Diwakar Singh along with an application for condonation of delay challenging the order dated 15.07.2020 (Annexure No. 9 to the petition) passed in Case No. RST/03695/2019, Computerized Case No. T201904120603695 (Masiuddeen Khan Vs. Taravati), which relates to Section 116 of Code of 2006, by Sub Divisional Magistrate, Tehsil- Sirauli Gauspur, District- Barabanki.

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The aforesaid appeal was registered as Case No. 00879 of 2020, Computerized Case No. C202004000000879 (Diwakar Prasad Awasthi Vs.Taradevi alias Taravati and Others), the First Appellate Authority namely Additional Commissioner, Ayodhya Division, Ayodhya rejected the application for condonation of delay dated 05.10.2020 vide order dated 06.09.2021. Thereafter, vide order dated 10.01.2022 (Annexure No. 17 to the petition) dismissed the appeal.

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The order dated 10.01.2022 and the order dated 15.07.2020 passed in Case No. 00879 of 2020, detailed above, and Case No. RST/03695/2019, detailed above, were assailed by preferring an appeal under Section 208 of Code of 2006, this appeal i.e. second appeal was registered as Second Appeal No. SA/678/2022/Barabanki, detailed above.

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Second Appellate Authority i.e. Board of Revenue at Lucknow (respondent no. 1) by means of impugned order interfered in the order dated 10.01.2022 passed by Additional Commissioner, Ayodhya Division, Ayodhya in the case detailed above and also in the order dated 15.07.2020 passed by Sub Divisional Magistrate, Tehsil- Sirauli Gauspur, District- Barabanki in the case detailed above and remanded the matter back to the Sub Divisional Magistrate, Tehsil- Sirauli Gauspur, District- Barabanki for deciding the case along with another case of similar nature afresh within a period of six months.

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Impeaching the order passed by respondent no. 1, learned counsel for the petitioner submitted that the issue before the Second Appellate Authority i.e. respondent no. 1 was related to the issue pertaining to condonation of delay and being so in deciding the case on merits, the respondent no. 1 committed illegality.

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Elaborating the aforesaid, she submitted that actually the issue before respondent no. 1 was as to whether the First Appellate Authority has rightly refused to condone the delay and has rightly rejected the application for condonation of delay vide order dated 06.09.2021 and thereafter, taking note of the same, First Appellate Authority namely Additional Commissioner, Ayodhya Division, Ayodhya dismissed the appeal vide order dated 10.01.2022 and as such entering into the merits of the case, the respondent no. 1 erred in law and fact both.

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She further submits that as per law, the Second Appellate Authority ought not to have considered the merits of the case as the first appeal was dismissed consequent to the rejection of application of condonation of delay.

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In support of aforesaid submissions, learned counsel for the petitioner placed reliance on the judgment by this Court in the case of Prem Nath Vs. Deputy Director of Consolidation passed in Writ Petition No. 436(Consolidation) of 2015 on 18.06.2015 and Tirath V. Joint Director of Consolidation, reported in 1985 RD 276, and by Hon'ble High Court of Madhya Pradesh at Indore in Misc. Petition No. 5052 of 2019 on 07.07.2022 (Bhanwarlal and Others Vs. Toofan Singh and Others) .

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It is also submitted before this Court that respondent no. 1 being Second Appellate Authority, in terms of settled proposition of law, is under obligation to frame substantial question(s) of law and a bare perusal of the impugned order reflects that without framing substantial

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question of law, the second appeal has been decided on merits.

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On the aforesaid aspect of the case, reliance has been placed on judgment passed by this Court in the case of Mirza Rashid Beg and 5 Others Vs. Board of Revenue at Lucknow, reported in MANU/UP/2761/2023 .

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She also submitted that in fact, the second appeal itself was not maintainable because in the appeal, the order dated 06.09.2021 rejecting the application for condonaton of delay was not challenged which ought to have been challenged and even if the second appeal challenging the order dated 10.01.2022 is allowed, the application for condonation of delay would remain rejected and first appeal cannot be heard on merits.

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She further submitted that the First Appellate Authority initially admitted the appeal without dealing with the application for condonation of delay though law is settled on this aspect of the case and being aggrieved, the petitioner approached this Court and this Court disposed of the petition with direction to reconsider the same.

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On the aforesaid aspect reliance has been placed on the judgment passed by the Division Bench of this Court in the case of Ram Prakash vs. Deputy Director of Consolidation, Hardoi & Others, reported in 2022 SCC OnLine All 107.

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To controvert the principles settled in the judgments referred above, Shri Vashu Deo Mishra, learned counsel for the respondent has not placed any judgment before this Court. Shri Hemant Kumar Pandey, learned Standing Counsel for State-respondent also could not dispute the aforesaid proposition of law.

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Considered the submissions of learned counsel for the parties and perused the record including the order impugned dated 01.12.2023.

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The position which can be culled out from the impugned order dated 01.12.2023 passed by respondent no. 1/Board of Revenue at Lucknow in Second Appeal No. SA/678/2022/Barabanki, Computerized Case No. R2022041200678 (Diwakar Singh Awasthi Vs. Smt. Tara Devi and Others) is as under:

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(a). The respondent no. 1 without framing substantial question(s) of law has decided the second appeal on merits and as per judgment passed by this Court in the case of Mirza Rashid Beg (supra), the second appeal should be decided after framing substantial question(s) of law.

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(b). The issue before respondent no. 1 in the second appeal was as to whether the First Appellate Authority has rightly rejected the application for condonation of delay and the Second Appellate Authority (respondent no. 1) decided the case on merits though as per observations made in the judgment(s) passed in the case of Tirath (supra) and Bhanwarlal (supra) as also in the case of Prem Nath (supra) , the Second Appellate Authority should not have decided the case on merits.

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Considering the aforesaid, this Court is of the view that impugned order is liable to be set aside Accordingly, writ petition is allowed . The order dated 01.12.2023 (Annexure No. 1 to the petition) is set aside.

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The matter is remanded back to respondent no.1/Board of Revenue at Lucknow to pass a fresh order, as per law, after providing the opportunity of hearing to the parties, within a period of six months from the date of receipt of certified copy of this order.

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Order Date :- 16.2.2024/Mohit Singh/-

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Digitally signed by :- MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench

Masiuddeen Khan v. Board of Revenue, Lucknow Thru. Chairman and Others

Case brief

What is this about?

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Masiuddeen Khan v. Board of Revenue, Lucknow Thru. Chairman and Others

Case brief

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