Smt. Saeedan Vs Inamuddin and 6 Ors.

Neutral Citation No. - 2024:AHC-LKO:1195

Court No. - 7

Case :- WRIT - C No. - 1001563 of 2008

Petitioner :- Smt. Saeedan Respondent :- Inamuddin And 6 Ors. Counsel for Petitioner :- Shafiq Mirza,Humayun Mirza,Shafiq Mirza

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Counsel for Respondent :- C.S.C.,Firoz Ahmad Khan,Kunwar R.P.Singh,R. A. Khan,R.A.Khan

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Hon'ble Saurabh Lavania,J.

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Heard learned counsel for the petitioner, Sri Hemant Kumar Pandey, learned State counsel and Sri Firoz Ahmad Khan, learned counsel appearing for the private respondents.

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By means of this petition, the petitioner has assailed the order dated 30.06.2003 passed by the respondent No. 6/Additional Commissioner (Judicial), Devi Patan Division Gonda as also the order dated 31.10.2007 passed by the respondent No. 7/Board of Revenue, U.P., Lucknow.

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By the order dated 30.06.2003, the respondent No. 6 decided two revisions instituted under Section 219 of U.P. Land Revenue Act, 1901 (in short "Act of 1901").

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One revision was filed by respondent No. 1/Inamuddin challenging the order(s) dated 28.03.2001 and 16.04.2002 passed by S.D.M., Kaiserganj, Gonda in the proceedings initiated by the petitioner under Section 33/39 of the Act of 1901.

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Another revision was filed by the State challenging the order(s) dated 30.04.2001 and 28.03.2001 passed by S.D.M., Kaiserganj, Gonda in the said case.

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Vide order dated 31.10.2007, the respondent No. 7 affirmed the order dated 30.06.2003.

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Brief facts of the case, as appears from the record, are to the effect that an application was preferred by the petitioner under Section 33/39 of the Act of 1901, which was registered as Case No. 18 and was allowed vide order dated 28.03.2001 and on coming to know about the said order, the Gaon Sabha preferred an application for restoration/recall of the order dated 28.03.2001 stating therein that the land in fact was recorded as

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'Banjar' and it belongs to State and without giving proper opportunity of hearing including without impleading the Gaon Sabha/State, though the Gaon Sabha/State were the necessary parties to the proceedings, the order dated 28.03.2001 was passed, as such, the same may be recalled and case be restored to its original number. However, the said application was rejected by the S.D.M. concerned vide order dated 30.04.2001.

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In addition to above application for restoration, two more application(s) for restoration/recall of the order dated 28.03.2001 were also preferred. One by the respondent No. 1 and another by Mohd. Umar and others (respondent Nos. 2 to 5). As per the averments made in these applications, the applicants were in possession over the land in issue and these applicants were not impleaded as necessary party in Case No. 18 and they were not heard before passing the order dated 28.03.2001 and as such being aggrieved by the order dated 28.03.2001, they filed the application(s) for restoration. These application(s) of respondents were rejected by the order dated 16.04.2002.

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In the aforesaid background of the case, two revisions were filed and after considering the material available on record and the facts and circumstances of the case particularly that in absence of revisionists, the order was passed by the S.D.M. concerned on 28.03.2001, the revisional authority/respondent No. 6 interfered in the impugned order(s) before it and remanded the matter back vide order impugned dated 30.06.2003 to the S.D.M. concerned to decide the case of the petitioner instituted under Section 33/39 of the Act of 1901 afresh.

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The order dated 30.06.2003 was assailed by the petitioner before the respondent No. 7 and after taking note of entire facts including that no opportunity of hearing was provided to the concerned parties including the State Government and Gaon Sabha, the respondent No. 7 declined to interfere in the order dated 30.06.2003 and dismissed the revision filed by petitioner vide impugned order dated 31.10.2007.

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In the aforesaid background of the case, the present petition has been filed and this Court, after taking note of the impugned orders and order passed by the Board of Revenue in the case of Smt. Sona vs. Ram Narain and others reported in 1969 RD 423 , entertained this petition and passed the interim order dated 15.04.2008.

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In the case of Smt. Sona (supra) , which relates to mutation proceedings, the Board of Revenue observed that a person not a

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party to the mutation case cannot prefer an application for restoration of the case.

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It is to be noted that now the settled law is that an aggrieved party can prefer an application for restoration/recall even if he was not made party to the proceedings. (vide: Vishnu Agarwal vs. State of U.P. and another reported in (2011) 14 SCC 813)

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Taking note of the aforesaid as also the undisputed fact that the necessary parties including State Government and Gaon Sabha were neither impleaded in the case instituted by the petitioner under Section 33/39 of the Act of 1901 nor they were heard, this Court finds no merit in this petition. It is accordingly dismissed .

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Before parting, it would be apt to observe here that the authority concerned dealing with the case instituted by the petitioner under Section 33/39 of the Act of 1901 shall dispose of the case expeditiously preferably within a period of three months from the date of production of certified copy of this order, if possible and if there is no other legal impediment in this regard.

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Order Date :- 5.1.2024 Arun/-

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Digitally signed by :- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench

Smt. Saeedan v. Inamuddin and 6 Ors.

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Smt. Saeedan v. Inamuddin and 6 Ors.

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