Dismissed

Jitendra Kumar and Others v. Commissioner, Devi Patan Mandal, Gonda and Others

Allahabad HC19 Feb 2024WRIC/1568/2024

Case brief

AI extract

What is this about?

Writ petition dismissed as the High Court was not inclined to entertain a complaint regarding the applicability of Section 5-A of the U.P. Consolidation of Holdings Act, 1953, raised for the first time before itself, since the petitioner had an adequate remedy in competent civil court and had not raised it below. Petitioner left to raise objections below by reasoned order.

What did the court decide?

None granted; the petition was not entertained and was dismissed.

Jitendra Kumar and Others vs Commissioner… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:14404

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Court No. - 8

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Case :- WRIT - C No. - 1568 of 2024

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Petitioner :- Jitendra Kumar And Others Respondent :- Commissioner, Devi Patan Mandal, Gonda And Others Counsel for Petitioner :- Nagendra Kumar Khare,Govind Kumar Chourasia

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Counsel for Respondent :- C.S.C.,Pankaj Gupta

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioners. Notice on behalf of respondent nos. 1 and 2 has been accepted by the office of the learned Chief Standing Counsel. Sri Pankaj Gupta, learned counsel has accepted notice on behalf of respondent no. 10.

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By means of the instant petition, the petitioner seeks quashing of the order dated 07.12.2023 passed by the Commissioner, Devi Patan Mandal, Gonda in a revision preferred by the petitioner whereby the order dated 22.11.2023 passed by the Nayab Tehsildar, Gigaula, Tehsil, Ekauna District Shrawasti rejected the application of the petitioners who had raised a preliminary objection in respect of the maintainability of the proceedings under Section 35 of the U.P. Revenue Code, 2006.

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The submission of learned counsel for the petitioners is that a sale deed dated 09.10.1990 executed by Ugrasen, the father of the petitioners in favour of the father of the private respondents nos. 3 to 7 was not a valid document. On the basis of the said sale deed executed in the year 1990, the private respondents nos. 3 to 7 had instituted proceedings for mutation before the Nayab Tehsildar. The petitioner before the Naib Tehsildar had made an application raising a preliminary objection that the proceedings for mutation was time barred.

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The said application came to be rejected by means of order dated 22.11.2023 which was assailed by the petitioners by filing a revision which has also been rejected on 07.12.2023.

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The submission of learned counsel for the petitioners is that the Naib Tehsildar had committed an error in rejecting the application for preliminary objection by a non-speaking order, apart from the fact that when this order was assailed before the Revisional Authority, it also did not find favour noticing that since the petitioners have adequate remedy of contesting the

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proceedings, hence, being an interlocutary order, the Revisional Court declined to interfere.

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The submission of learned counsel for the petitioners is that the alleged sale deed dated 09.10.1990 was a void document and was hit by Section 5-A of the U.P. Consolidation of Holdings Act, 1953 and in light thereof the proceedings for mutation could not be entertained.

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Having considered the aforesaid and noticing the facts on record, it also indicates that the petitioners have already approached the Competent Civil Court for seeking cancellation of the said sale deed dated 09.10.1990 which is registered as Regular Suit No. 164 of 2021.

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In so far as the issue regarding the preliminary objections is concerned, it would be seen that from annexure no. 7, which is the copy of the application moved by the petitioners for preliminary objections would indicate that the proceedings were assailed on the ground that it was time barred. Even though, the order passed by the Naib Tehsildar is non-speaking but the fact remains that the issue which has been raised by the petitioner before this Court regarding the applicability of Section 5-A of the Act of 1953, the same was not raised before the court below nor it is apparent that it was brought to the notice of the Revisional Court.

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Be that as it may, since the petitioner has already approached the Competent Court and the issue raised before this Court is being raised for the first time and not before the two courts below, hence, at this stage, this Court is not inclined to entertain the aforesaid petition leaving it open for the petitioner to raise the appropriate objections before the court concerned. In case if such objection is moved, the court concerned shall decide the same by a reasoned and speaking order.

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With the aforesaid, this Court is not inclined to entertain the present petition which is accordingly dismissed .

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Order Date :- 19.2.2024 Asheesh

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

Jitendra Kumar and Others v. Commissioner, Devi Patan Mandal, Gonda and Others

Case brief

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Jitendra Kumar and Others v. Commissioner, Devi Patan Mandal, Gonda and Others

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