Piyare Vs Board of Revenue, U.P. Lucknow Thru. Chairman and 4 Others

Neutral Citation No. - 2025:AHC-LKO:49248

Court No. - 5

Case :- WRIT - B No. - 1189 of 2024

Petitioner :- Piyare Respondent :- Board Of Revenue, U.P. Lucknow Thru. Chairman And 4 Others Counsel for Petitioner :- Vimal Kishore Verma,Harsh Verma Counsel for Respondent :- C.S.C.,Arun Kumar,Dilip Kumar Pandey,Prabhakar Vardhan Chaudhary

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Hon'ble Alok Mathur,J.

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Heard Shri Vimal Kishore Verma, learned counsel for the petitioner, learned Standing Counsel for respondents no. 1 and 2 and Shri P.V. Chaudhary, learned counsel for respondents no. 3 and 4.

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The petitioner has approached this Court, being aggrieved by the order dated 5.10.2018, passed by Tehsildar (Judicial), Hasanganj, District Unnao in proceedings under Section 34/35 of the U.P. Revenue Coe, 2006, instituted by respondent no.3, wherein it was stated that she is the daughter of Ratnu who is the recorded tenure holder of old Khata No. 19 & 20 situated at village Gorinda Parsandan, Tehsil Hasanganj, District Unnao. In the said proceedings the petitioner was made a respondent and notices were also issued to him but despite issuance of notices no objections were filed by him.

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Apart from the above on the basis of the oral evidence of Virendra Kumar, Shivbaran and Charan and also Regional Lekhpal the findings were returned that the deceased Baiju had two sons, namely, Pyare and Ratnu. Pyare was still alive while Ratnu had died 30 years prior and Ratnu is survived by his daughter, who is applicant (opposite party No.3) and accordingly after verifying the aforesaid facts the application was allowed and the name of opposite party no.3 was directed to be mutated in place of Ratnu. The petitioner in whose name the land has been recorded under P.A.11 subsequently filed an appeal before the Sub Divisional Magistrate, Tehsil Hasanganj, District Unnao under Section 207 of the U.P. Revenue Code. The opposite parties no. 3 and 4 were duly served and were participated in the appellate proceeding and the appeal was allowed holding that the appellant in whose name the land came to be recorded under P.A. 11 was never heard and without giving an opportunity of hearing the order dated 5.10.2018 was passed and accordingly allowed the appeal, preferred by the petitioner and set aside the order dated 5.10.2018 and remanded the matter back to the trial court for adjudication the matter afresh.

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The respondent no.3 being aggrieved by the order of the Sub Divisional Magistrate dated 10.02.2020 preferred a revision before the Board of Revenue. Before the Board of Revenue the only ground urged was the maintainability of the appeal before the Sub Divisional Magistrate, under Section 207 of the U.P. Revenue Code. It was submitted that the appellate

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order was wholly without jurisdiction in as much as the appeal has been filed under Section 207 of the U.P. Revenue Code. It was submitted that as per the proviso of Section 209 of the U.P. Revenue Code in case the order of the Tehsildar was exparte, there was open for the petitioner to move an application for recall rather then filed an appeal under Section 207 of the U.P. Revenue Code. The Board of Revenue found favour with the contention of respondent no.3 and held that the appeal under Section 207 of U.P. Revenue Code was not maintainable and accordingly allowed the the appeal setting aside the order dated 10.2.2020 and thereby restored the order of the trial court.

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Learned counsel for the petitioner submitted that in fact the appeal was maintainable before the Sub Divisional Magistrate under Section 35(2) of the U.P. Revenue Code. He submits that at the best it was a typographical error wherein the appeal has been filed under Section 35(2) of the U.P. Revenue Code was filed under Section 207 of the U.P. Revenue. It is on account of said mistake that the Board of Revenue has proceeded to hold the appellate order of the Sub Divisional Magistrate dated 10.2.2020 was without jurisdiction, illegal and arbitrary.

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He further submits that mere mistake in quoting of any provision will not render an order without jurisdiction if it can be so that in fact the same authority would have entertain an appeal but under a different provision. In support of his submissions he has relied upon the judgment of the Hon'ble Supreme Court in the case of P .K. Palanisamy Vs. N. Arumugham & another in Civil Appeal No. ... of 2009 [Arising out of SLP (Civil) No. 2308 of 2009] in paragraph 13 it has been held as under:-

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"13. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Once the court gr-anted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity.

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It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor.

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In Ram Sunder Ram v. Union of India & Ors. [2007 (9) SCALE 197], it was held:

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“…..It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist

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and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278]. Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant.”

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In N. Mani v. Sangeetha Theatres & Ors. [(2004) 12 SCC 278], it is stated:

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“9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.”

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Accordingly it was stated that merely on account of wrong quoting of the section the reversion has been allowed by the Board of Revenue and in fact there was no error int he order of Sub Divisional Magistrate, who had allowed the appeal of the petitioner and remanded the matter back to the trial court.

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Learned counsels for the respondents on the other hand have supported the order passed by the Board of Revenue but it was also submitted that despite notices the petitioner did not appear before the trial court, on account of which the proceeding was conducted exparte and the petitioner demonstrated that the daughter of Ratnu was entitled to succeed the property of Ratnu. Accordingly he submits that even on merits the application of the petitioner under Section 34/ 35 of U.P. Revenue Code could not have been rejected.

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Considering the rival contentions, it is noticed that it was on application under Section 34/35 of the U.P. Revenue Code, preferred by the respondent no.3, which was considered by the Tehsildar and was allowed by means of order dated 5.10.2018. In the said proceedings the petitioner did not appear despite issuance of notices which let to passing of the order dated 5.10.2018, against which the petitioner has preferred an appeal before the Sub Divisional Magistrate, under Section 207 of the U.P. Revenue Code, which was allowed only on the ground that the proceedings before the trial court was exparte and the same ought to be recorded after hearing both the parties and accordingly the matter stood remanded to the trial court.

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Respondent no.3 preferred a revision, which has been allowed by the Board of Revenue by means of order dated 30.10.2024, where only the ground of jurisdiction was considered and I found that the Sub Divisional magistrate had userved the jurisdiction under Section 207 of the U.P. Revenue Code and in such circumstances, only an application for recall could have been preferred by the petitioner being aggrieved by the order of the trial court.

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Accordingly the only question falls for consideration that the appeal was filed by the petitioner under Section 207 of the U.P. Revenue Code and not under Section 35(2). It is noticed that mere wrong quoting of the Section

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will not render the order of Competent Authority is illegal, arbitrary and without jurisdiction. In case any Authority vested in the jurisdiction under a particular section and his jurisdiction in invoked quoting a wrong section will not sufficient to take away the jurisdiction in such an Authority before whom the appeal or revision or any application has been filed. In this regard I find that there are several judgements of the Hon'ble Supreme Court as well as of this Court and therefore, I find that the findings returned by the Board of Revenue are illegal, arbitrary and therefore set aside. I find that the appeal preferred by the petitioner in any way was allowed and the matter was remanded to the Tehsildar for deciding afresh.

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Accordingly, I allow the petition and thereby now the matter is remanded to the Tehsildar in terms of the order dated 30.10.2024 for being decided afresh.

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In the light of the above, the Tehsidlar is directed to pass an order afresh, in accordance with the law. Both the parties undertake to cooperate in the proceedings before the Tehsildar.

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Let necessary order be passed within three months from the date a certified copy of this order is produced.

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(Alok Mathur, J.)

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Order Date :- 21.8.2025 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Piyare v. Board of Revenue, U.P. Lucknow Thru. Chairman and 4 Others

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Piyare v. Board of Revenue, U.P. Lucknow Thru. Chairman and 4 Others

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