Nagar Palika Parishad vs State of U.P. and Others

Anil Kumar, J.—Heard Sri Vivek Srivastava holding brief of Ram Raj, learned Counsel for the petitioner, Sri D.C. Mukharjee learned Counsel for the respondent, and Sri Nirmal Tiwari, learned Additional Standing Counsel.

As the facts and circumstances of both the writ petitions are identical and similar in nature so with the consent of learned Counsel for the parties the both the writ petitions are heard together and dispose of by means of a common judgment.

By means of present writ petition the petitioner has challenged the order dated 10.2.2006 and 12.7.2006 passed by the Board of Revenue, U.P. At Allahabad contained in annexure Nos. 1 and 2 and the order dated 1.10.2002 passed by the respondent No. 2, Additional Commissioner, Lucknow Division, Lucknow.

Brief facts of the case:

The dispute relates to property, which is situated at village Netua, Pargana Sikandarpur, Tehsil and District Unnao, hereinafter referred as land in dispute.

On 23.5.1972 a notification has been issued by the State Government thereby creating Town area, Ganga Ghat, Unnao and by virtue of the said notification the disputed land comes within the limit of Town area of Ganga Ghat, Unnao.

Thereafter, on 6.2.1986 a notification u/s 3(1) (a) of the U.P. Municipalities Act, 1916 was issued thereby Town area, Ganga Ghat, Unnao was declared Nagar Palika Parishad, Ganga Ghat, Unnao and the land in dispute was then in limits of Municipal area of Nagar Palika Parishad, Ganga Ghat, Unnao. Further the contesting respondents had filed a declaratory suits u/s 229-B of U.P.Z.A. & L.R. Act read with Section 122(B) (4-F) before the respondent No. 3 in respect to land in question and the said suits were allowed at different dates.

So far as the present case is concerned, the suit was allowed by means of judgment and decree dated 30.8.1993 by which they were declared bhumidar with non transferable right in respect to the property in disptue.

On 19.10.1993 an application was moved on behalf of contesting respondent before the respondent No. 3 requesting therein that instead of declaring them as bhumidhar with non transferable right they may be declared bhumidhar with transferable right by means of the judgment and decree dated 30.8.1993.

By means of judgment and decree dated 30.9.1995 the respondent No. 3 had allowed the application dated 19.10.1993 and declare the contesting respondent as bhumidhar with transferable right in respect to the property in question. Thereafter, an review application was filed before the respondent No. 3 for recalling the judgment and decree dated 30.9.1995 and the same was allowed by means of judgment and decree dated 17.11.1997 and the suit of the contesting respondent was dismissed.

Aggrieved by the judgment and decree dated 17.11.1997 the contesting respondent filed a revision before the Additional Commissioner, Lucknow Division, Lucknow, respondent No. 2 and the same was allowed by means of order dated 19.3.1998 and the judgment and decree passed by the respondent No. 3 dated 17.11.1997 was set aside and the earlier judgment and decree dated 30.9.1995 was restored by which the contesting respondent were declared as bhumidhar transferable right.

At this stage the petitioner came into picture and move an review application (19.3.1998) for recalling of the judgment and decree dated 19.3.1998. After hearing the petitioner as well as the contesting respondent, who are the revisionist in the revision the respondent No. 2 by means of judgment and order dated 11.2.1999 had recalled the order dated 19.3.1998 and also passed certain directions therein.

One of the direction which was given by the respondent No. 2 by means of order dated 11.2.1999 was to the effect that the contesting respondent in their revision should impleaded petitioner as opposite party No. 3. As such after passing of the order dated 11.2.1999 the matter in revision again become subjudice before the respondent No. 2 and the same is to be decided and adjudicated on merit. From perusal of the record, it appears that inspite of the order dated 11.2.1999 passed by the respondent No. 2 the contesting respondents had not taken any steps for impleading the petitioner as opposite party in the revision filed by them.

Thereafter, the revision filed by the contesting respondents was allowed by means of judgment and order dated 1.10.2002 passed by respondent No. 2 and further the judgment and order dated 17.11.1997 was set aside and judgment and decree dated 19.3.1998 was restored meaning thereby that the contesting respondent were declared as bhumidhar with transferable right.

Order dated 1.10.2002 passed by the respondent No. 2 was challenged by the petitioner before the respondent No. 9 (Board of Revenue) by filing a revision and the same was dismissed on 10.2.2006, thereafter, the petitioner filed a review application for recalling of order dated 10.2.2006, which was disposed of by means of judgment and order dated 12.7.2006 by the Board of Revenue at Allahabad with the following directions:

Review is allowed to the extent that "with this observation the revision is disposed of accordingly" means that "the revisionist dismissed". Review application is allowed to this extent only. This order will also govern Review No. 43 to 48 of 05-06, Unnao.

Submission on behalf of the learned Counsel for the petitioner:

(a) the land in dispute belongs to petitioner and on his application order dated 19.3.1998 was passed in revision by respondent No. 2, which was recalled on 11.2.1999 and further direction was issued to contesting respondent to implead the petitioner as respondent No. 3 in the revision filed by them but instead of said fact they were not impleaded as respondent in the said revision.

In view of the above said facts, the judgment and order dated 1.10.2002 passed by the respondent No. 2 thereby allowing the revision of the contesting respondent had been passed without giving any opportunity to the petitioner rather the same was an ex-parte one as such the same was illegal, arbitrary and uncontravention to the principle of natural justice.

(b) Learned Counsel for the petitioner further submits that when the order dated 1.10.2002 was challenged by the petitioner before the Board of Revenue and on the facts of the case was pleaded in the revision filed by petitioner before the Board of Revenue and on the basis of the said facts it was submitted that the order dated 1.10.2002 had been passed without giving any opportunity whatsoever to the petitioner and the same is in-contravention to the principle of natural justice thus arbitrary, and valuable rights of the petitioner in the land in dispute are affected then it is incumbent on the Board of Revenue to decide the matter in question after summoning the record on merit.

The Board of Revenue without deciding the controversy, which is involved in the present case on merit summarily rejected the petitioner''s revision by means of order dated 10.2.2006 with the direction that the petitioner was not impleaded as a party to the suit before the trial court by the plaintiff/opposite party. Hence the judgment passed regarding the land in dispute is not binding on the Nagar Palika Parishad, Ganga Ghat, Shuklaganj, Unnao. So the petitioner is not competent to file the revision and further the Board of Revenue had also given advice that if the petitioner so advice may seek remedy by filing a suit. The said action on the part of Board of Revenue is totally illegal, arbitrary and unsustainable, thus the order dated 10.2.2006 and 12.7.2006 passed by the Board of Revenue, U.P. At Allahabad is liable to be set aside.

Submission made on behalf of opposite parties:

Sri D.C. Mukerjee, learned Counsel for the contesting respondents on the other hand submits that the order passed by the Board of Revenue dated 10.2.2006 and 12.7.2006 are perfectly valid as the petitioner is not a party in a suit filed by the contesting respondent/plaintiff and thus the judgment passed in regard to land in dispute is not binding on the petitioner.

In view of the above said facts, the finding which is given by the Board of Revenue that the revision filed by the petitioner is not maintainable by means of order dated 10.2.2006 is perfectly in accordance with law and further no prejudice whatsoever is caused to the petitioner in the present case and if they are aggrieved they have got appropriate remedy in this regard under law before the appropriate forum.

Sri Nirmal Tewari, learned Additional Chief Standing Counsel on the other hand submits that u/s 122-B of the U.P.Z.A. & L.R. Act Gaon Sabha or local authority both are mentioned. But u/s 122-B (4F) only Gaon Sabha is mentioned. Local authority is not mentioned, so the intention of the Legislature is clear that the right u/s 122-B (4F) cannot be given regarding the land of local authority to any person. In the present case the Board of Revenue has passed the judgment in the matter in question in contravention to the above said provisions as such the judgment passed by the Board of Revenue in the present case is contrary to law and thus unsustainable. He further submits that the said proposition of law was already laid down by the Board of Revenue in its earlier judgment but in the present case the Board of Revenue has passed the judgment and order dated 10.2.2006 in-contravention to the above said earlier judgment passed by it. He relied in the case of Smt. Sikandera Devi v. Bhagwandin and Ors. reported in 1997 (1) A.W.C. 3.22 (B.R.) and in the case of Nagar Mahapalika, Kanpur v. Rikhi Lal reported in 1989 R.D. 332.

Findings and conclusions:

I have considered the arguments advanced by the learned Counsel for the parties and perused the record. In view of notification dated 23.5.1972 issued by the State by which town area Ganga Ghat, Unnao was created. Consequently the jurisdiction of Gram Sabha Netua, Pargana Sikandarapur, Tehsil and District Unnao came to an end and the land in question is vested with the town area Ganga Ghat, Unnao.

Thereafter, when on 6.2.1986 a notification u/s 3(1)(a) of U.P. Municipalities Act, 1916 was issued whereby town Area, Ganga Ghat, Unnao was declared Nagar Palika Parishad, Ganga Ghat, Unnao (petitioner) and accordingly the land in dispute comes within the municipal limits of the Nagar Palika Parishad, Ganga Ghat, Unnao. once the petitioner has got the legal right over the land in question and on the application of the petitioner for recalling of the ex-parte order dated 19.3.1998 the respondent No. 2 had passed the order dated 11.2.1992 thereby recalling the order dated 19.3.1998 and further a direction was issued to the contesting respondent to implead the petitioner as opposite party No. 3 in the revision filed by them before the respondent No. 2, then it was incumbent on the part of the contesting respondent to implead the petitioner as respondent No. 3 in the revision.

But with oblique, motive, purpose the contesting respondent had not impleaded the petitioner as opposite party No. 3 in their revision, which are pending before the respondent No. 2, the said action on the part of the contesting respondent was a mala fide exercise on their part with an intention to derive a benefit in their favour and get ex-parte order.

In view of the said facts, in the present case the conduct of the contesting respondent thereby not impleading the petitioner as respondent in the revision pending before the respondent No. 2 filed by them result of which ex-parte order dated 1.10.2002 was passed against the petitioner, which is against the principle of natural justice and arbitrary instead of the order passed in this Court is an action, which is not above board and fair rather suffers with a aliment of malice and biasness. It is an old and golden saying that a person, who comes to get a justice from a court of law, which is a temple of justice, must came with a clean hand and in the present case the respondents does not come with the clean hand but their action are mala fide as wilful and deliberately as not impleaded the present petitioner as respondent in the revision filed by them. As such they are not entitled for any relief for redressal of their grievances under law.

Further when the petitioner had filed a revision before the Board of Revenue against the order dated 1.10.2002 and has brought entire facts and circumstances under which the order dated 1.10.2002 was passed without impleading the petitioner as opposite party No. 3 and the same was ex-parte one, passed without providing an opportunity of hearing to the petitioner thus the same is arbitrary, then it was incumbent upon the Board of Revenue to call for record of the entire case and decide the case on merit but Board of Revenue had failed to discharge his judicial duty thereby not deciding the matter in controversy on merit after calling the relevant record of the case from the court below on one hand and on the other hand simply dismissed the revision filed by the petitioner.

It has been the constant view of Hon''ble Supreme Court and this Court that the principles of natural justice must be followed and nobody should be condemned unheard. In the case of Surendra Singh v. Deputy Director of Consolidation, Moradabad and Ors. reported in 2008 (105) RD 230 this Court has taken view that if it is demonstrated by the petitioner that the order has been passed ex-parte without giving any notice and opportunity of hearing to the petitioner then the same is arbitrary and is liable to be quashed. In the case of Surendra Singh v. Deputy Director of Consolidation, Moradabad and Ors. reported in 2008 (105) RD 230 this Court has taken view that if it is demonstrated by the petitioner that the order has been passed ex-parte without giving any notice and opportunity of hearing to the petitioner then the same is arbitrary and is liable to be quashed.

For the afore-going reasons the order dated 10.2.2006 and the order dated 12.7.2006 passed by the Board of Revenue, U.P. At Allahabad are contrary to law and thus liable to be set aside. Accordingly, the same are set aside and the present writ petitions are allowed and the matter is remanded back to the Board of Revenue, U.P. Allahabad with the direction to restore the revisions filed by the petitioner against the order dated 1.10.2002 passed by the Additional Commissioner, Lucknow Division, Lucknow.

The Board of Revenue will decide the matter in question before him after giving opportunity of hearing to the parties concerned in accordance with law. It is further clarified that while deciding the revision the Board of Revenue shall take into consideration the effect of Section 122(B) and Section 122-B (4F) of U.P.Z.A. & L.R. Act and the judgments passed by it earlier as stated hereinabove.

Learned Counsel for the petitioner prays that he may allowed to implead Board of Revenue U.P. At Allahabad as respondent No. 9 in the present writ petition because the order which was under challenged in the present writ petition is passed by the said authority.

Learned Counsel for the respondent has no objection in this regard.

Learned Counsel for the petitioner is directed to impled Board of Revenue as respondent No. 9 in the present writ petition.