Rakesh Kumar Jain vs State of U.P.and Others

D. S. Sinha, J.—Heard Shri Dilip Gupta, learned Counsel appearing for the petitioner, Shri O.P. Singh, learned Standing Counsel representing the respondents No. 1 to 5 and Shri S.D.N. Singh, learned Counsel appearing for the Raja Mahendra Ripudaman Singh, seeking impleading as respondent No. 6.

The petitioner was served notice under Section 6 of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act No. 9 of 1957), hereinafter called the Act. A copy of the notice is Annexure8 to the petition. By this notice the petitioner was called upon to appear before the Demarcation Officer on 30th November, 1990 and file written objection, if there be any, in respect of proposed correction of alleged clerical or arithmetical mistakes in the demarcation proceedings.

Instead of appearing before the Demarcation Officer, petitioner rushed to this Court and file instant writ petition on 29th January, 1991 which received consideration of the Court on 30th January, 1991. After granting time to the learned Standing Counsel for filing counteraffidavit and to the petitioner for filing rejoinderaffidavit, court stayed further proceedings in pursuance of the impugned notice.

A counteraffidavit on behalf of the respondents, sworn by Shri Shivendra Kumar Singh, was filed on 3rd May, 1991, after serving copy thereof on one Shri S. Kumar, clerk to Sri Dilip Gupta, learned Counsel for the petitioner, as is evident from the endorsement on the stay vacation application alongwith which counteraffidavit was filed. In paragraph26 of this counter affidavit, while replying to the averments of paragraph46 of the writ petition regarding lack of knowledge of the proceedings, it is stated that:

"The petitioner has full knowledge of the proceedings. His brother Shri Kailash Chand filed objection in the matter. The petitioner instead of filing objection obtained copy of the notice and then filed this writ petition simply to delay the matter and the final orders under Section 6 of the Act have already been passed on 28191 by the Demarcation Officer/S.D.O. Agra and the matter has been referred to the Demarcation Commissioner."

Despite lapse of an interminable period of more than six years no rejoinderaffidavit has been filed to controvert the above averments. Thus, the averments have to be accepted as correct.

From the undisputed averments noticed above the Court is of the opinion that the petitioner is guilty of misleading the Court and suppression of material facts, specially with regard to the fact that on the date when the Court passed the interim order staying the proceedings in pursuance of the impugned notice there was nothing to be stayed. The proceedings had come to an end on passing of the order dated 2811991 by the Demarcation Officer/S.D.O., Agra. Thus, petitioner, clearly, obtained the interim order by misleading the Court and by suppression of material facts about passing of the final order in the proceedings in pursuance of the impugned notice. Therefore, the petitioner has incurred the liability of having his petition dismissed on this ground alone.

Apart from the fact that the petition is liable to be dismissed on account of misconduct of the petitioner which is very relevant in the proceedings before this Court under Article 226 of the Constitution of India, the petition is liable to be dismissed on yet another ground, namely, existence and availability of statutory alternative remedy of revision before the Board of Revenue. Section 82 of the Act provides as follows:

"82. Suits, applications and proceedings. The provisions of Sections 331, (331A), and 333 of the U.R Zamindari Abolition and Land Reforms Act, 1950, "shall apply in relation to suits, applications or proceedings under this Act, as they apply in relation to suits, applications or proceedings under the said Act, but the State Government may, by order published in the official Gazette, make such adaptation, modification, alteration or exception not affecting the substance as may in its opinion appear necessary and any such adaptation, modification, alteration or exception shall not be questioned in any court of law."

Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 runs as follows:

"333. Power of Board to call for cases. The Board may call for the record of any suit or proceeding decided by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred, and if such subordinate court appears

(a) to have exercised a jurisdiction not vested in it in law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of jurisdiction illegally or with material irregularity,

the Board may pass such order in the ,use as it thinks fit."

A perusal of the above provisions makes it abundantly clear that the order passed during the proceeding under Section 6 of the Act is revisable by the Board i.e., the Board of Revenue. Therefore, the petitioner could have preferred revision before the Board of Revenue against the final order dated 28th January, 1991 which he is seeking to challenge before this Court by moving amendment application dated 9th April, 1992. In this connection it is pertinent to notice that although the final order dated 2811991 passed in pursuance of the impugned notice had already been brought to the notice of the petitioner through the counteraffidavit served on 29th April, 1991 petitioner woke up to move amendment application to challenge the order dated 28th January, 1991 after about a year. The delay clearly disentitles him to the grant of the prayer for amending the petition to challenge the final order dated 28th January, 1991.

Learned Counsel for the petitioner contends that perusal of the impugned order shows that it is not a final order but it is in the nature of recommendation to the Commissioner, Agra Division, Agra about passing of the order under Section 6 of the Act. If that be so, then it would have been more appropriate for the petitioner to approach the Commissioner and raise objection against the recommendation contained in the order dated 28th January, 1991, instead of seeking to challenge the order before this Court by amending the petition.

All told, instant petition is devoid of merits and deserves to be dismissed. Accordingly, the petition is dismissed. The interim order dated 30th January, 1991 shall stand discharged. There is no order as to costs. Petition dismissed.