1. Heard the counsel for the petitioner and the counsel representing respondent Nos. 5 to 7.
2. The present writ petition has been filed against the order dated 28.5.2015 passed by the Board of Revenue, U.P. at Lucknow, i.e., respondent No. 1 (hereinafter referred to as, 'Board of Revenue') in Revision No. 1412/2015 arising out of proceedings registered under Section 34 of the Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901').
3. Shorn of irrelevant details, the facts of the case are that one Rani Bhuwan Raj Kunwari was the tenure holder of the disputed plots as a result of a sale-deed dated 16.4.1889 executed by one Babu Madhav Das in her favour. The case of the petitioner is that Rani Bhuwan Raj Kunwari died on 15.6.1934 and the property was divided between her grand sons vide order dated 27.10.1948 with each of her grand sons getting 1/3 share in the disputed property. The petitioner claims share in the disputed property through a Will dated 28.6.1971 executed by widow of one of the grand son of Rani Bhuwan Raj Kunwari while the respondent No. 7 is the descendant of the eldest grand son of Rani Bhuwan Raj Kunwari. The facts regarding the death of Rani Bhuwan Raj Kunwari and partition between the three grand sons of Rani Bhuwan Raj Kunwari are disputed between the parties, but are not relevant for a decision of the present writ petition. It is sufficient to state that in support of his aforesaid claim, the petitioner relies on the judgement and decree dated 27.10.1948 passed by this Court in First Appeal Nos. 34 of 1944 and 509 of 1943. However, as the aforesaid facts are not relevant for a decision of the present writ petition, therefore, this Court is not recording any finding on the aforesaid claim of the petitioner.
4. On 8.7.2014, Suryabali, i.e., the father of respondent No. 5 filed mutation application under Section 34 of the Act, 1901 praying to be mutated in the revenue records. The claim of father of respondent No. 5 was based on a sale-deed dated 13.9.1965 allegedly executed by Rani Bhuwan Raj Kunwari in his favour. Genuineness and the validity of the said sale-deed is being disputed by the petitioner and respondent No. 7. The concerned Tehsildar, i.e., Tehsildar Sadar, District-Varanasi vide his order dated 20.9.2014 dismissed the mutation application filed by Suryabali, i.e., the father of respondent No. 5. Against the order dated 20.9.2014 passed by the Tehsildar, respondent No. 5 filed revision No. C20141400001278/2015 on 24.9.2014 before the Additional Commissioner (Administration), Varanasi Division, Varanasi, i.e., respondent No. 2 (hereinafter referred to as, 'Additional Commissioner') in which notices were issued on 26.9.2014 to the opposite parties arrayed in the said revision. While the aforesaid revision was still pending, the respondent No. 5 filed second mutation application on 27.11.2014 regarding the same property and the said mutation application was allowed by the Tehsildar Sadar, District-Varanasi vide his order dated 7.1.2015. However, the order dated 7.1.2015 was recalled by the Tehsildar through his order dated 6.2.2015 and the second mutation application filed by respondent No. 5 was dismissed by the Tehsildar. The order dated 6.2.2015 was passed by the Tehsildar on the recall application dated 23.1.2015 filed by respondent No. 7. Subsequently, the Additional Commissioner vide his judgement and order dated 23.4.2015 allowed Revision No. C20141400001278/2015 and directed that the name of respondent No. 5 be entered in the revenue records as Bhumidhar with transferable rights after expunging the name of Rani Bhuwan Raj Kunwari. The petitioner and respondent No. 7 filed a recall application before the Additional Commissioner on 21.5.2015 alleging that the said order was passed without issuing any notice to the applicants and, therefore, the order was passed without giving them any opportunity of hearing.
5. The Additional Commissioner vide his order dated 21.5.2015 passed on the recall application filed by the petitioner and respondent No. 7 stayed the operation of the order dated 23.4.2015 and further directed that notices be issued to all the necessary parties in the revision. Against the order dated 21.5.2015 passed by the Additional Commissioner, respondent No. 5 filed revision No. 1412/2015 before the Board of Revenue and the Board of Revenue vide its order dated 28.5.2015 set aside the order dated 21.5.2015 passed by the Additional Commissioner and has remanded back the matter to the Additional Commissioner to decide the recall application filed by the petitioner and respondent No. 7 on merit after giving an opportunity of hearing to the parties. The order dated 28.5.2015 passed by the Board of Revenue has been challenged in the present writ petition.
6. It was argued by the counsel for the petitioner that Revision No. 1412/2015 was a second revision and was therefore barred under Section 219 of the Act, 1901 and thus the order dated 28.5.2015 passed by the Board of Revenue is without jurisdiction. It was further argued that the order dated 28.5.2015 was passed by the Board of Revenue without issuing any notice to either the petitioner or respondent No. 7 and has therefore been passed without giving any opportunity of hearing to the petitioner and is thus violative of principles of natural justice. It was argued that for the aforesaid reasons, the order dated 28.5.2015 passed by the Board of Revenue is liable to be set aside.
7. Rebutting the argument of the counsel for the petitioner, the counsel for respondent No. 5 has supported the order dated 28.5.2015 passed by the Board of Revenue in Revision No. 1412 of 2015 and has argued that as the restoration application is still pending before the Additional Commissioner, therefore, the present petition is not maintainable and is liable to be dismissed.
8. I have considered the rival submission of the counsel for the parties.
9. The averment made by the petitioner in paragraph No. 21 of the writ petition stating that no notices were issued to the petitioner before the impugned order dated 28.5.2015 was passed by the Board of Revenue and therefore the said order was passed without giving any opportunity of hearing to the petitioner has not been categorically denied by respondent No. 7 in paragraph No. 18 of his counter affidavit.
10. A reading of the order dated 28.5.2015 passed by the Board of Revenue also shows that the said order does not refer to any argument raised by the petitioner in opposition to the revision filed by respondent No. 5 nor does it refer to the fact that notices had been issued to the petitioner in the case, but the petitioner had not appeared despite notices having been issued to him. In view of the aforesaid, apparently the order dated 28.5.2015 passed by the Board of Revenue has been passed without giving any opportunity of hearing to the petitioner and is thus violative of principles of natural justice.
11. Apart from the aforesaid, a reading of the order dated 28.5.2015 also shows that it is a non-speaking order inasmuch as no reasons have been given in the same for allowing the revision filed by respondent No. 5 and for setting aside the order dated 21.5.2015 whereby the Additional Commissioner had merely stayed his previous order dated 23.4.2015 on the ground that the petitioner and respondent No. 7 had made out a prima facie case for stay of the order dated 23.4.2015 in light of the averments made in their affidavits filed in support of the recall application stating that the order dated 23.4.2015 was passed without giving them any opportunity of hearing. The recall application had not been finally decided by the Additional Commissioner, thus the order dated 21.5.2015 passed by the Additional Commissioner was an interlocutory order and there was no justifiable reasons for the Board of Revenue to interfere in the order dated 21.5.2015.
12. For all the aforesaid reasons, the order dated 28.5.2015 passed by the Board of Revenue is contrary to law and is hereby set aside. The Additional Commissioner (Administration), Varanasi Division, Varanasi, i.e., respondent No. 2 is directed to decide restoration application filed by the petitioner and respondent No. 7 in Revision No. C20141400001278/2015 for recall of the order dated 23.4.2015 within a period of three months from the date a certified copy of this order is produced before him by either of the parties. It is directed that in order to decide the recall application within the time fixed by this court in the present order, the Additional Commissioner may, if necessary hold day to day hearing in the case.
13. Till the decision by the Additional Commissioner on the recall application filed by the petitioner and respondent No. 7, the parties shall maintain status quo regarding the disputed property and shall not create any third party rights in the same.
14. With the aforesaid direction, the writ petition is allowed.
Order Date :- 18.12.2019 Anurag/-