SHIV AVTAR Vs. BOARD OF REVENUE
LAWS(UTN)-2012-8-35
HIGH COURT OF UTTARAKHAND
Decided on August 01,2012

Shiv Avtar Appellant
VERSUS
Board of Revenue and others Respondents

JUDGEMENT

Sudhanshu Dhulia, J. - (1.) THIS writ petition arises out of the suits filed by the respondents against the present petitioners way -back in the year 1979 under Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. There were two suits filed by the respondents against the present petitioners, who were the defendant in the said suits. The first suit being Suit No. 22/6 of 1979 -80 was for ejectment and possession on the property regarding area of land comprising 0.11 acre at khasra No. 348 and the second suit being Suit No. 22/4 of 1980 -81 was regarding the land measuring 0.02 acre at khasra No. 348 which was filed before the Assistant Collector, First Class, Kashipur. The plaintiffs/respondents claim rights on the said land on the basis of recorded revenue entries. The suits of the plaintiffs/respondents were dismissed by the trial court. Aggrieved, the plaintiffs/respondents filed an appeal before the Court of Commissioner, Kumaon Division. The Appeal was allowed and the suit was decreed. The present petitioners being defendants in the said suit filed a Second Appeal before the Board of Revenue, which was dismissed by the Board of Revenue on 31.8.1995. It must be stated that in the revenue matters, the last court of appeal is the Board of Revenue which had pronounced a judgment in favour of the plaintiffs/respondents and against the defendant/petitioner vide order dated 31.8.1995.
(2.) CONSEQUENTLY , the petitioners moved a review application being Review Application No. 30 of 1995 -96. This review petition was dismissed on 17.1.1996. Subsequently thereafter, a restoration application being Restoration Application No. 57 of 1996 was field by the present petitioners on 29.1.1996 to set aside the order dated 17.1.1996 which was dismissed in default on 16.12.1996. Against the order dated 16.12.1996 another Restoration Application was filed being Restoration Application No. 26/1997 by the petitioners which was again dismissed in default on 10.3.1997. Thereafter against the order dated 10.3.1997, a third restoration application was filed which was dismissed on 18.8.1997. Thereafter, the petitioners kept on filing 4th, 5th, 6th and 7th restoration application which was dismissed again on 26.3.1999, 30.10.2000, 25.5.2002 and 26.8.2002 respectively. It must be stated here though that the new State of Uttarakhand was created on 9.11.2000 by an Act of Parliament and subsequently in view of Section 91 of the U.P. Reorganisation Act, the matter i.e. the review application stood transferred to the Court of Chief Revenue Commissioner in Uttarakhand, as the powers of the Board of Revenue were given to the Chief Revenue Commissioner in Uttarakhand which was a competent authority/forum to decide such matters as were being decided by the Board of Revenue in the erstwhile State of Uttar Pradesh. Therefore, the two orders dated 25.5.2002 and 26.8.2002 have been passed by the Chief Revenue Commissioner, Uttarakhand. Now, after all these orders, the fact remains that the second appeal stood dismissed as far back on 31.8.1995, yet the petitioner filed for the first time a Writ Petition before this Court being Writ Petition No. 383 of 2003 pertaining to land 0.11 acre and another petition being Writ Petition No. 386 of 2003 pertaining to land 0.02 acre. The Writ Petition No. 386 of 2003 was dismissed as withdrawn on 22 -12.2006 and the matter came to an end as far as that writ petition was concerned which pertained to the land 0.02 acre. Regarding other writ petition, i.e. Writ Petition No. 383 of 2003, the petition was dismissed as withdrawn with liberty to the petitioner to file fresh petition. The exact order passed by the learned Single Judge dated 18.12.2006 while dismissing the writ petition as withdrawn reads as follows: - The learned counsel for the petitioner seeks permission to withdraw the petition, with liberty to file fresh petition. Allowed. The writ petition is dismissed as withdrawn. Liberty is given to the petitioners to file fresh petition. Certified copy of impugned order be returned to learned counsel for the petitioner.
(3.) ANOTHER fact which must be stated at this juncture that in Writ Petition No. 383 of 2003 all the petitioners had sought was for setting aside the order dated 26.8.2002 passed by the Chief Revenue Commissioner, Uttarakhand. There was no prayer to set aside the order dated 31.8.1995 passed by the Board of Revenue, Allahabad and this is the preliminary objection of the counsel for the respondents that even for the sake of argument, if the liberty was given to the petitioner the liberty would be only to the extent of filing the writ petition challenging the order dated 26.8.2002 passed by the Chief Revenue Commissioner, Uttarakhand. Nevertheless, after withdrawing the said writ petition, the petitioner has filed the present writ petition in the year 2007 with the following prayers: 1. To issue a writ, order or direction in the nature of certiorari by quashing the judgment of the Board of Revenue, Uttar Pradesh at Allahabad dated 31.8.1995 passed in second appeal No. 35 of 1987 -88 "Balwant Singh and others v/s. Krishan Kumar Nagar and others" (Annexure No. 1 to this writ petition). 2. To issue any other writ, order or direction or grant such other further relief in favour of the petitioners which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 3. Award the cost of the petition to the petitioners.;


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