- (1.) D. S. Sinha, J Heard Shri Dilip Gupta, learned Counsel appearing for the petitioner, Shri O. P. Singh, learned Stand ing 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.
(2.) 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 Annexure-8 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 con sideration of the Court on 30th January, 1991. After granting time to the learned Standing Counsel for filing counter-af fidavit and to the petitioner for filing rejoinder-affidavit, court stayed further proceedings in pursuance of the impugned notice. A counter-affidavit 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 counter-af fidavit was filed. In paragraph-26 of this counter- affidavit, while replying to the averments of paragraph-46 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 28-1-91 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 rejoinder-affidavit has been filed to controvert the above averments. Thus, the averments have to be accepted as correct.
(3.) 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 28-1-1991 by the Demarcation Officer/s. D. O. , Agra. Thus, petitioner, clear ly, obtained the interim order by mislead ing 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 peti tion 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 Constitu tion of India, the petition is liable to be dismissed on yet another ground, namely, existence and availability of statutory al ternative 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, (331-A), 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, applica tions 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 affect ing the substance as may in its opinion appear necessary and any such adaptation, modifica tion, alteration or exception shall not be ques tioned 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 jurisdic tion 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 Sec tion 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 28-1-1991 passed in pursuance of the impugned notice had already been brought to the notice of the petitioner through the counter-affidavit served on 29th April, 1991 petitioner woke up to move amendment application to chal lenge the order dated 28th January, 1991 after about a year. The delay clearly disen titles him to the grant of the prayer for amending the petition to challenge the final order dated 28th January, 1991.;