RESERVED Court No. - 10 Case :- MISC. SINGLE No. - 2553 of 2010 Petitioner :- Triveni Bahadur Singh And Ors. Respondent :- State Of U.P.Through District Magistrate Raebareli And Ors. Petitioner Counsel :- Lakshman Singh Respondent Counsel :- C.S.C,R.N.Gupta,Shailendra Singh Chauhan Hon'ble Yogendra Kumar Sangal,J.
This Writ Petition has been filed by the petitioners with the prayer
to issue a Writ, Order or Direction in the nature of certiorari to
quash the order dated 03.10.2003 passed by the District Deputy
Director of Consolidation/Collector, Rai Bareilly in suit No.
3684/64/DDC of 1983, order dated 16.09.2002 passed by
Additional Commissioner, (Administration), Lucknow Division
Lucknow in Revision No. 386/83-84 and order dated 25.02.2010
passed by the Board of Revenue in Revision No. 77/2002-03.
Heard learned counsel for the petitioners,learned Standing Counsel
for the respondent no. 1 & 2 , learned counsel for the respondent
No. 3 , Smt. Shanti Devi who has also filed Caveat Petition.
Consolidation proceedings in the village where property in dispute
situates came to end and notification under Section 52 of the Act
was published on 18.08.1971. Smt. Shanti Devi, respondent no. 3
moved an application under Section 28 of the Land Revenue Act
for correction of the map of land of Gata No. 93. Learned
Collector called a report of the Lekhpal and he submitted the same
on 14.05.1983. Simultaneously, a report was also called from the
Consolidation Officer, which was submitted on 07.08.1982. Two
reports of Assistant Director of Consolidation and Assistant
Consolidation Officer dated 06.12.1982 are also available on the
record. Considering the reports and hearing in the matter, learned
Collector allowed the application of correction of the Map vide
order dated 03.10.1983. Aggrieved by this order, a Revision was
filed before the Additional Commissioner ,Lucknow Mandal
Lucknow but the same was dismissed vide order dated 16th
September, 2002. Both these orders were challenged before the
Board of Revenue but the same was also dismissed , hence this
writ petition has been filed.
The only ground pressed before this court on behalf of the
petitioner to challenge the order of District Deputy Director of
Consolidation/Collector Rai Bareilly and also Additional
Commissioner, Administration, Lucknow Mandal, Lucknow was
that on the basis of the report of Lekhpal and the Consolidation
Authorities without examining them on oath, accepting the same
orders for correction of the record was made. Neither, the
petitioner was made party to the proceedings nor any notice was
served on him before passing the order by the first court. He
claimed himself in possession and title of the land of Plot No.94. It
was argued that by this order of correction of the map, his right
title and interest in the property in dispute are being adversely
affected. All the reports which were submitted in compliance of
the order of the Court were prepared by the Government servants
in discharge of their official duties. In the facts and circumstances ,
these reports were part of the record and therefore, these cannot be
overlooked or rejected on spacious plea of no examination of the
Commissioner as witness since it is part of the record of the case.
If we see the provisions of Code of Civil Procedure in this regard,
we find that Under Order 26 Rule 10 (2), it is provided that the
report of the Commissioner shall be evidence in suit and shall form
part of the record.
This clearly shows that it is not necessary in order that a report
become admissible the statement of the Commissioner should also
be made in the court for the purpose of proving it. When the
petitioner was not found necessary party for disposal of the
application of respondent no. 3 and nobody was present before the
court to show that he is necessary party, if notices are not issued to
him, it will not affect the merit of the case. Learned counsel for the
petitioner argued that petitioner was not given an opportunity for
filing the evidence to show his possession and title on the property
in dispute. This argument will also not affect the order passed by
both the courts on the same analogy that courts have not deemed it
necessary to call him, in the facts and circumstances of the case.
No such case was before the court that petitioners are in possession
of land of plot no. 94. Still an alternative remedy is available to the
petitioner to go before the appropriate court and press his claim
regarding his possession and ownership of the land of Plot No. 94.
These Proceedings under Section 28 of the Land Revenue Act are
summary proceedings. There is no illegality, invalidity and
impropriety in the orders passed by both the courts below.
It is established law that the High Court should not act like an
appellate court of the orders of the trial courts in writ jurisdiction
under Article 226/227 of the Constitution of India. Exercise of its
jurisdiction in grave cases, where the subordinate courts act wholly
without jurisdiction or in excess of it or in violation of principle of
natural justice or refused to exercise the jurisdiction vested in it or
there is apparent errors resulted in manifest injustice is required.
In the circumstances of the case, it is evident that the writ petition
has not been filed with bonafides and the petitioner has not
approached this court with clean hands.
Accordingly, the Writ Petition is hereby dismissed.
Order Date :- 10.5.2010
Kaushal