Mukhtyar Chand vs Gangadhar Alias Ganga Ram And Another

Sharad Kumar Sharma, J

In this matter, the argument had started, in the pre-lunch session, it was to be continued thereafter in the post-lunch session. When the matter revived to be taken up in the post-lunch session for further argument on merits, the arguing counsel is not present, rather a mention has been made on his behalf on the pretext that he has left for Dehradun. Its too discourteous conduct of the counsel that he has not presented himself, particularly when the matter is continued to be argued in continuation thereto in the post lunch session, in such an eventuality, apart from recording my anguish, as to the manner in which the counsel has conducted himself in the case, I have got no other option except to proceed to pass a judgement on merits of the matter.

The petitioner, in the present writ petition, has given challenge to the impugned order dated 5th December 2016, as passed by the Board of Revenue in Revision No. 84 of 2014-15, Gangadhar v. and others; whereby in a revision which was preferred under Section 219 of the Land Revenue Act, the Chairman, Board of Revenue had allowed the Delay Condonation Application, as preferred by the respondent in the revision, which he has filed, being aggrieved against the order of the Tehsildar dated 27.09.2004, as rendered in Case No. 30/141 of 2003-2004, under Section 34 of the Land Revenue Act.

As per the finding, which has been recorded by the Chairman, Board of Revenue while allowing the delay condonation application, he has recorded a finding that admittedly the land in question which was the subject matter of the proceedings under Section 34 of the Land Revenue Act, in fact, it was a land which was leased out to late Mr. Hansraj, who after his death was succeeded by three sons and out of them one of them was respondent No. 1.

In the mutation proceedings under Section 34 of the Land Revenue Act which was held before the Court of Naib Tehsildar, as referred above, the same proceeded to be decided on merits on 27th September 2004, and as a consequence thereto, the present petitioner has been directed to be recorded on the basis of the stand taken in his favour by the other two sons of late Mr. Hansraj. Hence, being aggrieved against the said order, the revision has been filed by the respondent on 06.10.2015 along with the delay condonation application. While considering the delay condonation application, the Chairman, Board of Revenue, has recorded a findings that in the proceedings which was held before the Naib Tehsildar under Section 34 of the Land Revenue Act, the Court has recorded that out of the three sons of late Mr. Hansraj, only two sons were noticed who had appeared in the proceedings before Naib Tehsildar and recorded their statements for recording the name of the present petitioner in the revenue records as against the land which was subject matter of lease granted to late Mr. Hansraj, the predecessor of respondent herein.

As far as respondent No. 1 is concerned, neither he was made as a party to the proceedings under Section 34 of the Land Revenue Act nor he was heard and nor his statement was ever recorded at the stage of proceedings before the Naib Tehsildar. On that premise merely recording of the name and statement only of two sons of late Mr. Hansraj for passing order dated 27.09.2004, will not suffice the purpose for the reason that in the leases granted under the Govt. Grant Act, whose tenure and conditions are is based upon the terms and conditions of the lease itself, a right would equally devolve by inheritance upon all the sons of late Mr. Hansraj and any proceedings effecting the revenue entries or right of any of the heirs of late Hans Raj, ought to have been conducted only after noticing all the sons of late Mr. Hansraj and there is no reason as to why the petitioner has been intentionally excluded by the respondent No. 1 of making him as party or noticing him thereby informing him about the proceeding under Section 34 of the Land Revenue Act. Its pendency, and consideration by Naib Tehsildar under Section 34 of the Land Revenue Act, 1901.

In the delay condonation application as filed by respondent No. 1, he has contended that as soon as he got the knowledge of the order dated 27th September 2004, he has filed an application for seeking condonation of delay in revision on 6th October 2015, which has been allowed by the impugned order dated 05.12.2016, which is under challenge. Looking to the reasoning which has been assigned by the Chairman, Board of Revenue in the impugned order was that since the knowledge of the order dated 27th September 2004, could only be attributed to the respondent No. 1, he could acquire the knowledge only at a later stage, since late Mr. Hansraj has died on 13th January 2004, his application for seeking condonation of delay in filing Revision against the order dated 27th September 2004, though it might have been at a highly belated stage, but respondent No. 1 can not be exclusively held responsible for the delay for the reason being that he had no knowledge and also because he was not made party to the proceedings under Section 34 of the Land Revenue Act, 1901.

It has been argued by the learned counsel for the petitioner that the proceedings under Section 219 of the Land Revenue Act, as initiated by respondent No. 1, as against the order dated 27th September 2004, would not be tenable on account of the fact that there is a statutory remedy available to the petitioner under Section 210 of the Land Revenue Act, since he has not availed the remedy under Section 210 of the Act, straightaway filing of a revision under Section 219 would be barred because he ought to have first filed an appeal against the said judgement of the Naib Tehsildar.

This argument of the learned counsel for the petitioner, at this stage, is not being entertained by this Court for the reason being that at this stage, the Court is not dealing with the issue, pertaining to the maintainability of the proceedings by way of Revision under Section 219 as filed by respondent No. 1 before the Court of Chairman, Board of Revenue, because the said proceedings at the time when the delay condonation application has been considered by the impugned order was legally yet to come in existence which could have been legally only after the condonation of delay because legal position is that until and unless the delay condonation application which has been filed in support of any judicial proceedings preferred by way of an appeal or revision, until and unless the same is decided the principal proceedings of an appeal or revision as the case may be does not come into existence.

This Court is of the view that its only after passing of an order on the delay in the proceedings of an appeal or a revision, it is thereafter only when the situation arises for the parties to the proceedings to raise any question pertaining to the maintainability of the proceedings or the merits of the matter. Hence, in that view of the matter, the contention that the revision itself is not maintainable is not required to be dealt with by this Court at this stage when the Court is only dealing the issue of allowing the delay condonation application in Revision No. 84 of 2016, which has been considered and allowed on the sound reasoning by the Revisional Court i.e.:-

(a) Respondent was one of the son and heir of lease holder.

(b) As per lease under Government Grant Act, he will have a right of inheritance.

(c) Respondent was not made party in the proceedings under Section 34 of Land Revenue Act.

(d) Respondent was never served with the notice, informing about the pendency of proceedings.

(e). By order of Naib Tehsildar which would be exparte qua respondent.

(f) Respondent acquired knowledge of the order of Naib Tethsildar at a much later stage.

(g) Entire proceeding(s) was in violation of principals of natural justice, affecting maternal right of the respondent.

After having considered the reasons assigned in the impugned order, this Court is not inclined to interfere in the writ petition, consequently, the writ petition lacks merits and the same is accordingly dismissed.