Ex-Parte Administrative Order Can't Undo Mutation Carried Out Pursuant To Competent Court's Decree: Allahabad High Court
The Allahabad High Court has held that an order recording a mutation (Parwana Amaldaramad) which gives effect to a decree of a competent court that has attained finality, cannot be recalled by an administrative order. While dealing with a case where the order of mutation was set aside ex-parte after lapse of 24 years, without issuing notices to the party, Justice Prakash Padia...
The Allahabad High Court has held that an order recording a mutation (Parwana Amaldaramad) which gives effect to a decree of a competent court that has attained finality, cannot be recalled by an administrative order.
While dealing with a case where the order of mutation was set aside ex-parte after lapse of 24 years, without issuing notices to the party, Justice Prakash Padia held,
“Record further shows that judgement and decree dated 23.04.1988 (passed under section 229-B of U.P. Z.A. and L.R. Act, in favour of predecessor of petitioner) is still intact/ has never been set aside by any competent court of law but only order issuing Parwana Amaldaramad dated 13.04.1989, giving effect to aforesaid judgement and decree dated 23.04.1988, has been set aside, vide impugned order dated 15.12.2012, which is impermissible and without jurisdiction.”
Petitioner, Sunbeam School, ran a school in Village Lahartara, Varanasi, on land over which one Smt. Dhiraji Devi had been declared absolute owner by an appellate decree dated 23.04.1988 passed in a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950. That decree attained finality after the second appeal was dismissed by the Board of Revenue in 1996. Pursuant to it, Dhiraji Devi's name was mutated by Parwana Amaldaramad dated 13.04.1989.
The land was later declared 'Abadi' under Section 143 of the Act by order dated 10.07.2002. It was leased to the petitioner by Smt. Dhiraji Devi. The Varanasi Development Authority sanctioned the map on which the school was built.
In 2012, on an application by a third party, the 3rd Additional City Magistrate, Varanasi, passed an ex parte order recalling the Parwana Amaldaramad after 24 years. Petitioner pleaded that there was no delay condonation application with the aforesaid applicant and notices were not issued to Smt. Dhiraji Devi or others who parties to the original proceedings under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
The petitioner challenged the order in a writ petition on grounds that a decree of a competent court could not be undone administratively and that no notice or hearing had been given.
“It is not disputed by the respondents-authorities that effect of impugned orders are that judicial and/or quasi-judicial orders have been set aside by in administrative manner by administrative orders and also that no prior notice or opportunity of hearing was afforded to recorded/affected persons.”
The Court noted that the decree had never been set aside by any competent court. It observed that only the mutation order giving effect to it had been recalled, ex parte, on the complaint of an unconcerned third party who had no locus. It also noted that the proceedings were carried out without notice to any affected person including the petitioner. It observed that the applicant had himself stated on affidavit in later criminal proceedings that he had been set up by the district administration.
Once the decree had attained finality, the Court held that it had to be executed. It held that recording of Smt. Dhiraji Devi's name was in accordance with Section 39 of the U.P. Land Revenue Act read with the Rules framed under the 1950 Act.
The Court further held that Nagar Nigam, Varanasi, having itself issued a No Objection Certificate in 2002 stating that the plots were not its property, was estopped from taking a contrary stand.
On the magistrate's finding that the appellate decree had been obtained on a false affidavit, the Court held,
“There is no material on record before respondent no.3 to come to the conclusion ex-parte, in administrative manner that Additional Commissioner (Administration) Varanasi passed judgement and decree on the basis of false affidavit. Aforesaid conclusion is perverse and in breach of Principles of Natural Justice.”
In the connected petition, the petitioner challenged orders by which the Sub-Divisional Magistrate, Sadar, Varanasi had suo motu recalled the 10.07.2002 declaration under Section 143 and directed the land to be recorded as a 'Pond' in the name of the without hearing the petitioner or Smt. Dhiraji Devi.
The Court held that an order passed more than ten years earlier could not be recalled suo motu without any proceedings under the Act and without hearing the petitioner, who was a necessary party. It held that the land, recorded as Sir and Sir Malikan in the Khatauni and Khasra of 1359 Fasli, had remained in private cultivation, never vested in the State, and stood settled under Section 18 of the Act.
“Long standing entries cannot be disturbed in summary proceedings, thus impugned action under Section 33 & 39 of the U.P. Land Revenue Act are also without jurisdiction as there exists no application for correction of the record filed by any person.”
It further held that in exercise of powers under Section 39, the entry had to be decided on the basis of possession after hearing the parties. The Court held that the absence of any hearing rendered the order without jurisdiction and violative of the principles of natural justice.
Both writ petitions were allowed, and the respondents were restrained from interfering with the running of the school.
Case Title: Sunbeam School v. State of U.P. and others
Counsel for Petitioner :- Ajay Kumar Singh, senior adv assisted by Tejas Singh
Counsel for Respondent :- Ashok K Pandey,