IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1363 of 2011 Ravindra Singh S/O Sri Jagat Singh and others. … Petitioners. Versus State of Uttarakhand and others. … Respondents. Mr. Sharad Sharma, Senior Advocate, with Mr. Lalit Sharma, Advocate, learned counsel for the petitioners. Mr. K.C.Tiwari, Brief Holder, learned counsel for the respondent Nos. 1 to 7. Mr. Navneet Kaushik, Advocate, learned counsel for the respondent Nos. 8 to 10. Date August 20, 2011. Hon’ble B.S.Verma, J. Heard learned counsel for the parties. Learned counsel for the petitioners files rejoinder affidavit. The same is taken on record. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the order dated 20- 6-2011 passed by the Assistant Collector, 1st Class/Sub Divisonal Officer Kashipur (Udham Singh Nagar) (Annexure No. 3 to the writ petition) whereby the application dated 6-7-2010 moved by respondent no. 8 has been allowed, the objection of the petitioners dated 19-5-2007 has been rejected. Learned Assistant Collector further directed Parwana Amal Daramad issued on 16-5-2007, on the basis of order dated 27-7-1979 passed by the Board of Revenue in proceeding under Sections 33/39 of the Land Revenue Act, is maintained. Briefly stated, the facts giving rise to the present writ petition, according to the petitioners, are that an application for correction of revenue record was filed by Gurdeep Singh, father of respondent no. 8-Padam Ravinder Jeet Singh. Ultimately, the application was allowed by the Assistant Record Officer on 4-4- 1964 and it was held that Babu Singh and his brother were in possession as agents of Gurdeep Singh and Suba Singh and party were also in possession on behalf of Babu Singh and his brothers and it was ordered that the names of Babu Singh and others 2 (appellants in Appeal No. 52/50, 52/51, 52/52, 52/53 of 1962-63 before the Record Officer, Nainital) be removed from Ziman 20. Aggrieved by the order dated 4-4-1964, Babu Singh and others preferred separate appeals referred to above (Babu Singh and others and Suba Singh and others Vs. Sri Gurdeep Singh) under Section 210 of the Land Revenue Act before the Record Officer, Nainital. The Record Officer by his order dated 27-7-1966 dismissed all the said four appeals. It appears that an application for correction of papers was filed by Sri Gurdeep Singh before the Sub Divisional Officer. Suba Singh and others filed objection contending that their names have wrongly been expunged from class 8 and the order of Record Officer dated 27.7.66 only relate to entries of class 20, hence correction be made accordingly. It appears that the Sub Divisional Officer, after hearing both the parties, has observed in the order dated 3-7-1967 as under:- “Further the applicants have preferred an appeal in the court of Addl. Commissioner, Nainital against the order of this court. They have also filed a declaratory suit in the court of J.O. and Asstt. Collector 1st Class. When an appeal is already pending in the court of Addl. Commissioner and a suit for the declaration of rights going on in the court of J.O. & Asstt. Collector 1st Class, Kashipur, I donot see any justification in going through the other details of this case. If the appeal and the regular suit are decided in favour of the objector, the records can be corrected on the basis of those orders. I accordingly see no force in the objection and reject. Let the file be consigned.” Aggrieved by the order of the Sub Divisional Officer, an appeal bearing Appeal No. 52/24 of 1966-67 Sarvsri Babu Singh and others Vs. Sri Gurdeep Singh was preferred by Sri Babu Singh and others against the father of the respondent no.8 in the Court of the Collector Nainital. In this case, the learned Collector by his order dated 2-3-1968 has held that the names of Sri Babu Singh and others should be expunged only from those plots in which they are recorded as Ziman 20 tenants. 3 Aggrieved by the said order dated 2-3-1968, late Gurdeep Singh preferred a revision before the Additional Commissioner, which was dismissed on 14-1-1979. Further aggrieved, Sri Gurdeep Singh preferred a revision (Revision No. 34/L.R./75-76/Distt. Nainital, Brigadier Gurdeep Singh Vs. Subha Singh and others) before the Board of Revenue against the order dated 2-3-1968 passed by the Collector Nainital as well as the order dated 14-1-1979 passed by the Additional Commissioner. Ultimately, the revision was allowed vide order dated 27-7-1979 and the order dated 2-3-1968 passed by the Collector Nainital was set aside. It was further ordered that amaldaramad should be made in accordance with the S.D.O.’s order dated 3-7-1967. It is pertinent to mention here that by the order dated 3-7-1967 passed by the Sub Divisional Officer, Kashipur in Revenue Case No. 25/72 of 1966-67, Babu Singh Vs. Gurdeep Singh, the objection filed by Babu Singh and others was rejected on the ground that if the appeal and the regular suits are decided in favour of the objectors, the records can be corrected on the basis of those orders, as mentioned above. The Board of Revenue while allowing the revision filed by Sri Gurdeep Singh, father of the respondent no.8 herein, set aside the order of the Collector dated 2-3-1968 and directed that amal daramad be made in accordance with the order of Sub Divisional Officer dated 3-7-1967. It is also pertinent to mention here that the learned Assistant Collector 1st Class/Up Ziladhikari Kashipur (Udham Singh Nagar) passed an order dated 16-5-2007 (Annexure No. 15 to the writ petition) in compliance of the order dated 27-7-1979 passed by the Board of Revenue Lucknow in Revision No. 34 of 1975-76 did not consider this fact that the Board of Revenue in its order had directed that amal daramad should be made in accordance with the order of Sub Divisional Officer dated 3-7-1967. It may be mentioned here that the order dated 3-7-1967 was passed by the Sub Divisional Officer on the objection filed by Babu Singh and others, wherein it was observed that no order for correction could 4 be passed since the appeal and regular suits are pending and that after the decision of the appeal as well as regular suits the entry can be corrected in accordance with those orders. It is thus obvious that the Parwana amal daramad was not issued in compliance of the order of Board of Revenue, rather it was issued on the basis of the order dated 27-7-1966 passed by the Record Officer. It appears that when application was moved against order dated 16-5-2007, referred to above, by the petitioners, the learned Sub Divisional Officer vide order dated 19-5-2007 (Annexure No.17 to the writ petition) has stayed the amaldaramad of Parwana dated 16-5-2007. By the order impugned dated 20-6- 2011 (Annexure No. 3 to the writ petition), the objection of the petitioners dated 19-5-2007 has been rejected and the order of issuance of Parwana amaldaramad dated 16-5-2007 has been maintained. From the discussion above, it is obvious that the learned Assistant Collector 1st Class/Sub Divisional Officer concerned has misdirected himself while issuing the Parwana amaldaramad and he did not consider the fact that the suits filed under Section 229B of the U.P.Z.A. and L.R.Act bearing Revenue Suit No. 22/204 of 87-88 Jagat Singh and others Vs. State of U.P. and others and Suit No. 22/207 of 1987-88 Bhagat Singh and others Vs. State of U.P. and others, pursuant to the directions of the Apex Court, before the Assistant Collector/Sub Divisional Officer were decreed on 26-9-1989. Copies of the judgments passed by the Assistant Collector have been annexed as Annexure Nos. 9 and 10 to the writ petition. Two separate appeals were preferred by the respondent no. 8 which were registered as Z.A. Appeal Nos. 167/89-90 and Z.A. Appeal No. 168/89-90 before the Commissioner, Kumaun Division, Nainital. Both these appeals were dismissed by order dated 6-10-1990 (Annexure No. 11 to the writ petition). It also appears that Appeal Nos. 164/89-90, 165/89- 90 and 166/89-90 were also preferred by the respondent no. 8 5 herein, which too were dismissed by order dated 6-10-1990 by the Commissioner, Kumaun Division, Nainital. Aggrieved by the order of the first appellate court, five separate second appeals were preferred before the Board of Revenue, Uttar Pradesh, which were ultimately transferred to the Additional Chief Revenue Commissioner, Uttaranchal, Dehradun and all those appeals were also dismissed on 25-2-2005 being abated. The petitioners have annexed copy of the order dated 25-2- 2005 as Annexure No. 12 to the writ petition. In the suit filed under Section 229B of the U.P.Z.A. and L.R. Act, Issue no. 5 was framed and the Assistant Collector has held in detail that the regular suit has overriding effect over summary proceedings under Section 33/39 of the Land Revenue Act, therefore, so far as the suit land pertaining to suits under Section 229B of the U.P.Z.A. and L.R. Act is concerned, the entries, which were made under Sections 33/39 of the Land Revenue Act pursuant to the orders referred to above are of no significance. So far as the rest of the land which is not subject matter of the suits under Section 229B of the said Act, if any entry is continuing wrongly in the revenue record, as contended by the learned counsel for the respondent nos. 8 to 10, it would be open to the parties to pursue the remedy before appropriate forum for correction of those entries. In view of the discussion above, since the Board of Revenue has not directed to issue Parwana amaldaramad in accordance with the order dated 27-7-1966 passed by the Record Officer, therefore, the learned Sub Divisional Officer has also committed a manifest error by issuing a Parwana Amal Daramad on the basis of that order because the direction was given by the Board of Revenue to issue Parwana Amaldaramad as per S.D.O.’s order dated 3-7-1967. By the order dated 3-7-1967, no order was passed for correction of entries rather the objection filed by Babu Singh and others was rejected, therefore, there was no occasion to issue Parwana amaldaramad by the Assistant Collector concerned. 6 It may also be mentioned that this Court in Writ Petition (M/S) No. 1591 of 2010 Ravindra Singh Vs. State of Uttarakhand and others by order dated 13-9-2010 passed the order that the Sub Divisional Officer/Assistant Collector 1st Class Kashipur shall decide the objection after hearing both the parties on merits without being influenced by the observations made in the judgment, but the learned Sub Divisional Officer has not considered this aspect and he also lost sight of the fact that after the orders were passed in summary proceedings under Section 33/39 of the Land Revenue Act, the suits under Section 229B of the U.P.Z.A. and L.R. Act have been decreed. In this view of the matter, the impugned order dated 20-6-2011 (Annexure No. 3 to the writ petition) as well as the order dated 16-5-2007 (Annexure No. 15 to the writ petition) are not tenable in the eye of law and are liable to be set aside. In the last, learned counsel appearing for the respondent no. 8 to 10, Mr. Navneet Kaushik, Advocate, has submitted that in one of the suits filed under Section 229B of the U.P. Z.A. and L.R.Act, the decree was modified in appeal by the appellate Court, but amal daramad was not made in the revenue records. If the respondents have any grievance, they may apply to the court concerned for amal daramad to be made according to the decree so passed in appeal. For the reasons and discussion above, the writ petition deserves to be allowed and is hereby allowed. The impugned order dated 20-6-2011 (Annexure –3 to the petition) and the order dated 16-5-2007 passed by the Assistant Collector 1st Class Kashipur are set aside. No order as to costs. If any entry had been made pursuant to the Parwana amal daramad following the order dated 27-7-1979 passed by the Board of Revenue in the revenue record, the same be expunged. (B.S.Verma, J.) RCP