UPENDRA KUMAR Vs. KAMRUDDIN

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 12-10-2017 passed by the Board of Revenue in Revision No.2324-PBR/2015, by which the orders of mutation dated 19/03/1991, 14/12/1992, 27/01/1993 and 07/03/2005 passed by Revenue Authorities have been set aside.

(2.) It is the contention of the petitioners that on the strength of sale deed dated 26/07/1990, one Hasina Begum got her name mutated in the revenue records by order dated 19-03-1991. This order was challenged by filing an appeal before the SDO, which was allowed by order dated 14/12/1992 and the matter was remanded back. Thereafter, the said Hasina Begum challenged the order of the SDO, before the Court of Collector, which was dismissed by order dated 27-01-1993 and the second revision filed by Hasina Begum was also dismissed by Additional Commissioner, Gwalior Division, Gwalior by order dated 07-03-2005. Thereafter, the Naib Tahsildar on the basis of sale deed dated 26/07/1990, mutated the names of the petitioners by order dated 25/01/2007. This order was passed after granting opportunity of hearing to Hasina Begum. Thereafter, the appeal was dismissed by SDO by order dated 15/02/2012. The said order was put to challenge in second appeal before the Court of Additional Commissioner, Chambal Division, Morena, which too has been dismissed by order dated 24/06/2015. Against this order, a revision was filed by the respondents No.1 to 5. Notices were issued and later on, an order was passed by the Board of Revenue to issue fresh notice on the correct address of the petitioners. However, from the order sheets, it appears that neither the correct address was given nor fresh process fee was paid and abruptly on one day, an oral prayer was made for substituted service by publication which was accepted by the Board of Revenue by order dated 08/03/2017 and thereafter, on 13/04/2017. However, the Board of Revenue without deciding that whether the notices were duly published or not, proceeded further with the matter and passed an ex parte order against the petitioners, thereby setting aside all the orders passed by the Courts below.

(3.) Challenging the order passed by the Board of Revenue, it is submitted by learned Senior Counsel for the petitioners that the substituted service by way of publication can be directed only when if the Court comes to a conclusion that the defendant is keeping out of the way for the purpose of avoiding service or for any other reasons summons cannot be served in the ordinary way. In the present case, there is nothing on record to suggest that the respondents No.1 to 5 had ever tried to serve the petitioners by giving their correct address. However, there is nothing on record to show that the petitioners were, in any manner, keeping out of the way for the purpose of service of notice and even it is nowhere mentioned that how the summons cannot be served in the ordinary way.