Dinesh Chandra and 3 Others Vs State of Up and 5 Others

Neutral Citation No. - 2024:AHC:131936

Court No. - 50

Case :- WRIT - B No. - 2696 of 2024

Petitioner :- Dinesh Chandra And 3 Others Respondent :- State Of Up And 5 Others Counsel for Petitioner :- Adya Prasad Tewari,Prem Sagar Verma Counsel for Respondent :- C.S.C.,Krishna Kant Singh

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Hon'ble Ashutosh Srivastava,J.

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Heard Sri A.P. Tiwari, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Sri K.K. Singh, learned Counsel who has put in appearance on behalf of the respondent no. 5, the Gram Panchayat/LMC concerned.

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The writ petition has been filed questioning the order dated 10.04.2024 passed by the Board of Revenue, U.P., Circuit Court-2, Agra in Case registered as REV/46/2013-2014 under Section 333 of the U.P. Z.A.&L.R. Act, 1950 whereby and whereunder the revision preferred against the order dated 04.06.2014 of the Additional Commissioner (Admin), Aligarh Division, Aligarh has been partly allowed. The order dated 04.06.2014 has been set aside and the matter has been remitted back to the Additional Commissioner to pass fresh orders taking into consideration the observations made in the order dated 10.04.2024.

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It is contended by learned counsel for the petitioners that Gata No. 75/1 area 0.231, Gata No. 238 area 0.115, Gata No. 235/1 area 0.461 and Gata No. 702/2 area 0.230 hectare were recorded as Pasture land (Charagah). Vide resolution dated 04.04.1994 of the LMC, the said Gatas were proposed to be exchanged with Gata No. 541/5 area 0.300 and 487/12 area 0.737 hectares recorded as 'usar'. The exchange was ordered by the SDO under Section 161 of the U.P. Z.A.&L.R. Act, 1950 vide order dated 10.06.1994. Likewise the Gata No. 239 area 0.184 which was recorded as Khad ke Gaddeh was also exchanged with Gata No. 541/6 area 0.184 recorded as Usar and Gata No. 232 area 0.623 recorded as Khalihan was exchanged for Gata No. 6/1 area 0.623 recorded as Usar under the order dated 10.06.1994. After the exchange the plots no. 232/2 area 0.461, plot no. 232/1, 238, 239 area 0.461, Plot No. 75/1, 702/2 area 0.461 and plot no. 235/1 area 0.461 hectares came to be allotted to the petitioners and they were admitted as Bhumidhars with non transferable rights under Section

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195 of the U.P. Z.A.&L.R. Act, 1950. The names of the petitioners stood recorded over the plots allotted in the revenue records.

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It is contended by learned counsel for the petitioner that after 16 years of the allotment of the land in favour of the petitioners a report was submitted by the SDO dated 27.07.2010 that the petitioners have been allotted the public utility land. A notice was issued to the petitioners and a Case being Case No. 87 of 2010 (State Vs. Atarshree) was registered. The District Magistrate vide judgment and order dated 14.11.2013 cancelled the allotment in favour of the petitioners. Aggrieved the petitioners filed revision before the commissioner Aligarh Division, Aligarh taking the plea that the order cancelling the allotment was hit by the provisions of Section 198(6) of the U.P. Z.A.&L.R. Act and that the factum that the land allotted had been exchanged under order dated 10.06.1994 had not been taken into consideration. The revision of the petitioners was allowed vide order dated 04.06.2014 and the order of the Trial Court dated 14.11.2013 was set aside.

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Learned counsel for the petitioners vehemently submits that the order dated 04.06.2014 was not put to challenge by the State or the Gaon Sabha/LMC. However, it was challenged by the respondent no. 6 who is resident of different village and also cannot be said to be aggrieved so as to challenge the order filed a revision being revision no. 46 of 2014. The petitioners filed their objections to the maintainability of the revision dated 24.09.2014. The Board of Revenue has under the impugned order dated 10.04.2024 allowed the revision and remanded the matter back for decision afresh to the Additional Commissioner (Administration), Aligarh Division, Aligarh.

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Sri A.P. Tiwari, has vehemently argued that the order of the Board of Revenue dated 10.04.2024 suffers from patent illegality inasmuch as it has not recorded any finding with regard to maintainability of the revision at the instance of the respondent no. 6 or as to his locus standi in preferring the revision being a resident of another village. Secondly, it is argued that proceedings for cancellation of the allotment of land in favour of the petitioners has been taken after a lapse of nearly 17 years and such proceedings were hit by Section 198(6) of the U.P. Z.A.&L.R. Act and were barred by limitation. Thirdly it has been argued that the Board of Revenue under the impugned order dated 10.04.2024 ought not to have remanded the matter back for consideration by the Additional Commissioner inasmuch as the Board of Revenue exercises powers under Section 333 of the U.P. Z.A.&L.R. Act, 1950, which is co-extensive to the powers exercised by the

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Additional Commissioner who also exercises powers under Section 333 of the U.P. Z.A.&L.R. Act and this being the legal position ought to have called for the records itself and passed orders deciding the lis. There was no occasion to remand the matter back. Reliance has been placed upon the decision of this Court in the case of Mohd. Yunus khan Vs. State of U.P. and others, Writ Petition No. 67272 of 2010 decided on 25.11.2010. Reliance is also placed upon the case of Chhidda and others vs. State of U.P. and others , reported in 2019 (8) ADJ 122 for the proposition that the law of limitation shall apply in cases of allotment of land covered by Section 132 of the U.P. Z.A.&L.R. Act. Reliance is also placed upon decision of this Court in the case of Ram Sewak Singh vs. Board of Revenue reported in 2014 (124) RD 174 for the proposition that exchange of land covered by Section 132 of the U.P. Z.A.&L.R. Act can be permitted. It is thus contended that the order dated 10.04.2024 passed by the Board of Revenue suffers from patent illegality and is liable to be quashed.

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Per Contra Sri K.K. Singh, learned counsel for the Respondent no. 5 and learned Standing Counsel in opposition to the writ petition submit that the writ petition has been filed assailing a remand order. Adequate opportunity has been granted to the petitioners to establish their case and time also has been fixed within which the proceedings would be decided and as such no interference is called for and the writ petition is liable to be dismissed at the threshold.

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I have heard the learned counsels for the parties and have perused the record. The Board of Revenue under the impugned order dated 10.04.2024; has adequately dealt with the objection of the petitioners as regards the maintainability of the revision at the instance of the respondent no. 6. The Board of Revenue has considered the provisions of Section 333(1) of the U.P. Z.A.&L.R., 1950 and come to the conclusion that the revision at the instance of the respondent no. 6 was maintainable. The Court finds no illegality or irregularity in the said finding. The Board of Revenue under the impugned order found that the disputed plots were reserved for charagah, khad ke gaddeh and khalihan during the consolidation operations and this formed the basis of the cancellation order passed by the District Magistrate. The order of the District Magistrate was resinded by the Additional Commissioner and the allotment reinstated in favour of the petitioners on the ground that land reserved for Charagah, Khad ke gaddeh and khalihan at the time of consolidation could not be properly used for the said category and the SDO reserved the same

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amount of barren land as charagah, khad ke gaddeh, khalihan in Gata Nos. 541/5, 541/6 and 487/2 etc. relaxing the classification made by the Consolidation Authorities. The Board of Revenue has held that the Additional Commissioner has not expressed any opinion in his decision regarding the circumstances under which the said order was passed and whether the property in question was available for inclusion in the allotment proposal of the LMC. The Board of Revenue was of the opinion that the Additional Commissioner proceeded to allow the revision of the petitioners even without looking into the records or calling for the relevant files and merely relied upon the entry in the revenue records. The Board of Revenue accordingly set aside the order of the Additional Commissioner dated 04.06.2014 and remanded the matter back to the Additional Commissioner to call for the entire records regarding the action taken by the SDO regarding the category change and determine the permissibility and correctness of the same within a period of four months after providing due opportunity of hearing to the parties.

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The case law cited on behalf of the petitioners in the case of Mohd Yunus Khan (supra) has no applicability to the facts of the present case inasmuch as in the case cited the question was regarding remand by an appellate authority i.e the State Transport Appellate Tribunal. In the case at hand, the remand has been ordered by a revisional authority exercising powers under Section 333 of the U.P. Z.A.&L.R. Act, 1950. The powers of a revisional court under Section 333 is not akin to the powers of an appellate court. Revisional court has no power to re-apprise the evidence and to substitute its own findings recorded by the court below. The section applies to the jurisdictional errors only and not to irregular exercise or non-exercise of it or illegal assumption of it.

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In view of the above, the court is of the opinion that the Board of Revenue committed no error in remanding the matter to the additional commissioner. The order of the Board of Revenue is just and proper and call for no interference by this Court.

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The writ petition is devoid of merits and is accordingly dismissed .

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No order as to costs.

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Order Date :- 2.8.2024 Anjali

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Digitally signed by :- ANJALI SHARMA High Court of Judicature at Allahabad

Dinesh Chandra and 3 Others v. State of Up and 5 Others

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