Allahabad High Court
Shiv Balak Singh And Another vs Board Of Revenue And Others on 19 February, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Neutral Citation No. - 2025:AHC-LKO:11293 Court No. - 3 Case :- WRIT - C No. - 1000097 of 1995 Petitioner :- Shiv Balak Singh And Another Respondent :- Board Of Revenue And Others Counsel for Petitioner :- S.C.Misra,I.P. Singh,K.K. Singh,Mohammad Aslam Khan,P.S.Pandey Counsel for Respondent :- C.S.C.,Ajai Kumar Nigam,G.S.Nigam,Sunil Kumar Mishra,Vivek Singh Hon'ble Irshad Ali,J.
1. Supplementary affidavits filed by both the parties are taken on record.
2. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohd. Aslam Khan, learned counsel for the petitioners and Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel for the State-respondent.
3. In spite of notice to the respondents, no one appeared on behalf of respondent Nos.3 to 5.
4. By means of the present writ petition, the petitioners have challenged the order dated 6.9.1994 contained as Annexure-1 to the writ petition. It is further prayed to issue a writ or direction in the nature of mandamus thereby commanding the respondents not to implement the impugned order dated 6.9.1994 and further they be restrained from proceeding anymore.
5. Factual matrix of the case is that the petitioners have been in physical possession over the plot No.5053 measuring 3 bighas 8 biswa and plot No.5054 measuring 3 bighas 7 biswa since the period of zamindari, however, their names were not recorded in the records of Unnao. When the consolidation proceeding started in the village, during partal, the petitioners were found in physical possession over the aforesaid plots in dispute, however, the said plots were recorded as banjar in the revenue records.
6. The petitioners filed an objection under Section 12 of Consolidation of Holdings Act before the Consolidation Officer, Nawabganj, Unnao with a prayer that their names be recorded as Seerdar over the plots in dispute. The Consolidation Officer directed the Assistant Consolidation Officer to prepare a report after making spot inspection of the plots in dispute and as such the Assistant Consolidation Officer prepared a report thereby giving his finding that plots are in possession of the petitioners and they are being cultivated by them and these plots have never been cultivated by the Gaon Sabha and no dispute of whatsoever nature were raised by the public or Gaon Sabha at the time of Consolidation partal, however, these plots are recorded in the village papers as banjar.
7. Vide judgment and order dated 21.1.1994, the Consolidation Officer, Nawabganj, Unnao allowed the case of the petitioners filed by them under Section 12 of Consolidation of Holdings Act thereby directed that plot No.5053 measuring 3 bighas 8 biswa and 2 biswansi and plot No.5054 measuring 3 bighas, situated at Gaon Sabha, Unnao be recorded in the name of the petitioners as Seerdars, the land revenue be fixed according to the Rules and amal daramad be made accordingly.
8. Against the aforesaid judgment dated 21.1.1994, neither the Gaon Sabha nor other villagers including the respondent No.5 preferred appeal before the next higher court of Consolidation nor before any other court and as such the finding and order passed by the Consolidation Officer dated 21.1.1994 became final.
9. It is submitted that although specific direction was given to record the name of the petitioners as tenure holders as Seerdars of the plots in dispute and it was also directed that amal daramad be made accordingly, but inadvertently their names could not be recorded in the records of the village, however, the petitioners have remained continuously in possession over the plot in dispute and they have been cultivating over the land. It is relevant here to mention that after completion of the consolidation proceedings, the village has been notified under Section 52 of the Consolidation of Holdings Act, thus, finding about the entries over the land of village have become final and the title of the petitioners as held by the consolidation authority cannot be challenged before any court, it is submitted by learned counsel for the petitioners.
10. It is submitted that in spite of the aforesaid facts, names of the respondent Nos.4 and 5 were recorded in varg-char in the intkhab khatauni, though they have never been in possession over the plots in dispute and they have no right. Moreover, rights and titles of the petitioners have already been decided by the Consolidation Officer and as such feeling aggrieved of the aforesaid action, the petitioners filed a case under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act, 1950 on 12.8.1981 before the Sub Divisional Officer, Unnao with a prayer that the petitioners be declared as Bhumidars with transferable rights over the plots in dispute, because they are in possession over the said land with effect from the period of zamindari and their title and rights have already been decided by the Consolidation Officer.
11. Subsequently, notices were issued to the respondents and thereafter, the issues were framed by the Sub Divisional Officer and documentary as well as oral evidences were produced by the parties. The statement of the village Pradhan of the Mauza-Unnao, District Unnao, where the disputed plots are situated were also recorded, however he stated that the petitioners are in possession over the plots in dispute from the period of zamindari and they are continuously cultivating over the said plots. They have never been dispossessed by any person till date. It was also submitted that neither the Gaon Sabha nor the respondent Nos.4 and 5 were ever in possession over the plots in dispute, further the Gaon Sabha has also submitted that Gaon Sabha has no concern with the said plots.
12. Vide judgment and order dated 16.7.1981, the case of the petitioners was allowed by the Assistant Collector First Class/ Sub Divisional Officer thereby holding that the petitioners are Bhumidars of the plots in dispute having transferable rights. Since the petitioners had claimed their Bhumidari rights over the plots in dispute before the Sub Divisional Officer, Unnao, however, the Assistant Collector held the petitioners as Seerdar (Bhumidar, with transferable rights) of the land. As a matter of fact, the petitioners have been in possession over the land in dispute with effect from the period of zamindari and they became Bhumidar (with transferable rights) of the said land and as such, the petitioners filed an appeal before the Commissioner, Lucknow with a prayer that the judgment and decree passed by the court of Assistant Collector First Class/ Sub Divisional Officer be modified and the appellants be declared to be Bhumidars with transferable rights.
13. Vide judgment and order dated 4.3.1982, the Additional Commissioner, Lucknow allowed the appeal filed by the petitioners thereby modifying the judgment of the Assistant Collector First Class/ Sub Divisional Officer, Unnao dated 8.7.1981 thereby declaring the petitioners as Bhumidars with transferable rights of the plots in dispute.
14. Against the aforesaid order, the respondent Nos.2 and 4 filed a review application before the Additional Commissioner, Lucknow with a prayer that the petitioners should not be declared as Bhumidars with transferable rights over the land in dispute.
15. It is submitted that neither the State nor the Gaon Sabha have ever preferred an appeal against the order dated 9.7.1981, passed by the Assistant Collector First Class/ Sub Divisional Officer, whereby the petitioners have been declared Seerdars of the land in dispute. Moreover, the review application was moved by them with a delay of five years eight months and three days without explaining the reasons of filing the review application belatedly.
16. It is submitted that although no second appeal lies against the order passed by the Additional Commissioner passed on a review application and application for condonation of delay for filing the same, however, against the judgment dated 25.1.1990, passed by the Additional Commissioner, the respondent Nos.2 and 4 filed a second appeal No.17 of 1990 (State of U.P. Vs. Shiv Balak Singh & others) before the respondent No.1.
17. Against the second appeal and application for condonation of delay in filing the appeal, the petitioners filed their objection with the submission that the said second appeal is not maintainable as there is no provision for the same and the same has been filed belatedly.
18. It is submitted that the respondent No.1 decided the aforesaid second appeal converting it into a case under Section 333 of U.P. Zamindari Abolition & Land Reforms Act and passed the impugned order in a most illegal and arbitrary manner thereby remanding the paper book of the case for adjudication of the trial court i.e. Sub Divisional Officer on the point that whether the Consolidation Officer had jurisdiction to declare the petitioners as Seerdars of the land in dispute. Further, the Collector/ District Magistrate also directed to instruct the State counsel to do pairvi of the case in proper manner.
19. It is submitted that Section 333 of U.P. Zamindari Abolition & Land Reforms Act gives power to the Board of Revenue to call for the records of any suit or proceeding decided by the subordinate court as acted in without jurisdiction manner. So far as the present case is concerned, the Additional Commissioner had jurisdiction to pass the orders and has not acted in excess of his jurisdiction, therefore, the impugned order passed by the Board of Revenue converting the second appeal filed by the respondent Nos.2 and 4 to a case under Section 333 of the U.P. Zamindari Abolition & Land Reforms Act is without jurisdiction and therefore, the impugned order is wholly illegal and arbitrary.
20. Submission of learned counsel for the petitioners is that the second appeal against the order of review petition is not maintainable in view of the provision contained under Section 331 of the U.P. Zamindari Abolition & Land Reforms Act. Second submission is that the Board of Revenue has committed manifest error of law in remanding the matter back to decide the issue that whether the petitioners are Bhumidars with transferable rights or not. Next submission is that once the first appeal was decided, the aggrieved parties i.e. respondents in this petition were to file second appeal before the Board of Revenue and not against the order passed in review petition filed after a lapse of more than five years.
21. In rebuttal, learned Additional Chief Standing Counsel invited attention of this Court on paragraph 4 of the counter affidavit, which recites that against the order of Consolidation Officer, a proceeding was initiated by filing appeal before the Settlement Officer (Consolidation), which has been allowed in the year 2013, copy of the said order is enclosed with the supplementary affidavit as Annexure SA-1 and the same has been filed alongwith supplementary affidavit as Annexure-1 filed by the petitioners.
22. Learned Additional Chief Standing Counsel, on the query made in regard to the maintainability of revision to treat the appeal into revision can be maintained or not, he submitted that the second appeal will lie against the order passed under the statute and it cannot be converted into revision.
23. After having heard the submission advanced by learned counsel for the parties, I perused the material on record.
24. The question involved in the present writ petition is that whether against the order of revision passed by the Additional Commissioner dated 3.8.1987, second appeal lies before the Board of Revenue or that can be converted into revision in view of the provision contained under Section 333 of the U.P. Zamindari Abolition & Land Reforms Act, 1950. The order under challenge dated 6.9.1994. In view of the above fact, the order passed in appeal by the Settlement Officer (Consolidation) cannot be taken into account in the order which is challenged in the year 1994.
25. In view of the provisions contained under Section 331 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, the appeal cannot be converted into revision, therefore, the order passed by the Board of Revenue suffers from apparent illegality and cannot be sustained in the eyes of law. In the counter affidavit, recital has been made that against the order of the Consolidation Officer, holding that the petitioners are Seerdars, some amendment was incorporated in the U.P. Zamindari Abolition & Land Reforms Act to the effect that Seerdars shall be treated as Bhumidars with transferable rights. A suit under Section 229-B was filed by the petitioners, which was allowed holding the petitioners to be Bhumidars with non-transferable rights, against which first appeal was filed before the Commissioner, which was allowed, holding the petitioners to be Bhumidars with transferable rights vide judgment dated 4.3.1982.
26. Against the order passed in the first appeal, the second appeal lies before the Board of Revenue, but that was not filed by the respondents, rather a review was filed, which was dismissed on 25.1.1990 and against the order passed in the review, second appeal was filed, which was converted into revision, which is not permitted in the eyes of law, therefore, the order impugned suffers from apparent illegality and is liable to be set aside. Accordingly, the order dated 6.9.1994 is hereby set aside. The writ petition succeeds and is allowed.
27. No order as to costs.
Order Date :- 19.2.2025 Gautam