Allahabad High Court
Kashi And Another vs State Of U.P. And 7 Others on 10 March, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:34931 Court No. - 37 Case :- WRIT - C No. - 29427 of 2024 Petitioner :- Kashi And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Ashok Kumar Dubey Counsel for Respondent :- Anil Kumar Mishra,C.S.C.,Pradeep Singh Hon'ble Syed Qamar Hasan Rizvi,J.
1. Heard Sri Ashok Kumar Dubey, learned counsel for the petitioners, Sri Jitendra Narayan Rai, learned Additional Chief Standing Counsel for respondent nos.1, 2, 3 & 8 and Sri Anil Kumar Mishra, learned counsel appearing on behalf of respondent nos.4 and 5.
2. Sri Pradeep Singh, Advocate has received notice on behalf of respondent no.7-Village Panchayat.
3. By means of present writ petition, petitioner has assailed the order dated 29.07.2024 passed by the Additional Commissioner, Vindhyachal Division, Mirzapur in Case No.111 of 2024 (Kashi and others Vs. Sudhwant and others) and has also challenged the order dated 21.10.2023 passed by Sub-Divisional Magistrate/Assistant Collector, 1st Class, Tehsil - Obra, District - Sonbhadra in Case No.1164 of 2022 (Computer Case No.T202216660401164 of 2021 (Sudhwant Vs. Kashi and others).
4. Learned counsel for the petitioners submits that the impugned order dated 21.10.2023 passed by Sub-Divisional Magistrate/Assistant Collector, 1st Class, Tehsil - Obra, District - Sonbhadra is an erroneous order mainly on the ground that the provisions of Section 30 (2) read with Section Rule 26 of the U.P. Revenue Code, 2006 wherein it is provided that Minjumla shall be divided physically in the prescribed manner and revenue records including map and Khasra shall be corrected accordingly. The said power is vested only in the Collector and not in the Sub-Divisional Magistrate and as such the order passed by the Sub-Divisional Magistrate is without jurisdiction. The second ground of challenge as raised by learned counsel for the petitioners is that the final decree has been passed in utter disregard to the provisions of Section 116 (2) of the U.P. Revenue Code, 2006 read with Rules 107 and 109 of the U.P. Revenue Code Rules, 2016.
5. The contention of learned counsel for the petitioners is that the Kurra prepared by area Lekhpal is contrary to the provisions of Rule 109 (5) (g) of the U.P. Land Revenue Code Rules, 2016. It has also been asserted on behalf of learned counsel for the petitioners that the Additional Commissioner, Vindhyachal Division, Mirzapur/respondent no.2 rejected the appeal and affirmed the impugned order dated 29.07.2024 passed by Sub-Divisional Magistrate/Assistant Collector, 1st Class, Tehsil - Obra, District - Sonbhadra without taking into consideration the grounds raised by the petitioners in the appeal. He very categorically submitted that at the time of passing the orders and decree dated 20.10.2023 and 21.10.2023, respectively the respondent no.3 has failed to take into consideration that Arazi No.214 Ka M having area of 1.1260 Hector was partitioned between Kashi and Banarsi i.e. petitioner nos.1 and 2 on mutual understanding upon which pump-set and small house are constructed, which were partitioned in un-equal three parts, by respondent no.3, as the result of which the petitioners have been deprived from its' benefits.
6. Further, he has very emphatically submitted that while passing the impugned order/decree the respondent no.3 has failed to follow the provisions of Rule 26 (3), 26 (4), 26 (5) (c), 26 (5) (d), 26 (7), 26 (8), 26 (9) and 26 (10) of U.P. Revenue Code Rules, 2016.
7. Per contra, learned counsel appearing on behalf of respondent nos.4 and 5 vehemently opposed the present writ petition mainly on the ground that the petitioners have an efficacious statutory remedy of second appeal available under Section 208 of the U.P. Revenue Code, 2006 and where he has every opportunity to raise the questions before the appellate court. In support of his contention he relied upon the judgment of passed by this Court in the case of Ircon International Limited Vs. Deepak Yadav reported in 2019 (5) AWC 4542.
8. The preliminary objection as raised by the learned counsel for the respondents regarding the entertainability of the present writ petition, finds substance.
9. In view of the above, this Court finds that the petitioners does have the statutory remedy of Appeal under Section 208 of the U.P. Revenue Code, 2006.
10. In view of the above, this Court declines to entertain the present writ petition at this stage on the ground of availability of statutory remedy as provided under Section 208 of U.P. Revenue Code, 2006.
11. However, in the interest of justice, it is provided that in case, the petitioners prefer an appeal under Section 208 of U.P. Revenue Code, 2006 before the learned Board of Revenue within a period of two weeks from the date of the passing of this order, the learned Board of Revenue shall entertain the said appeal on merits and pass appropriate orders strictly in accordance with law. It is expected that the learned Board of Revenue shall consider all the grounds raised in the said appeal on merits.
12. With the aforesaid observations/directions, present writ petition is disposed of.
Order Date :- 10.3.2025 Atul