Uttarakhand High Court
WPMS/1428/2018 on 22 May, 2023
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Office Notes,
reports, orders
SL. or proceedings or
Date COURT'S OR JUDGES'S ORDERS
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Registrar's order
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WPMS No.1428 of 2018
Hon'ble Sharad Kumar Sharma, J.
Mr. Rajesh Joshi, learned counsel for the petitioner.
Mr. R.C. Arya, learned Standing Counsel along with Mr. N.S. Kanyal and Mr. Devesh Ghildiyal, learned Brief Holder for the State.
Mr. Rajendra Singh Azad, learned counsel for respondent nos.5 to 12 and 14 to 23.
As a consequence of the culmination of proceedings under Sub-section (2) of Section 21 of the Consolidation of Holdings Act, the Settlement Officer Consolidation, while allowing the appeal and setting aside the order of 12.09.1996, has remitted the matter back to the court of Consolidation Officer to pass an appropriate order on merits.
On the basis of the said order of remand, the Collector had proceeded to pass an allotment order being Order No.7 of 2014-15 while exercising its powers under Section 122C of the U.P. ZA & LR Act. As a consequence thereto, as per the resolution of Gram Sabha of 27.12.2014 and, as per the Appendix annexed to the order passed by the Assistant Collector, the land in the proportion as it was shown to be given in the Schedule, it was contended that it has been allotted to the different tenure holder whose name finds place in column no.1 of the schedule of allotment made under Section 122C of the U.P. ZA & LR Act.
If the said resolution is taken into consideration, it rather remarks, that on the report of the Tehsildar, as it was submitted on 12.01.2015, the Gram Sabha has passed a resolution on 27.12.2014 and as per the Appendix 20, the land was proposed to be allotted to the persons whose name has been reflected in the Schedule appended to the order of the Assistant Collector dated 08.07.2015.
What is important to remark is that if the said order is taken into consideration, the court of Assistant Collector has observed, that prior to acting upon the resolution of the Gram Sabha and the report of Tehsildar dated 12.01.2015, the Land Management Committee of Pargana and Tehsil Bhagwanpur, District Haridwa, while passing its resolution on 27.12.2014, had issued wide publication on 18.06.2015. It was that after issuing the publication, the objections were invited. When the objections were preferred, the Gram Sabha after considering the objections had issued a resolution 27.12.2014, observing therein that before the court of Assistant Collector, none has produced any objection as such.
Hence, the contention of the learned counsel for the petitioner that the allotment made by Order No.7 of 2014-15 under Section 122C of the U.P. ZA & LR Act, happens to be in violation of principle of natural justice is not acceptable, because there was a wide circulation which was made by publication, inviting objections and it has also been observed by the court of Assistant Collector, that no objection has been preferred. Hence, the order passed by the Assistant Collector on 08.07.2015 was with due communication and, hence, the opportunity of hearing would be deemed to have been granted to the present petitioner.
As against the order passed by the Assistant Collector on 08.07.2015, in Case No.7 of 2014-15, the petitioner preferred a revision being Revision No.32 of 2015-16 by invoking the provisions contained under Section 333 of the UP ZA & LR Act.
While considering the revision, the Additional Commissioner had partly allowed the revision. The order as passed on 08.07.2015 was suspended to be made effective and the Assistant Collector was directed to re-decide the matter afresh. The relevant part of the order is extracted hereunder:-
"आदे श बलयु� होने के कारण �नगरानी आं�शक रूप से स्वीकार क� जाती है । अवर न्यायालय क� पत्रावली इस �नद� श के साथ कलक्टर, ह�र�ार के न्यायालय को प्रे�षत क� जाती है �क उपरो� �ववेचना के आलोक म� गुणदोष पर आदे श पा�रत करे । कलक्टर, ह�र�ार के न्यायालय म� उपरो� वाद म� �नणर्य होने तक अवर न्यायालय �ारा पा�रत आदे श �दनांक 8-7-2015 का प्रभाव स्थ�गत रहे गा। �नगरानीकतार् संशोधन प्राथर्ना पत्र कलक्टर न्यायालय म� प्रस्तुत करे । प�कार �दनांक 12-12-201 6 को कलक्टर न्यायालय म� उपिस्थत हो। इस न्यायालय क� पत्रावली बाद आवश्यक कायर्वाह� सं�चत हो।"
The respondent, being aggrieved against the part of the order suspending the decision taken by the Collector on 08.07.2015 of making allotment which was due to the various tenure holders, as it has been given in the appendix, had preferred a revision before the Board of Revenue, being Revision No.165 of 2016-17. Learned counsel for the petitioner has submitted that the revision preferred by the respondent before the Board of Revenue, being Revision No.165 of 2016-17 invoking the provisions under Section 333 of the UP ZA & LR Act, would not be maintainable.
This Court is not in agreement with the argument extended by the learned counsel for the petitioner for the reason being that the revision preferred by the petitioner, before the court of Commissioner would rather create a bar for him to prefer a revision before the Board of Revenue. Under Section 333 of the UP ZA & LR Act, no bar, as such, would be created in relation to those persons, who are affected by an order, and if they intend to prefer a revision before the Board of Revenue, because their revision before the Board of Revenue would be treated as to be the first revision against the cause of action for which it has been filed.
The preference of the first revision before the Commissioner by the petitioner would not create any impediment for the respondent to file Revision No.165 of 2016-17 before Board of Revenue, in view of the provisions contained under Sub-section (2) of Section 333 of the UP ZA & LR Act, which is extracted hereunder:-
"[333. Power to call for cases.-(1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding [other than proceeding under sub-section (4-A) of Section 198] decided by any court subordinate to him in which appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate court ap- pears to have; (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of jurisdiction illegally or with material irregular- ity; the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.
(2) If an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no fur- ther application by the same person shall be entertained by any other of them.]"
The revision, thus preferred before the Board of Revenue by the respondent, has been allowed by an order of 07.03.2018, which is impugned in the present writ-petition. As a consequence of the passing of the order by Board of Revenue, the revision was allowed. The order which was passed by the Commissioner on 21.11.2016 suspending the allotment order of 18.07.2015 and the matter was remanded back to the Collector to re-decide the matter of allotment afresh, in accordance with the provision contained under Section 122C of the U.P. ZA & LR Act. The relevant directions issued by the Board of Revenue are extracted hereunder:-
"आदे श।
�नगरानी स्वीकार कर अपेि�त आदे श 21-11- 2016 का वह अं श िजसके �ारा आवास स्थल आवंटन आदे श �दनांक 18-07-2015 स्थ�गत �कया गया है को अपास्त �कया जाता है तथा प्रकरण कलेक्टर , ह�र�ार को प्र�त प्रे�षत �कया जाता है । प�कार �दनांक 20-04- 2018 को कलेक्टर, ह�र�ार के सम� उपिस्थत ह�।"
The principal grievance of the petitioner is that he is not aggrieved by the order of remand passed by the Board of Revenue, but rather his grievance is confined as against the modification of an order passed by the Assistant Collector dated 21.11.2016 by virtue of which the allotment of 18.07.2015, was suspended to be made effective, that has been modified to that extent and rather the Assistant Collector has been directed to decide the matter afresh hence in the absence of there being any interim order of staying of allotment order dated 18.07.2015, which the petitioner intends that it to continue to operate, as he contends, that he continues to be in possession in relation to the pleadings raised by him in the writ-petition that even after the allotment, he continues to be in possession over the land in question.
The plea taken by the petitioner has been objected by the learned Standing Counsel in the counter affidavit filed by him on behalf of the Assistant Collector. In the counter affidavit thus filed in paragraph no.6, the learned Standing Counsel has specifically pleaded, that the Land Management Committee of Raipur, vide its earlier agenda of 19.12.2014 has invited objections by the beats of drums on 22.12.2014 and then only it had passed a resolution on 27.12.2014, meaning thereby, all the eligible persons and the persons who are likely to be affected in general abadi were given an information by the beats of drum, which is a procedure prescribed under the Revenue Law and if petitioner at all had any grievances, as such, he ought to have raised his objection at the stage when the Assistant Collector was considering the proposal of allotment of land by an order of 08.07.2015.
The Assistant Collector has observed that no objection was filed. In that eventuality, the petitioner cannot have a grievance that he was not noticed and the order of allotment of 08.07.2015 was bad, since being in violation of principles of natural justice.
Further, the learned Standing Counsel has taken a stand in paragraph no.6 of the counter affidavit that since after the allotment made on 08.07.2015, the possession has already been handed over to the allotees, whose name figured in the order of 08.07.2015. The remittance order could be only for the purpose to consider the allotment process under Section 122C but the possession which has already been handed over, that cannot be disturbed on the basis of an order of remand passed by the Assistant Commissioner, in the revision preferred by the petitioner.
This counter affidavit stands adopted by the learned counsel for the respondent, who has submitted his argument based upon the stand which was taken by the learned Standing Counsel in the counter affidavit.
In the rejoinder affidavit, thus preferred by the learned counsel for the petitioner in response to the counter affidavit of respondent no.2 and 3 and, particularly, in the context of the aspect of handing over of the possession, he has responded to the same in paragraph no.5 of the rejoinder affidavit where certain assertion has been made, that the contention of the respondent that the allottees have been given possession and are residing in the disputed land, is totally false and fabricated. The true and real facts are that the petitioner claims himself to be in possession of the land allegedly allotted by the Gram Sabha under Section 120C(2)(C) by an order of 08.07.2015.
The said pleading with regards to the petitioner being still in possession, as raised in the rejoinder affidavit, is shown on the basis of the record, but there is no document as such placed on record along with the rejoinder affidavit to substantiate his argument that, as per the revenue records, he himself continues to be in possession, despite the order of allotment of 08.07.2015.
Since, the order passed by the Board of Revenue in a revision preferred by the private respondent, remitting the matter back to the Assistant Collector to re-decide the matter afresh pertaining to the allotment made under Section 122C, is to be decided in the absence of disturbing allotment already made on 08.07.2015, because of the said allotment being disturbed, it would rather create a chaos in relation to those allottees to whom the possession has already been transferred.
Hence, while dismissing this writ-petition, it is left open for the petitioner to raise all his contentions on the revival of the proceedings before the Assistant Collector under Section 122C of the U.P. ZA & LR Act, pertaining to his claim of title over the land which he contends that he holds a bhumidhar rights over which have been allotted by the Gram Sabha under Section 122C of the U.P. ZA & LR Act, dehors to the provisions of law.
Owing to the above reasons, the view taken by the Board of Revenue of remanding the matter to be decided by the Assistant Collector without disturbing the order of allotment of 08.07.2015 is well in accordance with the pleadings raised by the respondent in the counter affidavit.
Thus, the writ-petition lacks merit and the same is, accordingly, dismissed.
(Sharad Kumar Sharma, J.) 22.05.2023 Sukhbant