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2014 DIGILAW 2291 (ALL)

Jhabbar v. Board of Revenue, U. P.

2014-08-01

RAN VIJAI SINGH

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JUDGMENT Ran Vijai Singh,J. Heard Sri K.N. Shukla, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Vijai Bhan Singh, holding brief of Sri R.C. Upadhyay, learned counsel for the Gaon Sabha. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 31.3.2014 passed by learned Member, Board of Revenue in revision no. 105/2006-07 (Jhabbar Vs. State) and order dated 23.4.2007 passed by Additional Commissioner, Azamgarh Division, Azamgarh in revision no. 82/M (State Vs. Jhabbar) and revision no. 121/147/M (State of U.P. Vs. Jhabbar). Vide order dated 23.4.2007, the learned Additional Commissioner had allowed the revisions filed by the State by setting aside the order dated 26.5.2003 passed by the Sub Divisional Officer with the direction to allot the land to the eligible persons with the liberty to the petitioner to apply for fresh allotment, whereas by the subsequent order dated 31.3.2014, the learned Member, Board of Revenue has dismissed the revision filed by the petitioner on the ground that no prejudice has been caused as the matter has been remanded back by the Additional Commissioner and the parties will have right to plead their case before the court concerned. 3. While assailing these orders, learned counsel for the petitioner contends that the order passed by the learned Additional Commissioner was on merit and he has not remanded the matter before the Sub Divisional Officer for fresh consideration. In fact, he has set aside the order passed in favour of the petitioner extending the benefit under section 122B (4F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short, 'the Act') to the petitioner. In his submissions, learned Member, Board of Revenue has erred in treating the order passed by the learned Additional Commissioner as an order of remand, therefore, both the orders deserve to be quashed and the writ petition deserves to be allowed. 4. Learned standing counsel as well as counsel for the gaon sabha contend that they do not propose to file any counter affidavit and the writ petition may be decided on its own facts in accordance with law. 5. With the consent of the learned counsel for the parties, the writ petition is taken up for final disposal. 6. I have heard learned counsel for the parties and perused the record. 5. With the consent of the learned counsel for the parties, the writ petition is taken up for final disposal. 6. I have heard learned counsel for the parties and perused the record. The facts giving rise to this case are that the petitioner was given benefit of section 122B (4F) of the Act on 2.8.2000 over plot no. 9 measuring about 0.098 hectare situated in village Akdangi-syer vide order dated 26.5.2003. Seeking recall of this order, an application was filed by the gaon sabha as well as the State. After hearing both the sides, the recall application was rejected vide order dated 26.6.2002. Against the order dated 26.6.2002, the respondents filed review application. On that application, the earlier order dated 2.8.2000 was recalled and the parties were given opportunity to plead their case and lead their evidence regarding their claim. Thereafter, the matter has been finally concluded by the order dated 26.5.2003 and the claim of the petitioner was found to be genuine and the respondents' case was disbelieved. 7. Aggrieved by aforesaid order, two revisions were filed, one by the Gaon Sabha and another by the State, being revision no. 82/M (State Vs. Jhabbar) and revision no. 121/147/M (State of U.P. Vs. Jhabbar). After hearing counsel for the parties, the revisions were allowed and the order dated 26.5.2003 was set aside with the direction to allot the land in dispute to the eligible persons with the further observation that the petitioner's application be also considered for allotment. 8. Aggrieved by this order, the petitioner filed revision before the Board of Revenue. Learned Member, Board of Revenue had treated this as an order of remand and dismissed the revision for the reasons that the parties will have the chance to plead their case before the court below. 9. I have gone through the order dated 23.4.2007 passed by learned Additional Commissioner, Azamgarh Division, Azamgarh. Learned Member, Board of Revenue had treated this as an order of remand and dismissed the revision for the reasons that the parties will have the chance to plead their case before the court below. 9. I have gone through the order dated 23.4.2007 passed by learned Additional Commissioner, Azamgarh Division, Azamgarh. The revisions were allowed with the following observation: **mijksDr fopsuk ds v/kkj ij nksuksa fuxjkfu;ka Lohdkj dh tkrh gS A voj U;k;ky; }kjk ikfjr vkns'k fnukad 26-5-2003 fujLr fd;k tkrk gS A voj U;k;ky; dks funZs'k fn;k tkrk gS fd fookfnr Hkwfe dk vkoaVu ik= O;fDr;ksa dks fd;k tk;] rFkk vkoaVu ds le; foi{kh dh ik=rk vkfn ij Hkh xEHkhjrk ls fopkj fd;k tk; A vkns'k dh izfr ds lkFk voj U;k;ky; dh i=koyh okil Hksth tk;] bl U;k;ky; dh i=koyh nk[khy nQrj gks A ^^ 10. From the perusal of the operative portion of the judgment and order dated 23.4.2007, it is apparent that the revisions have been allowed and the order dated 26.5.2003 has been quashed without there being any order of remand with the direction to allot the land in dispute to eligible persons, therefore, the learned Member, Board of Revenue has erred in treating the judgment and order date 23.4.2007 as an order of remand and the view taken by him is not only arbitrary, but it reflects the non-application of mind, therefore, it is unsustainable in the eye of law. 11. Consequently, the writ petition succeeds and is allowed. The order dated 31.3.2014 passed by learned Member, Board of Revenue in revision no. 105/2006-07 (Jhabbar Vs. State) is hereby quashed. 12. The learned Member, Board of Revenue is directed to decide the revision on merit after hearing both the sides expeditiously without granting any unnecessary adjournments to the parties. 13. Learned counsel for the petitioner states that the respondents may be restrained from creating any third party right over the land in dispute during the pendency of the revision and further, they be restrained from interfering in the possession of the petitioner. 14. In this regard, the petitioner is at liberty to file an application, along with certified copy of the order of this Court. 14. In this regard, the petitioner is at liberty to file an application, along with certified copy of the order of this Court. In case such an application is filed, the learned Member, Board of Revenue shall pass a reasoned order on the application of the petitioner expeditiously, but not later than two months from the date of its filing, in accordance with law.