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2017 DIGILAW 237 (ALL)

Brahmjeet v. Board of Revenue U. P. , Meerut Camp

2017-01-17

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra, J. Rejoinder affidavit has been filed in Court today. The same is taken on record. 2. Heard learned counsel for the petitioner and Shri Anand Ji Misra, learned counsel for the respondent Nos. 4 to 6. 3. The writ petition arises out of proceedings under Section 41 of the UP Land Revenue Act, 1901, instituted by the predecessor in interest of the respondents No. 4 to 6. 4. It is submitted that on the case being instituted, an ex parte report was furnished by the Revenue Inspector, on 23.7.1998. It is also submitted that apart from being ex parte, it also a manipulated report. 5. The Sub Divisional Officer, vide his order dated 12.11.2012, accepted the ex parte report and directed for erection of boundary marks. 6. Aggrieved by the order and on account of the fact that it was ex parte, the petitioner filed a restoration application. 7. It appears that on restoration application, an interim order was granted in favour of the petitioner. An appeal was filed against the order granting interim protection. The appeal was decided and the matter was remitted back to the Sub Divisional Officer. 8. The Sub Divisional Officer by order dated 27.1.2005, again approved the report. 9. The petitioner again preferred an appeal, which was allowed vide order dated 21.6.2006 and the matter was remitted back to the Sub Divisional Officer to consider the objections filed by the petitioner and to ensure that the report submitted, which was the basis of the orders passed in the proceedings, be proved in accordance with law. 10. It is submitted that the report was again accepted and the order passed for erection of boundary marks. This order of the trial court was vitiated as it did not comply with the directions issued in the earlier order of remand, passed by the appellate authority. 11. The consequential appeal, filed by the petitioner, was dismissed on 30.5.2015 and the order confirmed by the revisional court vide order dated 3.7.2015. 12. Contention of learned counsel for the petitioner is that the Sub Divisional Officer-respondent No. 3, had wrongly decided the matter without complying with the directions contained in the appellate order of remand. The impugned orders, therefore, cannot be sustained. 13. The second contention raised is that the demarcation has been made without their being any fixed point. 12. Contention of learned counsel for the petitioner is that the Sub Divisional Officer-respondent No. 3, had wrongly decided the matter without complying with the directions contained in the appellate order of remand. The impugned orders, therefore, cannot be sustained. 13. The second contention raised is that the demarcation has been made without their being any fixed point. It is submitted that while deciding a boundary dispute, the measurements have to be made on the basis of legally acknowledged fixed point and till such time, this is done, any measurement made or demarcation on its basis, is not sustainable. 14. The last contention of learned counsel for the petitioner is that the map, which is submitted with the ex parte report, is dated 24.3.1998, while the report itself is dated 23.7.1998. This, it is submitted, shows that the report was manipulated. 15. Learned counsel appearing for the respondent Nos. 4-6 has submitted that in presence of the order of remand dated 21.6.2006, the Revenue Inspector, who had submitted the report in the year 1998, appeared before the Court. His statement was recorded and he was duly cross-examined by the petitioner. No question was put to him, which would even remotely led to a conclusion that the petitioner was challenging the correctness of his report. 16. Upon a consideration of statement of the Revenue Inspector, his report was found to be proved and on its basis, the demarcation order was passed. 17. Refuting the second submission, it has been submitted that the measurements had been made on the basis of a fixed point, namely, a well and this fact is mentioned in Paragraph No. 2 of the memo of revision itself. The contention of learned counsel for the petitioner is, therefore, without substance. A well can always be taken as a fixed point for the purpose of demarcation. 18. He has next submitted that the petitioner has obtained an interim order on the basis of some report, which is alleged to have been given by the revenue authorities, which indicates that the area of Plot No. 390, which belongs to the petitioner is short by 0.032 hectare. 19. 18. He has next submitted that the petitioner has obtained an interim order on the basis of some report, which is alleged to have been given by the revenue authorities, which indicates that the area of Plot No. 390, which belongs to the petitioner is short by 0.032 hectare. 19. In response to an application, filed by the contesting respondents, under the Right to Information Act, 2005, a reply has been obtained that no such application was ever filed by the petitioner, and therefore, the alleged report, on the basis of which, the interim order has been granted, is a bogus document. 20. I have considered the submissions made by learned counsel for the parties and have perused the record. 21. The first contention of learned counsel for the petitioner is that the report, which is the basis of impugned order, is an ex parte report. Assuming this contention to be true, the material question, which arises for consideration, is whether this allegedly ex parte report was, in any way, incorrect. Learned counsel for the petitioner has not been able to submit anything in this regard. Even the copy of the alleged objection filed to this report, is not on record. 22. Under the circumstances, therefore, it is not possible for this Court to consider as to whether there was anything wrong in the report itself. 23. Besides, the Sub Divisional Officer, in his order has recorded that the Revenue Inspector, who furnished this report, had deposed and proved the same in accordance with law. 24. In view of the observations made by the Sub Divisional Officer, the report, even if, ex parte, is liable to be accepted because learned counsel for the petitioner has neither filed any material on record to show that it is incorrect nor has been able to demonstrate any illegality, therein. 25. The only illegality pointed is that the report has been furnished without their being any fixed point mentioned therein. This fact is refuted by learned counsel for the respondent. 26. In this context, I have examined the memo of revision, filed by the petitioner. In Paragraph No. 2, the petitioner has himself stated that in the report dated 23.7.1998, a well was shown to have been taken as fixed point which was situated in khasara No. 999. 27. This fact is refuted by learned counsel for the respondent. 26. In this context, I have examined the memo of revision, filed by the petitioner. In Paragraph No. 2, the petitioner has himself stated that in the report dated 23.7.1998, a well was shown to have been taken as fixed point which was situated in khasara No. 999. 27. It is, therefore, admitted on record that the measurement on the basis of which, the report had been submitted by the Revenue Inspector, in the year 1998, had been made on the basis of a validly selected fixed point. 28. Accordingly, this Court finds that even the second contention of learned counsel for the petitioner is without substance. 29. The only point, which survives for consideration is as to whether the area of petitioner's Plot No. 990 is short, on the spot. This appears to have been the argument before this Court at the time of admission and on its basis, an interim order was granted. 30. However, in view of the submissions made by learned counsel for the respondents that this appears to be a manufactured document, inasmuch as, he has received a reply under the Right to Information Act that no such application was filed by the petitioner. 31. In case, the area of petitioner's Plot No. 990 is short on the spot, it is always open to him to initiate appropriate proceedings for redressal of his grievance in this regard. The instant proceedings pertained to Plot No. 989. 32. Under the circumstances, the petitioner has a legal remedy available to him for redressal of his grievance and, therefore, I see no justification to enter into the controversy regarding the area of Plot No. 990, which is allegedly short on the spot. 33. In view of the aforesaid discussion and since the contentions of learned counsel for the petitioner have been repelled, this writ petition is liable to be and is hereby dismissed. 34. There shall be no order as to costs.