Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 19 (ALL)

Bechan Lal v. Board of Revenue Lucknow

2018-01-03

ATTAU RAHMAN MASOODI

body2018
JUDGMENT & ORDER : Attau Rahman Masoodi, J. Vakalatnama filed by Shri Ajay Pratap Singh 'Vatsa' learned counsel on behalf of opposite party no. 4 is taken on record. 2. Heard learned counsel for the petitioners and Sri Ajay Pratap Singh 'Vatsa' learned counsel who has put in appearance on behalf of opposite party no. 4. 3. The dispute pertains to demarcation of the respective plots owned by the petitioners and the opposite party no. 4. Opposite party nos. 5 and 6 are the owners of other adjoining plots but there is no dispute with respect to the holdings and demarcation of the plots owned and possessed by them. 4. It is to be noted that the proceedings under Section 41 of the U.P. Land Revenue Act were initiated by opposite party no. 4 and the same were decided on the basis of a survey report by order dated 27.8.2015. The order dated 27.8.2015 gave rise to an appeal under Section 210 of the Land Revenue Act before the court of Additional Commissioner (Judicial), Lucknow Mandal, Lucknow. The appeal filed by the petitioners was allowed by the appellate court on 2.1.2016 and it was specifically observed that the demarcation proceedings were concluded by the court of Sub-divisional Magistrate on the basis of a survey report of which there was no notice to the petitioner and thus the survey report not being drawn with the participation of the petitioners was faulty. The matter was remanded for fresh decision. 5. The court of Sub-divisional Magistrate while deciding the matter after remand did not pay any heed to the observation made with reference to the survey report and the proceedings were rather decided again by placing reliance upon the same very report that was held defective in law. The fresh order passed by the Sub-divisional Magistrate on 17.5.2017 gave rise to an appeal under Section 210 of the U.P. Land Revenue Act before the court of Additional Commissioner (Judicial), Lucknow Mandal, Lucknow but the appeal so filed was rejected at the admission stage even without calling for the record. 6. The fresh order passed by the Sub-divisional Magistrate on 17.5.2017 gave rise to an appeal under Section 210 of the U.P. Land Revenue Act before the court of Additional Commissioner (Judicial), Lucknow Mandal, Lucknow but the appeal so filed was rejected at the admission stage even without calling for the record. 6. Learned counsel for the petitioners has submitted that he had duly raised a ground to the effect that the Sub-divisional Magistrate proceeded on the basis of a defective survey report but such an objection was neither considered by the court of first instance nor by the appellate court and the observations in this regard made in the impugned orders are contrary to the final order passed by the appellate court earlier on 2.1.2016. 7. On this premise, petitioners approached the revisional court by filing a revision bearing no. 2097 of 2017. The revisional court rejected the revision on the ground that such a jurisdiction in view of Section 24(4) of the U.P. Revenue Code, 2006 would not lie, as such, the revision was held non-maintainable. 8. The petitioner feeling aggrieved against the order passed by the Sub-divisional Magistrate as affirmed by the appellate court vide order dated 17. 11. 2017 has thus filed the present petition under Article 227 of the Constitution of India. 9. Sri Ajay Pratap Singh 'Vatsa' learned counsel for opposite party no. 4 at the very outset has raised a preliminary objection against the maintainability of present writ petition by placing reliance upon a judgment rendered by this Court in the case of Ramesh Pal Singh and others versus Board of Revnue, U.P. Lucknow, 2002 93 RevDec 228. 10. The objection raised by learned counsel for opposite party no. 4 in the light of the judgment has force but it is not disputed by learned counsel for the opposite party no. 4 that the proceedings that have culminated on his application being summary in nature would not be an impediment in the way of an application/suit which the petitioners may be at liberty to file for redressal of their grievance before the competent court under the U.P. Revenue Code-2006. 11. In other words, it is conceded that in case a suit for protection of possessory rights is filed by the petitioners under U.P. Revenue Act, 2006, the impugned orders based on a defective report shall not come in the way of fresh proceedings. 12. 11. In other words, it is conceded that in case a suit for protection of possessory rights is filed by the petitioners under U.P. Revenue Act, 2006, the impugned orders based on a defective report shall not come in the way of fresh proceedings. 12. This position is also well settled in the judgment placed reliance upon by learned counsel for the opposite party no. 4. 13. It may be noted that the survey report on the basis of which demarcation has been settled in favour of opposite party no. 4 is a report without seeking participation of the petitioners as is evident from the judgment dated 2.1.2016. Thus, the survey report would not be treated to be a hurdle in the way of the petitioners to pray for a fresh survey in the remedial proceedings that may be available to the petitioners for protection of their possession. 14. In the circumstances of the case, it is left open to the petitioners to approach the competent court under Revenue Act, 2006 for appropriate relief for protection of possession or demarcation of the disputed land and the proceedings instituted, if any, shall be decided by the court concerned after affording opportunity to the opposite party no. 4 as well as to any other person if so affected. The competent court shall not be influenced by the impugned judgments rendered on the application filed by opposite party no. 4 based on the faulty survey report. The proceedings initiated, if any, within a period of one month from today may be decided expeditiously and without any delay. 15. For a period of six months or disposal of the proceedings as are left open to the petitioners to avail of, whichever is earlier, status quo as existing today shall be maintained by both the parties. It shall also be open to the petitioners to make an application for interim relief which in any case may be considered and decided within the time frame provided herein-above and further continuance of protection under this order shall abide by the outcome of the same. 16. The petition is accordingly disposed of.