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2018 DIGILAW 665 (ALL)

AWADHESH KUMAR SHARMA v. STATE OF U. P.

2018-03-19

SUNITA AGARWAL

body2018
JUDGMENT : SUNITA AGARWAL, J. 1. Heard Shri J. Nagar assisted by Shri Pratik J. Nagar, learned counsel for the petitioner and the learned Standing Counsel for the State and Shri Ashish Kumar Srivastava, learned counsel for the respondent-Gram Sabha. 2. The order dated 19.1.2018 passed by the Bench constituted by the Chairman, Board of Revenue, U.P. Lucknow has been challenged only on the ground that there was no justification for dismissal of revision while allowing the review application moved by the State of U.P. Rather the Board of Revenue was required to restore the revision and hear the same on merits. 3. In support of the said submission to challenge the order impugned raised in the present petition, it is contended that the review application filed by the State of U.P. for recall of the order dated 27.5.2015 was directed to be decided by this Court on merits by judgment and order dated 15.9.2017 passed in Misc. Single No.22033 of 2017 Awadhesh Kumar Sharma v. State of U.P. & Ors. 4. Though the matter was heard by the Bench constituted by the Chairman, Board of Revenue U.P., Lucknow only on the review application, but in the operative part of the judgment, it has wrongly been held that the revision filed by the petitioner was liable to be dismissed on merits. 5. Dealing with the submission of learned counsel for the petitioner, it is noteworthy that the revision filed by the petitioner namely Revision No. 26/2014 Awadhesh Kumar Sharma v. State of U.P. & Ors. was dismissed on merits vide order dated 17.7.2014 passed by the Single Bench of the Board of Revenue. The said order was recalled on an application moved by the petitioner dated 27.8.2014 and a fresh order dated 27.5.2015 was passed. 6. Resultantly, the State of U.P. filed an application for review of the order dated 27.5.2015 on the ground that it was not permissible for the Board of Revenue to recall the order passed on the merits of the revision. The recall application filed by the petitioner before the Board of Revenue for recall of the order dated 17.7.2014 was not maintainable. The recall application filed by the petitioner before the Board of Revenue for recall of the order dated 17.7.2014 was not maintainable. In so far as the merits of the order dated 27.5.2015 is concerned, it was pleaded by the State of U.P. that the exchange under Section 161 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (in short 'the U.P. Z.A. & L.R. Act') could not have been permitted by the Board of Revenue without seeking consent/permission of the State Government with which the land in question was vested. The alleged permission was taken from the Gram Sabha and U.P. S.I.D.C. who were not the 'Bhumidhars' of the land in question. 7. This apart, the land in question which was sought to be exchanged had been acquired for public purposes. Over the exchanged land, the State Polytechnic, Primary Health Centre and District Jail are situated. 8. By means of the order impugned, the Board of Revenue has allowed the review application filed by the State of U.P. recording therein that there was no justification for recall of the order dated 17.7.2014 whereby the revision was rejected on merits. In case the recall applicant/petitioner herein was aggrieved by the said order, it was open for him to challenge the same before the higher court of law. There was no question of allowing the restoration application providing re-hearing to the petitioner/revisionist under the garb of the review. The grounds of review are limited and are confined to the error apparent on the face of record, the mistake of law or any material irregularity which comes within the meaning of the grounds provided in the statutory provisions for review. The order dated 27.5.2015 was beyond the scope of the review jurisdiction of the Board of Revenue. On merits of the claim of the petitioner, it was recorded that the land could not have been exchanged for the reason that the provisions of Section 161 of the U.P. Z. A. & L.R. Act have not been followed. 9. By the order dated 21.2.2018, on the submission of learned counsel for the petitioner that the Board of Revenue has erred in deciding the Revision No.26/2014 on merits while deciding the review application filed by the State of U.P., the comments of Chairman, Board of Revenue, U.P. Lucknow was called for. 9. By the order dated 21.2.2018, on the submission of learned counsel for the petitioner that the Board of Revenue has erred in deciding the Revision No.26/2014 on merits while deciding the review application filed by the State of U.P., the comments of Chairman, Board of Revenue, U.P. Lucknow was called for. It has been clarified therein by the Chairman Board of Revenue that the revision was decided on merits after looking to the records available before it. 10. For the facts noted above, it is more than apparent that the revision filed by the petitioner namely Revision No.26 of 2014 Awadhesh Kumar Sharma v. State of U.P. & Ors. was dismissed on merits vide order dated 17.7.2014. The effect of allowing the review application filed by the State of U.P. and setting aside the order dated 27.5.2015 passed on the recall application moved by the petitioner is that the order dated 17.7.2014 dismissing the revision on merits revives. The result would be that the revision filed by the petitioner stands dismissed by effect of the order dated 17.7.2014 and not by the order impugned dated 19.1.2018 as suggested by the learned counsel for the petitioner. 11. In so far as the order dated 17.7.2014 is concerned, the same has not been challenged in the present petition. The recall application filed by the petitioner and the order dated 17.7.2014 passed on the merits of the revision have not been brought on record of the present petition. The grounds of recall pleaded by the petitioner are not before this Court. 12. he admitted fact of the matter, therefore, remains is that the revision filed by the petitioner stands dismissed with the revival of the order dated 17.7.2014. In view of the admitted facts and the reasoning given by the Board of Revenue for allowing the review application moved by the State of U.P. showing material illegality in the order dated 27.5.2015 (passed in the recall application), this Court is not inclined to interfere. 13. In so far as the Writ Petition No. 2973 of 2018 Awadhesh Kumar Sharma v. State of U.P. is concerned, the same is directed against the order dated 17.11.2017 whereby the delay in filing the review application filed by the State of U.P. has been condoned and the review application has been entertained for consideration on merits. 14. 13. In so far as the Writ Petition No. 2973 of 2018 Awadhesh Kumar Sharma v. State of U.P. is concerned, the same is directed against the order dated 17.11.2017 whereby the delay in filing the review application filed by the State of U.P. has been condoned and the review application has been entertained for consideration on merits. 14. The order dated 17.11.2017 has been challenged on the ground that no specific reasoning has been given by the Board of Revenue for condoning the delay in filing the review application by the State of U.P. after a period of more than 10 months. 15. For the above noted facts that the revision filed by the petitioner was dismissed by the order dated 17.7.2014 on merits and further that the same was recalled on a recall application moved by the petitioner which has not been brought on record, this Court does not find any error in the order of condonation of delay. The reasoning given by the Board of Revenue in the order for allowing the review application filed by the State of U.P. could not be assailed by the learned counsel for the petitioner. 16. For the reasons recorded hereinabove, no infirmity is found in the orders impugned. Both the writ petitions are found devoid of merits and hence dismissed.