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2020 DIGILAW 350 (ALL)

Ajay Kumar v. Board of Revenue U. P. At Allahabad

2020-02-03

SHAMIM AHMED

body2020
JUDGMENT : 1. This writ petition has been filed by the petitioners with the following prayer: “(i). Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 14.3.2007 and 29.3.2006 passed by respondents no. 1 and 2 respectively and to call for the record. (Annexure Nos. 7 and 6 to this writ petition). (ii). Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere in the possession of the petitioners. (iii). Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (iv). Award the cost to the petition in favour of the petitioner.” 2. The fact of the case as argued by the learned counsel for the petitioners is that the petitioners filed a suit under Section 176 of the U.P. Z.A. and L.R. Act, in the Court of Assistant Collector (I) S.D.M. Ghatampur, District Kanpur Nagar, which was numbered as 34 of 1998, in which the petitioners claimed that Gata No. 233 area 0.883 hectare, which is the joint land of the petitioners and respondent nos. 5 and 6 and the land of their shares be given to them. The said suit was contested by the respondent nos. 5 and 6 and they denied the averments made by the petitioners in the suit. 3. The Sub-Divisional Magistrate, considered all the facts and pleadings of the parties and the share of the parties were decided by order dated 23.10.1998 and petitioners got their shares in the property. 4. That aggrieved by the order dated 23.10.1998 passed by the S.D.M., the respondent no. 5 and 6 preferred an appeal before Commissioner Kanpur, Division Kanpur, which was allowed. 5. That aggrieved by the order of the Commissioner, the petitioners filed a Second Appeal No. 45 of 1998-99, before the Board of Revenue U.P., Allahabad, which was allowed vide order dated 16.4.2001 and the order dated 18.6.1999 and 14.7.1999 passed by the respondent no. 2 were set-aside. The Board of Revenue in the order dated 16.4.2001 observed that the petitioners as well as respondents are recorded tenure holders of the land in question and the parties were in possession of their respective shares and the land is less than prescribed limit it would be suitable to sell it in accordance with the provisions of law. 6. The Board of Revenue in the order dated 16.4.2001 observed that the petitioners as well as respondents are recorded tenure holders of the land in question and the parties were in possession of their respective shares and the land is less than prescribed limit it would be suitable to sell it in accordance with the provisions of law. 6. Thereafter, the petitioners filed Suit No. 22/34/2002 under Section 176 of U.P. Z.A. & L.R. Act, before the Court of Assistant Collector (I) S.D.M. Ghatampur, District Kanpur Nagar, in which a preliminaty order was passed and the petitioners share was declared as 2/3 and respondents no. 5 and 6 share was declared as 1/3 on the ground that the land was less than 3-1/8 acre, therefore, vide order dated 17.6.2004, the order for auctionining the land was passed and the auction was held on 29.7.2004 and the petitioners were the highest bidder and were given the possession of land and vide order dated 17.12.2004 and decree dated 23.12.2004, the name of the petitioners were recorded in Revenue Records and the name of respondents no. 5 and 6 were deleted. 7. Thereafter, the respondent nos. 5 and 6 filed an appeal bearing number 80 of 2005 against the order dated 17.12.2004 and decree dated 23.12.2004 on the ground that the respondent nos. 5 and 6 were not given opportunity of hearing nor they were given opportunity to adduce their evidence. The trial Court finding that the land was less than 3-1/8 hectare, therefore, the land was directed to be auctioned is perverse, the trial Court fails to consider that Section 178 to 182 of U.P. Z.A. & L.R. Act, was deleted by New Amendment Act No. 27 of 2004, therefore, in these circumstances, the proceedings of auction is against the provision of law and automatically come to an end and parties should be given their shares, the ground taken by respondent nos. 5 and 6 was considered by the appellate Court and the appeal was allowed vide order dated 29.3.2006 and the order dated 17.12.2004 and the decree dated 23.12.2004 of trial Court was set-aside and the matter was remanded back before the trial Court to consider the matter afresh in accordance with law. 8. Aggrieved by the order dated 29.3.2006, the petitioners filed Revision bearing no. 34 of 2006-07 before the Board of Revenue U.P. Allahabad. 8. Aggrieved by the order dated 29.3.2006, the petitioners filed Revision bearing no. 34 of 2006-07 before the Board of Revenue U.P. Allahabad. The Board of Revenue vide order dated 14.3.2007 dismissed the revision of the petitioners on the ground that Section 178 to 182 of U.P. Z.A. & L.R. Act, is deleted as per Amendment Act 27 of 2004 and the area of land measuring 3-1/8 hectares be now being partitioned between the parties as per their shares and refused to interfere in the order dated 29.3.2006. 9. Aggrieved by the order dated 14.3.2007 passed by the Board of Revenue, Allahabad-respondent no. 1 and against the order dated 29.3.2006 passed by respondent no. 2. The petitioners have preferred the present writ petition before this Court. 10. Learned counsel for the respondent nos. 5 and 6 filed their counter affidavit and denied all the averments made in the writ petition. Rejoinder affidavit filed by petitioners but no new ground was taken by petitioners. 11. Heard learned counsel for the petitioners and learned counsel for respondent nos. 5 and 6 and learned Standing Counsel for other respondents. 12. I have perused the orders dated 29.3.2006 and 14.3.2007 passed by respondents no. 1 and 2 and considered the legal ground taken by the respondent nos. 5 and 6 in the counter affidavit, once Section 178 to 182 of U.P. Z.A. & L.R. Act, is deleted from the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as per Amendment Act 27 of 2004, there is no justification for auctioning the land in question and the land in question can be partitioned between the parties and the parties shall enjoy their shares. The Board of Revenue in its order dated 14.3.2007 need not consider the effect of the order dated 16.4.2001 by which the share of the parties was decided as the same was not in dispute. The share of the parties was given in the order dated 16.4.2001, and the petitioners are nowhere being prejudiced as they also got their share, since no writ petition or any other proceeding was filed against the order dated 16.4.2001, therefore, the same would be considered to be admitted to the parties. The share of the parties was given in the order dated 16.4.2001, and the petitioners are nowhere being prejudiced as they also got their share, since no writ petition or any other proceeding was filed against the order dated 16.4.2001, therefore, the same would be considered to be admitted to the parties. The present dispute relates to the fact whether the plot in dispute could be auctioned as the total area of the plot in the name of one persons would become less then 3-1/8 acres in view of the Section 178 of the U.P. Z.A. & L.R. Act as it existed before the amendment Act 27 of 2004 dated 20.8.2004. It is relevant to observed herethat after the amendment it was permitted that plot can be transferred in fragments also in view of the fact that Section 178 to 182 of U.P. Z.A. & L.R. Act is deleted from the Act, as such all the parties should have been granted their share of the plots and there was no occasion for auctioning the property, confirming the sale and distributing the auction proceeds among remaining parties, the entire proceeding was against the provision of law. The order dated 14.3.2007 and 29.3.2006 are merely remand order and the writ petition against the remand order is not maintainable before this Hon'ble Court. 13. In the opinion of the Court there is no illegality in the order passed by the appellate Court dated 29.3.2006 and the order passed by the revisional Court dated 14.3.2007 and the finding recorded by both the Courts below is as per law and no interference is required by this Court under Article 226 of the Constitution of India. 14. In view of the legal position and considereing the arguments advanced by the parties, the present writ petition lacks merit and is, accordingly, dismissed. 15. Interim order, if any, stands vacated. 16. The parties shall bear their own costs.