Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 45 (ALL)

Neetu v. State of U. P.

2020-01-06

ANJANI KUMAR MISHRA

body2020
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Manu Khare, learned Counsel for the petitioner and Shri Rajesh Yadav for the Gaon Sabha as also learned Standing Counsel for the State-respondents. The instant writ petition arises out of proceedings under section 161 of the U.P. Zamindari Abolition and Land Reforms Act and seeks a writ of certiorari for quashing the order dated 30.5.2019 passed by the Sub-Divisional Officer and the order dated 3.1.2019 passed by the respondent No. 2, the Additional Commissioner (Administration), Saharanpur. 2. The petitioner filed an application for exchange, whereby he sought exchange the land allotted to him on lease, with plot No. 185. This exchange was permitted on 26.2.2004 by the Sub-Divisional Officer belonging to the Gaon Sabha. 3. Against this order, respondent No. 5, filed a recall application on 4.4.2016 on the ground that the plot in question No. 185 was land reserved for disposal of dead animals (Hadwar) and was recorded under class 6(2) in the revenue records. It was public utility land and could not have been exchanged. 4. The recall application was allowed on the ground that the land having reserved for a public purpose, the same would not have been the subject-matter of any exchange and in any case, the entry regarding class of the land would not be changed by the Sub-Divisional Officer. 5. Aggrieved, the petitioner appears to have been filed a revision, although, the impugned order states that it has been passed in an appeal. The revision/appeal has been dismissed by the Additional Commissioner on 1.10.2019. Hence, this writ petition. 6. Assailing the impugned order, the contention of Counsel for the petitioner is that during the pendency of the revision, he had filed an application for recall before the Sub-Divisional Officer as the order dated 4.4.2016 passed on the recall application of Ram Singh was an ex-parte order passed without hearing him. In the revision, he filed an application for withdrawal of the same but he was not permitted to withdrawing it and it has been dismissed. This it is contended is patently illegal. The petitioner had every right to withdraw the revision and to pursue his recall application and is permitting the same, the Court below had committed manifest illegality. 7. The other contention raised is that regarding the land in question, petitioner filed a civil suit, wherein an interim injunction has been granted. 8. This it is contended is patently illegal. The petitioner had every right to withdraw the revision and to pursue his recall application and is permitting the same, the Court below had committed manifest illegality. 7. The other contention raised is that regarding the land in question, petitioner filed a civil suit, wherein an interim injunction has been granted. 8. It is also contended that the Sub-Divisional Officer has inherent powers also to exchange land reserved for a public purpose. 9. Lastly, it is contended that since, consolidation operations are going on in the village, the recall application filed by the Rakam Singh could not have been entertained. 10. Counsel appearing for the Gaon Sabha has supported the impugned orders. 11. I have considered the submissions made by Counsel for the parties and perused the record. 12. The contention that the petitioner should have been permitted to withdraw his revision and to pursue his recall application filed for recall of the order dated 04.04.2016, whereby the order of exchange passed on the application of the petitioner had been set aside, appears to be attractive. However, this Court is not bound to interfere with even an illegal order, if it renders substantial justice between the parties, especially when exercising equity jurisdiction under Article 226 of the Constitution of India. 13. It is settled law that land, which has been reserved for a public purpose is governed by the provisions of section 132 of the U.P. Zamindari Abolition and Land Reforms Act, wherein no rights can accrue in favour of any person. Under the circumstances, the order of exchange passed on the application of the petitioner on 26.2.2004, which permitted exchange of such public utility land governed by the provisions of section 132 of the Act was, patently illegal. It was therefore, rightly set aside and the land has been directed to be recorded as it was prior to the passing of the order dated 26.2.2004. In my considered opinion, by this order, substantial justice has been done between the parties and therefore, this Court does not consider it a fit case for interference on the ground that the petitioner should have been permitted to withdraw his revision to enable him to pursue his recall application filed for recall of the order dated 26.2.2004. 14. In my considered opinion, by this order, substantial justice has been done between the parties and therefore, this Court does not consider it a fit case for interference on the ground that the petitioner should have been permitted to withdraw his revision to enable him to pursue his recall application filed for recall of the order dated 26.2.2004. 14. The submission that the recall application filed by the respondent No. 5 could not have been considered during the currency of the consolidation operations is totally without substance. The restoration application was clearly maintainable and in case, after allowing the recall application, the case under section 161 for exchange had been restored to its original number, question of its abatement under section 5 of the Consolidation of Holdings Act may have arisen. However, it would be relevant to reiterate that in so far as, the restoration application is concerned, the same was clearly maintainable and has been allowed by reasons, which call for no interference. 15. Similarly, pendency of a civil suit filed by the petitioner is of absolutely no consequence in so far as the dispute in the writ petition is concerned. The civil Court neither has jurisdiction to order exchange of plots nor it is competent to go into such issue of exchange. Therefore, pendency of any civil suit has absolutely no material bearing upon a case for exchange under section 161 of the U.P. Zamindari Abolition and Land Reforms Act. 16. In view of what has been stated above, this Court does not find any merit in the writ petition. 17. It is accordingly, dismissed.