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2022 DIGILAW 1484 (ALL)

Vidyawati v. Board of Revenue U. P. At Allahabad

2022-09-15

CHANDRA KUMAR RAI

body2022
JUDGMENT : 1. Heard Mr. Achal Singh Vats, learned counsel for the petitioner, leaned Standing Counsel for respondent Nos.1 and 2 and Mr. Azad Rai, learned counsel for respondent No.3. 2. The instant writ petition has been filed for quashing the judgment and order dated 15.04.2005 and 30.03.2005 passed by respondent No.1 i.e. Board of Revenue, U.P. Allahabad and order dated 30.01.2001 passed by Up Ziladhikari, Phoolpur, Allahabad. 3. Brief facts of the case are that petitioner belongs to scheduled caste community, her father was in possession of plot No.78 area 0.401 hectares and plot No.79-Ka area 0.009 hectare situated in village Bagautipur @ Khuthana, Pargana and Tehsil-Soraon, District-Allahabad. Petitioner's father died leaving behind his widow Smt. Sundari Devi as his legal heir and after death of Sundari Devi, land in dispute duly devolved upon the petitioner being her daughter. Smt. Sundari Devi had also executed a registered will in favour of the petitioner. Accordingly, petitioner is continuing in actual possession of land in dispute. Petitioner filed a Suit under Section 229-B/122-B (4F) of U.P.Z.A. & L.R. Act impleading the Gram Panchayat and State of U.P. as defendants. The trial court vide judgment and decree dated 30.01.2001 dismissed the plaintiff-suit, hence the petitioner filed an Appeal before Commissioner, the same was heard by Additional Commissioner (2nd) Allahabad and appeal was allowed by Judgment and decree dated 22.04.2003 recording the finding of fact that appellant is in possession of the disputed plot since long and belongs to scheduled caste community as such appellant is entitled to benefit of Section 122 B (4F) of U.P.Z.A. & L. R. Act. Against the judgment and the decree of the first appellate Court Gaon Sabha through Ex-pradhan (Chandra Kala Devi) filed a Second Appeal, which has been allowed without condoning the delay in filing the second appeal as well as without framing the substantial question of law. Against the judgment and decree of second appellate court, petitioner filed a Review Application, the Review Application was also rejected vide order dated 15.05.2005, hence this writ petition. 4. Against the judgment and decree of second appellate court, petitioner filed a Review Application, the Review Application was also rejected vide order dated 15.05.2005, hence this writ petition. 4. Learned counsel for the petitioner submitted that suit under Section 229-B/122-B (4F) of U.P.Z.A.&L.R. Act filed by the petitioner was dismissed by the trial court vide order dated 30.01.2001, against the same an Appeal was filed by the petitioner which was allowed and suit was decreed by the Additional Commissioner vide judgment and decree dated 22.11.2003 recording finding of fact that petitioner is in possession over the disputed plot before the relevant date and being member of Scheduled Caste community, petitioner is entitled to the benefit of Sectio122-B (4F) of U.P.Z.A.&L.R.Act. He further submitted that against the first appellate court judgment, the Second Appeal was filed on behalf of Gaon Sabha through Ex Pradhan who was not empowered to file the Second Appeal and the Second Appeal was allowed without framing the substantial questions of law, even finding of fact record by the first appellate Court was not set aside and second appeal has been outrightly allowed. Counsel for the petitioner placed reliance upon paragraph Nos.128 and 131 of Gaon Sabha Manual which are as follows: "128. The conduit of Gaon Sabha Litigation shall not depend upon the individual discretion of the Chairman of the Bhumi Prabandhak Samiti (Land Management Committee) but shall be a matter of a resolution of the Bhumi Prabandhak Samiti (Land Management Committee) as a whole. In urgent cases, however, the Chairman can take action on his ow and seek ratification of the Bhumi Prabandhak Samiti (Land Management Committee ) afterwards by including in the agenda of the next ensuing meeting. 131. Lawyers have been appointed who shall represent the Bhumi Prabandhak Samiti (Land Management Committee) and give it legal advice where necessary. the Committee shall not engage any lawyer other than the penal lawyer appointed. In important cases, however special lawyers can be engaged with the specific provisions of the Collector in writing. There is a Vakil or mukhtar in each tehsil and one civil and one revenue lawyer at the district headquarters. the District Government Counsel in in charge of the whole work. The Bhumi Prabandhak Samiti (Land Management Committee) requiring the advice of a lawyer should request the Tahsildar or the Sub-divisional Officer to arrange for it. There is a Vakil or mukhtar in each tehsil and one civil and one revenue lawyer at the district headquarters. the District Government Counsel in in charge of the whole work. The Bhumi Prabandhak Samiti (Land Management Committee) requiring the advice of a lawyer should request the Tahsildar or the Sub-divisional Officer to arrange for it. The Chairman of Bhumi Prabandhak Samiti (Land Management Committee)shall consult the penal lawyer in all cases in which he is summoned or is impleaded as defendant. If in any case the Bhumi Prabandhak Samiti (Land Management Committee) refuse to sign a plaint or to defend a case, as advised by the panel lawyer or the special lawyer, if engaged, as the case may be, or as instructed by the Tahsildar or the sub-divisional Officer, the lekhpal as Secretary of the Bhumi Prabandhak Samiti (Land Management Committee) shall act for the Bhumi Prabandhak Samiti (Land Management Committee) under orders of the Tahsildar for the above purpose only." 5. Counsel for the petitioner placed reliance upon the Judgment of this Hon'ble Court on the point of para Nos. 128 and 131 of Gaon Sabha Manual in Case of Jagdish Pandey (dead) through Lrs Vs. Additional Collector (City) Gorakhpur and others reported in 2011 (114) RD 106 in which it is held that provisions of para Nos.128 and 131 of Gaon Sabha Manual are mandatory in nature. 6. Learned counsel for the petitioner further submitted that second appeal was barred by limitation also but delay was not condoned and second appeal has been allowed. 7. On the other hand, learned counsel for the Gaon Sabha-Mr. Azad Rai, submitted that suit filed by the plaintiff was dismissed as property belonged to the gaon sabha and the second appeal was also rightly allowed as there is no requirement for framing substantial question of law by Board of Revenue under Section 331 (4) of U.P.Z.A. & L.R. Act, although they could not explained how second appeal was filed before the Board of Revenue, through Ex pradhan and how second appeal was allowed without setting aside the finding of facts. 8. I have considered the arguments advanced by the learned counsel for the parties. 9. 8. I have considered the arguments advanced by the learned counsel for the parties. 9. There is not dispute about the fact that petitioner filed suit under Section 229-B/122-B (4F) of U.P.Z.A.& L.R. Act and the suit was dismissed by the trial court but in appeal suit was decreed and finding of fact has been recorded that plaintiff/petitioner being member of scheduled caste community was in possession of the plot in dispute (Plot Nos.78 area 0.401 hectares and 79Ka area 0.009 hectare) since before the relevant date, the second appellate court without condoning the delay in filing the second appeal as well as without setting aside the finding of fact recorded by the first appellate court has arbitrarily allowed the second appeal and set aside the judgment and decree of the fist appellate Court. 10. Perusal of the order passed by the second appellate court fully demonstrate that there is no finding with respect of the fact that petitioner is not in a possession of the disputed plot, there is no order for condonation of delay and even the Second Appeal has been filed at the instance of Ex-pradhan who had no authority to file second appeal before Board of Revenue in view of provisions contained in para 131 of Gaon Sabha Manual, which are mandatory in nature as held in Jagdish pandey (supra) in para No.12 and 13 which are as follows: "12. In the instant case, it is admitted on record that the Gram Pradhan had refused to sign the memo of revision. On the contrary, the respondent no.4, Komal in his individual capacity signed the same. The respondent no.4 had no authority to do so and be a substitute of the Lekhpal, who is enjoined with this duty. Under the provisions of paragraph-131, the District Government Counsel ought to have called upon the Tehsildar to send the Lekhpal for appropriate signatures in order to file a memo of revision and that having not been done, the District Government Counsel failed to apply the provisions of paragraph-131. He could not have made Sri Komal a substitute in place of the Lekhpal of the village. 13. The provisions of Para 131 appear to be binding and peremptory in nature. The procedure therein cannot be bypassed or else it would lead to a chaos. He could not have made Sri Komal a substitute in place of the Lekhpal of the village. 13. The provisions of Para 131 appear to be binding and peremptory in nature. The procedure therein cannot be bypassed or else it would lead to a chaos. If any person or villager is allowed to sign documents the same would be not only inappropriate but also illegal as such a person will have no authority to represent a Gaon Sabha. The said provision cannot be wished off merely as directory in view of he language employed therein." 11. He further submitted that second appeal has been arbitrarily allowed by the cryptic judgment. 12. In view of the facts and circumstances of the case, specially that delay was not condoned in filing the second appeal and Second Appeal was entertained on behalf of the Ex-pradhan who was not empowered to file second appeal in view of the provisions contained in para Nos.128 and 131 of Gaon Sabha Manual as laid down in Jagdish Pandey (Supra), the impugned judgments and orders dated 15.04.2005 and 31.03.2005 passed by the respondent No.1 (Second Appellate Court) are hereby set aside and the judgment passed by the first appellate court dated 22.11.2003 is hereby maintained. The Writ petition stands allowed. No order as to costs.