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2024 DIGILAW 1268 (ALL)

Jai Singh v. State Of UP

2024-05-10

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : (Ashutosh Srivastava, J.) : 1. Heard Shri Jai Shanker Mishra, learned counsel for the petitioner, Shri Abhishek Shukla, learned Addl. Chief Standing Counsel for State-respondent Nos. 1 to 3. Smt. Anjali Upadhyay and Shri Vineet Pandey, learned counsels have accepted notice of the writ petition on behalf of respondent Nos. 26 and 27, respectively. However, they did not appear when the case was heard. 2. The writ petition arises out of proceedings under Section 24 of the U.P. Revenue Code, 2006 i.e. disputes regarding boundaries and is directed against the order dated 19.12.2023 passed by the Addl. Commissioner (Administration) 2nd, Meerut in appeal under Section 24 (4) of the Code registered as Case No. 1691 of 2023 whereby and whereunder the appeal has been rejected and the order dated 4.7.2023 passed by the Sub Divisional Officer, Dadri in Case No. 24060 of 2021 (Heere and others versus Devindra and others) under Section 24 of the U.P. Revenue Code, 2006 directing the demarcation of the plot No. 436 situate in village Haibatpur, Tehsil Dadri, District Gautam Budh Nagar, has been upheld. 3. A supplementary affidavit dated 2.5.2024 has been filed by learned counsel for the petitioner, which is taken on record. 4. It is the case of the petitioner that proceedings under Section 24 of the U.P. Revenue Code, 2006 were initiated at the instance of the respondent Nos. 4 to 7 for the demarcation of Plot No. 436M, area 0.3467 hectare and Plot No. 287M area 0.900 hectares. The petitioner and the respondent No. 17 to 24 are the owners of Plot Nos. 285M, 253M, 290/3 and 433/2. The respondent Nos. 8 to 16 are the recorded owners of Plot Nos. 434 and 290/1. The plot Nos. 285, 253, 290 and 433 are not adjacent to plot No. 436 of which the demarcation was sought. The Revenue Inspector is stated to have submitted his report on 8.1.2023 which was forwarded by the Tehsildar on 9.1.2023 to the Sub Divisional Officer concerned mentioning that the area of Plot No. 436 is 5.7990 hectares whereas the area was only 0.3467 hectares as reflected in the Khatauni pertaining to 1427-1432 Fasli filed on record as Annexure-3. The Sub Divisional Officer on the basis of an incorrect report passed the order dated 4.7.2023 directing the demarcation of the Plot No. 436. The Sub Divisional Officer on the basis of an incorrect report passed the order dated 4.7.2023 directing the demarcation of the Plot No. 436. The order dated 4.7.2023 was challenged in appeal which too has met with the same fate. 5. Learned counsel for the petitioner has assailed the impugned orders by submitting that both the orders dated 4.7.2023 passed by the Sub Divisional Officer, as also the order dated 19.12.2023 passed by the Addl. Commissioner in appeal under Section 24 (4) of the U.P. Revenue Code, 2006 have been passed on incorrect report of the Revenue Inspector, no physical division of Plot No. 436, area 5.7990 hectare and 436M area 0.3467 hectare has not been done and no demarcation could be done without physical division, the provisions contemplated under Section 24 and Rule 22 of the Rules, 2016 have not been complied with. The Greater Noida Authority as also the U.P. State are the co-tenure holders of Khasra plot No. 436M but the area possessed by them has not been given in the report forming the basis of the impugned orders, the co-tenure holders of Khasra Plot No. 436 as recorded in the Khatauni were not made party to the proceedings. 6. In the supplementary affidavit dated 2.5.2024 in Para 12 thereof, it has been stated that Plot No. 436, area 5.7990 hectare has already been acquired under Notification under the Land Acquisition Act and the compensation of the acquired land has already been received by the father of the respondent Nos. 4 to 7 being area 5.4523 hectares and the remaining area of Plot No. 436 i.e. area 0.3467 has been sold by the tenure holders to the irrigation department through registered sale deeds. The total area of plot No. 436 as well as 287 are in the name of the Greater Noida Development Authority and the Irrigation Department of the State of U.P. and the same is not under the ownership of the respondent Nos. 4 to 7. It is contended that the respondent Nos. 4 to 7 did not have locus to initiate the proceedings for demarcation under Section 24 of the Act to demarcate the plot No. 436 which has either been acquired or sold. It is thus contended that the entire proceedings under Section 24 are vitiated and liable to be set aside and the writ petition allowed as prayed. 7. 4 to 7 did not have locus to initiate the proceedings for demarcation under Section 24 of the Act to demarcate the plot No. 436 which has either been acquired or sold. It is thus contended that the entire proceedings under Section 24 are vitiated and liable to be set aside and the writ petition allowed as prayed. 7. Shri Abhishek Shukla, learned Addl. Chief Standing Counsel, in opposition to the writ petition, submits that the petitioner has an alternate remedy to assail the order dated 19.12.2023 in revision under Section 210 of the U.P. Revenue Code, 2006 since the order passed by the Commissioner under Section 24 (4) of the Code has been made subject to the provisions of Section 210 of the Code by the U.P. Act No. 7 of 2019. He submits that the writ petition may not be entertained in the wake of availability of an effective alternate remedy. 8. Refuting the above submission, learned counsel for the petitioner submits that existence of an alternate remedy is not an absolute bar rather is a self imposed restriction and the present case is a fit case where the power under Article 226 of the Constitution of India can be exercised as the orders impugned have been passed in the utter disregard of the procedures prescribed besides at the instance of persons who had no locus to maintain the proceedings under Section 24 of the U.P. Revenue Code, 2006 having sold the land contained in the Plot No. 436 demarcation of which was sought. 9. Reliance has been placed upon a decision of the Apex Court in the case of PHR Invent Educational Society versus UCO Bank and others, Civil Appeal No. Nil of 2024 (arising out of SLP (c) No. 8867 of 2022) decided on 10th April, 2024, particularly to Para 29 thereof, where the Court has carved out certain exceptions when a petition under Article 226 of the Constitution could be entertained in spite of availability of an alternative remedy. Some of them being:- i) where the statutory authority has not acted in accordance with the provisions of the enactment in question; ii) it has acted in defiance of the fundamental principles of judicial procedure; iii) it has resorted to invoke the provisions which are repealed; and iv) when an order has been passed in total violation of the principles of nature justice. 10. 10. Based on the above, learned counsel for the petitioner submits that the objection taken by the learned Addl. Chief Standing Counsel may not be sustained and the writ petition be entertained and decided on merits. 11. I have heard the learned counsel for the parties and have perused the records. 12. Having considered the rival submissions of the learned counsels for the parties, the Court is of the opinion that several factual aspects as submitted by counsels for the parties, need to be ironed out before the writ petition can be decided on merits. Moreover, a statutory remedy to assail the order of the Commissioner passed under Section 24 (4) has been provided in the statute book itself which in the opinion of the Court may not be bypassed. 13. The Apex Court in the case of PHR Invent Education Society case (supra) relied upon by the learned counsel for the petitioner, itself in Para 30 of the decision has clarified that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action is complained of has been taken itself contains a mechanism for redressal of grievance. 14. In view of the above, this Court is not inclined to entertain the writ petition in the wake of availability of a statutory alternate remedy of filing a revision under Section 210 of the U.P. Revenue Code, 2006 against the impugned order dated 19.12.2023 passed by the Addl. Commissioner (Administration) 2nd, Meerut Division, Meerut. 15. This Court finds that the limitation for filing revision under Section 210 of the U.P. 16. Revenue Code, 2006 is 60 days from the date of the order sought to be revised. The 60 days have since expired. The writ petition was presented in the Registry of this Court on 31.1.2024. Learned counsel for the petitioner submits that if a revision is now filed, the same would be rejected on the ground of limitation and there would be no adjudication on merits. 17. Taking note of the above, the writ petition is permitted to be dismissed as withdrawn with liberty to the petitioner to prefer a revision against the impugned order dated 19.12.2023 passed by the Addl. Commissioner (Administration) 2nd, Meerut Division, Meerut under Section 210 within three weeks from today. 18. 17. Taking note of the above, the writ petition is permitted to be dismissed as withdrawn with liberty to the petitioner to prefer a revision against the impugned order dated 19.12.2023 passed by the Addl. Commissioner (Administration) 2nd, Meerut Division, Meerut under Section 210 within three weeks from today. 18. In the eventuality of a revision being filed by the petitioner within the time allowed along with an application to condone the delay, the Board of Revenue is expected to condone the delay taking note of the fact that the petitioner had been pursuing the writ petition before this Court and entertain the revision consider and decide the same on merits ignoring the point of limitation. 19. The certified copies of the impugned orders shall be returned to the petitioner after retaining a photocopy of the same on record.