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2024 DIGILAW 203 (ALL)

Zahid v. Board of Revenue

2024-01-18

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Re: Civil Misc. Substitution Application No.7 of 2023 The instant application has been filed in respect of deceased petitioner no.2. Application is within limitation. Let the word 'deceased' be mentioned against the name of petitioner no.2 and the names of legal heirs as mentioned in the prayer clause be substituted as petitioner nos. 2/1 and 2/5 respectively in the array of the parties. The substitution application is, accordingly, allowed. Order on Writ Petition Heard Mr. Manish Dev Singh, learned counsel for the petitioners, Mr. Anjani Kumar Chaurasia, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, learned counsel for respondent no.4, Land Management Committee. 2. Brief facts of the case are that residential lease was executed in favour of petitioners along with others on 18.8.1990 which was approved on 29.1.1991. In pursuance lease executed on 8.8.1990/ 29.1.1991 possession was delivered to petitioners along with other lease holders. Proceeding under Section 115-P of U.P.Z.A. and L.R. Act was registered before the Collector as case No. 42 of 1994 and the same was heard by Additional District Magistrate, Finance and Revenue who vide order dated 8.5.2001 cancelled the lease executed on 18.8.1990/ 29.1.1991. Petitioners challenged the order dated 18.5.2001 through revision before Commissioner along with the prayer for condonation of delay. Learned Commissioner entertained the matter and stayed the operation of impugned order dated 18.5.2001 till time bound period but on next date interim order was not extended hence petitioners filed revision before Board of Revenue which was registered as revision No. 82 of 2007- 08. Board of Revenue vide order dated 8.7.2008 remanded the matter before Commissioner to decide the pending revision within period of three months and parties were directed to maintain status quo till then. After remand the revision was dismissed for non-prosecution before Commissioner vide order dated 6.8.2008. On 1.9.2008, petitioners filed restoration/ recall application to recall the order dated 6.8.2008 which was again dismissed for non prosecution on 22.6.2009. Petitioners again filed restoration application on 24.12.2010 along with the prayer for condonation of delay which was dismissed by Commissioner vide order dated 8.6.2011. After remand the revision was dismissed for non-prosecution before Commissioner vide order dated 6.8.2008. On 1.9.2008, petitioners filed restoration/ recall application to recall the order dated 6.8.2008 which was again dismissed for non prosecution on 22.6.2009. Petitioners again filed restoration application on 24.12.2010 along with the prayer for condonation of delay which was dismissed by Commissioner vide order dated 8.6.2011. Petitioners filed a Writ C No. 57670 of 2011 challenging the order dated 8.6.2011 which was dismissed vide order dated 30.9.2011 on the ground of alternative remedy of revision before Board of Revenue accordingly petitioners filed a revision under Section 333 of U.P.Z.A. and L.R. Act before Board of Revenue which was dismissed vide order dated 8.12.2011. Hence this writ petition for the following reliefs:- " (i) Issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 8.12.2011 and 8.6.2011 and 22.6.2009 and dated 6.8.2008 and order dated 18.5.2001 passed by respondents 1,2,3 respectively. (ii) Issue a writ, order or direction in the nature of mandamus quashed the wholly collective patta cancellation proceedings." 3. This Court entertained the matter on 4.1.2012 and passed the following order:- "Petitioners were allotted Gaon Sabha land as per the resolution of the Gaon Sabha which was also approved but the said allotment was cancelled vide order dated 18.5.2001. Petitioners revision against the said cancellation order has been dismissed in default. Their restoration application as well as further revision thereto has also been dismissed. Learned Standing counsel appearing for respondents no. 1 to 3 and Sri. Anuj Kumar who has accepted notice on behalf of respondent no. 4 are allowed two weeks time to seek instructions in the matter. List immediately thereafter. Till the next date of listing, status quo as on date shall be maintained with regard to land in dispute." 4. In spite of the repeated time granted by this Court to the State and Gaon Sabha/ Land Management Committee to file counter affidavit, no counter affidavit has been filed by State/ Gaon Sabha. 5. Private respondent nos. 5,6 and 7 are complainant of the proceeding and remaining private respondent nos. 8 to 69 are allottees along with petitioners as no notice is required to respondent nos. 8 to 69. 6. Counsel for the petitioners submitted that petitioners' lease has been cancelled in arbitrary and ex-parte manner. 5. Private respondent nos. 5,6 and 7 are complainant of the proceeding and remaining private respondent nos. 8 to 69 are allottees along with petitioners as no notice is required to respondent nos. 8 to 69. 6. Counsel for the petitioners submitted that petitioners' lease has been cancelled in arbitrary and ex-parte manner. He submitted that no opportunity of hearing was afforded to the petitioners along with others before cancellation of their lease by Additional Collector. He submitted that lease was executed following the due procedure as prescribed under the U.P.Z.A. and L.R. Act and Rules framed thereunder. He further submitted that petitioners' revision has been dismissed on the technical grounds, as such, the impugned order be set aside and matter be remitted back before Commissioner to decide the revisional proceeding afresh on merit. 7. On the other hand, Mr. Anjani Kumar Chaurasia, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, learned counsel for respondent no.4, Land Management Committee submitted that proper procedure for grant of lease was not followed, as such, the lease has been cancelled by the Court in accordance with law. He submitted that petitioners were negligent in due prosecution of the proceeding, as such, the impugned order have been passed by respondents. They submitted that in view of the finding recorded by the Additional Collector while cancelling the lease of the petitioners, no interference is required and writ petition is liable to be dismissed. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that lease for residential purpose were executed in the year 1990 in favour of petitioners along with respondent nos. 8 to 69 but lease were cancelled vide order dated 18.5.2001. The revision and restoration applications filed by the petitioners have also been dismissed in arbitrary/ ex-parte manner. 10. In order to appreciate the controversy involved in the matter, the order passed by Additional Collector dated 18.5.2001 while cancelling the petitioners' lease will be relevant for perusal which is as under:- 11. The perusal of the order of Commissioner dated 22.6.2009 will also be relevant for perusal which is as under:- 12. Board of Revenue while passing impugned order dated 8.12.2011 has maintained the aforementioned orders which were passed in ex-parte manner. 13. The perusal of the order of Commissioner dated 22.6.2009 will also be relevant for perusal which is as under:- 12. Board of Revenue while passing impugned order dated 8.12.2011 has maintained the aforementioned orders which were passed in ex-parte manner. 13. It is established from record that petitioners along with respondent nos. 8 to 69 were granted residential lease in the year 1990 and on the private complaint, the lease of the petitioners along with respondent nos. 8 to 69 were cancelled without affording proper opportunity of hearing to contest the proceeding. The revision and restoration applications have also been dismissed on the technical grounds. 14. Considering the entire facts and circumstances, the impugned orders dated 8.12.2011, 8.6.2011, 22.6.2009 and 6.8.2008 are liable to be set aside and the same are hereby set aside. The writ petition is allowed in part and the matter is remitted back before respondent no.2 to register the revision No. 72 of 2007-08 Jahid & Other v. Nanuwa and Others on its original number and decide the same afresh after affording opportunity of hearing to the parties in accordance with law. It is further directed that respondent no.3, Commissioner shall issue notice to all the parties who are interested in the proceeding and decide the matter within period of three months in accordance with law from the date of production of certified copy of this order before respondent no.3.