Allahabad High Court
Jitender Dhawan And Another vs State Of U.P. & Others on 30 August, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - C No. - 49439 of 2011
Petitioner :- Jitender Dhawan And Another
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Vikash Budhwar,Amit Shukla,C. B. Yadav
Respondent Counsel :- C. S. C.
Hon'ble Amreshwar Pratap Sahi,J.
Sri C.B.Yadav learned senior counsel for the petitioner has come up assailing the order passing by the learned Commissioner dated 15.12.2010 and the rejection of the restoration application vide order dated 8.6.2011 on the ground that the said revision was not maintainable under the provisions of Section 333 of the U.P.Z.A.& L.R.Act and therefore the findings recorded by the Commissioner are beyond his powers keeping in view the nature of the proceedings that were initiated at the instance of the petitioners.
It appears that the petitioners have a decree in their favour which is stated to be from a competent court. It is also the case of the petitioners that accordingly the revenue records have been maintained including the records during the consolidation proceedings and as such the petitioners stand recorded as tenures holder over the land in dispute. He submits with the aid of such evidence the petitioners are entitled to execute the decree which is in their favour.
A miscellaneous application appears to have been moved by the petitioner no.2 on 19.7.2007 which was entertained by the S.D.M.,Garh Mukteshwar, Ghaziabad whereupon certain reports were called for. This application was moved on the ground that the petitioners being the tenure holders of plot No.49 old plot No.400 were entitled for a demarcation of the area on the basis of the said decree as the Forest Department through its authorities are unnecessarily interfering with the possession of the petitioners. The application was admittedly referred to as a miscellaneous application and was not any regular proceeding under the provisions of the U.P.Land Revenue Act, 1901 read with U.P.Z.A. & L.R.Act, 1950. This miscellaneous proceeding was virtually adjudicated upon by the S.D.M. and as a matter of fact under this miscellaneous exercise, a sort of a declaration was given in favour of the petitioners.
The State of U.P. went up in a revision before the Commissioner and the said order has been set aside with further observations clearly recorded against the petitioners to the effect that the S.D.M. has travelled absolutely beyond his competence and against the records. The Commissioner has issued directions to the District Magistrate and to the S.D.M., to re-examine the entire matter and pass appropriate orders after verifying the status of the land as to whether it is reserved forest land or not.
Sri Yadav contends that the revision not being maintainable, the impugned order deserves to be set aside, as the order passed on 25.9.2007 is not an order under any of the provisions of the U.P. Land revenue Act, 1901 Act read with U.P.Z.A. & L. R. Act
Learned standing counsel for all the respondents on the other hand submits that the matter does not require any counter affidavit as it is a pure legal question on the facts on record and therfoere the writ petition may be disposed of finally on merits. He submits that the petitioner himself approached the S.D.M. and the order of the S.D.M. travelled beyond his authority to grant a declaration in the nature as has been done in the present case, more so when the land according to the State is forest land. He submits that such a declaration was not permissible on a miscellaneous application. Hence the Commissioner did not exceed his jurisdiction in setting aside the same and passing the impugned order.
Having heard learned counsel for the parties the conceded position before the Court is that the orders passed by the S.D.M. were on a miscellaneous application. In the opinion of the Court the S.D.M., could not have proceeded to deal with the matter on a miscellaneous application. The S.D.M. should not have granted the declaration more so after assessing an evidence in relation to the claim of the petitioner which was otherwise according to the petitioner executable as a decree. The S.D.M. was not dealing with the execution of the decree that was in favour of the petitioners. Hence the S.D.M. ought to have restrained himself merely by passing any order that may be required on the administrative side. The order of the S.D.M. amounts to an exercise of jurisdiction which was beyond his power. The order was not within his competence.
Even the revision which came to be filed by the State against the order on a miscellaneous application was not competent. The learned Commissioner without examining the issue has proceeded to set aside the order. Accordingly neither the order of the S.D.M. nor the order passed in revision could be sustained in law as they proceeded beyond the relevant provisions of the U.P.Z.A. L.R. Act, 1950 and the U.P.Land Revenue Act, 1901. The issue relating to a wrong assumption of jurisdiction has been dealt with in a recent decision of this Court in the case of Kamal Kumar Srivastava Vs. Board of Revenue & others, Writ Petition No. 8658 of 2006, decided on 18.8.2011.
Accordingly the orders dated 15.12.2010 and 8.6.2011 passed by the Commissioner as also the order passed by the S.D.M. dated 25.9.2007 are set aside and the writ petition is disposed of accordingly without prejudice to the rights of either of the parties to contest the matter before the appropriate forum in accordance with law.
Order Date :- 30.8.2011
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