Allahabad High Court
Bhola Pandey vs Board Of Revenue And Others on 1 April, 2022
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- WRIT - B No. - 29092 of 1996
Petitioner :- Bhola Pandey
Respondent :- Board Of Revenue And Others
Counsel for Petitioner :- S.K. Singh,Rajesh Kumar Tiwari,V.K. Singh
Counsel for Respondent :- S.C.,Triveni Shanker
Hon'ble Anjani Kumar Mishra,J.
Order on Civil Misc. Delay Condonation Application No. 6 of 2021
The cause shown for the delay in filing the restoration application is found to be sufficient.
The delay is condoned.
Order on Civil Misc. Restoration Application No. 7 of 2021
Heard.
The cause shown for recall of the order dated 27.08.2021 is found to be sufficient.
The restoration application is allowed.
The writ petition is restored to its original number.
Order on writ petition
Heard learned counsel for the petitioner and counsel appearing for the respondent holding brief of Shri Triveni Shanker, respondent no. 4.
The writ petition arises out of proceedings under Section 161 of the U.P. Zamindari Abolition and Land Reforms Act for exchange and is directed against the orders passed by the three courts below.
The Sub Divisional Officer by his order dated 11.08.1994, has allowed the exchange. The order passed , again by the Sub Divisional Officer, dated 14.06.1994, whereby a review application was rejected, the order dated 08.06.1995 passed by the first appellate court, the Commissioner and the order of Board of Revenue dated 31.05.1996 passed in second appeal are all under challenge.
Before this Court assailing the impugned orders, the contention of learned counsel for the petitioner is two fold; first he has pressed the ground which has been pressed before the Board of Revenue that the land of the Gaon Sabha, which has been exchanged on the application of the respondent was part of land reserved for a public purpose namely a chak road and abadi . Therefore in view of Section 29-C(1) of the U.P. Consolidation of Holdings Act, this land could not have been subject matter of exchange in view of the specific bar contained in Section 29 of the U.P.C.H. Act.
The second contention is that in fact, the exchange is of much grater area that the petitioner was entitled especially when a report of the Tehsildar indicated that the valuation of the two land was almost equal and therefore, their valuations did not vary by more than 10%.
Counsel appearing for the respondent has supported the impugned orders.
Upon hearing counsel for the petitioner and upon a perusal of the record, it appears that the first contention raised by the respondent has been dedicated as there was no cogent evidence to show that the land of the Gaon Sabha which was exchanged with the land of respondent no. 4 was in any way reserved for a public purpose under the U.P.C.H. Act during consolidation operations. Similar is the situation at hand even in the writ petition. Therefore, this submission of learned counsel for the petitioner has no merit and is repelled.
Insofar as the second ground as regards the area which the respondent no. 4 has got in exchange being grater than what she was entitled to, appears to be a new ground which has not been raised in second appeal.
The contention of learned counsel for the petitioner is that even if the ground has not been raised in the second appeal, it was definitely taken as a ground in the memo of first appeal filed before the Commissioner.
Be that as it may, there was no consideration or mention of this plea in the order passed by the Board of Revenue. Nor has it been stated in the petition that this plea was raised but was not considered in second appeal. It is settled law once a legal issue has been given up at any stage of the proceedings, the party is estopped from raising it at subsequent stages.
Even if it is admitted that this second plea of the petitioner had been raised before the first appellate court.
Not only has memo of second appeal not being filed on record even if it is accepted that this plea was argued in second appeal, there is not even a whisper of this plea in the judgment passed by the Board of Revenue. It is equally well said that in case a ground is urged before a court and the same same does not find a mention in the judgment, the remedy available to a party is by means of review application before the same court pointing out this discrepancy. Even this has not been done. Therefore, it cannot be accepted that this second plea had been raised before the Board of Revenue. This Court is therefore, constrained to observe this second plea being raised is one which had been abandoned by the petitioner at the second appellate stage. This plea therefore, cannot be permitted to be raised at this stage in writ petition.
Under the circumstances, and in view of the above, I do not find any illegality in the impugned orders. The writ petition is accordingly, found to be without merit and is dismissed.
Order Date :- 1.4.2022/Mayank
