Allahabad High Court
Vaseem And Others vs The Addl. Commissioner ... on 28 March, 2023
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - C No. - 2365 of 2023
Petitioner :- Vaseem And Others
Respondent :- The Addl. Commissioner (Judicial)-Ii,Lucknow Division, Lko. And Others
Counsel for Petitioner :- Zia Ur Rehman,Mubin Ahmad
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Zia-Ur-Rehman, learned counsel for the petitioners and Sri Arya Shrestha Tiwari, learned Additional Chief Standing Counsel for the State respondents and Sri Dilip Kumar Pandey, learned counsel for the opposite party no. 3 / Gram Panchayat.
In view of the proposed order notice to private respondents is hereby dispensed with.
By means of this petition the petitioners have assailed the judgment and order dated 19.11.2022 in Appeal u/s 331 of U.P.Z.A. & L.R. Act, 1950 passed by the opposite party no. 1 i.e. The Additional Commissioner (Judicial)-II, Lucknow Division, Lucknow upholding the judgment and order dated 7.2.2015 passed by opposite party no. 2 i.e. Collector, Sitapur.
Learned counsel for the petitioner has submitted that the impugned orders have been passed ignoring the factual and legal matrix of the issue in Gata No. 161 area 0.482 Hect. situated at village Gauriyadeeh, Post & Pargana- Tambour, Tehsil Laharpur, District Sitapur. The impugned order dated 7.2.2015 was passed by the Sub-Divisional Officer / Assistant Collector, First Class, Tehsil Laharpur, District Sitapur in proceedings u/s 229B/209 of U.P.Z.A.&L.R. Act (Annexure no. 6).
At the very outset Sri Arya Shrestha Tiwari, learned Addl. C.S.C. has drawn attention of this Court towards section 331 of U.P.Z.A. & L.R. Act, 1950. Sub-clause (1) of section 331 of U.P.Z.A. & L.R. Act, 1950 clearly provides that except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof [,] [or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.
Further, attention has been drawn towards Schedule 2(section 331) referring serial no. 34 thereof which provides that if suit for declaration of right u/s 229 or 229B or 229C is filed before the Assistant Collector, First Class, the orders being passed by the Assistant Collector, First Class shall be assailed before the First Appellate Authority and Second Appellate Authority. The First Appellate Authority would be Commissioner u/s 331(3) and the Second Appellate Authority would be Board of Revenue in terms of section 331(4).
In the present case the petitioner is aggrieved from the order of Assistant Collector, First Class as well as the order of First Appellate Authority, therefore, the petitioner should file Second Appeal in terms of section 331(4) of Act, 1950. For the convenience sub-section 4 of section 331 of U.P.Z.A.&L.R. Act, 1950 reads as under :
"(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in Column 6 of the Schedule aforesaid."
On that learned counsel for the petitioner has requested that the petitioner may be permitted to file second appeal before the Second Appellate Authority and the direction may be issued to dispose of such second appeal strictly in accordance with law with expedition.
Therefore, without entering into the merits of the issue and considering the arguments of learned counsel for the parties and the relevant provisions of Act, 1950 i.e. 331(1)(3) and 331(4) as well as second schedule (u/s 331), I am of the considered opinion that if there is any statutory alternative remedy available to the aggrieved person he/she should first approach the statutory authority before filing any petition under Article 226 of the Constitution of India.
In view of above, the liberty is given to the petitioner to file second appeal before the Second Appellate Authority within a period of 15 days from today taking all pleas and grounds which are available to them and if such an appeal is filed before the Second Appellate Authority within time stipulated within 15 days from today, the Second Appellate Authority shall consider and decide the second appeal on merits ignoring the delay strictly in accordance with law by affording an opportunity of hearing to the parties concerned with expedition preferably within a period of one year from the date of production of certified copy of the order of this Court and decision thereof shall be intimated to the parties forthwith.
It is made clear that if the petitioners do not file second appeal in terms of order of this Court within time stipulated i.e. 15 days from today they will have to file an application for condonation of delay along with appeal and such application shall be decided by the Second Appellate Authority first before adverting to the second appeal on merits.
Office is directed to hand over the certified copies which have been filed along with this petition to the learned counsel for the petitioner forthwith after taking photocopies of the same.
In view of above observations, writ petition is disposed of.
.
(Rajesh Singh Chauhan, J.)
Order Date :- 28.3.2023
Om
