Fazi-Ur-Rehman Khan @ Munnan Khan vs Commissioner Devi Patan Gonda And ...
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Allahabad High Court

Fazi-Ur-Rehman Khan @ Munnan Khan vs Commissioner Devi Patan Gonda And ... on 13 August, 2025

Author: Irshad Ali

Bench: Irshad Ali

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:47367
 

 
Reserved on: 14.05.2025
 
Delivered on: 13.08.2025
 
Court No. - 3
 

 
Case :- WRIT - C No. - 1001212 of 2004
 

 
Petitioner :- Fazi-Ur-Rehman Khan @ Munnan Khan
 
Respondent :- Commissioner Devi Patan Gonda And Others
 
Counsel for Petitioner :- Mohd. Arif Khan,A.K. Srivastava,Mohd Adil Khan,Mohd.Arif Khan,Mohd.Aslam Khan,Mohd.Shadab Khan
 
Counsel for Respondent :- C.S.C.,Avanish Kumar Singh,Julfikar Ahmad,Kumar Ayush,S.K. Mehrotra
 

 
Hon'ble Irshad Ali,J.
 

1. Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Ms. Fatima Baqar, learned counsel for the petitioner and Sri Mohd. Irfan, Advocate holding brief of Sri Kumar Ayush, learned counsel for respondent Nos.4 and 5 and learned Standing Counsel for the respondent Nos.1 to 3.

2. The present writ petition has been preferred for issuance of writ of certiorari quashing the impugned order dated 17.02.2001 (Annexure 18) passed by respondent No.1 upholding the order dated 11.08.2000 (Annexure 17) passed by respondent No.2.

3. Factual matrix of the case is that the petitioner is bhumidhar of plot No.52 area 5.18 acres situated in village Paraspur. The said plot is situated by the road side known as Gonda - Faizabad Road.

4. The corporation has decided to install a petrol and diesel outlet on the aforesaid highway and had approached the petitioner for purchase of a portion of plot No.52. After negotiation and settlement, the petitioner agreed to sell a portion of plot No.52 measuring 12000 sq.ft. A sale deed was executed by the petitioner on 12.02.1999 in favour of the corporation describing the land sold with red colour in the sale deed as well as in the map appended thereto.

5. The corporation made an application to the respondent No.2 for grant of NOC but deliberately annexed an incorrect map and succeeded in obtaining the NOC from respondent No.2 under the Explosive Act.

6. Having obtained a sale deed, the corporation applied for mutation of its name in the revenue record. The application was dismissed by Naib Tehsildar vide order dated 04.09.1999. An application was made for restoration, which was allowed without complying the formalities of issuing a proclamation as provided under the Act.

7. On coming to know about the ex parte order, the petitioner made an application for recall dated 13.12.2000, which is pending.

8. The petitioner on coming to know about the NOC issued to the petitioner, filed objection on 25.02.2000 before respondent No.2 for demarcation of the land in question and also for stay, restraining the corporation not to interfere with his possession.

9. No action having been taken on the application made by the petitioner, he again approached to respondent Nos.1 and 2 on 28.02.2000. He also approached to the Director of Marketing, Indian Oil Corporation by making an application that possession over the land other than the land purchased by the corporation be not taken and a similar application to the General Manager as well as Executive Director was sent. The petitioner again made an application to respondent No.2 to the same effect restraining the running of the outlet by the corporation over the plot of the petitioner.

10. The petitioner made an application on 06.03.2000 to respondent No.3 that despite the order of status quo, the corporation had not stopped its activities and had not only raised constructions but is also selling the diesel and petrol.

11. Being aggrieved by illegal and arbitrary action of respondents, the petitioner filed writ petition No.1674 (MB) of 2000 which was decided and a direction was issued to respondent No.2 to consider the request made by the petitioner for demarcation. The petitioner served copy of order dated 18.04.2000 through application on respondent No.4.

12. No orders were passed by respondent No.2 on the application thereupon the petitioner made an application before respondent No.2 on which an endorsement was made that no record is available in the court.

13. Respondent No.3 after hearing the parties and after going through the record including the demarcation report confirmed the report dated 10.05.2000.

14. The Chief Revenue Officer in pursuance to judgment passed by this Court after making measurement on the spot in presence of the petitioner, counsel for the corporation and the Field Officer submitted a report. After demarcation made as aforesaid, the matter was taken by respondent No.2 who had passed an order rejecting the objection made by the petitioner against grant of NOC on the ground that he had no jurisdiction to demarcate the plot unless partition under Section 176 of the Act is not made and the revenue court have got no jurisdiction to get the plot demarcated. It was further held that he has no jurisdiction to review the order passed granting the NOC as there is no such provision under the Indian Explosive Act.

15. Being aggrieved by the order dated 20.12.1999 and 11.08.2000 passed by respondent No.2 the petitioner filed a revision before respondent No.1.

16. Respondent No.1 rejected the revision as not maintainable as the orders passed by respondent No.2 were of administrative in nature, hence, the revision is not maintainable against the order passed by respondent No.2 which is quasi judicial , thereby, dismissed the revision.

17. Hence, the present writ petition has been filed before this Court.

18. Submission of learned Senior Counsel for the petitioner is that it is well settled that every authority has got inherent power to rectify / correct its order by reviewing the same if the same has been obtained by a person by concealment of material fact and by playing fraud. Respondent No.2 rejected the application made by the petitioner for demarcation under Section 41 of the Act despite specific order passed by this Court, thereby the order passed is vitiated in law.

19. He next submitted that no declaration under Section 143 of U.P. ZA & LR Act has been made so far, hence, the nature of tenure of the portion of plot No.52 will remain the same, namely bhumidhari and the respondent No.2 thereby erred in law in rejecting the application for demarcation of irrelevant consideration that since the boundary had been raised by the corporation, hence, it is only the civil court who has jurisdiction and the jurisdiction of revenue court has been ousted ignoring the order dated 28.02.2000 passed by respondent No.3 directing the parties to maintain status quo.

20. He submitted that the nature of the tenure having not been changed and the corporation had purchased a specific portion of plot No.52, which had not only been described in the sale deed but also in the map appended thereto by red colour. Thus, the corporation became the co-tenure holder along with the petitioner and the application made by the petitioner under Section 41 of the Act was rightly maintainable yet the opposite party No.2 rejected the same, thereby the order passed is vitiated in law.

21. He further submitted that the proceedings for demarcation of plot are maintainable under Section 41 of the Act irrespective of the partition and the area of the plot No.52 which belongs to the petitioner could be demarcated. The revenue authorities in pursuance to the order passed by this Court had demarcated the area of plot No.52 sold by the petitioner and the rest of the area in his possession and had also shown the area illegally occupied by the corporation and the opposite party No.2 instead of confirming the said report and allowing the application made by the petitioner under Section 41 had illegally rejected the same which vitiates the order passed.

22. He submitted that it having been found after demarcation proceedings initiated in pursuance to the order passed by this Court on the application made by the petitioner that the corporation is in illegal occupation over the portion of plot No.52 other than that was purchased by it and the respondent No.2 on irrelevant circumstances unwarranted by law had refused to cancel the NOC thereby the order passed is vitiated in law.

23. He submitted that respondent No.1 without considering the entire evidence on record including the application made by the petitioner had illegally rejected the application for demarcation as well as objection for cancellation of NOC merely on the ground that the petitioner had not filed any application / representation as directed by this Court, thereby the order is not only illegal but without jurisdiction.

24. He lastly submitted that against the demarcation report submitted by the Chief Revenue Officer, Gonda dated 26.05.2000 as well as order dated 19.05.2000 confirming the demarcation report dated 10.05.2000, no objections were filed by the corporation and it had submitted there reports, yet the respondent No.2 on irrelevant consideration rejected the application made by the petitioner for demarcation and cancellation of NOC, thereby the order passed is illegal and without jurisdiction. In support of his submissions, he placed reliance upon a judgment in the case of Secretary, Mohakma - Alia Islamia Ek - Anna Fund, Model Houses, Lucknow Vs. The Controller, U.P. Sunni Central Board of Waqfs and others; Writ Petition No.327 of 1977 decided on 27 July, 1983.

25. On the other hand, learned counsel for respondent Nos.4 & 5 submitted that Indian Oil Corporation in order to install a petrol pump at Gonda - Faizabad Road issued an advertisement in the news paper on 27.07.1998. In response to said advertisement, the petitioner submitted an application on 17.11.1998 along with map thereby offering for sale of land measuring 120 X 100 sq.ft. or 133.33 sq. mts. of plot No.52 situated at Village Paraspur, Pargana, Tehsil and District Gonda. Plot No.52, which belongs to the petitioner is total 5.8 acre.

26. The petitioner's offer was considered by the Selection Committee on 13.12.1998. After the selection committee cleared the petitioner's proposal for sale of land measuring 120 X 100 sq.ft. i.e. 1200 sq.ft. of plot No.52 and accordingly, the sale deed had been executed between the petitioner and Indian Oil Corporation on 12.02.1999.

27. In the sale deed, it can be seen that it is specifically mentioned that the land which is sold by means of sale deed in question is free from all encumbrances and the land is free from all charges / claim /demand / liability / notice / legal dispute / mortgage / gifts etc and if it proved otherwise at any time or the vendee suffers any loss on the whole or part of the property is taken away from the possession of the vendee, the vendor or his heirs etc. from their property moveable, immoveable, and otherwise shall be liable to make the losses good as well as consequential damages those suffered by the vendee. In addition to above facts, it was also mentioned in the sale deed that this land is to be sold by means of the sale deed in question. It is further submitted that after registration of the sale deed, the necessary endorsement has already been made in respect of the sale transaction in the khatauni.

28. He submitted that the petitioner was having full knowledge in respect to proceedings regarding mutation,when the matter was pending before the Tehsildar, who by means of order dated 16.12.1999 mutated the name of Indian Oil Corporation as co-owner of the land in dispute on the basis of sale deed and accordingly, thereafter the name of Indian Oil Corporation had been recorded as co-owner in the revenue records.

29. After purchase of land vide sale deed dated 12.02.1999 for sale consideration of Rs.7,91,820.40/- Indian Oil Corporation in order to install the petrol pump had submitted an application to the District Magistrate, Gonda on 13.12.1999 for obtaining No Objection Certificate and also completed necessary formalities as required and finally by means of order dated 20.12.1999, the District Magistrate, Gonda granted No Objection Certificate to Indian Oil Corporation for installation of petrol pump at the site in question.

30. After obtaining NOC by Indian Oil Corporation for construction of petrol pump at the site in question from District Magistrate, Fire Department, Police Department and P.W.D., Indian Oil Corporation commissioned the petrol pump and installed two tanks and two dispensing units at the site in question.

31. At that stage, the petitioner did not raise any objection with respect to installation of tanks and dispensing units. Thereafter, with an oblique motive and purpose the petitioner on 25.02.2000 had applied before the Commissioner for demarcation of land in question and also prayed for restraining the Indian Oil Corporation from interfering in his possession.

32. He submitted that the application given by the petitioner to the Commissioner for demarcation was not in accordance with law and also not in accordance with provisions of Land Revenue Act.

33. Thereafter, the petitioner filed Writ Petition No.1674 (MB) of 2000 Fasi-ur-Rehman Vs. Commissioner, Devi Patan Division, Gonda and others and this Court by means of judgment and order dated 18.04.2000 pleased to dispose of the said writ petition and a direction was issued to the Collector, Gonda to consider the request of the petitioner to demarcate the boundaries as alleged by the petitioner in his representation / application within specified time as mentioned in the order dated 18.04.2000 from the date of production of certified copy of the order dated 18.04.2000 and further directed that till the Collector decides the matter, the parties shall maintain the status quo as exists today.

34. The petitioner has not complied the directions given in the judgment and order dated 18.04.2000. However, in compliance of judgment and order dated 18.04.2000, the matter went up before the Collector / District Magistrate, Gonda.

35. In compliance of the order, the District Magistrate, Gonda directed the Chief Revenue Officer to make the spot inspection and measurement done. The same was done in presence of the petitioner and officials of Indian Oil Corporation.

36. He submitted that initially, the petitioner moved an application for demarcation before the Sub Divisional Officer, Gonda on 10.06.1999 under Section 41 of U.P. Land Revenue Act and on 25.06.1999 the Sub Divisional Officer, Gonda requested the Tehsildar to get the spot measurement done and in pursuance thereto the Tehsildar directed the concerned Revenue Inspector to get it done. Accordingly, the measurement was done and the Land Revenue Inspector submitted the report on 10.05.2000. Thereafter, the competent authority after taking into consideration the entire material into record passed the order dated 19.05.2000.

37. Before the Collector / District Magistrate, Gonda beside the other facts in respect to the purchase of land in question by Indian Oil Corporation, it was also brought on record that portion of plot No.52 there is a tank and further the petitioner had also mortgaged certain portion of land to the bank. After taking into consideration the facts and circumstances of the case, the District Magistrate passed an order on 11.08.2000, which is valid and in accordance with law.

38. Being aggrieved by order dated 11.08.2000, the petitioner preferred a revision before the Commissioner, Devi Patan, Gonda and the same was rejected by means of order dated 17.02.2001. As a matter of fact, the entire action has been done by the petitioner with a malafide intention only in order to dispossess the Indian Oil Corporation and also to restrain Indian Oil Corporation from operating the business of selling petroleum products. Therefore, submission is that the revenue court and the authorities functioning under Land Revenue Act have no jurisdiction to order for demarcation with respect to plot, where the construction has been made and the petrol pump is in operation.

39. When the petitioner did not succeed in the above said ill motive, the filed a suit for mandatory injunction in the Court of IIIrd Additional Civil Judge, Gonda which was registered as Misc. Case No.172 of 2001and in the said case, the petitioner had also moved an application for temporary mandatory injunction under Order 39 Rule 1 and 2 read with Section 151 CPC and initially, vide order dated 31.05.2001 temporary mandatory injunction has been granted restraining the Indian Oil Corporation from storing / selling the petrol from the land in dispute.

40. Against order dated 31.05.2001, an appeal was filed before the District Judge, which was numbered as Appeal No.39 of 2001 and the District Judge, Gonda vide order dated 06.06.2001 admitted the appeal but not considered the urgency of the matter in order to stay the order dated 31.05.2001.

41. The order dated 31.05.2001 was challenged by Indian Oil Corporation before this Court in Writ Petition No.1810 (MS) of 2001 and this court on 28.06.2001 passed the following order:

"Lucknow Dated 28.6.2001

Hon'ble R.K. Agarwal, J.

Issue notice to the respondents no.3 and 4 by RP/AD fixing a date in the week commencing 20.8.2001. Steps to be taken within ten days.

The said respondents may file their counter affidavit on or before 6.8.2001. Rejoinder affidavit, if any, may be filed on or before the date fixed.

List in the week commencing 20.8.2001.

The contention of the petitioners is that vide registered sale deed dated 20.2.99 the respondent no.3 had sold the portion of plot no.52 to the petitioners ad measuring 12000 square feet. Site plan of the land sold to the petitioners also forms part of the sale deed. The contention of the petitioners is that it is carrying out its activities only on the land purchased by it and not on any other land.

As an interim measure, it is provided that the petitioners shall be permitted to continue its operation on the land which it had purchased and which has been shown in the sale deed dated 12.9.99 filed as annexure no.1 to the writ petition. The impugned order dated 31.5.2001 passed by the respondent no.2 shall stand modified to that extent.

Sd/- R.K. Agarwal."

42. Thereafter, in the said writ petition, the counter and rejoinder affidavits have been exchanged between the parties and the same is pending for adjudication before this Court.

43. He submitted that if the petitioner is aggrieved by order dated 17.02.2001, then he has remedy before the Board of Revenue, as such, the present writ petition filed by the petitioner is not maintainable before this Court and the same is liable to be dismissed.

44. He further submitted that the petitioner has also an alternate remedy for filing suit for partition of Plot No.52 situated at village Paraspur, Pargana, Tehsil and District Gonda as per provisions of Section 176 of UP ZA& LR Act and thereafter, demarcation, as sought by him can be done in accordance with law.

45. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

46. To decide the controversy involved in the matter, the judgment relied upon by learned Senior Counsel for the petitioner is being quoted below:

Secretary, Mohakma - Alia Islamia Ek - Anna Fund, Model Houses, Lucknow (Supra):

"8. While considering the question whether the Board acting through, its counsellor does or does not have the power to review its decision to register the waqf under Section 29, Hon''ble K. N. Goyal, J, in writ petition no. 4053 of 1981 Waqf Mlrza Mohd. Alt Mirzai v. Shia Central Board of Waqf, U.P. and ors. decided on 1.2.82, observed that it is, of course, beyond controversy that if an order is quasijudicial in nature, it cannot be reviewed in the absence of any express provision in that behalf. But this only implies that the decision, if reached after following the quasijudicial procedure cannot be reviewed at the instance of any party to that decision. This principle cannot be extended to mean that a decision reached without notice to a party cannot be reviewed at the instance of such party. It may be mentioned that the term quasijudicial merely implies that before reaching a particular decision, opportunity has to be given to the party affected and the decision should be free from bias. If no opportunity is given to the person affected, the decision cannot be characterised as quasijudicial qua that person even though it may be quasijudicial qua any other person. It seems that the expression the person administering the waqf property cannot be confined to the person claiming to be administering the waqf property. It should be widely construed as including any person actually in possession or control or administration of the property alleged to be waqf property. From the perusal of the abovementioned provisions it would transpire that notice to a person who is known to be in actual possession or control of the property, even though in the eye of the Board he may be a trespasser or usurper, is necessary before any property can be declared to be waqf. If a person is not given notice then he can certainly ask for review of the matter as held in Mohammad Laiq v. U.P. Sunni Central Board of Waqf (Civil Revision No. 157 of 1978). This view is supported by a decision referred to by the learned counsel for the petitioner in Naqshe Ali v. U.P. Sunni Central Waqf Board (1970 ALJ 715). In this case an application was moved for cancellation of an entry in the Waqf Register maintained by the Board, on the ground that the waqf was registered without notice to them and the properties which are entered as waqf properties were their private properties, the deed of waqf relating to them having been declared as void in a previous suit. The application was opposed by the Mutwalli at whose instance the waqf was previously registered by the Board. The Secretary of the Board to whom the powers of the Board were delegated, treated the application as one for amendment of the WaqfRegister and after holding an enquiry directed the deletion of the entry. Mustafa Ali, the mutwalli, feeling aggrieved, took the matter in reference before the Civil Judge of Bareilly, who was constituted as the Tribunal under Section 70 of the Act. He held the reference competent, having taken the view that the order of the Secretary, deleting the entry in the Waqf Register, being one under sub Sec. (7) of Sec. 29 was wrong. The other side feeling aggrieved, approached the High Court through a civil Revision. Learned K.B. Asthana, J., as he then was, held, that this was not a decision under Section 29, subSection (7) of the Act and, therefore, reference to Tribunal was incompetent. He, however, held that under Section 31 of the Act the deletion of the waqf from the Register had been made and, therefore, the deletion of waqf itself would be nothing but an amendment made in the register of waqf. It was canvassed before the learned Judge that the order of the Secretary was not a final order, it being subject to the revision by the Board, therefore, for that reason also no reference directly could go from that order and the remedy was by way of revision to the Board. The learned Judge, after considering the record, observed that it was not clear from the record whether the Board itself scrutinised the order of the Secretary. It transpires from the written statement of the Board that the Board adopted the said order and treated the same as its own. The learned Judge did not deal with this matter and held that it was only of an academic nature and did not, therefore, dilate upon it. He, however, held that it was not an order under subSection (7) of Section 29 nor was an order under subsection (2) of Section 33 of the Act, and, therefore, the reference was incompetent. He, however, did not quash the order of correction made in the register. Hon''ble K.N. Goyal, J. in Waqf Mirza Mohd. All Mirzai''s case (supra) has further held:

If the person was not given notice, then he can certainly ask for review of the matter, as held in Mohammad Laiq''s case (Supra). Even if it be assumed that the claimants had no right to notice under Section 29 (7), then also they would have a right to ask for review because in that case the proceeding could not be deemed to be quasijudicial qua such claimants. The proceeding, in that event, would be purely administrative, and as such the power of review could be exercised either under Section 31, as held in Naqshe Ali''s case (supra), or under Section 21 of the U.P. General Clauses Act read with Section 29 (7) of the Waqfs Act or under the inherent power of every authority to undo a wrong done to any party by its (the authority''s) own act.

This view was expressed after considering various decisions and well settled principles of natural justice. In the instant case, therefore, the Board was competent to review the decision as the earlier order had been passed in flagrant violation of natural justice inasmuchas, no opportunity had been provided to the respondents before earlier order was passed without notice to the respondents. Interference with the impugned order, therefore, on this score is devoid of merit.

47. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law reports cited by learned counsel for the petitioner.

48. It is well settled that every authority has got inherent power to rectify / correct its order by reviewing the same if the same has been obtained by a person by concealment of material fact and by playing fraud. Respondent No.2 rejected the application made by the petitioner for demarcation under Section 41 of the Act despite specific order passed by this Court, therefore, the order passed by respondents is vitiated in law.

49. Under Section 143 of U.P. ZA & LR Act has been made so far, hence, the nature of tenure of the portion of plot No.52 will remain the same, namely bhumidhari and the respondent No.2 thereby erred in law in rejecting the application for demarcation of irrelevant consideration that since the boundary had been raised by the corporation, hence, it is only the civil court who has jurisdiction and the jurisdiction of revenue court has been ousted ignoring the order dated 28.02.2000 passed by respondent No.3 directing the parties to maintain status quo.

50. Nature of the tenure having not been changed and the corporation had purchased a specific portion of plot No.52, which had not only been described in the sale deed but also in the map appended thereto by red colour. Thus, the corporation became the co-tenure holder along with the petitioner and the application made by the petitioner under Section 41 of the Act was rightly maintainable yet the opposite party No.2 rejected the same, thereby the order passed is vitiated in law.

51. The proceedings for demarcation of plot are maintainable under Section 41 of the Act irrespective of the partition and the area of the plot No.52 which belongs to the petitioner could be demarcated. The revenue authorities in pursuance to the order passed by this Court had demarcated the area of plot No.52 sold by the petitioner and the rest of the area in his possession and had also shown the area illegally occupied by the corporation and the opposite party No.2 instead of confirming the said report and allowing the application made by the petitioner under Section 41 had illegally rejected the same which vitiates the order passed.

52. After demarcation proceedings initiated in pursuance to the order passed by this Court on the application made by the petitioner that the corporation is in illegal occupation over the portion of plot No.52 other than that was purchased by it and the respondent No.2 on irrelevant circumstances unwarranted by law had refused to cancel the NOC thereby the order passed is vitiated in law.

53. Respondent No.1 without considering the entire evidence on record including the application made by the petitioner had illegally rejected the application for demarcation as well as objection for cancellation of NOC merely on the ground that the petitioner had not filed any application / representation as directed by this Court, thereby the order is not only illegal but without jurisdiction.

54. Against the demarcation report submitted by the Chief Revenue Officer, Gonda dated 26.05.2000 as well as order dated 19.05.2000 confirming the demarcation report dated 10.05.2000, no objections were filed by the corporation and it had submitted there reports, yet the respondent No.2 on irrelevant consideration rejected the application made by the petitioner for demarcation and cancellation of NOC. The law report given by learned counsel for the petitioner in the case of Secretary, Mohakma - Alia Islamia Ek - Anna Fund, Model Houses, Lucknow Vs. The Controller, U.P. Sunni Central Board of Waqfs and others; Writ Petition No.327 of 1977 decided on 27 July, 1983 is fully applicable to the present facts and circumstances of the case.

55. Respondent Nos.4 & 5 - Indian Oil Corporation in order to install a petrol pump at Gonda - Faizabad Road issued an advertisement in the news paper on 27.07.1998. In response to said advertisement, the petitioner submitted an application on 17.11.1998 along with map thereby offering for sale of land measuring 120 X 100 sq.ft. or 133.33 sq. mts. of plot No.52 situated at Village Paraspur, Pargana, Tehsil and District Gonda. Thereby, the Selection Committee cleared the petitioner's proposal for sale of land measuring 120 X 100 sq.ft. i.e. 12000 sq.ft. of plot No.52.

56. Without demarcation of land, sale deed has been executed between petitioner and corporation on 12.02.1999, therefore, without demarcation of land as provided under Section 41 of the Act is wholly illegal and the submission advanced by learned counsel for respondent Nos.4 & 5 is wholly misconceived and devoid of merit.

57. Mutation of land without demarcation by the Tehsildar vide order dated 16.12.1999 is wholly irrelevant and the submission advanced by learned counsel for respondent Nos.4 & 5 is wholly misconceived.

58. No objection certificate issued by the District Magistrate behind back of the petitioner suffers from apparent illegality for installing of petrol pump at the site in question.

59. The application submitted by the petitioner has not been submitted with oblique motive. The land got by respondent Nos.4 & 5 is without demarcation. The demarcation deed was not in accordance with law and also not in accordance with Land Revenue Act.

60. The petitioner filed Writ Petition No.1674 (MB) of 2000 Fasi-ur-Rehman Vs. Commissioner, Devi Patan Division, Gonda and others and this Court by means of judgment and order dated 18.04.2000 pleased to dispose of the said writ petition and a direction was issued to the Collector, Gonda to consider the request of the petitioner to demarcate the boundaries as alleged by the petitioner in his representation / application within specified time. The Collector decided the matter and directed that the parties shall maintain status quo as exists today.

61. The District Magistrate passed an order 11.08.2000, which is invalid and not in accordance with law. A revision was preferred before the Commissioner, Devi Patan Division, Gonda and it was rejected on 17.02.2001 without considering the entire facts and circumstances of the case.

62. Under Land Revenue Act, the Revenue authorities have jurisdiction to demarcate the plot, where construction has been made by the petrol pump, which is in operation. The petitioner filed a suit for mandatory injunction in the Court of IIIrd Additional Civil Judge, Gonda which was registered as Misc. Case No.172 of 2001and in the said case, the petitioner had also moved an application for temporary mandatory injunction under Order 39 Rule 1 and 2 read with Section 151 CPC and initially, vide order dated 31.05.2001 temporary mandatory injunction has been granted restraining the Indian Oil Corporation from storing / selling the petrol from the land in dispute. The entire action on the cause of respondent Nos.4 & 5 is without any rational basis and unjustified.

63. The interim relief granted by filing Writ Petition No.1810 (M/S) of 2001, respondent Nos.4 & 5 as an interim measure it is provided that the petitioner shall be permitted to continue operation in land which it had purchased and has been shown in sale deed dated 12.02.1999 filed as annexure 1 to the writ petition. The impugned order dated 31.05.2001 passed by respondent No.2 shall stand modified to that extent.

64. The alternative remedy, as contended by respondent Nos.4 & 5 is not an expeditious remedy, therefore, the present writ petition is maintainable.

65. The application filed under Section 31 of the Act is maintainable and in view of fact that the same has not been decided in accordance with law, the order passed thereon is liable to be set aside.

66. On over all consideration of the facts and circumstances of the case, the impugned orders dated 17.02.2001 (Annexure 18) passed by respondent No.1 upholding the order dated 11.08.2000 (Annexure 17) passed by respondent No.2 suffers from apparent illegality and are liable to be set aside by this Court.

67. Therefore, the impugned order dated 17.02.2001 (Annexure 18) passed by respondent No.1 upholding the order dated 11.08.2000 (Annexure 17) passed by respondent No.2 are hereby quashed.

68. The writ petition succeeds and is allowed.

69. No order as to costs.

Order Date :- 13.08.2025

Adarsh K Singh