# Ajay Kumar & Anr v. Board of Revenue, U.P & Ors

- **Citation:** (2020) 6 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-03
- **Case number:** Writ-B No. 20729 of 2007
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-anr-v-board-of-revenue-u-p-ors-45783
- **Pages:** 4

## Headnote

Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950:
Section 178 to 182

The present dispute relates to the fact
whether the plot in dispute could be
auctioned as the total area of the plot in
the name of one persons would become
less then 3-1/8 acres in view of the Section
178 of the U.P. Z.A. & L.R. Act as it existed
before the amendment Act 27 of 2004
208 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 20.8.2004. It is observed that after
the deletion of Section 178 to 182 by way
of amendment, it was permitted that plot
can be transferred in fragments and all the
parties should have been granted their
share of the plots and there was no
occasion
for
auctioning
the
property,
confirming the sale and distributing the
auction
proceeds
among
remaining
parties.(Para 12)

The
petitioners
are
nowhere
being
prejudiced as they got their share vide
order dated 16.04.2001 and since no writ
petition
or any proceeding
was
filed
against aforesaid order the same would be
considered to be admitted to the parties.
(Para 12)

## Text

6 All. Ajay Kumar & Anr. Vs. Board of Revenue, U.P. & Ors.
207
was sufficient ground for allowing the
application.

6. In the instant case application
under Section 5 Limitation Act for
condoning the delay was filed by the State
and in matter concerning State it should be
kept in mind that generally decision is
taken at various level which takes time. In
State Vs Heera reported in (2004) 13 SCC
582, Hon'ble Apex Court has held that
when State comes with a prayer for
condonation
of
delay
it
is
to
be
remembered that decision is required to be
taken at various level which causes delay
therefore court should consider this aspect
in deciding whether delay should be
condoned or not. In case in hand ground
mentioned in the application was that
public prosecutor was busy in other
government works due to which appeal
could be filed beyond 12 days from the
limitation period. Learned court below has
rightly concluded that there was sufficient
ground for the delay.

7. Learned counsel for applicants
vehemently contended that application
moved under Section 5 Limitation Act
was not supported with affidavit therefore
it was argued that it was illegally allowed
by the court below but when the court is
satisfied that ground mentioned in the
application was sufficient for filing the
appeal
beyond
12
days
from
the
limitation then it was not necessary to
support the application with a separate
affidavit. In the case of Davinder Pal
Sehgal & Another Vs. M/s. Pratap Steel
Rolling Mills reported in A.I.R. 2001 SC
451, Hon'ble Apex Court has held that
even separate application for condonation
of delay is not necessary for condoning
the delay.

8. In view of the above, the prayer
made by learned counsel for applicant is
hereby refused.

9. In view of the above, I am of the
opinion that court below has not acted in
the exercise of its jurisdiction illegally or
with material irregularity.

10. With the aforesaid observation,
this application under Section 482 Cr.P.C.
is dismissed.
----------
(2020)06ILR A207
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Writ-B No. 20729 of 2007

Ajay Kumar & Anr. ...Petitioners
Versus
Board of Revenue, U.P & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri D.K. Singh, Sri S.N.S. Yadav, Sri
Saumitra Singh, Sri R.P. Mishra

Counsel for the Respondents:
C.S.C., Sri Anil Kumar Pathak, Sri V.K.
Singh, Sri Vishnu Bihari Tiwari

Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950:
Section 178 to 182

The present dispute relates to the fact
whether the plot in dispute could be
auctioned as the total area of the plot in
the name of one persons would become
less then 3-1/8 acres in view of the Section
178 of the U.P. Z.A. & L.R. Act as it existed
before the amendment Act 27 of 2004
208 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 20.8.2004. It is observed that after
the deletion of Section 178 to 182 by way
of amendment, it was permitted that plot
can be transferred in fragments and all the
parties should have been granted their
share of the plots and there was no
occasion
for
auctioning
the
property,
confirming the sale and distributing the
auction
proceeds
among
remaining
parties.(Para 12)

The
petitioners
are
nowhere
being
prejudiced as they got their share vide
order dated 16.04.2001 and since no writ
petition
or any proceeding
was
filed
against aforesaid order the same would be
considered to be admitted to the parties.
(Para 12)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This writ petition has been filed by
the petitioners with the following prayer:

"i). Issue a writ, order or
direction in the nature of certiorari
quashing the impugned orders dated
14.3.2007
and
29.3.2006
passed
by
respondents no. 1 and 2 respectively and to
call for the record. (Annexure Nos. 7 and 6
to this writ petition).

ii). Issue a writ, order or
direction in the nature of mandamus
directing the respondents not to interfere in
the possession of the petitioners.

iii). Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper in the circumstances of
the case.

iv). Award the cost to the petition
in favour of the petitioner."

2. The fact of the case as argued by the
learned counsel for the petitioners is that the
petitioners filed a suit under Section 176 of the
U.P. Z.A. and L.R. Act, in the Court of Assistant
Collector (I) S.D.M. Ghatampur, District
Kanpur Nagar, which was numbered as 34 of
1998, in which the petitioners claimed that Gata
No. 233 area 0.883 hectare, which is the joint
land of the petitioners and respondent nos. 5
and 6 and the land of their shares be given to
them. The said suit was contested by the
respondent nos. 5 and 6 and they denied the
averments made by the petitioners in the suit.

3. The Sub-Divisional Magistrate,
considered all the facts and pleadings of the
parties and the share of the parties were decided
by order dated 23.10.1998 and petitioners got
their shares in the property.

4. That aggrieved by the order dated
23.10.1998 passed by the S.D.M., the
respondent no. 5 and 6 preferred an appeal
before
Commissioner
Kanpur,
Division
Kanpur, which was allowed.

5. That aggrieved by the order of the
Commissioner, the petitioners filed a Second
Appeal No. 45 of 1998-99, before the Board of
Revenue U.P., Allahabad, which was allowed
vide order dated 16.4.2001 and the order dated
18.6.1999 and 14.7.1999 passed by the
respondent no. 2 were set-aside. The Board of
Revenue in the order dated 16.4.2001 observed
that the petitioners as well as respondents are
recorded tenure holders of the land in question
and the parties were in possession of their
respective shares and the land is less than
prescribed limit it would be suitable to sell it in
accordance with the provisions of law.

6. Thereafter, the petitioners filed Suit
No. 22/34/2002 under Section 176 of U.P.
Z.A. & L.R. Act, before the Court of
Assistant Collector (I) S.D.M. Ghatampur,
District
Kanpur
Nagar,
in
which
a
preliminaty order was passed and the
petitioners share was declared as 2/3 and
respondents no. 5 and 6 share was declared
as 1/3 on the ground that the land was less
than 3-1/8 acre, therefore, vide order dated
6 All. Ajay Kumar & Anr. Vs. Board of Revenue, U.P. & Ors.
209
17.6.2004, the order for auctionining the
land was passed and the auction was held
on 29.7.2004 and the petitioners were the
highest
bidder
and
were
given
the
possession of land and vide order dated
17.12.2004 and decree dated 23.12.2004,
the name of the petitioners were recorded
in Revenue Records and the name of
respondents no. 5 and 6 were deleted.

7. Thereafter, the respondent nos. 5
and 6 filed an appeal bearing number 80 of
2005 against the order dated 17.12.2004
and decree dated 23.12.2004 on the ground
that the respondent nos. 5 and 6 were not
given opportunity of hearing nor they were
given opportunity to adduce their evidence.
The trial Court finding that the land was
less than 3-1/8 hectare, therefore, the land
was directed to be auctioned is perverse,
the trial Court fails to consider that Section
178 to 182 of U.P. Z.A. & L.R. Act, was
deleted by New Amendment Act No. 27 of
2004, therefore, in these circumstances, the
proceedings of auction is against the
provision of law and automatically come to
an end and parties should be given their
shares, the ground taken by respondent nos.
5 and 6 was considered by the appellate
Court and the appeal was allowed vide
order dated 29.3.2006 and the order dated
17.12.2004
and
the
decree
dated
23.12.2004 of trial Court was set-aside and
the matter was remanded back before the
trial Court to consider the matter afresh in
accordance with law.

8. Aggrieved by the order dated
29.3.2006, the petitioners filed Revision
bearing no. 34 of 2006-07 before the Board
of Revenue U.P. Allahabad. The Board of
Revenue vide order dated 14.3.2007
dismissed the revision of the petitioners on
the ground that Section 178 to 182 of U.P.
Z.A. & L.R. Act, is deleted as per
Amendment Act 27 of 2004 and the area of
land measuring 3-1/8 hectares be now
being partitioned between the parties as per
their shares and refused to interfere in the
order dated 29.3.2006.

9. Aggrieved by the order dated
14.3.2007 passed by the Board of Revenue,
Allahabad- respondent no. 1 and against the
order dated 29.3.2006 passed by respondent
no. 2. The petitioners have preferred the
present writ petition before this Court.

10.

Learned
counsel
for
the
respondent nos. 5 and 6 filed their counter
affidavit and denied all the averments made
in the writ petition. Rejoinder affidavit filed
by petitioners but no new ground was taken
by petitioners.

11. Heard learned counsel for the
petitioners
and
learned
counsel
for
respondent nos. 5 and 6 and learned
Standing Counsel for other respondetns.

12. I have perused the orders dated
29.3.2006
and
14.3.2007
passed
by
respondents no. 1 and 2 and considered the
legal ground taken by the respondent nos. 5
and 6 in the counter affidavit, once Section
178 to 182 of U.P. Z.A. & L.R. Act, is
deleted from the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950, as
per Amendment Act 27 of 2004, there is no
justification for auctioning the land in
question and the land in question can be
partitioned between the parties and the
parties shall enjoy their shares. The Board
of Revenue in its order dated 14.3.2007
need not consider the effect of the order
dated 16.4.2001 by which the share of the
parties was decided as the same was not in
dispute. The share of the parties was given
in the order dated 16.4.2001, and the
petitioners are nowhere being prejudiced as
210 INDIAN LAW REPORTS ALLAHABAD SERIES
they also got their share, since no writ
petition or any other proceeding was filed
against
the
order
dated
16.4.2001,
therefore, the same would be considered to
be admitted to the parties. The present
dispute relates to the fact whether the plot
in dispute could be auctioned as the total
area of the plot in the name of one persons
would become less then 3-1/8 acres in view
of the Section 178 of the U.P. Z.A. & L.R.
Act as it existed before the amendment Act
27 of 2004 dated 20.8.2004. It is relevant to
observed herethat after the amendment it
was permitted that plot can be transferred
in fragments also in view of the fact that
Section 178 to 182 of U.P. Z.A. & L.R. Act
is deleted from the Act, as such all the
parties should have been granted their share
of the plots and there was no occasion for
auctioning the property, confirming the sale
and distributing the auction proceeds
among
remaining
parties,
the
entire
proceeding was against the provision of
law. The order dated 14.3.2007 and
29.3.2006 are merely remand order and the
writ petition against the remand order is not
maintainable before this Hon'ble Court.

13. In the opinion of the Court there
is no illegality in the order passed by the
appellate Court dated 29.3.2006 and the
order passed by the revisional Court
dated 14.3.2007 and the finding recorded
by both the Courts below is as per law
and no interference is required by this
Court
under
Article
226
of
the
Constitution of India.

14. In view of the legal position and
considereing the arguments advanced by
the parties, the present writ petition lacks
merit and is, accordingly, dismissed.

15. Interim order, if any, stands
vacated.

16. The parties shall bear their own
costs.
----------
(2020)06ILR A210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-B No. 23996 of 1994

Lakhan & Ors. ...Petitioners
Versus
The Board of Revenue, U.P & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri S.N. Verma, Sri Ajay Krishna, Sri Ajay
Shankar, Sri Archana Singh, Sri Rama Nand
Gupta, Sri Shreeprakash Singh, Sri Triveni
Shanker, Sri Awadhesh Kumar

Counsel for the Respondents:
S.C., Sri Anil Kumar Rai, Sri Anshika
Agrawal, Sri Anupam Laloria, Sri D.N.
Gupta, Sri Ekansh Verma, Sri K.B. Garg, Sri
K.K. Dubey, Sri K.N. Saxena, Sri Kamlesh
Kumar Tiwari, Sri Radha Kant Singh, Sri
V.K. Gupta, Sri V.K. Singh, Sri Vishal
Agrawal, Sri Vishal Agrawal, Sri Vishnu
Singh

Civil Law - Revenue Entries - U.P. Tenancy
Act, 1939: Section 35, 36(1), 180(2) - U.P.
Zaminadri Abolition & Land Revenue Act,
1950: Section 229B - Claiming a right
based on long standing revenue entries is
that the revenue entries of long standing
in favour of a land holder or co-sharer
would raise a presumption and title, but
would not be a conclusive about it. These
entries continuing over a long period of
time cannot defeat the rights of a person
who has not abandoned or relinquished it,
but for some oversight, has not been able
to seek requisite correction. (Para 44)