# Bhagwati Prasad & another v. The Board of Revenue U.P. at Allahabad and others

- **Citation:** (2005) 2 ILRA 616
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-28
- **Case number:** Civil Misc. Writ Petition No. 24548 of 1994
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwati-prasad-another-v-the-board-of-revenue-u-p-at-allahabad-and-others-40495
- **Pages:** 3

## Headnote

U.P. Panchayat Raj Act-Section 28 (c)-
allotment of land-petitioner are the sons
and grand sons of the officer bearers of
either Nyay Punchayat or the Gaon
Sabha-the
village
Pradhan
and
up
Pradhan are the custodian of the entire
property of Gaon Panchayat-the office
bears of Gaon Punchayat by misusing
their office-allotted the land to their
family members-no material produced
regarding
the
plea
of
agricultural
labourer-cancellation held-justified.

Held: Para 6

Admittedly, Mahavir is grandson of Ghasi
Ram Pradhan. Petitioner No. 1 Bhagwati
Prasad is son of Sarpanch of Nyay
Panchyat. Petitioner No. 2 Moti Ram is
son of Up Pradhan. The allotment of land
could
not
be
made
in
favour
of
petitioners. The intention of legislature is
that if land vests in Gaon Sabha/Gaon
Panchayat, Pradhan and Up-Pradhan and
2 All] Bhagwati Prasad V. The Board of Revenue, U.P. at Allahabad and others 617
other members are custodian of entire
property of Gaon Panchayat. In the
instant case by misusing of their office,
Office
bearers
of
Gaon
Panchayat
illegally
allotted
the
land
of
Gaon
Panchayat to their family members.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
616

11. In the end a feeble attempt was
made
by
learned
counsel
for
the
respondent by raising an argument that
writ petition against remand order is not
maintainable. The argument has been
advanced only to be rejected. It can not be
said that as a rule writ petition against
remand
order
is
not
maintainable.
Generally, the court refuses to interfere or
issue a writ of certiorari against a remand
order for there is no final adjudication. If
the court normally does not interfere in
the remand order it does not mean that
there is any lack of power in the court to
interfere in such an order or the petition
challenging the remand order is not
maintainable. The court can interfere if it
finds
the
circumstances
to
be
extraordinary
or
the
interference
necessary in the interest of justice. In the
present case, the view taken by Settlement
Officer
Consolidation
and
Deputy
Director of Consolidation is illegal and as
such the remand made on the basis of an
illegal and erroneous view cannot be
sustained and deserved to be interfered
and quashed by this court.

12. In the result the writ petition
succeeds and is allowed. The impugned
orders dated 12.2.1982, 5.9.1981 passed
by Deputy Director of Consolidation and
Settlement
Officer
Consolidation
respectively, are hereby quashed. The
matter is remanded back to the Settlement
Officer Consolidation for decision afresh
on merits in accordance with law after
notice and opportunity of hearing to all
concerned. Since the matter is very old
and has remained pending for long,
Settlement
Officer
Consolidation
is
further directed to hear and decide the
appeal within a period of six months from
the date of production of certified copy of
this order before him. However, in the
facts and circumstances of the case there
shall be no order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 24548 of 1994

Bhagwati Prasad & another ...Petitioners
Versus
The Board of Revenue U.P. at Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra

Counsel for the Respondents:
Sri J.P. Singh
Sri V.K. Singh
S.C.

U.P. Panchayat Raj Act-Section 28 (c)-
allotment of land-petitioner are the sons
and grand sons of the officer bearers of
either Nyay Punchayat or the Gaon
Sabha-the
village
Pradhan
and
up
Pradhan are the custodian of the entire
property of Gaon Panchayat-the office
bears of Gaon Punchayat by misusing
their office-allotted the land to their
family members-no material produced
regarding
the
plea
of
agricultural
labourer-cancellation held-justified.

Held: Para 6

Admittedly, Mahavir is grandson of Ghasi
Ram Pradhan. Petitioner No. 1 Bhagwati
Prasad is son of Sarpanch of Nyay
Panchyat. Petitioner No. 2 Moti Ram is
son of Up Pradhan. The allotment of land
could
not
be
made
in
favour
of
petitioners. The intention of legislature is
that if land vests in Gaon Sabha/Gaon
Panchayat, Pradhan and Up-Pradhan and
2 All] Bhagwati Prasad V. The Board of Revenue, U.P. at Allahabad and others 617
other members are custodian of entire
property of Gaon Panchayat. In the
instant case by misusing of their office,
Office
bearers
of
Gaon
Panchayat
illegally
allotted
the
land
of
Gaon
Panchayat to their family members.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. This writ petition is directed
against the judgment dated 20.6.1985
passed by Additional District Magistrate
(Admin), Aligarh cancelling the allotment
made in favour of petitioners. This
judgment was affirmed by Additional
Commissioner by judgment dated 7.10.86
and also by Board of Revenue by
judgment dated 10.5.1994.

2. The matter relates to allotment of
land to petitioners.

The Gram Pradhan and Up Pradhan
are the Chairman and Vice Chairman of
the Land Management Committee and
Sarpanch of the Nyay Panchayat is also
Chairman of Nyay Panchayat. Petitioner
No. 1 Bhagwati Prasad is son of Sarpanch
of Nyay Panchyat. Petitioner No. 2 Moti
Ram is son of Up Pradhan. The allotment
was also made by impugned resolution in
favour of Mahavir who is grandson of
Ghasi Ram Pradhan.

3. Learned counsel for petitioners
urged that there is no prohibition for
making allotment by Gaon Panchayat
even if petitioners are family members of
Gram Pradhan, Up Pradhan or Nyay
Panchayat. He further urged that section
28 (c) of U.P. Panchayat Raj Act is
applicable to the office bearers of Gram
Panchayat/Nyay
Panchayat
and
its
members only and does not relate to the
members of the family.

4. Sri Jitendra Pal Singh, learned
counsel for Opposite Party No. 5, in reply,
urged that petitioners are not eligible
persons U/s 198 (1) of U.P.Z.A. and L.R.
Act and as such allotment done in favour
of family members of office bearers of
Gaon Sabha/Gaon Panchayat was rightly
cancelled in accordance with law.

5. Considered the arguments of
learned counsel for the parties. It is not
borne out from the record that allotment
of land was made in favour of agricultural
labourers whose main source of income
was from agricultural labour. There is
nothing on record to show that petitioners
were agricultural labourers and working
as labourers on the fields of others. No
evidence was brought to my notice what
was the income of petitioners.

6. Admittedly, Mahavir is grandson
of Ghasi Ram Pradhan. Petitioner No. 1
Bhagwati Prasad is son of Sarpanch of
Nyay Panchyat. Petitioner No. 2 Moti
Ram is son of Up Pradhan. The allotment
of land could not be made in favour of
petitioners. The intention of legislature is
that if land vests in Gaon Sabha/Gaon
Panchayat, Pradhan and Up-Pradhan and
other members are custodian of entire
property of Gaon Panchayat. In the instant
case by misusing of their office, Office
bearers of Gaon Panchayat illegally
allotted the land of Gaon Panchayat to
their family members.

7. Courts below findings also make
it clear that Moti Ram petition No. 2 was
in service in Post Office and Bhagwati
Prasad petitioner no. 1 was a student on
the relevant date. Nothing was brought to
my
notice
that
petitioners
were
agricultural labourers on the date of
allotment. The allotment proceedings had
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
618
not taken place in accordance with law.
Findings of fact recorded by courts below
were arrived at on appraisal of evidence
of the parties on record. There is no error
of law apparent on the face of record.

Writ Petition lacks merits and is
dismissed.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: 12.07.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.48422 of 2005

Ram Krishna Dhandhania and another

 ...Petitioners
Versus
Civil Judge (Senior Division), Kanpur
Nagar and others
 ...Respondents

Counsel for the Petitioners:
Sri P.K. Srivastava

Counsel for the Respondents:

Court Fee Act 1870 (as amended upto
date in State of U.P.)-Section 12-Court
fee deficiency right defendant-objections
of valuation and deficiency of Court feedecision taken by the Trail Court shall be
final-unless the valuation suggested by
the defendant affects the jurisdictionright to question the decision of Trail
Court by defendant can not be exercised.

Held: Para 17

Thus, in view of the above, the legal
position can be summerised that the
defendant has a right to raise all
objections
on
the
valuation
and
deficiency of the court fees. The matter
is to be adjudicated upon and decided by
the Court under Section 12 of the Act
1870 and the decision so taken by the
trial Court shall be final. The defendant
cannot raise the grievance against the
said
decision
unless
the
valuation
suggested by him affects the jurisdiction
of the Court. However, the appellate or
revisional Court always can test the
issue suo motu and make the deficiency
good as the purpose of the Act is not
only fixing the pecuniary jurisdiction of
the Court but also creating revenue for
the State.
Case law discussed:
1957 ALJ-53
AIR 1953 SC-28
AIR 1968 Alld.-216 (FB)
AIR 1978 Alld.-21
AIR 1961 Ker. 142
AIR 1934 Alld.-620
AIR 1934 Oudh 396
AIR 1961 SC-1299
AIR 1973 SC-2384
AIR 1996 Mad-440
AIR 1978 P &H. 25
AIR 1991 Noc 53 Raj
AIR 1951 Alld. 59
1969 (3) SCC-392
AIR 1984 SC-273
AIR 1980 SC-1170
AIR 1991 SC-1617
AIR 1980 SC-1170
1994 (4) SCC-422
2002 (8) SCC-868

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
seeking a direction to the learned Civil
Judge (Senior Division), Kanpur Nagar to
expedite the trial of the Suit No. 378 of
2000, Ram Krishna Dhandhania & Anr.
Vs. Prem Shanker Pandey & Anr., which
is not taking any progress in view of the
objections raised by the defendantrespondents in respect of the payment of
Court fees.

2. The facts and circumstances
giving rise to this case are that the
petitioners are purchaser of the property
in dispute in which the defendants 2 and 3