# Havaldar Singh & Ors v. District Deputy Director of Consolidation, Azamgarh & Ors

- **Citation:** (2023) 5 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Writ B No. 534 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/havaldar-singh-ors-v-district-deputy-director-of-consolidation-azamgarh-ors-50202
- **Pages:** 9

## Headnote

A. Revenue Law - UP Revenue Code, 2006
- UP Consolidation of Holding Act, 1953 -
Long
Standing
Entry
since
1955
-
Expunging thereof sought in 2020 -
Permissibility
-
Consolidation
process
finalized in 1962 - Effect - Held, there is
not only delay of 65 years in initiating the
instant proceedings rather bar of two
consolidation operation are also there, as
such, there is no question of expunging
the petitioners' entry to nullify the order
dated 30.10.1955 which is continuing
since first consolidation operation rather
before amendment of 1958 took place in
the U.P.C.H. Act - High Court set aside the
impugned order. (Para 9, 12 and 13)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

314 INDIAN LAW REPORTS ALLAHABAD SERIES

29. List the aforesaid petitions in the
week commencing 3rd July, 2023.

30. Interim orders granted earlier shall
continue till the next date of listing in all
the writ petitions.

31. Since all the writ petitions were
connected for the reason that preliminary
objection regarding maintainability was
raised
and
the
aforesaid
preliminary
objection has been rejected, therefore, all
the writ petitions would be heard and
decided on their own merits.

32. Accordingly, Writ-B No.245 of
2023 & Writ-B No.232 of 2023 are delinked from Writ-B No.229 of 2023 and list
them separately.
----------
(2023) 5 ILRA 314
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 534 of 2022

Havaldar Singh & Ors. ...Petitioners
Versus
District Deputy Director of Consolidation,
Azamgarh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Narayan Dutt Shukla, Sri Rituvendra
Singh Nagvanshi, Sri Shiv Chand Yadav, Sri
Shyam Lal, Sri R.C. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Rameshwar Prasad Shukla

A. Revenue Law - UP Revenue Code, 2006
- UP Consolidation of Holding Act, 1953 -
Long
Standing
Entry
since
1955
-
Expunging thereof sought in 2020 -
Permissibility
-
Consolidation
process
finalized in 1962 - Effect - Held, there is
not only delay of 65 years in initiating the
instant proceedings rather bar of two
consolidation operation are also there, as
such, there is no question of expunging
the petitioners' entry to nullify the order
dated 30.10.1955 which is continuing
since first consolidation operation rather
before amendment of 1958 took place in
the U.P.C.H. Act - High Court set aside the
impugned order. (Para 9, 12 and 13)

Writ petition allowed. (E-1)

List of Cases cited:

1. Smt. Chandan Devi Vs IInd Additional District
Judge Nainital; 1998 A.L.J. 525

2. Dnyandeo Sabaji Naik & anr. Vs Mrs.
Pradnya Prakash Khadekar & ors.; 2017 (5)
SCC 496

3. Smt. Raj Kumar Kapoor Vs Civil Judge Kanpur
& ors.; 1987 A.L.J 137

4. Kedar Nath & ors. Vs Fulena & ors.; 2009(1)
ADJ 554

5. Gulab Chandra Vs Munsiff West Allahabad &
ors.; 1988 A.L.J. 852

6. Saleem Vs Deputy Director of Consolidation,
G.B. Nagar; 2015 (129) RD 249

7. Bhikku & anr. Vs Deputy Director of
Consolidation & ors.; 1960 RD 189

8. Mandir Shivji Maharaj through Parmal Singh
Vs Commissioner (Director of Consolidation)
Meerut & ors.; 1969 RD 34

9. University of Delhi Vs U.O.I.& ors.; 2020 (13)
SCC 745

10. Balwant Singh (Dead) Vs Jagdish Singh &
ors.; AIR 2010 SC 3043

(Delivered by Hon'ble Chandra Kumar
Rai, J.)
5 All. Havaldar Singh & Ors. Vs. District Deputy Director of Consolidation, Azamgarh & Ors. 315

1. Heard Mr. R.C. Singh, learned
Senior Counsel assisted by Mr. Narayan
Dutt Shukla, learned Counsel for the
petitioners, learned Standing Counsel for
the State-respondents and Mr. Rameshwar
Prasad Shukla for respondent No.3, Gaon
Sabha.

2. Brief facts of the case are that
predecessors-in-interest of the petitioners
namely Shri Laxmi Singh was recorded
owner of disputed plot no. 362 situated in
village-Kishundurpur,
Tappa-Attaisi,
Pergana-Nizamabad,
Tahasil-
Sadar,
District-Azamgarh. Copy of Khewat of
1356 fasli to 1359 fasli of the Village
Kishundaspur,
Tappa
Attaisi,
Pargana
Nizamabad Tehsil Sadar District Azamgarh
has been annexed as Annexure No. 1 to the
writ petition in order to demonstrate the
ownership of petitioners' predecessors-ininterest. Copy of khatauni of 1356 fasli,
1359 fasli as well as khasra of 1359 fasli
have been annexed as Annexure Nos. 2, 3
and 4 to the writ petition to demonstrate the
ownership of the petitioners' predecessorsin-interest. Village was brought under
consolidation operation on 30.10.1955 by
way of notification issued under Section 4
of the U.P.C.H. Act. In the khatauni of 1362
fasli, plot no. 362 was recorded in the name
of petitioners' predecessors-in-interest, the
copy of khatauni of 1362 fasli has been
annexed as Annexure No. 6 to the writ
petition. During consolidation operation,
petitioners filed an objection under Section
8 of U.P.C.H. Act to rectify the revenue
entry. New plot nos. 213 ka and kha were
carved out from old plot no. 362. The order
dated 30.10.1955 passed by Consolidation
Officer in a proceeding under Section 8 of
the U.P.C.H. Act to record the plot as brick
klin became final as nobody challenged the
order in first consolidation operation. The
first consolidation operation came to an end
in the year 1962. Village was again brought
under consolidation operation in the year
1981. Basic year entry remained in the
name of petitioners and no objections were
filed against the basic year entry which
remained in the name of petitioners. Final
records were accordingly prepared in the
name of petitioners. New plot no. 311 ka
and kha carved out from old plot no. 213.
According to petitioners, new plot no. 213
ka and kha have never been pond and bhita.
A four lane road is being constructed by
National Highway Authority of India across
the aforesaid plots, as such, there is no
question that pond and bhita exist in the
plot. The land in dispute was never
recorded as pond either before the abolition
of
zamindari
or
after
abolition
of
zamindari. According to petitioners their
predecessors had established a brick klin in
the year 1940 and the business continued
till 1950. The portion of the plot in question
was
acquired
by
National
Highway
Authority of India by way of notification
published
in Hindi newspaper
dated
30.6.2017. No dispute was raised by any
person before the competent authority
appointed under the National Highway Act
1956 accordingly award dated 31.5.2018
was made by competent authority under
section 3G of the National Highways Act.
Copy of the award dated 31.5.2018 has
been annexed as Annexure No. 12 to the
writ petition. At the time of disbursement
of the amount determined under the award,
a complaint has been made by the Pradhan
that old plot no. 213, new plot no. 311 is a
pond and bhita therefore compensation in
respect of the aforementioned plot should
not be disbursed. Competent Authority
accordingly issued order dated 22.7.2020
that payment of compensation be deferred.
Pradhan filed revision under Section 48(1)
of the U.P.C.H. Act on 16.7.2020 before the
Deputy Director of Consolidation to set
316 INDIAN LAW REPORTS ALLAHABAD SERIES
aside the order dated 30.10.1955 in respect
to plot no. 362 and record the same as
pokhari and bhita. On the basis of the
complaint made by Pradhan, a case no.
D202015060001018 has been registered
under Section 38(1) of U.P. Revenue Code,
2006 for correction of revenue entry in
respect to old plot no. 362 of Village
Kishundaspur. Raj Narayan and Others also
filed revision under Section 48(3) of the
U.P.C.H. Act, Vijay Prakash and Others
also filed separate revisions challenging the
order of Assistant Consolidation Officer
dated 30.10.1955 in the aforementioned
proceeding, the reports were submitted by
the authorities. Petitioners challenged the
proceeding initiated under Section 48(1) of
the U.P.C.H. Act as well as the proceeding
initiated under Section 38(1) of the U.P.
Revenue Code, 2006 through writ-B no. 3
of 2021. This Court vide order dated
7.9.2021 disposed of the writ petition filed
by petitioners with direction that petitioners
can
file
objection
in
the
pending
proceeding which shall be decided in
accordance with law within period of two
weeks. Proceedings under Section 48(1) of
the U.P.C.H. Act as well as the proceeding
under Section 38(1) of the U.P. Revenue
Code, 2006 were heard together by District
Deputy
Director
of
Consolidation/
Collector and the same were decided vide
separate order dated 6.12.2021 expunging
the petitioners' entry and directing that plot
in dispute be recorded as pokhari, bhita and
banjar. Hence this writ petition.

3. This Court vide order dated 1.4.2022
directed the learned Standing Counsel as well
as the Counsel for the Gaon Sabha to file
counter-affidavit within three weeks. In
pursuance of the order of this Court dated
1.4.2022, learned Standing Counsel has filed
his counter-affidavit. Petitioners have filed
rejoinder-affidavit also.

4. Counsel for the petitioners
submitted that the proceeding initiated after
65 years for setting aside the order dated
30.10.1955 is abuse of process of law. He
further submitted that no objection was
raised during consolidation operation, as
such, the initiation of proceeding by way of
revision under Section 48 of the U.P.C.H.
Act as well as by way of proceeding under
Section 38(1) of the U.P. Revenue Code,
2006 is abuse of process of law. He further
submitted that land in dispute was never
recorded as pond and bhita. He further
submitted that even in the map plot in
question was not shown as pond and bhita.
He further submitted that longstanding
revenue entry cannot be expunged in the
arbitrary
manner.
He
submitted
that
complete procedure has been provided
under U.P.C.H. Act for challenging the
basic year entry, as such, the initiation of
proceeding after 65 years challenging the
order passed during first consolidation
operation is wholly illegal and is abuse of
process of law. He further submitted that
first consolidation operation was finalized
in the year 1962 and second consolidation
operation was started in the year 1981, as
such, the initiation of the impugned
proceeding after such a long period to
expunge the petitioners' entry cannot be
permitted. He further submitted that there
was no consideration by respondent No.2
while passing the impugned order for
condonation of delay of 65 years. He
further submitted that delay condonation
matter and the merit of the case should be
decided separately, but respondent No.2 has
failed to consider the same and passed the
impugned order in arbitrary manner. He
further placed reliance upon the judgment
of this Court as well as Apex Court in order
to demonstrate that the right which has
accrued due to expiry of period cannot be
taken away in arbitrary manner. The
5 All. Havaldar Singh & Ors. Vs. District Deputy Director of Consolidation, Azamgarh & Ors. 317
particulars of the case law cited by learned
counsel for the petitioners are as follows :-

i)
1998
A.L.J.
525
Smt.
Chandan Devi Vs. IInd Additional
District Judge Nainital

ii) 2017 (5) SCC 496 Dnyandeo
Sabaji Naik and another Vs. Mrs.
Pradnya Prakash Khadekar and Others

(iii) 1987 A.L.J 137 Smt. Raj
Kumar Kapoor Vs. Civil Judge Kanpur
and Others

(iv) 2009(1) ADJ 554 Kedar
Nath and others Vs. Fulena and Others

(v) 1988 A.L.J. 852 Gulab
Chandra Vs. Munsiff West Allahabad
and Others

(vi) 2015 (129) RD 249 Saleem
Vs. Deputy Director of Consolidation
G.B. Nagar

(vii) 1960 RD 189 Bhikku and
another
Vs.
Deputy
Director
of
Consolidation and Others

(viii) 1969 RD 34 Mandir Shivji
Maharaj through Parmal Singh Vs.
Commissioner
(Director
of
Consolidation) Meerut and Others

(ix)
2020
(13)
SCC
745
University of Delhi Vs. Union of India
and Others

5. On the other hand, learned
Standing Counsel submitted that land in
dispute is pond and bhita, as such, no
right will accrue to the petitioners even
after expiry of 65 years. He further
submitted that the impugned order has
been passed in accordance with law as it
has been found that the order passed on
30.10.1955 is fraudulent. He submitted
that there is no limitation against the
fraudulent order/proceeding, as such, the
impugned order has been passed in the
interest of State/Gaon Sabha land. He
submitted that no interference is required
in the matter and writ petition is liable to
be dismissed.

6. I have considered the arguments
advanced by learned counsel for the
parties and perused the records.

7. There is no dispute about the fact
that first consolidation operation came in
the village in the year 1955 and the same
was finalized in the year 1962. There is
also no dispute about the fact that second
consolidation operation took place in the
village in the year 1981. According to the
petitioners, the Consolidation Officer has
passed the order in favour of the
predecessors-in-interest of the petitioners
on 30.10.1955 during first consolidation
operation. There is also no dispute about
the fact that the instant proceedings have
been initiated under Section 48 of the
U.P.C.H. Act as well as under Section
38(1) of the U.P. Revenue Code, 2006 in
the year 2020 and the impugned orders
have been passed for expunging the
petitioners' entry.

8.
In
order
to
appreciate
the
controversy involved in the matter the
perusal of the provisions contained under
Sections 8 and 48 of the U.P.C.H. Act,
1953 with amendment of 1956 and 1963
will be relevant as the order impugned
was passed on 30.10.1955. Provisions
before the amendment and after the
amendment in respect to U.P.C.H. Act are
as under:-

8. That Section 8 of the U.P.C.H.
Act, 1953, as it originally existed, is being
reproduced herein below:

"8. Revision and correction of
records.- (1) Where, upon an examination
of the land records as aforesaid, the
Assistant Consolidation Officer is of the
318 INDIAN LAW REPORTS ALLAHABAD SERIES
opinion that a revision of maps or records
is necessary before proceeding with the
preparation of provisional Consolidation
Scheme,
he
shall
make
a
report
accordingly, in the form and manner
prescribed, to the Settlement Officer
(Consolidation).

(2) Upon receipt of the report
under sub-section (1) to the Settlement
Officer (Consolidation) shall, after such
inquiry as he may consider necessary,
either -

(a)
direct
the
Assistant
Consolidation Officer to proceed with the
correction of maps or records, or

(b) recommend to the State
Government for revision of maps or
records in accordance with the provisions
of Chapter IV of the U.P. Land Revenue
Act, 1901.

(3) Upon receipt of the directions
under Clause (a) of Sub-section (2), the
Assistant Consolidation Officer shall after
such further partal as may consider
necessary correct the entries in the
Annual Register in accordance with the
provisions contained in Chapter III of the
U.P. Land Revenue Act, 1901.

(4) Any person aggrieved by the
order of Assistant Consolidation Officer
under sub-section (3) may, within 30 days
of the order, appeal to the Consolidation
Officer, whose decision shall, except as
otherwise provided by or under this Act, be
finaly"

9. That the aforesaid provision
came to be substituted by UP Act No.
XXXVIII of 1956 which ran as under:

"8" Revision of field-book and
the current Annual Register - Upon
revision of the village maps under Section
7,
the
District
Deputy
Director
of
Consolidation
shall,
subject
to
the
provisions hereinafter contained, cause to
be revised the field-book of the unit after
field to field partal and the current annual
register after its test and verification. He
shall also cause to be prepared in respect
to the plots falling in the unit, a statement
showing
the
mistakes
and
disputes
discovered during the course of field to
field partal and test and verification of the
current Annual Register".

10. That Section 8 again came to
be substituted in the present position vide
U.P. Act No. VIII of 1963 which ran as
under:

"[8. Revision of the field-book
and
the
current
annual
register-
Determination of valuations and shares in
joint holdings.- (1) Upon the revision of
the maps under Section 7, the District
Deputy Director of Consolidation shall,
subject to the provisions hereinafter
contained, and in such manner as may be
prescribed, cause to be-

(i) revised, the field book of the
unit after field to field partal, and the
current annual register after its test and
verification;

(ii) determined, in consultation
with the Consolidation Committee, the
valuation of-

(a) each plot after taking into
consideration its productivity, location and
availability of irrigation facilities, if any;
and

(b) all trees, wells and other
improvements existing in the plots for the
purpose
of
calculating
compensation
therefore;

(iii) ascertained the share of
each owner, if there be more owners than
one, out of the valuation determined
under sub-clause (b) of clause (ii); and

(iv) determined the shares of
individual tenure-holder in joint holdings
for the purpose of effecting partition to
ensure proper consolidation.
5 All. Havaldar Singh & Ors. Vs. District Deputy Director of Consolidation, Azamgarh & Ors. 319

(2) The District Deputy Director
of Consolidation shall cause to be
prepared a khasra chakbandi, in the form
prescribed in respect of all the plots falling
in the units as also a statement showing
the mistakes 49 [undisputed cases of
succession]
and
disputes
discovered
during the test and verification of the
annual register and in the course of the
field to field partal].

11. That by virtue of provision
contained under sub-section (4) of Section
8 (as it originally existed) order of
Assistant Consolidation Officer would be
appealed before the Consolidation Officer
and order of the Consolidation Officer
was final and same was not subject to
appeal or revision.

12. That original Section 48 of
the U.P.C.H. Act, 1953 read as under:

"48. Revision - The Director of
Consolidation may call for the record of
any case if the Officer, (other than the
Arbitrator) by whom the case was decided
appears to have exercised a jurisdiction
not vested in him by law or to have failed
to exercise jurisdiction so vested, or to
have acted in the exercise of his
jurisdiction illegality or with substantial
irregularity and may pass such orders in
the case as it may think fit.

13. That the original Section 48
came to be substituted by U.P. Act No.
XXIV of 1956 which is being reproduced
herein below:

"48. Powers of Director of
Consolidation to call for records and to
revise
orders.
-
The
Director
of
Consolidation may call for the record of
any case or proceeding if the Officer
(other than the Arbitrator) by whom the
case was decided or proceeding taken
appears to have exercised a jurisdiction
not vested in him by law or to have failed
to exercise jurisdiction so vested, or to
have acted in the exercise of his
jurisdiction illegality or with substantial
irregularity and may pass such orders in
the case as it may think fit."

14. That Section 48 again came
to be amended by the Act No. XXXVIII of
1958 which ran as under:

"48. Revision. - The Director of
Consolidation may call for the record of
any case decided or proceeding taken,
where he is of opinion that a Deputy
Director, Consolidation has -

(i) exercised jurisdiction not
vested in him in law, or

(ii) failed to exercise jurisdiction
vested in him, or

(iii) acted in the exercise of his
jurisdiction illegality or with substantial
irregularity, and as a result of which
substantial injustice appears to have been
caused to a tenure-holder, and he may,
after affording reasonable opportunity of
hearing to the parties concerned, pass
such order in the case or proceeding as he
think fit."

9.
Petitioners'
predecessors
were
continuously recorded since 1955 and there
was
no
proper
objection
in
two
consolidation operations took place in the
village but in the year 2020, the proceeding
has been initiated by the Pradhan for
expunging the petitioners' entry as well as
setting aside the order dated 30.10.1955
and the respondent No.2 has passed the
impugned order in the proceeding under
Section 48 of the U.P.C.H. Act as well as
the proceedings under U.P. Revenue Code,
2006 expunging the long standing entry of
the petitioners without considering the fact
that 65 years have been passed and
consolidation operations have over in the
village but without considering the impact
of the expiry of consolidation operation as
well as inordinate delay of 65 years, the
320 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned
orders
have
been
passed
simultaneously under U.P.C.H. Act and
U.P. Revenue Code, 2006.

10. Hon'ble Apex Court in the Case
reported in AIR 2010 Supreme Court
3043 Balwant Singh (Dead) Versus
Jagdish Singh and Others has held that
once a valuable right, as accrued in favour
of one party as a result of the failure of the
other party to explain the delay, it will be
unreasonable to take away the right on the
mere asking of the applicant. Paragraph
No.13 of the Judgement is relevant which
is as under:-

"13. As held by this Court in the
case of Mithailal Dalsangar Singh (AIR
2003 SC 4244: 2003 AIR SCW 4878)
(supra)the abatement results in denial of
hearing on the merits of the case, the
provision of abatement has to be construed
strictly. On the other hand, the prayer for
setting aside an abatement and the
dismissal consequent upon an abatement,
have to be considered liberally.We may
state that even if the term "sufficient cause"
has to receive liberal construction, it must
squarely
fall
within
the
concept
of
reasonable time and proper conduct of the
party
concerned.
The
purpose
of
introducing liberal construction normally is
to
introduce
the
concept
of
"reasonableness" as it is understood in its
general connotation.The law of limitation
is a substantive law and has definite
consequences on the right and obligation of
a party to arise. These principles should be
adhered to and applied appropriately
depending on the facts and circumstances
of a given case. Once a valuable right has
accrued in favour of one party as a result of
the failure of the other party to explain the
delay by showing sufficient cause and its
own conduct, it will be unreasonable to
take away that right on the mere asking of
the applicant, particularly when the delay
is directly a result of negligence, default or
inaction of that party. Justice must be done
to both parties equally. Then alone the ends
of justice can be achieved. If a party has
been thoroughly negligent in implementing
its rights and remedies, it will be equally
unfair to deprive the other party of a
valuable right that has accrued to it in law
as a result of his acting vigilantly.The
application filed by the applicants lacks in
details. Even the averments made are not
correct and ex facie lack bona fide. The
explanation has to be reasonable or
plausible, so as to persuade the Court to
believe that the explanation rendered is not
only true, but is worthy of exercising
judicial discretion in favour of the
applicant. If it does not specify any of the
enunciated
ingredients
of
judicial
pronouncements,
then
the
application
should be dismissed. On the other hand, if
the application is bona fide and based upon
true and plausible explanations, as well as
reflects normal behaviour of a common
prudent person on the part of the applicant,
the Court would normally tilt the judicial
discretion in favour of such an applicant.
Liberal construction cannot be equated
with doing injustice to the other party. In
the case of State of Bihar v. Kameshwar
Prasad Singh [(2000) 9 SCC 94 : 2000
SCC (L&S) 845] this Court had taken a
liberal approach for condoning the delay in
cases of the Government to do substantial
justice. Facts of that case were entirely
different as that was the case of fixation of
seniority of 400 officers and the facts were
required to be verified. But what we are
impressing upon is that delay should be
condoned to do substantial justice without
resulting in injustice to the other party. This
balance has to be kept in mind by the Court
while deciding such applications.In the
5 All. Havaldar Singh & Ors. Vs. District Deputy Director of Consolidation, Azamgarh & Ors. 321
case of Ramlal v. Rewa Coalfields Ltd.
[AIR 1962 SC 361] this Court took the
view:

"7. In construing Section 5 it is
relevant to bear in mind two important
considerations. The first consideration is
that the expiration of the period of
limitation prescribed for making an
appeal gives rise to a right in favour of the
decree-holder to treat the decree as
binding between the parties. In other
words, when the period of limitation
prescribed has expired the decree-holder
has obtained a benefit under the law of
limitation to treat the decree as beyond
challenge, and this legal right which has
accrued to the decree-holder by lapse of
time should not be light heartedly
disturbed. The other consideration which
cannot be ignored is that if sufficient
cause for excusing delay is shown
discretion is given to the court to condone
delay
and
admit
the
appeal.
This
discretion has been deliberately conferred
on the court in order that judicial power
and discretion in that behalf should be
exercised to advance substantial justice.
As has been observed by the Madras High
Court in Krishna v. Chathappan ILR
(1890) 13 Mad 269.

It is, however, necessary to
emphasise that even after sufficient cause
has been shown a party is not entitled to
the condonation of delay in question as a
matter of right. The proof of a sufficient
cause is a condition precedent for the
exercise of the discretionary jurisdiction
vested in the court by Section 5. If
sufficient cause is not proved nothing
further has to be done; the application for
condoning delay has to be dismissed on
that ground alone. If sufficient cause is
shown then the court has to enquire
whether in its discretion it should condone
the delay. This aspect of the matter
naturally introduces the consideration of
all relevant facts and it is at this stage that
diligence of the party or its bona fides may
fall for consideration;"

11. The case law cited by learned
Counsel for the petitioner are also relevant
in the matter as in the judgement of
Bhikku (Supra) scope of entries of
Sections 7,8 and 12 of U.P.C.H. Act as they
stood prior to 1958 amendment were taken
into
consideration.
In
the
case
of
University of Delhi (Supra) Hon'ble Apex
Court has held that condonation of long
delay should not be automatic and merely
because petitioner/ applicant is a public
body.

12. In the instant matter, there is not
only delay of 65 years in initiating the
instant proceedings rather bar of two
consolidation operation are also there, as
such, there is no question of expunging the
petitioners' entry to nullify the order dated
30.10.1955 which is continuing since first
consolidation
operation
rather
before
amendment of 1958 took place in the
U.P.C.H. Act.

13. Considering the entire facts and
circumstances, the impugned order dated
6.12.2021 passed by respondent No.1 in
case No. 01197/ 2020 Computerized No.
D202015060001197 under Section 48(1) of
U.P.C.H. Act and order dated 6.12.2021
passed by respondent no.1 in Case No.
01018/2020
Computerized
Case
No.
D202015060001018 under Section 38(1) of
the U.P. Revenue Code, 2006 are liable to
be set aside and the same are hereby set
aside.

14. Writ petition stands allowed and
respondent No.1 is directed to record the
names of the petitioners in the revenue
322 INDIAN LAW REPORTS ALLAHABAD SERIES
records in respect to disputed plot within a
period of six weeks from the date of
production of a certified copy of this order.
----------
(2023) 5 ILRA 322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2023

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Writ B No. 1218 of 2021

Narendra Kumar & Anr. ...Petitioners
Versus
The Board of Revenue, U.P. at Allahabad &
Ors. ...Respondents

Counsel for the Petitioners:
Sri Fuzail Ahmad Ansari, Sri R.C. Singh (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Krishna Kant Singh, Sri Yogendra
Singh Bohra

A. Revenue Law - UP Revenue Code, 2006
- Sections 59, 77, 101 & 161 - Exchange
of land of Gram Panchayat - School was
constructed
long
back
over
the
petitioner's
land
-
Application
for
exchange
was
rejected
-
Validity
challenged
-
Finding
required
u/s
101(2)(b) has not been recorded - No
resolution of LMC in favour of exchange
was passed - Effect - Held, to refuse
permission
for
exchange
under
subsection (1) of Section 101 of the Code,
2006, it was required of the Sub-Divisiona
Officer to record a finding in terms of
clause (b) of sub-section (2) of the Code,
2006. That is to say, the finding returned
ought to have been that the difference
between the valuation, if determined in
the manner prescribed, of the lands given
and received in exchange exceeds ten per
cent of the lower valuation - However,
High Court further held, for want of any
resolution
of
the
Land
Management
Committee in favour of exchange or any
suo moto resolution of the Sub-Divisional
Officer approved by the Collector, any
application filed for exchange of land of
Gram
Panchayat
cannot
meet
the
prescribed requirements of Rule 101 and
therefore such an application would have
an incurable defect. (Para 16 and 20)

Writ petition allowed. (E-1)

List of Cases cited:

1. C/M Vishambharnath Janta Inter College &
anr. Vs St. of U.P. & ors.; 2019 (142) RD 810

2. Writ C No. 26603 of 2021; Sita Ram Vs St. of
U.P. & ors. decided on April 6, 2022: 2022 SCC
OnLine All 200

3. Shiv Murat Vs Board of Revenue, U.P. at
Allahabad & ors.; 2017 (7) ADJ 252

(Delivered by Hon'ble Jayant Banerji, J.)

1. This writ petition has been filed
seeking quashing of the order dated
23.02.2021 passed by the Board of
Revenue, U.P., Allahabad in Revision
no.1124 of 2017. Also the order dated
24.04.2017 passed by the Sub-Divisional
Officer is sought to be quashed by which
application for exchange of land has been
rejected.

2.
The
petitioners
claim
to
the
Bhumidhar of plot No.17 ad-measuring 0.357
hectare and Plot No.19 ad-measuring 0.092
hectare. Both the aforesaid plots of land are
stated to be recorded as grove land. It is
stated that plot No.18 ad-measuring 0.104
hectare is recorded in the name of a school
'Purv Madhyamik Vidyalay, Mauza- Tarsara,
Pargana- Hasangarh, Tehsil- Iglas, District-
Aligarh'. Other than that plot, plot no.21
having an area of 0.057 hectare is also
recorded in the name of the aforesaid school.