# M/S Concept Cars Ltd v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 11 ILRA 819
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-10
- **Case number:** Civil Misc. Review Application Defective No. 100 of 2022
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-concept-cars-ltd-v-state-of-u-p-ors-opp-parties-47880
- **Pages:** 11

## Headnote

A. Civil Law (PIL) - Code of Civil
Procedure, 1908 - Section 114-reviewGovernment land in a fraudulent and
dishonest
manner
was
allotted
for
charitable purpose which was sold to its
own trustees by the trust vide sale deed in
a gross contravention of the provisions of
Section 92 of C.P.C. and the provisions of
the Indian Trust Act, the two sale deeds
itself were nullity and void ab initio, the
review-applicant can not claim any right
and title on the said null and void sale
deeds-the review applicant failed to show
how the sale deeds were valid and
conferred a legal title over the land in
820 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of his two worthy sons who are the
Directors of the review-applicant-no right
and title would get conferred on the
review-applicant as its occupation on the
land in question would be nothing but an
encroachment of the Government land-the
exception carved out by the Board of
Revenue in its order runs contrary to the
findings recorded by the Board of Revenue
itself and such an order cannot be taken
note of in view of the detailed findings
recorded by this Court in the judgment
and order under review-Hence, the Court
does not find any ground to review the
judgment.(Para 13 to 30)

B. Section 101 of the U.P. Revenue Code,
2006 empowers the Sub-Divisional Officer
for exchange of land, but this power does
not extend to the land of the Gram Sabha,
which is a public utility land and in which
no bhumidhari right can be accrued. (Para
19) (E-6)
List of Cases cited:

## Text

11 All. M/S Concept Cars Ltd. Vs. State of U.P. & Ors.
819
appellants/defendants pleaded that they put
up constructions much earlier to 1993, they
did not place any material to speak of the
structures being in existence prior to 1993.
Added to that the first appellant/first
defendant who claims to have got Ac. 1.20
guntas towards her share in family
settlement did not choose to enter into box
to speak out her case. DW. 1 is the husband
of the first defendant. He did not place any
material on record to show that structures
exist as on the date of filing of the suit were
made prior to 1993. The trial Court and the
lower
appellate
Court
on
thorough
appreciation of the material brought on
record came to the conclusion that the
appellants/defendants failed to establish of
their putting up constructions over a part of
the land soon after the alleged family
settlement pending disposal of O.S. No.
440 of 1980. In view of the above
discussion, I find that the subsequent suit of
the respondent/plaintiff is not barred either
under Order 2 Rule 2 or Order 23 Rule 1 of
CPC.

44. The decision in Vallabh Das
(supra) relied upon by Jaswant Singh, in
essence, propounds the principle that a
subsequent suit based on a different cause
of action, may be related to the same
property or may be the same rights, may
constitute a different subject matter from
the previous litigation. All that is then
required to dispel the bar under Order
XXIII Rule 1(4) or Order II Rule 2 CPC is
that the subsequent suit should be based on
a different cause of action than the one
involved in the earlier suit.

45. In view of what this Court has
found, the substantial question of law is
answered in the manner that O.S. No. 273
of 1998, Jaswant Singh vs. Anand Prakash,
that was withdrawn without permission to
file a fresh suit, does not bar the subsequent
suit brought by Jaswant Singh either under
Order XXIII Rule 1(4) CPC or under Order
II Rule 2, because the two suits are not
based on the same cause of action, even
though the earlier suit relates to the same
property between the same parties.

46. In the result, both the appeals fail
and are dismissed with costs throughout.
Let separate decrees be drawn up in both
the appeals, accordingly.
----------
(2022) 11 ILRA 819
REVISIONAL JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 10.11.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Civil Misc. Review Application Defective No. 100
of 2022

M/S Concept Cars Ltd. ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sunil Kumar Chaudhary, Abhishek Dhaon

Counsel for the Respondents:
--

A. Civil Law (PIL) - Code of Civil
Procedure, 1908 - Section 114-reviewGovernment land in a fraudulent and
dishonest
manner
was
allotted
for
charitable purpose which was sold to its
own trustees by the trust vide sale deed in
a gross contravention of the provisions of
Section 92 of C.P.C. and the provisions of
the Indian Trust Act, the two sale deeds
itself were nullity and void ab initio, the
review-applicant can not claim any right
and title on the said null and void sale
deeds-the review applicant failed to show
how the sale deeds were valid and
conferred a legal title over the land in
820 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of his two worthy sons who are the
Directors of the review-applicant-no right
and title would get conferred on the
review-applicant as its occupation on the
land in question would be nothing but an
encroachment of the Government land-the
exception carved out by the Board of
Revenue in its order runs contrary to the
findings recorded by the Board of Revenue
itself and such an order cannot be taken
note of in view of the detailed findings
recorded by this Court in the judgment
and order under review-Hence, the Court
does not find any ground to review the
judgment.(Para 13 to 30)

B. Section 101 of the U.P. Revenue Code,
2006 empowers the Sub-Divisional Officer
for exchange of land, but this power does
not extend to the land of the Gram Sabha,
which is a public utility land and in which
no bhumidhari right can be accrued. (Para
19) (E-6)
List of Cases cited:

1. Gaurav Jain Vs U.O.I. & ors. (1997) 8 SCC
114

2.
Abdul
Farooq
Vs
Municipal
Council,
Perambalur & ors. (2009) 15 SCC 351

3. Phool Singh Vs St. of U.P. & ors. CMWP No.
44407 of 2020

4. Prem Singh & ors. Vs Birbal & ors. (2006) 5
SCC 353
(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

Order on C.M. Application No.1 of
2022

Heard.

This application seeks condonation of
delay in filing the review application.

Reasons indicated in the affidavit filed
along with the review application are
sufficient.

Application is allowed and the delay
in
filing
the
review
application
is
condoned.

Order
on
Memo
of
Review
Application

1. The present review application has
been filed seeking review of the judgment
and order dated 5.7.2022 passed by this
Court in Public Interest Litigation (PIL)
No.7472 of 2021, Sharad Kumar Dwivedi
Vs. State of U.P. and others, with a prayer
to recall the aforesaid judgment and order
and restore the Public Interest Ligation
Petition to its original number and decide
the same afresh after impleading the
review-applicant
as
party
to
the
proceedings.

2. This review application has been
filed after the judgment and order dated
29.7.2022 was passed by the Division
Bench of this Court in Special Appeal
No.330 of 2022, M/s Concept Cars Limited
Vs. State of Uttar Pradesh and others.
Paragraph 10 of the aforesaid judgement
reads as under:-

"10. Conclusion:

For what has been narrated herein
above, our indefeasible conclusion, in the
facts and circumstances of the case, is that
it will neither be appropriate nor in the
interest of justice to pronounce any
judgment on the issues discussed and
considered by the learned Single Judge in
the judgment and order under appeal
herein, unless the judgment and order
dated 20.06.2022 passed by the Board of
Revenue and its impact on the issues
involved in the case are considered and
decided by the learned Single Judge.

Order

Accordingly, this Special Appeal is
disposed of with the liberty to the appellant
11 All. M/S Concept Cars Ltd. Vs. State of U.P. & Ors.
821
to approach the learned Single Judge by
way of seeking review of the judgment and
order under appeal. While filing the review
petition, it will be open to the appellant to
take all the grounds which may be
available to it under law.

There will be no order as to costs."

3. Against the said order of the
Division Bench, the review-applicant has
approached the Supreme Court in Special
Leave Petition (Civil) Diary No.26721 of
2022, which got dismissed by the Supreme
Court vide order dated 30.8.2022.

4. In brief, the grounds which have been
taken in the review application, are that the
judgment and order dated 5.7.2022 contains
direction
for
removal
of
illegal
encroachment in terms of the order dated
4.6.2021 passed by the District Judge,
whereby the District Magistrate set aside
the resumption order dated 30.1.1987 and
directions
were
issued
for
initiating
eviction proceedings in terms of Section 67
of the U.P. Revenue Code, 2006. The said
order was set aside by the Board of
Revenue in its judgment and order dated
20.6.2022 and, therefore, the order of the
District Magistrate dated 4.6.2021 was not
in existence at the time of passing of the
judgement and order under review dated
5.7.2022.

5. The review-applicant was not a
party in the Public Interest Litigation and
the order of the Board of Revenue dated
2.8.2021, by which Revision No.1351 of
2021 filed by Ram Chandra Rajwar,
Manager of the review-applicant, M/s
Concept Cars Limited impugning the order
dated 4.6.2021 passed by the District
Magistrate, was disposed of on the very
first day with direction to the State
Government to consider the request of the
revisionist for exchange of land in question
and till such consideration, status-quo was
directed to be maintained. The validity of
the order of the Board of Revenue dated
2.8.2021 could not have been challenged in
the Public Interest Litigation.

6. It has been further submitted that in
view of the prayers made in the Public
Interest Litigation, inquiry was conducted
by the District Magistrate and, thereafter,
no further orders were required to be
passed and, this Court while passing the
judgment and order dated 5.7.2022 had
travelled beyond the prayers made in the
Public Interest Litigation. The enabling
provisions of Section 101 of the U.P.
Revenue
Code,
2006
which
permit
exchange of public land was not placed
before this Court. The Government Order
dated 9.5.1984 permitting the resumption
of land for being allotted to private entities,
has also not been considered in the said
judgement and order under review dated
5.7.2022.

7. Sri S.C. Mishra, learned Senior
Advocate assisted by S/Sri Sunil Kumar
Chaudhary and Abhishek Dhaon, learned
counsel for the review-applicant has placed
reliance on several judgments to submit
that
the
review-applicant
was
an
independent corporate entity and is a
necessary party and without the reviewapplicant being heard, the impugned
judgment and order under review could not
have been passed. He has pressed in service
the following judgements in support of his
contention:-

1. Prabodh Verma Vs. State of U.P.
(1984) 4 SCC 251 (page 273 and para 28);

2. Ramrao Vs. All India Backward
Class Bank Employees Welfare Assn.
(2004) 2 SCC 76 (Page 86-87, para 27);
822 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Dattatreya Vs. Mahaveer, (2004) 10
SCC 665 (page 673, para 10);

4. Santosh Sood Vs. Ganjendra Singh
(2009) 7 SCC 314 (page 318, paras 14, 15,
17 and 18);

5.
Janata
Dal
Vs.
H.S.
Chowdhary, (1991) 3 SCC 756 (page
767, para25);

6. Nivedita Sharma Vs. Cellular
Operators Assn. of India (2011) 14 SCC
337 (page 343, para 12);

7. Kansing Kalusing Thakore Vs.
Rabari Maganbhai Vashrambhai (2006) 12
SCC 360 (page 366, para 24);

8. Udit Narain Singh Malpaharia Vs.
Addl. Member, Board of Revenue, 1963
Supp.(1) SCR 676:AIR1963 SC 786;

9. Chief of the Army Staff Vs. Daya
Shanker Tiwari, (2003) SCC OnLine All
829 (para 9);

10. Ram Swarup Vs. S.N. Maira
(1999) 1 SCC 738 (page 740, para 3);

11. Swapna Mohanty Vs. State of
Odisha (2018) 17 SCC 621 (page 625, para
 12);

12. Jagtu Vs. Suraj Mal, (2010) 13
SCC 769 (paras 5 and 6);

13. State of Assam Vs. Union of India
(2010) 10 SCC 408 (page 412, paras 15, 16
and 23);

14. Aron Salomon Vs. A. Salomon and
Co. Ltd., (1897) AC 22;

15. R.F. Perumal Vs. H. John Deavin,
AIR 1960 Mad. 43; and

16. Civil Appeal Nos.5755-5756 of
2011, Moreshar Yadaorao Mahajan Vs.
Vyankatesh Sitaram Bhedi (D) thru LRs
and others, decided on 27.9.2022

8. He has, therefore, submitted that
the review-applicant may be impleaded as
party-respondent
and
the
impugned
judgment and order be recalled and the
entire Public Interest Litigation should be
re-heard.

9. On the other hand, Sri Abhinav N.
Trivedi, learned Chief Standing Counsel
assisted by Sri Yogesh Kumar Awasthi,
learned Standing Counsel has submitted
that the grounds taken in the review
application are wholly misconceived and
the review application has no merit and
substance, and it deserves to be rejected in
view of the detailed findings recorded by
this Court in the judgment and order dated
5.7.2022 under review.

10. The detailed facts have been noted
in the judgement and order dated 5.7.2022
under review and, therefore, for the sake of
brevity, the same are not repeated in the
present order.

11. The review-applicant is none other
than a company incorporated by the
trustees of the Gyan Yog Charitable Trust.
In the meeting of the Board of the Trust
dated
20.9.2009,
Sri
Surya
Vardhan
Agarwal (Treasurer) and Yash Vardhan
Agarwal (Trustee), who are the sons of Sri
Sanjeev Agarwal, Chairman/President of
the Trust and one of the Directors of the
review-applicant were present, and it was
resolved to part away certain portion of the
Government's land and consequently, the
sale deed dated 9.6.2010 was executed in
favour of Sri Surya Vardhan Agarwal and
Yash Vardhan Agarwal. Thus, if the veil is
lifted, the real character of the reviewapplicant would get revealed and it is
nothing but an alter ego as the same
trustees are the Directors of the reviewapplicant.

12. Sri Sanjeev Agarwal, who is one
of the Directors of the review-applicant,
had filed the pleadings in the Public
Interest Litigation, in which the judgement
and order dated 5.7.2022 under review was
passed. He was representing not only the
11 All. M/S Concept Cars Ltd. Vs. State of U.P. & Ors.
823
trust, but the review-applicant also, which
would be
evident
from
the
several
affidavits and the pleadings filed by Sri
Sanjeev Agarwal in dual capacity as the
Managing Director of the Trust and the
Director of the review-applicant.

13. This Court has taken note of these
facts in the judgement and order under review
that how in a fraudulent and dishonest
manner the Government land, which was
purportedly allotted for charitable purposes,
was sold to its own trustees by the trust vide
sale deed dated 9.6.2010 in a gross
contravention of the provisions of Section 92
of the Code of Civil Procedure and the
provisions of the Indian Trust Act. The two
sale deeds dated 9.6.2010 and 1.7.2020 were
void ab initio and were nullity in the eyes of
law. If the sale deeds itself were nullity and
void ab initio, the review-applicant can not
claim any right and title on the said null and
void sale deeds. The review-applicant has not
been able to show in the review application
that the sale deeds dated 9.6.2010 and
1.7.2020 were valid and conferred a legal title
over the land in favour of the two worthy
sons of Sri Sanjeev Agarwal, who are the
Directors of the review-applicant. When the
sale deeds are null and void ab initio, no right
and title would get conferred on the reviewapplicant as its occupation on the land in
question
would
be
nothing
but
an
encroachment of the Government land.

14. In respect of the dated 2.8.2021
passed by the Board of Revenue, this Court
has taken note of the said order in
paragraphs 15 to 18 of the judgment and
order dated 5.7.2022. It would be apt to
extract the aforesaid paragraphs hereinunder:-

15. During the pendency of this writ
petition, another revision bearing No.1351
of 2021 came to be filed by Ram Chandra
Razwar, the Manager of the Concept Carts
Limited under Section 210 of the U.P.
Revenue Code, 2006 impugning the order
dated 4.6.2021 passed by the District
Magistrate, Hardoi. Interestingly, while the
writ petition was pending on the subject
matter and the High Court was in seisen of
the subject matter, the Board of Revenue
proceeded to decide the said revision and
passed the order dated 2.8.2021. Two very
interesting aspects of the order dated
2.8.2021 are to be taken note of. The Board
of Revenue in paragraph eight of the said
order held that the preliminary objection
raised by the counsel for the complainant
and the Standing Counsel for the revenue
regarding maintainability of the revision on
behalf of the Concept Cars Limited or its
Manager had force. It was said that the
Manager of the Concept Cars Limited and
the Concept Cars Limited itself had no
right file and maintain the revision
challenging the validity of the order dated
4.6.2021 passed by the District Magistrate,
Hardoi and, therefore, the Board of
Revenue accepted the preliminary objection
raised regarding the maintainability of the
revision. It was observed that if the
revisionist was so advised, he could become
the party in the revision filed on behalf of
the Trust impugning the order dated
4.6.2021, but the revision on behalf of the
Manager
of
the
Concept
Cars
Limited/Concept Cars Limited would not be
maintainable. Despite the said finding on
the preliminary objection, the Board of
Revenue held that the prayer of the
revisionist i.e. Manager of the Concept
Cars Limited regarding exchange of the
land in question with some other land being
offered on behalf of the revisionist/Concept
Cars Limited in exercise of powers under
Section 161 of the U.P.Z.A. & L.R. Act and
under Section 101 of the U.P. Revenue
824 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 2006 would be required to be
considered.

16. This Court is of the considered
view that the Board of Revenue has
incorrectly held that the land in Gata
No.1175 was not recorded as ''public utility
land' though the same was recorded as
''Jangal Dhak' and was a public utility land
as per the provisions of Para A-124 of the
U.P. Land Records Manual. The Board of
Revenue held that since the said land was
not a public utility land, therefore, the said
land could be exchanged with some other
land of equal value and there would not be
any legal hurdle in doing so. The Board of
Revenue thus, directed the Sub-Divisional
Magistrate,
Sadar,
Hardoi
to
make
inspection of the lands, which are being
offered by the revisionist/Concept Cars
Limited in exchange of the land in Gata
No.1175, and take possession of the land
offered by the revisionist in exchange of the
land in Gata No.1175 of the area, which
would be 10% more than the area of Gata
No.1175. It has been further held that the
said order of exchange would be subject to
the final outcome of Revision No.1146 of
2021 filed by the Trust. It has been ordered
that that the revisionist would file an
affidavit
before
the
Sub-Divisional
Magistrate and will undertake that in case
the order dated 4.6.2021 is affirmed, the
revisionist should not claim any right in
respect of the land being offered in
exchange of the land in Gata No.1175, and
in future if it was found that the land
offered in exchange of land in Gata
No.1175 had any defect of ownership, then
the
revisionist
would
be
liable
to
compensate for the loss, if any. It has been
ordered that the revisionist would file the
undertaking along with application within
a period of two weeks before the SubDivisional
Magistrate
and
the
SubDivisional Magistrate has been directed to
make inspection of the land in Gata
Nos.1143, 1167 Cha and 846, which are
being offered in exchange and then out of
the three gatas, the most valuable land
should be accepted in exchange. After
taking possession of the said land, the
possession should be handed over to the
Gram Sabha. It has been further directed
that all this should be completed within a
period of six weeks. It has been ordered
that for a period of two months or from the
date of taking possession of the land
offered in exchange of Gata No.1175,
status-quo in respect of the possession of
Gata No.1175 shall be maintained.

17. Thus, on one hand the Board of
Revenue held that the revision on behalf of
the Manager of Concept Cars Limited or by
the Concept Cars Limited itself was not
maintainable, and on the other hand, it
allowed
the
prayer
of
the
revisionist/Manager of the Concept Cars
Limited for exchange of the land. This
Court finds the approach of the Board of
Revenue wholly illegal, unjustified and
against the judicial propriety inasmuch as
when the High Court was in seisen of the
matter, the Board of Revenue had no
business to proceed with the matter.
Further, after holding that the revision was
not maintainable, the Board of Revenue
had
allowed
the
prayer
of
the
revisionist/Manager of the Concept Cars
Limited in a most illegal and uncalled for
manner. The Board of Revenue has
overreached its jurisdiction and this Court
deprecates the way the order has been
passed to favour a private party in a nonmaintainable proceeding. This Court holds
that the order passed by the Board of
Revenue dated 2.8.2021 is wholly illegal,
non est and without jurisdiction. The
authorities are directed not to take any
action in pursuance of the order dated
2.8.2021 passed by the Board of Revenue.
11 All. M/S Concept Cars Ltd. Vs. State of U.P. & Ors.
825

18. After Revision No.1146 of 2021
was filed by the Trust against the order
darted 4.6.2021, the Trust filed a recall
application before the District Magistrate,
Hardoi praying to recall the order dated
4.6.2021. However, the District Magistrate
vide order dated 31.1.2022 rejected the
said application for recall on the ground
that against the order dated 4.6.2021, a
revision had already been filed by the Trust
being Revision No.1146 of 2021 before the
Board of Revenue and, therefore, the recall
application was not maintainable. Against
the said order dated 31.1.2022, the Trust
has filed another Revision bearing No.511
of 2022 before the Board of Revenue and
the Board of Revenue vide interim order
dated 9.3.2022, admitted the said revision
and strangely enough stayed the orders
dated 4.6.2021 and 31.1.2022 passed by
the District Magistrate, Hardoi. The Board
of Revenue appears to be extra generous
and benevolent towards the revisionist. The
approach of the Board of Revenue is
anything but judicial.

15. Once the Board of Revenue held
that the revision was not maintainable on
behalf of the review-applicant, no further
direction could have been issued. In any
view of the matter, direction for removal of
illegal encroachment from the Government
land is independent of the aforesaid
observations made in paragraphs 15 to 18
of the judgement and order darted 5.7.2022
under review.

16. In respect of the orders of the Board
of Revenue dated 2.8.2021 and 20.6.2022
and the order dated 4.7.2021 passed by the
District Magistrate, this Court in exercise of
its plenary jurisdiction under Article 226 of
the Constitution of India while dealing with
the issue of public importance regarding land
grabbing by the trustees and transferring the
same to themselves for erecting commercial
establishment, has passed the order to prevent
the perpetuity and illegality after taking note
of the fraud committed by the trustees in
occupying the Government land ostensibly
taken for public purpose and then transferring
it to themselves for commercial venture.

17. This Court has passed the judgement
and order dated 5.7.2022 in Public Interest
Litigation in respect of the Gram Sabha land,
which is the jurisdiction assigned to this Court as
per the roster. While exercising the jurisdiction of
the Public Interest Litigation, this Court is not
bound to limit itself to the prayers made in the
Public Interest Litigation, and it is always open to
the Court to take judicial notice of fraud,
illegality, cheating and grabbing of the public
land and, therefore, contention of the learned
counsel for the review-applicant that this Court
has travelled beyond the scope of the Public
Interest Litigation, is wholly misconceived. This
Court can take the facts suo motu.

18. The Supreme Court in the cases of Gaurav
Jain Vs. Union of India and others, (1997) 8
SCC 114 (Paragraph 51) and in A. Abdul
Farooq Vs. Municipal Council, Perambalur
and others, (2009) 15 SCC 351 (Paragraph 33)
held that strict rules of pleadings are not
necessarily to be adhered by the Court even after
it is found that the petitioners are busy bodies.

19. In respect of the ground taken under
Section 101 of the U.P. Revenue Code, 2006 that
the State Government may consider for
exchange of the public land, this Court has
considered the scope of the said Section in the
judgement and order under review in paragraphs
50 and 59(4), which would read as under:-

"50. The land which was a public
utility land, was resumed and allotted in
favour of a private person, Late R.S
Agrawal, Ex-IAS officer by the then District
826 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate in purported exercise of the
power under Section 117(6) of the U.P.Z.A.
& L.R. Act, 1950 for charitable purpose
and now it is being used for commercial
purposes, therefore, such a land cannot be
exchanged in any manner. Even otherwise,
under Section 101 of the U.P. Revenue
Code, 2006 the land in which bhumidhari
rights cannot get accrued, cannot be
exchanged.
59. In view of the aforesaid discussion,
answers to the questions formulated above
are as under:-

(i). ......

(ii). ......

(iii). ...........

(vi). As discussed above, in respect of
the public utility land, no bhumidhari right
can be accrued. The land recorded as
''Jangal Dhak', is a public utility land and
under Section 132 of the U.P.Z.A. & L.R.
Act, 1950, no bhumidhari right could not
have been created in respect of the land in
question. Section 101 of the U.P. Revenue
Code, 2006 empowers the Sub-Divisional
Officer for exchange of land, but this power
does not extend to the land of the Gram
Sabha, which is a public utility land and in
which no bhumidhari right can be accrued.
Therefore, no exchange is possible in
respect of the land in question."

20. In a recent judgment of this Court
in Civil Misc. Writ Petition No.44407 of
2012, Phool Singh Vs. State of U.P. and
others, decided on 21.1.2020 in paragraph
9, it has been held that the provisions of
Section 161 of U.P.Z.A.&L.R. Act, 1950,
which is in pari materia to Section 101 of
U.P. Revenue Code, 2006, has not been
envisaged for being used as a tool or
measure to camouflage, over come, legalise
or legitimize an illegality. Paragraph 9 of
the aforesaid judgement is
extracted
hereunder:-

"9. On a more fundamental place, the
provisions made in Section 161 of the 1950
Act are principally aimed at respective
parties arriving at a mutually acceptable
position that is beneficial to both. It
essentially enables the Gaon Sabha to
effectively manage its land bank and use it
to the optimal in public interest. At the
same time it also facilitates the landowner
or the bhumidhar to enter into a settlement
which is beneficial to both parties.
Notwithstanding the above, Section 161 is
not envisaged to be a tool or measure to
camouflage,
overcome,
legalise
or
legitimise an illegality. It is not meant to be
a used as an instrument or device to
regularise or validate an illegality. It
cannot possibly be viewed as a provision
enabling a usurper or encroacher of public
utility land to attempt to legalise wrongful
possession. As this Court reads that
provision, it primarily appears to put in
place a mechanism to interchange land
inter parties. It is principally a reciprocal
arrangement. It clearly does not and
cannot in law be countenanced in law as
being a provision aimed at curing an
illegality or according ipso facto approval
to an illegal act of usurpation or
encroachment. It is not entitled to be
viewed as either endorsing or legitimizing
an illegality. Section 161 is essentially
aimed at enabling a party to switch, barter
or exchange land to the mutual benefit of
both parties. A party cannot first encroach,
trespass or intrude and then claim a right
to exchange. It is clearly not a provision
aimed at legalizing an encroachment. A
person who has encroached or trespassed
upon land cannot subsequently turn around
and seek condonation of that act or
infraction by seeking an exchange. A
person seeking an exchange must be one
who is in lawful possession of land which is
offered in exchange. Viewed in any other
11 All. M/S Concept Cars Ltd. Vs. State of U.P. & Ors.
827
light, the provision may be abused as a
devise to accord legitimacy upon an act
which
is
illegal
and unlawful. The
institution
which
appears
to
have
encroached upon public utility land cannot
take shelter of an application purported to
have been made under Section 161 of the
1950 Act. In any case the pendency of a
purported application for exchange cannot
confer any benefit to the petitioner here."

21. The other ground taken by the
review-applicant is that while passing the
judgement and order dated 5.7.2022, the
Government Order dated 9.5.1984 which
permitted resumption of Gram Sabha land for
being allotted to public entities was not
considered. In terms of the provisions
contained in paragraph seven of the
Government Order dated 9.5.1984, the
allotment in favour of a private entity is
permissible only for a specific period. The
order of resumption dated 30.1.1987 would
make it evident that no such period was
prescribed and secondly, the trust was never
vested with the authority to alienate and sell
the land mentioned in the order of resumption
dated 30.1.1987, that too to its own trustees
for commercial establishment.

22. It is a well settled proposition of law
that a review is neither an opportunity of rehearing nor it can be disguised as an appeal.
The review-applicant, which is nothing but an
alter ego of the trust, has failed to
demonstrate that even if it would have been
given an opportunity for the sake of being
heard in the Public Interest Litigation, what
pleadings or documents could have been
placed before the Writ Court, which could
have reversed the directions contained in the
judgment and order dated 5.7.21022.

23. The Board of Revenue is under
supervisory jurisdiction of the High Court
and, therefore, it is always open for the
High Court to scrutinize any order passed
by the Board of Revenue in the Public
Interest Litigation, which has direct bearing
of the issues involved in the Public Interest
Litigation. This Court has taken judicial
notice of the proceedings pending before
the Board of Revenue prior to its
judgement dated 20.6.2022 in paragraphs
15 and 16 of the judgment and order dated
5.7.2022, which have been extracted herein
before.

`24. The Board of Revenue vide order
dated 20.6.2022 had directed for vesting of
the land in the Gram Sabha, which was
resumed
vide
order
of
the
District
Magistrate dated 30.1.1987. However,
without any plausible rhyme or reason, an
exception has been carved out on the basis
of the very transactions of the land in
favour of the trustees, which are null and
void ab initio. If the sale deed are null and
void, even its cancellation by a Suit is not
necessary as held by the Supreme Court in
the case of Prem Singh and others Vs.
Birbal and others, (2006) 5 SCC 353
(Paragraph 16).

25. So far the ground taken by the
learned counsel for the review-applicant
that the judgement of the Board of Revenue
dated 20.6.2022 was not placed before this
Court before delivering the judgement and
order dated 5.7.2022 under review is
concerned,
the
judgment
and
order
pronounced by the Constitutional Court
will have precedence and binding authority
over the order passed by a revenue
authority/board.

26. The Board of Revenue knowing
fully well that the Public Interest Litigation
is going and the judgement has been
reserved, proceeded to pass the order dated
828 INDIAN LAW REPORTS ALLAHABAD SERIES
20.6.2022 favouring the trustees/reviewapplicant against the judicial propriety. This
Court
has
noted on
the
favourable
disposition of the Board of Revenue
towards the Board of Trustees in the
judgment and order dated 5.7.2022. The
Board of Revenue in its order dated
20.6.2022 has treated vesting of the land in
the
Government
simply
as
an
encroachment. The case is not of simple
encroachment, but it is a case of fraud and
cheating besides encroachment. This Court
while dealing with the facts had detailed in
the judgment and order, did not deem it fit
to carve out an exception in favour of the
trust or the trustees and, as mentioned
above, the review-applicant is nothing but
an alter ego of the trust inasmuch as the
trustees are the Directors and the land in
question was sold by trust to its trustees.
The exception carved out by the Board of
Revenue in its order dated 20.6.2022 runs
contrary to the findings recorded by the
Board of Revenue itself and such an order
can not be taken note of in view of the
detailed findings recorded by this Court in
the judgment and order dated 5.7.2022
under review.

27. Sri Sanjeev Agarwal had filed
caveat in the Public Interest Litigation. In
the counter affidavit filed on 5.6.2021, Sri
Sanjeev Agarwal in paragraph 3 had stated
that he was a Director of Concept Cars
Limited, review-applicant and the same has
also been stated in paragraph 7 of the said
affidavit, but he never raised objection
regarding impleadment of the reviewapplicant in the Public Interest Litigation.
Pleadings have also been made regarding
the review-applicant in some of the
affidavits filed on behalf of Sanjeev
Agarwal. Paragraphs 43 to 46 of the
affidavit dated 1.2.2022 filed on behalf of
Sri Sanjeev Agarwal, Managing Director of
the Trust and the Director of the reviewapplicant, would read as under:-

"43. That subsequently Shri Yash
Vardhan Agarwal had leased out the land
purchased by him to one M/s Concept Cars
Ltd. Vide lease deed dated 24.09.2010. A
copy of the lease deed dated 24.09.2010 is
filed as Annexure A-22 to this affidavit.

44. That subsequently M/s Concept
Cars Ltd. Has constructed a full/fledged
showroom over the property Plot No.1175
by including part of the property Plot
No.1167 also (which was the private
property of the company aforesaid) as it
was the adjoining property with common
boundary towards northern side of the
property Plot No.1175.

45.That the construction was made
after due sanction of the Development
Authority.

46. That the property in dispute is
situated in an area which is covered by the
provisions of Regulation of Building
Operation
Act,
1961,
therefore,
M/s
Concept
Cars
Ltd.
has
moved
an
application before the prescribed authority
of R.D.O. for sanction of map.

Since the area involved for the
purposes of raising construction was
greater than the limit available for the
prescribed authority under R.B.O. as such
the matter was forwarded to the Chief Town
Planner, Lucknow under the guidelines
issued
by
the
Ministry
of
Urban
Development and Planning and it was
ultimately sanctioned by the office of Chief
Town Planner, Lucknow finding the title of
M/s Concept Cars Ltd. Valid."

28. In the affidavit filed on behalf of
Sri Sanjeev Agarwal on 23.3.2022, the
order dated 2.8.2021 passed by the Board
of Revenue in Revision No.1351 of 2021
filed on behalf of the review-applicant has
11 All. Jyoti Kumari & Ors. Vs. State of U.P. & Ors.
829
been brought on record in the Public
Interest Litigation.

29. Thus, it is evident that Sri Sanjeev
Agarwal was not only representing the trust,
but he was also representing the reviewapplicant herein and in view thereof, I do not
find any substance in the submission of the
review-applicant that the review-applicant
got prejudiced as it was not made a party in
the Public Interest Litigation.

30. In view of the aforesaid discussion,
this Court does not find any ground to review
the judgment and order dated 5.7.2022 and,
therefore, the same is rejected. However, no
order as to costs.

31. The District Magistrate, Hardoi and
all authorities are directed to implement the
judgement and order dated 5.7.2022 under
review within a period of fifteen days from
today.
----------
(2022) 11 ILRA 829
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.10.2022

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 25 of 2022
alongwith other connected cases

Jyoti Kumari & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Alok Mishra

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra

Law of precedents-Petitioners are working as
Health Worker (Female)/ ANM (Auxiliary Nurse
Midwife) on contract basis-challenging G.O.-to
the extent it grants approval to the U.P.
Subordinate Service Selection Commission for
holding two-level/phase examination system for
Group "C" post of Health Worker (female)-All
issues raised-decided by this Court in one
matter or the other-issues are no longer res
integra-Single judge of a High Court is ordinarily
bound to accept as correct judgments of Courts
of coordinate jurisdiction and of Division
Benches and of Full Bench.

W.P. dismissed. (E-9)
List of Cases cited:

1. Sant Lal Gupta & ors. Vs Modern Cooperative
Group
Housing
Society
Ltd.
and
Ors.,
(2010)13SCC336

2. St.of Punjab & anr. Vs Devans Modern
Breweries ltd. & anr., (2004) 11 SCC 26
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Sri Alok Mishra, learned
counsel for the petitioner, Sri Gaurava
Mehrotra,
learned
counsel
for
the
respondent, Sri Utsav Mishra, learned
counsel for the Uttar Pradesh Subordinate
Service Selection Commission and Ms.
Shagun Srivastava, learned State Law
Officer.

2. The petitioners in the present bunch
of petitions claims to have been working on
the post of Health Worker (female)/ANM
(Auxiliary Nurse Midwife) in different
districts of the state of Uttar Pradesh on
contract basis and have sought to challenge
the legality & validity of the Government
order dated 20.11.2020, to the extent it
grants approval to the Uttar Pradesh
Subordinate
Services
Selection
Commission for holding two-level/phase
examination system for Group "C" post
including the post of Health Worker
(female).