# Moinuddin v. Board of Revenue, U.P. and others

- **Citation:** (2002) 3 ILRA 655
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-29
- **Case number:** Writ Petition No. 10837 of 1984
- **Bench:** R.H. Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moinuddin-v-board-of-revenue-u-p-and-others-39925
- **Pages:** 5

## Headnote

U.P. Z.A. & L.R. Act- Section 198 (4)-
cancellation- of allotment- the property
in dispute admittedly being the evacuee
property, the same could not be subject
matter of allotment under the Act nor
the respondents no. 1 and 2 could pass
any order against the order passed by
the authorities under the aforesaid Acts.

## Text

http://www.allahabadhighcourt.nic.in
3 All] Moinuddin V. Board of Revenue, U.P. and others
655
12. Let a copy of this order be sent
by the Registrar General of this Court to
the Principal Home Secretary, Principal
Law Secretary and the D.G.P., U.P. The
D.G.P. will communicate it to all S.S.Ps.
and S.Ps. in the State, who in turn will
communicate it to all Station Officers of
police stations in the State. A copy shall
also be sent to all the District Judges of
this State.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.7.2002

BEFORE
THE HON'BLE R.H. ZAIDI, J.

Writ Petition No. 10837 of 1984

Moinuddin

...Petitioner
Versus
Board of Revenue, U.P. at Allahabad and
others

 ...Respondents

Counsel for the Petitioner:
Sri Rajendra Pd. Srivastava
Ch. N.A. Khan

Counsel for the Respondents:
Sri Triveni Shankar
S.C.

U.P. Z.A. & L.R. Act- Section 198 (4)-
cancellation- of allotment- the property
in dispute admittedly being the evacuee
property, the same could not be subject
matter of allotment under the Act nor
the respondents no. 1 and 2 could pass
any order against the order passed by
the authorities under the aforesaid Acts.

(Delivered by Hon'ble R.H. Zaidi, J.)

1. By means of this petition filed
under Article 226 of the Constitution of
India,, petitioner prays for issuance of a
writ, order or direction in the nature of
certiorari
quashing
the
order
dated
26.2.1976 passed by the Additional
Commissioner, respondent no. 2, and the
order dated 6.6.1984 passed by the Board
of Revenue, U.P., at Allahabad in the
proceedings under section 198 (4) of the
U.P. Zamindari Abolition and Land
Reforms Act, for short the Act against the
petitioner.

2. The relevant facts of the case
giving rise to the present petition, in brief,
are that plot nos. 38/2, 2,55,56 and
201/168 of village Birbhan alias Malikan
Gaon,
Pargana
Bahariabad,
district
Ghazipur for short ' the land in dispute'
are the subject matter of dispute in the
present case. The land in dispute was
originally owned by Mohammad Tariq,
Smt. Abdi Bibi and Kamal Ahmad who
migrated to Pakistan in the year 1947 or
thereafter. On their migration from India
to Pakistan the land in dispute was
declared as evacuee property under the
Administration of Evacuee Property Act.
The land in dispute was thereafter
acquired by the Government of India vide
Government
of
India,
Ministry
of
Rehabilitation Notification no. 1/3/1157B-111, November 26, 1957 under section
12
of
the
Displaced
Persons
(compensation and Rehabilitation) Act,
1954, for short the 1954 Act, as it is
evident from Annexure 1 to the writ
petition and Annexure RA 1 to the
rejoinder affidavit after following the
procedure prescribed under the law. The
land in dispute was ultimately sold in
favour of the petitioner and sale certificate
was issued in his favour by the Managing
Officer/Assistant Custodian, Lucknow, on
5.8.1970. After purchase of the land in
dispute the petitioner came to know that
the said land, without following the
procedure prescribed under the law and in
http://www.allahabadhighcourt.nic.in
656 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
contravention of the provision of the 1954
Act was allotted in favour of the
contesting respondents no. 4 to 9. The
petitioner,
therefore,
immediately
thereafter applied for cancellation of the
allotment under section 198 (4) of the
Act. The application for cancellation was
filed mainly on the grounds that the
evacuee property could not be allotted and
the allotment was made without following
the procedure prescribed for the same in
contravention of the provisions of the Act
as well as the rules framed thereunder. On
the application filed by the petitioner the
Collector issued notices to the contesting
respondents who contested the application
claiming that the allotment was made in
their favour in accordance with the law.
Parties produced evidence in support of
their cases. The statement of Likhpal Sri
Sheo Poojan Chaubey was also recorded.
The
Additional
Collector
from
the
material on the record, recorded findings
on the material issues against the
contesting respondents. It was held that
the allotment was made without following
the procedure prescribed under the Act.
No list of land less persons was prepared
and allotment was made in favour of kith
and kin of the Pradhan and also in favour
of the Up Pradhan of the village in
contravention of the provisions of Section
28 of the U.P. Panchayat Raj Act. Having
recorded the said findings, the allotment
was cancelled by the Additional Collector
and damages were also imposed upon the
contesting respondents by its judgment
and order dated 26.7.1975. Challenging
the validity of the order passed by the
Additional
Collector
the
contesting
respondents filed a revision before the
respondent no.2. The respondents no. 2
took the view that the Additional
Collector has held that the allotment was
made in contravention of the provisions of
the Rules framed under the Act, it should
have also decided the other issues
involved in the case. He, therefore, by his
judgment and order dated 26.2.1976 made
a reference to the respondent no. 1
recommending it to set aside the order of
the Additional Collector and to remand
the case to the Additional Collector for
decision afresh. The respondent no. 1
neither accepted nor rejected the reference
but the said respondent itself proceeded to
decide the case on merit and ultimately by
judgment and order dated 6.6.1984
allowed the revision. Paragraphs no. 8 and
9 of the said judgment (operative portion)
are quoted below:-

"8. In view of the above, the revision
application is allowed. The impugned
order passed by the learned Additional
Collector dated 26.7.1975 is set aside and
the proceeding is dropped and the patta of
the applicants is held valid.

9. Let the trial court's record be sent to it
at once for necessary action."

3. As stated above, the present
petition has been filed challenging the
validity
of
the
orders
passed
by
respondents no. 1 and 2.

4. Learned counsel for the petitioner
vehemently urged that the land in dispute
was admittedly evacuee property. From
the documentary evidence on the record,
it is conclusively proved that the said land
was acquired by the Central Government
under section 12 of the 1954 Act and
thereafter the same was sold in favour of
the petitioner. Therefore, the land in
question could not, in any view of the
matter, be allotted to the contesting
respondents. The entire proceedings of
allotment were void ab initio. It was also
http://www.allahabadhighcourt.nic.in
3 All] Moinuddin V. Board of Revenue, U.P. and others
657
urged that the allotment was made in
favour of the contesting respondents in
contravention of the provisions of the Act
and the Rules framed thereunder, the
same was illegal and was rightly set aside
by the trial court after recording the
findings on the preliminary issues which
were sufficient to dispose of the case
finally. It was also contended that the
respondent no. 2 has acted illegally in
making a reference for remanding the
case for decision of other issues involved
in the case particularly when the decision
on the preliminary issues was sufficient to
decide the case finally and that the
respondent no. 1 has acted illegally and in
excess of its jurisdiction in neither
accepting nor rejecting the reference but
allowing the revision himself that too
completely
ignoring
the
statutory
provisions of the Act, rules framed
thereunder and of the 1954 Act. The writ
petition, according to him, was liable to
be allowed.

5. On the other hand, learned
counsel appearing for the contesting
respondents supported the validity of the
orders passed by the respondents no. 1
and 2 . It was urged that allotment of the
land in dispute in favour of the contesting
respondents was made after following the
procedure prescribed under the law and
that the order passed by the Courts below
were quite valid and legal. The writ
petition,
therefore,
deserves
to
be
dismissed.

6. I have considered the submissions
made by the learned counsel for the
parties and also perused the record.

7. From the material on the record, it
is evident that the land in dispute was the
evacuee property before the same was
transferred in favour of the petitioner. It
was so recorded in the revenue papers. It
is also evident that the land in dispute was
acquired under section 12 of the 1954 Act
by the Central Government. It is also
apparent that after acquision, the land in
dispute was sold in favour of the
petitioner. Section 12 (2) (3) (d), Section
27 and 36 of the 1954 Act and Section 46
of
the
Administration
of
Evacuee
Property Act are relevant for the purposes
of the present case, which are quoted
below:-

"12. Power to acquire evacuee
property for rehabilitation of displaced
persons:- (1)....
(2) On the publication of a notification
under sub section (1) the right, title and
interest of any evacuee in the evacuee
property specified in the notification shall,
on and from the beginning of the date on
which the notification is so published, be
extinguished and the evacuee property
shall vest absolutely in the Central
Government free from all encumbrances.
(3) It shall be lawful for the Central
Government, if it so considers necessary,
to issue from time to time the notification
referred to in sub section (1) in respect of-
(a).......
(b).......
(c).......
(d) any particular evacuee property

...
...

...

"27. Finality of orders- Save as
otherwise expressly provided in this Act,
every order made by any officer or
authority under this Act, including a
managing corporation, shall be final and
shall not be called in question in any
Court by way of an appeal or revision or
in any original suit, application or
execution proceeding."
http://www.allahabadhighcourt.nic.in
658 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
"36. Bar of Jurisdiction- Save as
otherwise expressly provided in this Act,
no civil court shall have jurisdiction to
entertain any suit or proceeding in respect
of
any
matter
which
the
Central
Government or any officer or authority
appointed under this Act is empowered by
or under this Act to determine, and no
injunction shall be granted by any court or
other authority in respect of any action
taken or to be taken in pursuance of any
power conferred by or under this Act."

"46. Jurisdiction of civil courts
barred in certain matters- Save as
otherwise expressly provided in this Act,
no civil or revenue court shall have
jurisdiction.

(a) to entertain or adjudicate upon any
question whether any property or any
right to or interest in any property is or is
not evacuee property , or
(b) ........
(c) to question the legality of any action
taken by the custodian- General or the
Custodian under this Act, or
(d) in respect of any matter which the
Custodian- General or the Custodian is
empowered by or under this Act to
determine."

8. A reading of the above noted
statutory provisions show that Section 12
of the 1954 Act confers power upon the
Central
Government
to acquire the
evacuee property which was, as stated
above,
acquired
by
means
of
a
notification
issued
by
the
Central
Government . Section 27 of the said Act
provides that every order made by any
officer or authority under the said Act
including a managing corporation shall be
final and shall not be called in question in
any Court by way of an appeal or revision
or in any original suit, application or
execution proceeding. Thus, the orders
passed acquiring the land in dispute
became final. Section 36 of the said Act
specifically provides that no Civil Court
shall have jurisdiction to entertain any suit
or proceeding in respect of any matter
which the Central Government or any
officer or authority appointed under this
Act is empowered by or under this Act to
determine, and no injunction shall be
granted by any Court or other authority in
respect of any action taken or to be taken
in pursuance of any power conferred by
or under this Act. Similarly, Section 46 of
the Administration of Evacuee Property
Act, bars the jurisdiction of the civil and
revenue courts to entertain or adjudicate
upon any question whether any property
or any right to or interest in any property
is or is not evacuee property to question
the legality of any action taken by the
Custodian- General or Custodian under
the said Act to determine.

9. Thus, in the present case, the
property in dispute admittedly being the
evacuee property, the same could not be
subject matter of allotment under the Act
nor the respondents no. 1 and 2 could pass
any order against the order passed by the
authorities under the aforesaid Acts.
Further, Section 195 of the Act provides
as under :

"195. Admission to land- The Land
Management
Committee
with
the
previous
approval
of
the
Assistant
Collector in charge of the sub division
shall have the right to admit any person as
Bhumidhar with non transferable rights to
any land (other than land being in any of
the classes mentioned in Section 132)
where -
(a) the land is vacant land,
http://www.allahabadhighcourt.nic.in
3 All] Mahabir Prasad Pathak V. The Labour Court, Allahabad and another
659
(b) the land is vested in the Gaon Sabha
under section 117,. Or
(c) the land has come into the possession
of land Management Committee under
section 194 or under any other provision
of this Act.

10. The land in dispute is not
covered by any one of the aforesaid
clauses of Section 195. Therefore, the
same could not be subject matter of
allotment under any provision of the Act.
The allotment of the land in dispute in
favour of the contesting respondents was,
thus, made wholly without jurisdiction
and on the basis of the same the
contesting respondents can not get any
right in the land in dispute. Further,
according to the findings recorded by the
Additional Collector, the provisions of
Rules 173 and 174 of the Rules framed
under the Act were not followed and the
provisions of Section 28 of the UP
Panchayat Raj Act were violated. Neither
there was announcement of beat of drum
in the circle of the Gaon Sabha in which
the land is situate at least seven days
before the date of meeting of the Land
Management Committee for admission of
the land regarding number of plots, their
areas,
the
date
of
which
admission/allotment was to be made nor
the list of landless persons was prepared
nor other provisions contained under
Rules 174, 175 and 176 were followed
and allotment was made in violation of
the provisions of section 28 of the UP
Panchayat Raj Act, as stated above. Thus,
the allotment was totally illegal and
without jurisdiction. It may also be noted
that the respondent no. 2 made a reference
to the respondent no. 1 to accept the
reference and to remand the case. The
respondent no. 1 could either accept or
reject the reference but it had no
jurisdiction to decide the case himself and
allow the revision finally. The orders
passed by the respondents no. 1 and 2 are
illegal and without jurisdiction, therefore,
they are liable to be set aside. Normally,
after setting aside the two orders,. I
should have remanded the case to the trial
court but in view of the above noted
discussion and in view of the fact that the
land in dispute is admittedly evacuee
property, which was acquired by the
Ministry
of
Rehabilitation
vide
notification
dated
26.11.1957
and
thereafter sold to the petitioner, no useful
purpose will be served by remanding the
case to the Court below as the court below
can not go against the orders passed by
the authorities constituted under the 1954
Act and under the Administration of
Evacuee Property Act. It is, however,
observed that it will be open to the
contesting respondents to approach the
competent authority under the 1954 Act
for ventilation of their grievance, if any, if
they are so advised and if it is legally
permissible within one month from today.

11. Subject to what has been stated
above, this petition succeeds and is
allowed with costs. The orders dated
6.6.1984 (Annexure-IV) and 26.2.1976
(Annexure-111) are hereby quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.7.2002

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 1397 of 1986

Mahabir Prasad Pathak
...Petitioner
Versus
The Labour Court, Allahabad and another

 ...Respondents