# Pratap Singh Sishodia v. Board of Revenue and others

- **Citation:** (2007) 3 ILRA 1028
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-30
- **Case number:** Civil Misc. Writ Petition No. 2447 of 1984
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pratap-singh-sishodia-v-board-of-revenue-and-others-40989
- **Pages:** 5

## Headnote

UPZA & LR Rules-Rule 115-M Allotment
of land- belonging to Gaon Sabhawithout
following
the
order
of
preference-petitioner
being
totally
outsider to the village-obtained patta by
3 All] Pratap Singh Sishodia V. Board of Revenue and others
1029
taking
into
confidence
to
the
Government
authorities-
concurrent
finding of facts recorded by all the three
revenue Courts- cannot be interfered- No
license to a wrong activities

Held: Para 8

The
factum
of
illegal
arrangement
without resorting any procedure known
to
law
and
without
any
notice/information to any body, if was
disapproved/cancelled
in
quickest
possible time, then this Court is not to
come to the rescue of such a claimant
who has tried to grab public land by a
back door process. So far as finding
given by all three courts are concerned,
they are on the question of facts in
which, no illegality or any-perversity has
been shown to the Court. If finding of
fact recorded by all three courts below
are accepted, then this Court cannot be
in a position to approve the claim of
petitioner and thus will have to decline
to interfere in the impugned orders.
Case law discussed:
2007(102) R.D. 303

## Text

1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
nominate, re-nominate as the exigency
may arise. In case the interpretation put
by the petitioner is accepted the power of
District Magistrate shall come to an end
after once nominating a person to
discharge the duties of Pradhan. If such
interpretation is accepted that will not
advance the object of provisions of
Section 12-J(2) of the Act 1947. U.P.
General Causes Act provides that power
conferred by a statute is to be exercisable
from time to time Section 14 of the U.P.
General Causes Act is quoted as below:-

"Power conferred on the State
Government to be exercisable from time
to time:-Where, by any (Uttar Pradesh)
Act, any power is conferred (XX) then that
power may be exercised from time to time
as occasion requires."

8. From the provisions Of the
General Causes Act. It is clear that when
an act confers a power unless the different
intention is there such power can be
exercised from time to time as occasion
requires, thus, the power of nomination
can
be
exercised
by
the
District
Magistrate from time to time. The
submission of the petitioner that once he
has been nominated his nomination
cannot be withdrawn cannot be accepted.
Further more this submission also runs
contrary to the very condition of the
petitioner's nomination as contained in the
letter dated 13.6.2007. The order clearly
contemplates that the nomination of the
petitioner is purely temporary and can be
withdrawn without any notice, hence, the
submission
of
the
petitioner
that
nomination
could
not
have
been
withdrawn cannot be accepted. The next
submission of the petitioner is that he was
required to be given an opportunity before
passing an order for removing him. The
petitioner was nominated by the District
Magistrate to discharge the function of the
Pradhan. The petitioner is not an elected
office bearer nor he can claim to have any
right to the office of Pradhan, by virtue of
nomination.
The
appointment
of
a
nominee is generally up to the pleasure of
the authority nominating a person. After
receiving
complaints
regarding
functioning of the petitioner no error was
committed by the District Magistrate in
recalling the nomination without giving
any
opportunity.
Furthermore,
the
termination
of
the
nomination
was
according to the terms of the engagement
of the petitioner as contained in the order
dated 13th June, 2007.

9. None of the submissions raised by
the petitioner has any substance. The writ
petition lacks merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2007

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 2447 of 1984

Pratap Singh Shisodhia
...Petitioner
Versus.
Board of Revenue & others ...Respondents

Counsel for the Petitioner:
Sri. Kunwar R.C. Singh

Counsel for the Respondents:
Sri. O.P. Kulsherstha.
S.C.

UPZA & LR Rules-Rule 115-M Allotment
of land- belonging to Gaon Sabhawithout
following
the
order
of
preference-petitioner
being
totally
outsider to the village-obtained patta by
3 All] Pratap Singh Sishodia V. Board of Revenue and others
1029
taking
into
confidence
to
the
Government
authorities-
concurrent
finding of facts recorded by all the three
revenue Courts- cannot be interfered- No
license to a wrong activities

Held: Para 8

The
factum
of
illegal
arrangement
without resorting any procedure known
to
law
and
without
any
notice/information to any body, if was
disapproved/cancelled
in
quickest
possible time, then this Court is not to
come to the rescue of such a claimant
who has tried to grab public land by a
back door process. So far as finding
given by all three courts are concerned,
they are on the question of facts in
which, no illegality or any-perversity has
been shown to the Court. If finding of
fact recorded by all three courts below
are accepted, then this Court cannot be
in a position to approve the claim of
petitioner and thus will have to decline
to interfere in the impugned orders.
Case law discussed:
2007(102) R.D. 303

(Delivered by Hon'ble S.K. Singh. J.)

1. Heard Sri Kunwar R.C. Singh in
support of this petition. No body appeared
for the respondents.

2. Challenge in this petition is the
order passed by Board of Revenue,
Additional Commissioner and that of the
Additional Collector dated 24.11.1983,
10.6.1983 and 13.01.1982 (Annexures XI,
X and VIII) respectively.

Before adverting to the arguments,
notice of facts in brief, will suffice.

3. Petitioner:claims to have received
a portion of Plot No. 729 and 731 situated
in
Agrawala
Mandi
Tateeri
Tehsil
Baghpat, district Meerut, in view of
allotment made/approved by the SubDivisional
Officer
dated
28.02.1980
pursuant to which on 04.09.1980, he
deposited Rs.326.80 and then he claims to
have raised construction. For the aforesaid
allotment, petitioner claims to have filed
application on 27.09.1979 on the ground
that he is residing at present in Tateeri
Meerut and he has no land for his
residence and therefore, he be allotted
suitable
area.
On
that
application,
Lekhpal, Supervisor Kanungo and Naib
Tehsildar appears to have submitted their
reports favouring petitioner and thus,
approval of allotment by the SubDivisional Magistrate on 28.02.1980 as
noted above. On filing application by
respondent
for
cancellation
of
the
allotment, on various grounds so taken in
the application, the Additional Collector
proceeded in the matter and after giving
full
opportunity
to
the
petitioner,
allotment was ordered be cancelled by
order dated 13.01.1982 and that has been
affirmed by the Additional Commissioner
and the Board of Revenue and thus, all
the three orders are under challenge in
this petition.

4. Submission of learned counsel is
that as the town area committed was
under
suspension,
the
Prescribed
Authority was incharge of the affairs he
after getting report from lower staff
allotted the land to the petitioner in which,
no illegality can be found. Submission is
that petitioner has been validly allotted
the land being entitled for the same which
is clear from the report so submitted. It
was then submitted that even if it is found
that allotment in favour of petitioner is
illegal,
as
the
petitioner
obtained
possession and raised some construction,
land is to be settled with him on market
rate as has been held by this, Court in the
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
case of Sukhdeo Vs. Collector reported
in 2007(102) RD 83 and Kishore Singh
Vs.Addl.
Collector
reported
in
2007(102) RD. 303.

In view of the aforesaid, this Court
has examined the matter.

5. Before proceeding to deal with
the matter, this Court has to observe that
the case in hand is a clear case where the
petitioner having taken into confidence
the administrative authorities has been
able to grab public property/land in most
illegal manner and now as alternate
argument,
he
claims
its
legalization/settlement on payment of
premium.

6. There is no dispute about the fact
that the land in dispute is the public
property/land. In the report of Naib
Tehsildar (Annexure 2-C) and in the order
dated 28.2.1980 which have been placed
on record there is clear mention that the
land is Gaon Sabha land and it is under
the provision of UPZA & L.R. Act. There
is further mention in all the reports that
petitioner may be given land under Rule
115-M of UPZA & LR Rules which
permits allotment on deposit of amount
equal to forty times of the rent of land in
the manner and procedure so provided.
Thus on the admitted facts, as the land has
been mentioned to be Gaon Sabha land
and the provision of Rule 115-M has been
quoted/referred in all the reports, this
Court will have to notice these provisions
before coming to a particular conclusion.

7. Rule 115-M of UPZA &LR Rules
permits
allotment
of
the
land
for
construction of building in residential area
or for charitable purposes or for purposes
of cottage industries in a particular order
or preference which speaks landless
labourer, village artisans etc. In the next
category to a bhumidhar, sirdar ,or assami
residing in the village and then to any
other person residing in the village. The
procedure for making allotment has been
given in Rule 115-N of the Rules which
provides that the land will be allotted by
due publication by beating the drum in the
village about exact location of the site,
time and date and the venue of allotment.
Then Rule 115-O comes which clearly
provides that maximum limit will be 250
meters.

8. So far as case in hand is
concerned, petitioner claims that it has
been allotted by the Sub-Divisional
Officer after getting report from the lower
administrative authorities as the town area
committee was under suspension. From
the documents as has been brought on
record, this has not been made clear that
when the land belongs to Gaon Sabha and
there, is clear mention that the land is
under the provision of UPZA & L.R. Act,
how and in what circumstances, town area
committee came in picture and even if
town area committee is said to be
competent to allot the Committee is said
to be under suspension, how and in what
circumstances, land can be allotted just
after
taking
application
from
the
petitioner and on getting reports without
any notice to any body, and without any
knowledge to other eligible persons. Land
in dispute admittedly, is not the private
property of the prescribed authority or any
administrative authority. It being public
property, even if petitioner may be
entitled to get the land allotted that has to
be done by taking public into confidence
i.e. to say by making the factum of
allotment known to every body so that
other eligible may also if they so like
3 All] Pratap Singh Sishodia V. Board of Revenue and others
1031
claim the land for being allotted. There is
a clear provision in the Rules as referred
above that if there are several claimants
then it is to be settled by lottery system.
By no stretch of imagination, it can be
accepted
that
in
the
prevailing
circumstances, there being paucity of
accommodation, no body else in the
village /town can be inclined to take the
land but for the petitioner. At the same
time, preference as given in the rules will
also be required to be adhered to. There is
clear finding of all the three courts that
neither any munadi was made nor any
publication was made and the factum of
allotment was never made to known to an
body. There is a further finding that
petitioner is not resident of that place
which is clear from the khatauni extract
so filed in the proceeding which clearly
mentions that petitioner is having land in
village Sapnawat in district Ghaziabad.
There is a further finding that the
petitioner
is
not,
landless
labourer,
resident of the village and in fact, he is
teacher in High Secondary School, Daula,
Meerut and he is Rajput by caste. On
these facts, it is crystal clear that all three
courts have rightly concurred in taking the
view that petitioner was not entitled to get
allotment and he obtained allotment by
maneuvering things by exerting pressure
on the administrative authorities. The
allotment is said to have been made in the
year 1980 and immediately thereafter an
application for its cancellation was moved
and the order of Additional Collector is
dated 13.01.1982 and thus, it is clear that
a prompt action was taken against the
illegal allotment. It is not a case where
allotment has been questioned after a
lapse of sufficiently long time. Although
petitioner claimed for allotment of an area
of 500 meters which is otherwise also not
permissible but the fact as has come at
various places, that an area of 0-8-15 of
plot no. 729 and an area of 0-8-0 of plot
no. 731 came to be allotted. That is
further very unreasonable The factum of
illegal arrangement without resorting any
procedure known to law and without any
notice/information to any body, if was
disapproved/cancelled
in
quickest
possible time, then this Court is not to
come to the rescue of such a claimant who
has tried to grab public land by a back
door process. So far as finding given by
all three courts are concerned, they are on
the question of facts in which, no
illegality or any-perversity has been
shown to the Court. If finding of fact
recorded by all three courts below are
accepted, then this Court cannot be in a
position to approve the claim of petitioner
and thus will have to decline to interfere
in the impugned orders.

9. At this stage, alternative claim of
petitioner of settling and in the light of
two decisions given by this Court, will
have to be noticed.

10. On examination of the facts of
present case and the facts of cases on
which reliance has been placed by learned
counsel, this Court is of the view that
there is clear distinction on facts and thus
the
decision
relied
upon
have
no
application to the facts of the present case.
So far as the judgment given in the case
of Sukhdeo (supra) is concerned, action
against unauthorised occupation was
taken after about 30 years and therefore,
on the facts, this Court exercising equity
powers granted relief. So far the judgment
in the case of Kishore Singh (supra) is
concerned, a finding has been recorded
that Navin Parti was made cultivable land
and therefore, on the facts of that case
considering the hardship, relief was
1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
granted by this Court. Otherwise also if
this kind of tactics is permitted, then it
will be very easy for a mighty person to
grab public property by back door process
in an illegal manner and then to claim its
settlement to get it legalised. This will be
clearly arbitrary and discriminatory and in
violation of principle of natural justice to
the public at large. The benefit to which,
large number of eligible persons may be
entitled cannot be permitted to be given to
an individual in a secret manner without
any opportunity of participation to all
eligible. It has been repeatedly said by the
Apex Court and this Court that in the
matter of public settlement, it has to be
after opportunity of participation to public
at large and, in the manner so provided.
Thus this Court has to reject the claim of
the petitioner for settling the land on
premium basis as that will be in violation
of principle of natural justice as others are
to suffer and that will be laying a bad
precedent of granting premium to wrong
acts certifying the slogan that might is
right. We can take judicial notice of the
fact that now a days, tendency of
encroachment of public land/property is
increasing day by day and thus that has to
be checked although on its beginning
itself and if for any reason that could not
come to notice at its start then as and
when, it comes to the notice of a person
authorised/capable to take action in
accordance with law, There cannot be any
license/premium to a wrong and void act
unless it is permitted in law or it could get
protection in law.

11. For the reasons given above, this
Court is of the view that petitioner has not
been able make out any case for
interference in the impugned orders by
pointing out any illegality.

This petition accordingly fails and is
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE R.K RASTOGI, J.

Criminal Misc. Application no. 2749 of
2005

Ramesh

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Rajul Bhargava

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 362Bar of jurisdiction once the Magistrate
passed
order-treating
the
protest
petition as complaint-statement of the
complaint
as
well
as
the
witness
recorded-can not be reviewed.

Held: Para 7

There is also one more aspect of the
case. In the Cr.P.C. there is no provision
for review of an earlier order passed by
the court, and section 362 Cr.P.C. clearly
bars review of earlier order. In the
present case Sri S.N. Saroj had passed an
order on 28.10.2003 for treating the
protest petition as a complaint and so in
view of the clear bar of seciton 362
Cr.P.C. Sri Amar Nath Kushwaha had no
jurisdiction to review that order holding
it
to
be
illegal
vide
order
dated
30.4.2004.
Case law discussed:
2002 ACR (2) 1693 (SC)
2004 (Cr.) 1135
2006 (1) SCC (Crl.)-575