# Smt. Maya Singh v. Board of Revenue U.P. & Ors

- **Citation:** (2023) 3 ILRA 180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-16
- **Case number:** Writ B No. 54 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-maya-singh-v-board-of-revenue-u-p-ors-49945
- **Pages:** 9

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 80, 80 (1), 80 (4), 116 & 210 -
Constitution of India, 1950 - Article 226 -
Board of Revenue - It is settled principle
of law that issuance of a writ or quashing
/setting aside of an order if revives
another pernicious or wrong or illegal
order - in that eventuality the writ court
should not interfere in the matter and
should refuse to exercise its discretionary
power conferred upon it under Article 226
- Reference has been made to the
judgment decided on 24.02.2020 in Atul
Kumar Singh Vs St. of U.P. - Where orders
impugned are equitable and substantial
justice seems to have been done to the
parties, the Writ Court would not be
inclined to interfere merely on the ground
that such orders are wrong in law -
Hence, Court refuse to interfere in the
impugned order. (Para 12, 27, 29)
3 All. Smt. Maya Singh Vs. Board of Revenue U.P. & Ors.
181
Writ petition is dismissed. (E-13)

List of Cases cited:

## Text

180 INDIAN LAW REPORTS ALLAHABAD SERIES
they must be taken to the logical end. It,
therefore, cannot be laid down as a
proposition of law or a rule of universal
application that if there is delay in
initiation of proceedings for a particular
period, they must necessarily be quashed."

19. On perusal of the case laws cited
by learned counsel for the parties, it is
evident that there is no provision in the
Uttar
Pradesh
Cooperative
Societies
Employees Service Regulations, 1975 for
initiation or continuation of disciplinary
proceeding after retirement nor is there any
provision stating that in case misconduct is
established, a deduction could be made
from the retiral benefits.

20. Once the petitioner has retired
from service on 31.12.2001, there was no
authority vested in the corporation for
continuing the departmental proceeding
even for the purpose of imposing any
reduction in the retiral benefits payable to
the petitioner. In absence of such an
authority, it is held that enquiry /
disciplinary proceeding had lapsed and the
petitioner was entitled to full retiral
benefits on retirement. As the enquiry has
lapsed, it is obvious that the petitioner
would have to get the balance of the
emoluments payable to him.

21. In view of reasons recorded above,
the impugned orders dated 20.02.2007
(Annexure
No.1)
and
30.09.2003
(annexure-5) are hereby quashed.

22. The writ petition succeeds and is
allowed.

23. The respondents are directed to
pay the allowances / post retiral benefits to
the petitioner as claimed in the writ petition
in
accordance
with
the
rules
and
regulations within a period of eight weeks
from the date of production of a certified
copy of this order.
----------
(2023) 3 ILRA 180
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.02.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ B No. 54 of 2023

Smt. Maya Singh ...Petitioner
Versus
Board of Revenue U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
Prabhakar Vardhan Chaudhary, Mohammad
Aslam Khan

Counsel for the Respondents:
C.S.C., Gyanendra Singh, Harish Chandra,
Mohan Singh, Rakesh Kumar Singh, Ripu
Daman Shahi

Civil Law - U.P. Revenue Code, 2006 -
Sections 80, 80 (1), 80 (4), 116 & 210 -
Constitution of India, 1950 - Article 226 -
Board of Revenue - It is settled principle
of law that issuance of a writ or quashing
/setting aside of an order if revives
another pernicious or wrong or illegal
order - in that eventuality the writ court
should not interfere in the matter and
should refuse to exercise its discretionary
power conferred upon it under Article 226
- Reference has been made to the
judgment decided on 24.02.2020 in Atul
Kumar Singh Vs St. of U.P. - Where orders
impugned are equitable and substantial
justice seems to have been done to the
parties, the Writ Court would not be
inclined to interfere merely on the ground
that such orders are wrong in law -
Hence, Court refuse to interfere in the
impugned order. (Para 12, 27, 29)
3 All. Smt. Maya Singh Vs. Board of Revenue U.P. & Ors.
181
Writ petition is dismissed. (E-13)

List of Cases cited:

1. Atul Kumar Singh Vs St. of U.P. (Writ Petition
No.343 of 1999)

2. A.M.Allison Vs B.L.Se, AIR 1957 SC 227

3. Bux Singh Vs Joint Director of Consolidation,
U.P. Lucknow & ors., AIR 1966 All 156

4. Om Prakash Vs U. P. Secondary Education
Service Commission, Allenganj, Allahabad &
ors., (1990) UPLBEC 983

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Mohammad Arif Khan,
learned Senior Advocate assisted by Sri
P.V.Chaudhary, learned counsel for the
petitioner and Sri R.D.Shahi and Sri
Rakesh Kumar Singh, learned counsel for
opposite party No.3, Sri Harishchandra,
learned counsel for the opposite party No.2
and Sri Mohan Singh, learned counsel for
the Gaon Sabha and Avneesh Kumar,
learned counsel for the State.

2. By means of present petition,
petitioner has impeached the order dated
11.01.2023 passed by the respondent No.1Board of Revenue, U.P., Lucknow in
revision,
registered
as
Revision
No.REV/2686/2022/Ayodhya,
Computerized Case No.R20220423002686
(Devesh Singh vs. Maya Singh) filed under
Section 210 of the U.P. Revenue Code,
2006 (in short "Code of 2006").

3. Brief facts, admitted between the
parties, are to the effect that the dispute
relates to Gata No. 853 situated at VillageMadna
Uparhar
Amsin,
Tehsil-Sadar,
District-Ayodhya. In Gata No.853, in issue,
respondent No.4-Smt. Sukhmeena Singh
was having 3/4th share and Rukmani Singh
was having 1/4th share. Undisputed area of
the Gata in issue is 0.449 Hect., out of
which,
petitioner
purchased
0.11225
Hectare by means of registered sale deed
dated 18.03.2021 and in the said sale deed,
boundaries of the property purchased by
the petitioner are described as "iwjc&pdjksM
dPpk 1 yV~Bk ckngw [ksr ua0&849] 850 vkfn]
if'pe&lhek xzke tykyqnhu uxj] mRrj&lhek xzke
tykyqnhuuxj] nf{k.k&xkVk la0 857 vU; O;fDrA"

4. Further, Respondent No.4-Smt.
Sukhmeena Singh also executed sale
deed(s) in favour of respondent No.2Girish Kumar Singh and respondent No.3Devesh Singh, which were registered on
23.05.2022 and 24.05.2022, respectively.
After
these
sale
deeds,
indicated
hereinabove, petitioner became owner of
1/4 part of the property in issue and the
respondent Nos.2 and 3 became owner of
3/4 part.

5. It would be apt to refer here that the
boundaries indicated in the subsequent sale
deed(s) executed on 23.05.2022 and
24.05.2022 are similar as indicated in the
sale deed of the petitioner. The boundaries
indicated in the sale deed(s) subsequent to
the sale deed of the petitioner are as
"iwjc&pdjksM dPpk 1 yV~Bk ckngw [ksr ua0&849]
850 vkfn] if'pe&lhek xzke tykyqnhu uxj]
mRrj&lhek xzke tykyqnhuuxj] nf{k.k&xkVk la0
857 vU; O;fDrA"

6. Petitioner preferred an application
under Section 80 of the Code of 2006 for
declaration of holding/for use for nonagricultural purposes on 04.01.2022, which
was registered as Case No.16 of 2022,
Computerized Case No.T2022423450116
(Maya Singh vs. State of U.P.), and for the
purposes of disposal of the said case, a
report
was
called
for,
which
was
subsequently submitted by the Revenue
182 INDIAN LAW REPORTS ALLAHABAD SERIES
Official on 20.04.2022 and thereafter,
based upon the report of the Revenue
Official, Sub Divisional Magistrate, Sadar,
Ayodhya, allowed the application vide its
order dated 21.04.2022.

7. It would be apt to refer here that
one
application
was
moved
by
the
petitioner under Section 80 of the Code of
2006 with regard to Gata Nos.853 and 854,
situated at Village-Madna Uparhar Amsin,
Tehsil-Sadar, District-Ayodhya, with the
prayer that the portion purchased by the
petitioner in both these Gata(s) be declared
so as to use it for non-agricultural purposes.
In other words, composite application was
filed for both the Gata(s).

8. On coming to know about the order
dated 21.04.2022, an application for setting
aside the order dated 21.04.2022 and
restoration of the Case No.16 of 2022 was
preferred by the respondent Nos.2 and 3,
which
was
registered
as
Case
No.RST/4456/2022, Computerized Case
No.T202204230104456 (Devesh Singh &
Others
vs.
Maya
Singh).
The
Sub
Divisional Magistrate, Sadar, Ayodhya,
after due notice and hearing the parties
dispose of the application vide its order
dated 10.10.2022 in following terms:-

"i=koyh izLrqrA i=koyh dk voyksdu
fd;k x;kA i=koyh ds voyksdu ls ;g Li"V gS fd
oknhx.k nsos'k flag iq= ';keyky flag o lq[kehuk
iRUkh Lo0 d#.k dqekj flag }kjk vkns'k fnuk¡d 21-042022 ds fo#) izLrqr vkifRr esa dgk x;k fd
iz'uxr Hkwfe xkVk la[;k 853 dk caVokjk ugha gqvk gS
rFkk fcuk caVokjk gq, iz'uxr Hkwfe dks vd`f"kd ?kksf"kr
ugha fd;k tk ldrk gS] rRi'pkr fnuk¡d 16-06-2022
dks iz'uxr vkns'k fnuk¡d 21-04-2022 dk fdz;kUo;u
LFkfxr dj fn;k x;kA

xzke eM+uk mijgkj] ijxuk veflu]
rglhy lnj] tuin v;ks/;k esa fLFkr xkVk la[;k
853 ds caVokjs dk okn] dEI;wVjhd`r okn la[;k
Vh202204230104762] okn la[;k 632 vUrxZr /kkjk
166 m0iz0jk0la0 ds rgr lq[kehuk flag cuke ek;k
flag vkfn ;ksftr fd;k x;k] ftlesa izkjfEHkd vkns'k
fnuk¡d 16-06-2022 dks ikfjr fd;k tk pqdk gSA
izkjfEHkd vkns'k fnuk¡d 16-06-2022 ds dze esa
rglhynkj lnj }kjk izLrqr dqjkZ caVokjk o jaxHksnh
uD'kk Hkh U;k;ky; }kjk Lohdkj fd;k tk pqdk gSA
dqjkZ caVokjk o jaxHksnh uD'kk esa] tgka ij Jherh ek;k
flag dk va'k n'kkZ;k x;k gS] mlh LFky ij okn la[;k
81] dEI;wVjhd`r okn la[;k Vh202242350116 Jherh
ek;k flag cuke m0iz0 ljdkj] vUrxZr /kkjk 80 esa
ikfjr vkns'k fnuk¡d 21-04-2022 izHkkoh gksxkA ,slh
fLFkfr esa LFkxu vkns'k fnuk¡d 16-06-2022 dks okil
ysrs gq, okn dh dk;Zokgh dks lekIRk fd;k tkuk
mfpr izrhr gksrk gSA

vr% mijksDRk foospuk ds vk/kkj ij nsos'k
flag iq= ';keyky flag vkfn }kjk izLRkqr vkifRr
fujLRk djrs gq, LFkxu vkns'k fnuk¡d 16-06-2022
okil fy;k tkrk gSA vkns'k dh izfr jktLo vfHkys[kksa
esa vadu gsrq rglhynkj lnj dks Hksth tk;A okn
vuqikyu i=koyh jktLo vfHkys[kkxkj lafpr gksA "

9. Being aggrieved by the order(s)
dated
10.10.2022
and
21.04.2022,
a
revision under Section 210 of the Code of
2006 was filed by the respondent No.2, in
which,
the
impugned
order
dated
11.01.2023 has been passed by the
respondent No.1-Board of Revenue, U.P.,
Lucknow. The relevant portion of the order
dated 11.01.2023 reads as under:-

"6& rRdze esa mHk; i{kksa ds fo+n~oku
vf/koDrkvksa dks lquk ,oa i=koyh ij miyC/k lqlaxr
vfHkys[kksa dk ifj'khyu@ijh{k.k fd;kA i=koyh ij
miyC/k lqlaxr vfHkys[kksa ds ifj'khyu@ijh{k.k ls
fofnr gS fd lq[kehuk flag us iz'uxr Hkwfe ds lEcU/k
esa /kkjk&116 ds rgr okn la[;k 4762@2022
dEI;wVjhd`r
okn
la[;k&Vh202204230104762
lq[kehuk flag cuke Jherh ek;k flag vkfn ;ksftr
fd;k ftlesa fnukad 16-06-2022 dks izkjfEHkd fMdzh
dk vkns'k ikfjr fd;k x;k rFkk mi ftykf/kdkjh
n~okjk vfUre vkns'k fnukad 10-10-2022 ikfjr fd;k
x;kA blds iwoZ iz'uxr Hkwfe ds lEcU/k esa Jherh
ek;k flag us mi ftykf/kdkjh ds U;k;ky; esa /kkjk&80
ds rgr vd`f"kd iz[;kfir fd;s tkus gsrq okn ;ksftr
fd;k] ftl ij rglhynkj us fnukad 20-04-2022 dks
vk[;k izLrqr dhA bl vk[;k ds vk/kkj ij mi
ftykf/kdkjh us vxys gh fnu fnukad 21-04-2022 dks
3 All. Smt. Maya Singh Vs. Board of Revenue U.P. & Ors.
183
iz'uxr Hkwfe dks vd`f"kd iz[;kfir djus dk vkns'k
ikfjr dj fn;kA Li"Vr% fcuk fof/kd #i ls cVokjk
gq, iz'uxr Hkwfe dks vd`f"kd iz[;kfir fd;k x;k gS]
tks m0iz0 jktLo lafgrk&2006 dh /kkjk&801⁄441⁄2 dk
mYya?ku gSA vr% fuxjkuh Lohdkj dh tkrh gS rFkk
mi ftykf/kdkjh n~okjk ikfjr vkns'k fnukad 10-102022 o 21-04-2022 fujLr fd;s tkrs gSaA

7&i'pkr vko';d dk;Zokgh i=koyh
nkf[ky&nQ~rj gksA"

10. Impeaching the order dated
11.01.2023,
Sri
M.A.Khan,
Senior
Advocate assisted by Sri P.V.Chaudhari,
appearing for the petitioner stated as
under:-

(i) The application for recall of
the order dated 21.04.2022 was not
maintainable by Devesh Singh.

(ii) The property in issue i.e. Gata
No. 853 was purchased by the petitioner
based upon the mutual partition/family
settlement. As such, no interference was
required by the authority concerned in the
order passed on the application under
Section 80 of the Code of 2006.

(iii) The revision filed by Devesh
Singh alone itself was not maintainable as
he was not the recorded tenure holder. As
such, the order passed by the Revisional
Authority is without jurisdiction. The
Revisional Authority erred in law and fact
both in interfering in the order of the Sub
Divisional Magistrate, Sadar, Ayodhya
passed
on
21.04.2022,
subsequently,
clarified on 10.10.2022 on the application
preferred by the respondent No.3 and
respondent No.4 for restoration of case.

(iv) Preliminary decree filed by
respondent No.4-Smt. Sukhmeena Singh in
the suit for partition, under Section 116 of
the Code of 2006, was passed on
16.06.2022 and in terms of the preliminary
decree,
the
map
was
prepared
and
thereafter, final decree was passed on
10.10.2022 against which first appeal i.e.
Appeal No.2010 of 2022, Computerized
Case No.C202204000002010 (Sukhmeena
Singh & Others vs. Smt. Maya Singh &
Others) was filed and the First Appellate
Court dismissed the appeal vide its order
dated 24.01.2023 and now the second
appeal is pending, wherein, no interim
order has been passed in favour of
respondent Nos.2 and 3 and being so, the
order dated 10.10.2022 based upon the
order in partition suit was just and proper
and interference in the same in the revision
is unjustified.

(v)
Map
prepared
by
the
Advocate Commissioner also proves that
the land was partitioned.

(vi) If it is presume that no
partition took place regarding Gata No.853
even in that event, the order regarding Gata
No.854 ought not to have been interfered
with.

11. Per contra, Sri R.D.Shahi and Sri
Rakesh Kumar Singh, learned counsel for
opposite party No.3, Sri Harishchandra,
learned counsel for the opposite party No.2
stated that:-

(i) Application under Section 80
of the Code of 2006 by the petitioner alone
regarding un-partitioned land itself was not
maintainable, as such, no order could have
been passed by any of the authorities
including the Sub Divisional Magistrate,
Sadar, Ayodhya. A reference has been made
in this regard to Proviso to Section 80(1)
and Sub Section 4 of Section 80 of the
Code of 2006.

(ii)
Respondent
No.3-Devesh
Singh, after execution of sale deed by
respondent No.4-Smt. Sukhmeena Singh, in
his favour entered into the shoes of Smt.
Sukhmeena Singh, who admittedly, was cosharer of the petitioner, as such, respondent
No.3-Devesh Singh was having right to
184 INDIAN LAW REPORTS ALLAHABAD SERIES
move the application for restoration as also
to file a revision.

(iii) Any interference in the
impugned order dated 11.01.2023 by this
Court would revive the illegal order dated
21.04.2022 passed by the Sub Divisional
Magistrate,
Sadar,
Ayodhya
on
the
application preferred by the petitioner
under Section 80 of the Code of 2006 as
also the subsequent order dated 10.10.2022.

12. It is settled principle of law that
issuance of a writ or quashing/setting aside
of an order if revives another pernicious or
wrong or illegal order then in that
eventuality the writ court should not
interfere in the matter and should refuse to
exercise its discretionary power conferred
upon
it
under Article
226
of
the
Constitution of India. In this regard, a
reference has been made to the judgment
decided on 24.02.2020 passed by this Court
in Writ Petition No.343 of 1999 (Atul
Kumar Singh vs. State of U.P.).

(iv)
The
second
appeal
challenging the order(s) passed in the
proceedings related to Section 116 of the
Code of 2006 has been filed wherein
records have been summoned and the
matter is still sub-judice before the
statutory forum. Prayer is to dismiss the
petition.

13.

Considered
the
aforesaid
submissions advanced by the learned
counsel for the parties and perused the
records including the order impugned.

14. In order to appreciating and
deciding the controversy involved in the
present petition, this court is of the view
that in the instant case Section 80 of the
Code of 2006, as applicable on the date of
preferring the application, is relevant and
being
so,
the
same
is
extracted
hereinbelow:-

"[80]
Use
of
holding
for
Industrial, Commercial or Residential
purposes.-

(1) Where a bhumidhar with
transferable rights uses his holding or part
thereof, for industrial, commercial or
residential purposes, the Sub-Divisional
Officer may, suomotu or on an application
moved by such bhumidhar, after making
such enquiry as may be prescribed, ether
make a declaration that the land is being
used for the purpose not connected with
agriculture or reject the application. The
Sub-Divisional Officer shall take a decision
on the application within forty five working
days from the date of receipt of the
application. In case the application is
rejected, the Sub-Divisional Officer shall
state the reasons in writing for such
rejection and inform the applicant of his
decision.

*[Provided that if the application
for declaration is accompanied with the
prescribed fee and in case of joint holding,
no objection of co-tenure holders is
attached in case of co-tenure holder and if
the declaration is not made by the SubDivisional Officer with forty-five days as
aforesaid, then the declaration shall be
deemed to have been made. Tehsildar will
make a record of it in the revenue records,
with the comment "subject to the order of
the Sub-Divisional Officer".

If any affected party wants to file
an objection in relation to the said
declaration, it may file an objection in the
competent court].

(2) Where a bhumidhar with
transferable rights proposes to use in future
his holding or part thereof, for industrial,
commercial or residential purposes, the
Sub-Divisional
Officer
may
on
an
3 All. Smt. Maya Singh Vs. Board of Revenue U.P. & Ors.
185
application moved by such bhumidhar,
after making such enquiry as may be
prescribed, either make a declaration that
the land may be used for the purpose not
connected with agriculture or reject the
application, within forty five working days
from the date of receipt of the application.
In case the application is rejected, the SubDivisional officer shall state the reasons in
writing of such rejection and inform the
applicant of his decision:

Provided further that if the
bhumidhar fails to start the proposed non
agricultural activity within a period of five
years from the date of declaration under
this sub-section, then the declaration under
sub-section (2) for the holding or part
thereof shall lapse:

Provided also that a declaration
under this sub-section shall not amount to
change of land use and the land shall
continue to be treated as agricultural land
only. However, the bhumidhar shall be
entitled to obtain loan and other necessary
permissions, clearances etc. for the activity
or project, proposed on the holding or part
thereof, for which declaration under this
sub-section has been obtained.

(3)
A
bhumidhar
possessing
declaration under sub-section (2) for his
holding or part thereof, may apply to SubDivisional
officer
for
converting
declaration under sub-section (2) to a
declaration under sub-section (1), after
completion of construction activity or start
of the proposed non-agricultural activity,
within a period of five years from
declaration under sub-section (2). On
receipt of such an application, the SubDivisional officer, after making such
enquiry as necessary, shall approve or
reject the application within a period of 15
days from the receipt of the application. In
case of rejection, he shall record in writing
the reasons for such rejection;

Provided that for conversion of
declaration under sub-section (2) to a
declaration under sub-section (1), the
bhumidhar shall be liable to pay only the
balance amount of fee payable, calculated
at prevailing circle rate, after adjusting the
amount already paid by him for declaration
under sub-section (2) earlier.

(4)
No
application
for
a
declaration under sub-section (1) or (2),
moved
by
any
co-bhumidhar
having
undivided interest in bhumidhari land shall
be maintainable, unless application is
moved by all the co-bhumidhars of such
bhumidhari land. In case only one of the
co-bhumidhar wants to get a declaration
for his share in the land with joint interest,
then
such
an
application
shall
be
entertained only after the respective shares
of the co-bhumidhars in the land have been
divided in accordance with the provisions
of law.

(5)
The
application
for
declaration [under sub-section (1) or subsection(2)] shall contain such particulars
and shall be made in such manner as may
be prescribed.

(6) Where the application under
sub-section (1) or sub-section (2) is made
in respect of a part of the holding, the subdivisional officer may, in the manner
prescribed,
demarcate
such
part
for
purposes of such declaration.

(7) No declaration under this
section shall be made by the sub-divisional
officer, if he is satisfied that the land or
part thereof is being used or is proposed to
be used for a purpose which is likely to
cause a public nuisance or to affect
adversely public order, public health, safety
or convenience or which is against the uses
proposed in the master plan.

(8) In case the land or part
thereof for which a declaration under this
section is being sought falls within the area
186 INDIAN LAW REPORTS ALLAHABAD SERIES
notified under any Urban or Industrial
Development
Authority,
then
prior
permission of the concerned Development
Authority shall be mandatory.

(9) The State Government may fix
the scale of fees for declaration under this
section and different fees may be fixed for
different purposes:

Provided that if the applicant
uses the holding or part thereof, for his
own residential purpose, no fee shall be
charged for the declaration under this
section.""

15. In view of Proviso to Section
80(1) as also Sub Section 4 of Section 80 of
the Code of 2006, this Court has to see as
to whether the application preferred by the
petitioner under Section 80(1) of the Code
of 2006 was maintainable or not.

16. It would be apt to say here that
from the Proviso to Sub Section 1, it
appears that to maintain an application "no
objection of co-tenure holders is required"
and from the Sub Section 4, it appears that
"No application for a declaration by any cobhumidhar having undivided interest in
bhumidhari land shall be maintainable,
unless application is moved by all the cobhumidhars of such bhumidhari land and in
case only one of the co-bhumidhar wants to
get a declaration for his share n the land
with joint interest, then such an application
shall
be
entertained
only
after
the
respective shares of the co-bhumidhars in
the land have been divided in accordance
with the provisions of law."

17. From the above indicated facts of
the case and sale deed(s), referred above,
this Court finds that the boundaries
indicated in all the sale deed(s) including
the sale deed executed by respondent No.4Smt. Sukhmeena Singh in favour of
respondent Nos. 2 and 3 are the same and
described as "iwjc&pdjksM dPpk 1 yV~Bk ckngw
[ksr ua0&849] 850 vkfn] if'pe&lhek xzke
tykyqnhu uxj] mRrj&lhek xzke tykyqnhuuxj]
nf{k.k&xkVk la0 857 vU; O;fDrA"

18. No other document, except
referred above, has been placed before this
Court to substantiate the fact that the
petitioner purchased part of the Gata No.
853 after due partition by metes and
bounds.

19. Further, if there was a partition
between Smt. Sukhmeena Singh and
Rukmani then the said fact ought to have
been mentioned in the sale deed(s) and the
same ought to have been explained by the
boundaries indicated in the sale deed(s).
However, the sale deed(s) are silent on this
aspect. Meaning thereby that no settlement
took place prior to execution of sale
deed(s), indicated above.

20. Thus, from the aforesaid including
the boundaries indicated in the sale deed(s),
this Court is of the view that without actual
partition by metes and bounds, the
concerned sold their share in Gata No. 853.

21. So as the map prepared by the
advocate commissioner in the injunction
suit filed by respondent No.3-Devesh Singh
annexed at Page No. 143 of the Paper book
is concerned, this Court is of the view that
the same can not be relied upon to record a
finding that the property was partitioned
prior to filing of application under Section
80 of the Code of 2006.

22. Regarding submissions related to
Gata No.854 made by Sri Khan, this Court,
from the record particularly Annexure No.3
to the petition, finds that total area of Gata
No.854 appears to be 0.2870 Hect. and out
3 All. Smt. Maya Singh Vs. Board of Revenue U.P. & Ors.
187
of the same, the petitioner purchased
0.10790 Hect. land and therefrom, it further
appears that despite joint holding no
objection of co-tenure holder was filed nor
in the petition it has been specifically stated
that the shares of the co-bhumidhars in the
land have been divided in accordance with
the provisions of law prior to filing of
application under Section 80 of the Code of
2006.

23. In view of aforesaid, this Court is of
firm view that prior to preferring the
application under Section 80 of the Code of
2006, the land/plot(s) in issue i.e. Gata
Nos.853 and 854 were not partitioned by
metes and bounds, as such, the same was not
maintainable in view of proviso to Section
80(1) as also 80(4) of the Code of 2006 and
being so, no order could have been passed by
the
Sub
Divisional
Magistrate,
Sadar,
Ayodhya on the said application. The order of
Sub Divisional Magistrate, Sadar, Ayodhya
would be within jurisdiction under Section 80
of the Code of 2006 if the order is passed on
an application which is maintainable as per
Section 80 else would be without jurisdiction.
In passing the order on an application which
itself was not maintainable, the Sub
Divisional
Magistrate,
Sadar,
Ayodhya
exceeded its jurisdiction. Thus, the order
dated 21.04.2022 was an illegal and non-est
order as was passed on an application which
was not maintainable, as such, subsequent
order dated 10.10.2022 passed on an
application for setting aside the order dated
21.04.2022,
registered
as
Case
No.RST/4456/2022, though passed on the
basis of decree in partition suit which is subjudice in second appeal, can not be said to be
a valid/legal order.

24. Regarding maintainability of the
revision by Devesh Singh (respondent
No.3) alone, this Court is of the view that
revision was maintainable. It is in view of
the fact that after purchasing some part of
Gata No.853, Devesh Singh became the cobhumidhar/co-tenure holder and being so as
also considering the rights of a cobhumidhar/co-tenure holder in the land in
issue, in the proceedings initiated under
Section 80 of the Code of 2006 an
opportunity of hearing to Devesh Singh
was required.

25. If the submissions of Sri Khan on
the issue of maintainability are taken on its
face value, even then no interference is
required in the impugned order. It is for the
reason that it is settled principle of law that
issuance of a writ or quashing/setting aside
of an order if revives another pernicious or
wrong or illegal order then in that
eventuality the writ court should not
interfere in the matter and should refuse to
exercise its power conferred upon it under
Article 226 of the Constitution of India.

26. In addition to above, in
A.M.Allison vs. B.L.Sen; AIR 1957 SC
227, an objection was raised that the
Deputy Collector had no Jurisdiction to
determine the question. The Supreme Court
refused to entertain this objection on the
ground that the order was challenged in
writ petition under Article 226 of the
Constitution. It was observed:-

"Proceedings by way of certiorari
are "not of course". (Vide Halsbury's 'Laws
of England', Hailsharn Edition, Vol. 9,
paras 1480 and 1481, pp. 877-878). The
High Court of Assam had the power to
refuse the writs if it was satisfied that there
was no failure of justice, and in these
appeals which are directed against the
orders of the High Court in applications
under Article 226, we could refuse to
interfere unless we are satisfied that the
188 INDIAN LAW REPORTS ALLAHABAD SERIES
justice of the case requires to. But we are
not so satisfied. We are of opinion that,
having regard to the merits which have
been concurrently found in favour of the
respondents
both
by
the
Deputy
Commissioner, Sibsagar, and the High
Court, we should decline to interfere."

27. In Bux Singh vs. Joint Director
of Consolidation, U.P. Lucknow and
others; AIR 1966 All 156, this Court
observed "Where orders impugned are
equitable and substantial Justice seems to
have been done to the parties, the High
Court would not be inclined to interfere in
its writ jurisdiction merely on the ground
that such orders are wrong in law."

28. In Om Prakash vs. U. P.
Secondary
Education
Service
Commission, Allenganj, Allahabad and
others, (1990) UPLBEC 983, the Court
observed as under:-

"It is well settled that a decision
of an authority, even though without
jurisdiction, may not be quashed in
proceedings under Article 226 of the
Constitution
if
by
the
decision
the
substantial justice is done between the
parties."

29. For the reasons aforesaid, this
Court is not inclined to interfere in the
order impugned dated 11.01.2023 passed
by the respondent No.1-Board of Revenue,
U.P., Lucknow Accordingly, the petition is
dismissed. No order as to costs.
----------
(2023) 3 ILRA 188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2023

BEFORE
THE HON'BLE SAURABH LAVANIA, J.

Writ B No. 108 of 2023

Angad Pratap Singh & Ors. ...Petitioners
Versus
Deputy Director Consolidation/Addl. Dist.
Magistrate (F/R), Lakhimpur Kheri & Ors.
 ...Respondents

Counsel for the Petitioners:
Nizam Ali Siddique

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Consolidation of Holding
Act, 1953 - Section 48 - Revision and
reference
- scope/power of Deputy
Director of Consolidation u/s 48
-
Remand of case - Section 48 of the Act
of 1953 provides ample power to the
D.D.C. to examine the correctness/
legality/ propriety of any order which
includes the power to examine any
finding, whether of fact or law, recorded
by any subordinate authority so as the
power to re-appreciate any oral or
documentary
evidence
-
order
remanding the case to the Consolidation
Officer when the entire evidence was
before him was not proper and the DDC
should have decided the matter himself
as
he
was
exercising
very
comprehensive power under section 48
of the Act - remand of the case causes
delay and prolongs litigation as well as
harassment to the parties - In the
instant case the remand order passed by
D.D.C.
was
quashed
and
as
entire
material was available before D.D.C. ,
the matter was remanded to the D.D.C.
to
decide
the
matter
afresh
after
affording proper opportunity of hearing
to the parties (Para 26, 27)

Allowed. (E-5)

List of Cases cited:

1. Ram Udit Vs D.D.C. MANU/UP/1768/2014