# Srivastava v. Board of Revenue &

- **Citation:** (2011) 2 ILRA 1004
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-30
- **Case number:** Civil Misc. Writ Petition No. 49439 of 2011
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/srivastava-v-board-of-revenue-41907
- **Pages:** 3

## Headnote

Act-Section333Revision-arises out from order passed
by SDM-declaring rights title on Misc.
Application itself-beyond jurisdictionneither the application nor revision
maintainable
in
case
of
assuming
wrong question of jurisdiction

Held: Para 8

Even the revision which came to be
filed by the State against the order on
a miscellaneous application was not
competent. The learned Commissioner
without
examining
the
issue
has
proceeded to set aside the order.
Accordingly neither the order of the
S.D.M. nor the order passed in revision
could be sustained in law as they
proceeded
beyond
the
relevant
provisions of the U.P.Z.A. L.R. Act,
1950 and the U.P.Land Revenue Act,

## Text

1004 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2011

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 49439 of 2011

Jitender Dhawan and another

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vikash Budhwar
Sri Amit Shukla
Sri C.B. Yadav

Counsel for the Respondents:
C.S.C.

U.P.Z.A
&
L.R.
Act-Section333Revision-arises out from order passed
by SDM-declaring rights title on Misc.
Application itself-beyond jurisdictionneither the application nor revision
maintainable
in
case
of
assuming
wrong question of jurisdiction

Held: Para 8

Even the revision which came to be
filed by the State against the order on
a miscellaneous application was not
competent. The learned Commissioner
without
examining
the
issue
has
proceeded to set aside the order.
Accordingly neither the order of the
S.D.M. nor the order passed in revision
could be sustained in law as they
proceeded
beyond
the
relevant
provisions of the U.P.Z.A. L.R. Act,
1950 and the U.P.Land Revenue Act,
1901. The issue relating to a wrong
assumption of jurisdiction has been
dealt with in a recent decision of this
Court in the case of Kamal Kumar
Srivastava Vs. Board of Revenue &
others, Writ Petition No. 8658 of 2006,
decided on 18.8.2011.
Case law discussed:
Kamal Kumar Srivastava Vs. Board of Revenue
& others, Writ Petition No. 8658 of 2006,
decided on 18.8.2011.

(Delivered by Hon'ble A.P. Sahi,J.)

1. Sri C.B.Yadav learned senior
counsel for the petitioner has come up
assailing the order passing by the learned
Commissioner dated 15.12.2010 and the
rejection of the restoration application vide
order dated 8.6.2011 on the ground that the
said revision was not maintainable under
the provisions of Section 333 of the
U.P.Z.A.& L.R.Act and therefore the
findings recorded by the Commissioner are
beyond his powers keeping in view the
nature of the proceedings that were initiated
at the instance of the petitioners.

2. It appears that the petitioners have a
decree in their favour which is stated to be
from a competent court. It is also the case of
the petitioners that accordingly the revenue
records have been maintained including the
records
during
the
consolidation
proceedings and as such the petitioners
stand recorded as tenures holder over the
land in dispute. He submits with the aid of
such evidence the petitioners are entitled to
execute the decree which is in their favour.

3. A miscellaneous application
appears to have been moved by the
petitioner no.2 on 19.7.2007 which was
entertained
by
the
S.D.M.,Garh
Mukteshwar, Ghaziabad whereupon certain
reports were called for. This application was
moved on the ground that the petitioners
being the tenure holders of plot No.49 old
plot No.400 were entitled for a demarcation
of the area on the basis of the said decree as
the
Forest
Department
through
its
authorities are unnecessarily interfering
with the possession of the petitioners. The
2 All] Jitender Dhawan and another V. State of U.P. and others

1005
application was admittedly referred to as a
miscellaneous application and was not any
regular proceeding under the provisions of
the U.P.Land Revenue Act, 1901 read with
U.P.Z.A.
&
L.R.Act,
1950.
This
miscellaneous proceeding was virtually
adjudicated upon by the S.D.M. and as a
matter of fact under this miscellaneous
exercise, a sort of a declaration was given in
favour of the petitioners.

4. The State of U.P. went up in a
revision before the Commissioner and the
said order has been set aside with further
observations clearly recorded against the
petitioners to the effect that the S.D.M. has
travelled absolutely beyond his competence
and against the records. The Commissioner
has issued directions to the District
Magistrate and to the S.D.M., to re-examine
the entire matter and pass appropriate orders
after verifying the status of the land as to
whether it is reserved forest land or not.

5. Sri Yadav contends that the revision
not being maintainable, the impugned order
deserves to be set aside, as the order passed
on 25.9.2007 is not an order under any of
the provisions of the U.P. Land revenue
Act, 1901 Act read with U.P.Z.A. & L. R.
Act

6. Learned standing counsel for all the
respondents on the other hand submits that
the matter does not require any counter
affidavit as it is a pure legal question on the
facts on record and therfoere the writ
petition may be disposed of finally on
merits. He submits that the petitioner
himself approached the S.D.M. and the
order of the S.D.M. travelled beyond his
authority to grant a declaration in the nature
as has been done in the present case, more
so when the land according to the State is
forest land. He submits that such a
declaration was not permissible on a
miscellaneous
application.
Hence
the
Commissioner
did
not
exceed
his
jurisdiction in setting aside the same and
passing the impugned order.

7. Having heard learned counsel for
the parties the conceded position before the
Court is that the orders passed by the
S.D.M.
were
on
a
miscellaneous
application. In the opinion of the Court the
S.D.M., could not have proceeded to deal
with the matter on a miscellaneous
application. The S.D.M. should not have
granted the declaration more so after
assessing an evidence in relation to the
claim of the petitioner which was otherwise
according to the petitioner executable as a
decree. The S.D.M. was not dealing with
the execution of the decree that was in
favour of the petitioners. Hence the S.D.M.
ought to have restrained himself merely by
passing any order that may be required on
the administrative side. The order of the
S.D.M.
amounts
to
an
exercise
of
jurisdiction which was beyond his power.
The order was not within his competence.

8. Even the revision which came to be
filed by the State against the order on a
miscellaneous
application
was
not
competent. The learned Commissioner
without examining the issue has proceeded
to set aside the order. Accordingly neither
the order of the S.D.M. nor the order passed
in revision could be sustained in law as they
proceeded beyond the relevant provisions of
the U.P.Z.A. L.R. Act, 1950 and the
U.P.Land Revenue Act, 1901. The issue
relating
to
a
wrong
assumption
of
jurisdiction has been dealt with in a recent
decision of this Court in the case of Kamal
Kumar Srivastava Vs. Board of Revenue &
others, Writ Petition No. 8658 of 2006,
decided on 18.8.2011.
1006 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

9. Accordingly the orders dated
15.12.2010 and 8.6.2011 passed by the
Commissioner as also the order passed by
the S.D.M. dated 25.9.2007 are set aside
and the writ petition is disposed of
accordingly without prejudice to the rights
of either of the parties to contest the matter
before the appropriate forum in accordance
with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.49837 OF 2011

Anand Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chand Tiwari

Counsel for the Respondents:
C.S.C.

U.P.
Recruitment
of
Dependent
of
government servant( dying in harness)
rules
1974-Rule-5-compassionate
appointment-claim made after 7 years of
death-govt. Already refused to condone
the delay on ground widow already
getting pension-sufficient amount to
meet financial crisis-held-can not be
claimed as matter of right-guide lines
issued by Apex Court in B.P. Sarkar Case
be strictly followed.

Held: Para 3

I do not find any error in the impugned
order. The claim of the petitioner for
compassionate appointment can not be
considered now after eight years. The
petitioner is not able to establish the
financial
crises
and
facing
undue
hardship and how they have managed
their
finances
upto
now.
The
compassionate appointment is exception
to the general rules of recruitment and
therefore, it has to be considered strictly
in accordance to the rules and principles
laid down by this Court.
Case law discussed:
(1989) 4 SCC 468; (1994) 4 SCC 138; (1996) 1
SCC 301; (1997) 11 SCC 390; (1998) 9 SCC
485; (1998) 5 SCC 192; (1998) 2 SCC 412;
(1998) 5 SCC 452; (2000) 7 SCC 192; (1998) 5
SCC 192; (2004) 7 SCC 265; (2004) 12 SCC
487; (2004) 3 UPLBEC 2534 (SC): (2004) 7
SCC 721; (2006) 5 SCC 766; (2006) 7 SCC
350; (2008) 1 UPLBEC 464 (SC): (2007) 8 SCC
148; [2008 (2) ESC 273 (SC)]; (2011) 4 SCC209

(Delivered by Hon'ble Rajes Kumar, J.)

1. The petitioner's father died in the
year 1999 in harness. At that time the
petitioner was minor. The petitioner
applied for compassionate appointment on
01.12.2007,
after
eight
years.
The
limitation for moving the application is
five years. The State Government has
only power to condone the delay and
relax the period. By the impugned order,
the State Government has refused to
condone the delay on the ground that the
petitioner's
mother
was
getting
the
pension and the pension amount is
sufficient to meet out the financial crises
and after eight years, it can not be said
that the petitioner is facing financial
crises.

2. Heard learned counsel for the
petitioner and learned Standing Counsel.

3. I do not find any error in the
impugned order. The claim of the
petitioner for compassionate appointment
can not be considered now after eight
years. The petitioner is not able to
establish the financial crises and facing