WAHAJUDDIN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) HEARD Sri Anil Sharma Counsel for the petitioner and Sri K.D. Tripathi appearing for respondent No. 3. Counter -affidavit has been filed by the contesting respondent No. 3 to which rejoinder -affidavit has also been filed by the petitioner. Although notices were issued to respondents No. 4 and 5 by registered post but neither acknowledgment nor undelivered cover received back after service hence the service is deemed sufficient against the respondents No. 4 and 5. Counsel for both the parties have agreed that the case be finally disposed of.

(2.) THE facts of the case as disclosed in pleadings of the parties are that the Khasra No. 472 area 7 Biswa 10 Biswansi situate in Kasba Chandpur, Tahsil and District Bijnore was recorded as 'Rasta'. The Sub -Divisional Officer recommended for alloting 450 square yards land to respondent No. 3 which proposal was approved by the Collector, Bijnore and consequently plot No. 472 area 7 Biswa 10 Biswansi was allotted to respondent No. 3 after change of category of land for Abadi construction. The petitioner filed an application on 10 -9 -1984 under Rule 115 -P of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 for cancelling the lease granted in favour of respondent No. 3. Notice was issued to respondent No. 3 who filed his written statement before the Collector. The Additional Collector, Bijnore videits order dated 23 -3 -1990 rejected the application of the petitioner filed under Rule 115 -P of the U.P. Zamindari Abolition and Land Reforms Rules, 1952. A revision No. 49 of 1989 -90 was filed by the petitioner under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act against the order dated 23 -3 -1990 of the Additional Collector. The Additional Commissioner by his order dated 25 -1 -1991 made a reference to the Board of Revenue recommending that the order of the Collector dated 23 -3 -1990 be set aside and the allotment of 450 square yards of Khasra plot No. 472 in favour of the respondent No. 3 be cancelled. Respondent No. 3 filed objection before the Board of Revenue on 18 -9 -1991 and the Board of Revenue after hearing the parties videan order dated 21 -4 -1997 did not accept the recommendation of the Additional Commissioner and dismissed the reference. The present writ petition has been filed by the petitioner praying for quashing of the orders dated 21 -4 -1997 passed by the Board of Revenue and the order dated 23 -3 -1990 passed by the Additional Collector. Counter -affidavit has been filed in the writ petition by the respondent No. 3 in whose favour land was allotted. Counter -affidavit has supported the order of the Board of Revenue dated 21 -4 -1997. It was further stated in the counter -affidavit that the order dated 23 -3 -1990 was an administrative order against which revision was not maintainable. It has also been stated that the lease was granted in favour of the respondent No. 3 after following due procedure of law and no illegality was ever found in procedure of allotment. It is further stated that the petitioner is not aggrieved person and could not have challenged the lease. It has also been stated that the order dated 6 -8 -1985 passed in Revision No. 271 of 1994 will operate as res judicata. It has further been stated that the respondent No. 3 is running since 1990 and the school building is standing there. Counsel for the petitioner made following submissions in support of the writ petition :

(3.) BEFORE considering the submissions raised by the Counsel for the petitioner, the submission made by the Counsel for the respondents that the revision has not maintainable against the order dated 23 -3 -1990, needs to be considered. Although from the records of the case it appears that the respondent has never raised this submission before the Court below but the question being purely legal, the Counsel for the respondents was permitted to rise and elaborate the above submission.