Heard learned counsel for the petitioner.
Sri Pandey learned counsel for the petitioner submits that the impugned orders are unsustainable in law, inasmuch as, primarily the petitioner was not given any opportunity prior to the passing of the order dated 11th February, 2009 whereby the judgment and order dated 30.9.1983 was set aside. He submits that the matter was restored on the very same day and the judgment in favour of the petitioner dated 30.9.1983 was set aside without any notice. Learned counsel submits that this violation therefore was sufficient to set aside the order dated 11.2.2009 and neither the Commissioner nor the Board of Revenue have taken care to advert to this aspect of the matter.
Sri Pandey submits that the impugned orders do not take notice of a valid judgment in favour of the petitioner in proceedings that were initiated at the instance of the petitioner under Section 122-B (4-F) of the U.P. Z.A. & L.R. Act, 1950 whereby the petitioner had acquired rights and the same could not have been taken away in the manner in which it has been done in the present proceedings. Learned counsel submits that the Sub Divisional Magistrate in the order dated 30.9.1983 had categorically recorded that the land in question was an old fallow land over which the petitioner had acquired rights.
Learned Standing Counsel and the learned counsel for the Gaon Sabha on the other hand contend that even if it is presumed that the order had been passed in violation of principles of natural justice, the petitioner has been unable to dislodge the finding that the land in dispute was a public utility land recorded as a "Rasta". They submit that this land therefore fell exclusively within the definition of Section 132 of the 1950 Act and the same could have not been a subject matter of either allotment or unauthorized possession or even any declaration of acquisition of such rights as claimed by the petitioner under Section 122-B (4-F) of the 1950 Act. They therefore submit that the petitioner having failed to dislodge the said substantive finding staring at the face, the impugned orders do not require any interference by this Court.
Having heard learned counsel for the parties, it is correct that the order dated 30.9.1983 refers to the land in question having been converted under an order dated 14th October, 1977 for the purpose of extending the benefit of a declaration in favour of the petitioner. Nonetheless there is no authority with the Sub Divisional Magistrate under the law for the time being in force to declare a land of public utility in the shape of a road/rasta as defined under Section 132 of the 1950 Act as an old parti. The record of settlement therefore could not have been altered by the Sub Divisional Magistrate under his executive order or even otherwise which has been made the basis of declaration in favour of the petitioner in the order dated 30.9.1983. Apart from this, the order dated 30.9.1983 also appears to have rested the entire finding on the basis of such an entry in the Khatauni to give a declaration in favour of the petitioner.
In the opinion of the Court the consequential action which is based on the order of 1977 also was equally erroneous and therefore in the opinion of the Court the Sub Divisional Magistrate did not commit any error in law to have set aside the order dated 30.9.1983 on 11.2.2009. This position which stares on the face of it could not be dislodged even before this Court either by the indication of any such protection available to the petitioner or through any other authority of law. The petitioner therefore was extended benefit in relation to a land which stands protected under Section 132 of the U.P. Z.A. & L.R. Act, 1950 and as such any order passed by the authority in relation to such a land was patently without jurisdiction and against law. This conclusion has been drawn under the impugned order dated 11.2.2009 and for the reasons set out herein above, I am also not inclined to interfere in the exercise of jurisdiction under Article 226 of the Constitution of India.
The writ petition fails and is hereby dismissed.
Order Date :- 31.10.2011 Sahu