Munej and Others vs Commssioner and Others

Sudhir Agarwal, J.—Heard Sri Anurag Yadav, holding brief of Sri Mahendra Pratap, learned Counsel for Petitioner and learned Standing Counsel for Respondents and perused the record.

Writ petition is directed against the order dated 28.11.1988 passed by Deputy Collector, Phulpur, Azamgarh u/s 29/ 41 of Land Revenue Act and appellate order dated 27.2.2007 passed by Addl. Commissioner, Azamgarh Region, Azamgarh rejecting appeal.

It is contended that on account of measurement, the area of land of Petitioner was reduced while that of others was increased beyond their entitlement and this point was raised before the appellate authority as is evident from para 12 of his memo of appeal, but has been ignored by appellate authority and instead it has observed that Appellant has not stated any where as to what loss is caused to him on account of marking of boundary.

Learned Counsel for Petitioner contended that as a result of measurement, area of plot No. 478 has got increased while Petitioner''s land as a result thereof has got reduced and this fact was pleaded by him in the memo of appeal, which has not been considered.

Learned Counsel for the Respondents, however, contended that since no loss has caused to Petitioner the writ petition may be dismissed and placed reliance on this Court''s judgment in Ramesh Pal Singh and Others Vs. Board of Revenue and Others, , but, in my view the same lends no help to him in the case in hand.

A perusal of para 12 of memo of appeal filed by Petitioner shows that Petitioner categorically said that as a result of aforesaid measurement, area of plot No. 478 has got increased resulting in reduction of area of Petitioner''s plot and, therefore, measurement has not been done properly. The Appellate Authority, however, has observed that Appellant has nowhere said what loss has caused to him, though Petitioner has categorically stated that this has resulted in deduction of his area of plot. Since this issue was not considered by the appellate authority, and instead it has referred non pleading which is incorrect, it necessitates the matter to be re-considered by appellate authority. In the circumstances, writ petition is partly allowed. Impugned appellate order dated 27.2.2007 is set aside. Matter is remanded back to appellate authority to re-consider appeal of Petitioner after giving due opportunity of hearing to all concerned parties and pass a fresh order. Since the matter is quite old, appellate authority is directed to pass fresh order after giving opportunity of hearing to all concerned parties in accordance with laws within a period of three months from the date of production of certified copy of this order.