| SooperKanoon Citation | sooperkanoon.com/456515 |
| Subject | Property;Civil |
| Court | Allahabad High Court |
| Decided On | Jan-18-2002 |
| Case Number | C.M.W.P. No. 15837 of 1997 |
| Judge | Ashok Bhushan, J. |
| Reported in | 2002(1)AWC833 |
| Acts | Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - Sections 122C, 122C(6), 122C(7) and 333; Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 - Rule 115P(4) and 115P(5) |
| Appellant | Wahajuddin |
| Respondent | Board of Revenue and ors. |
| Appellant Advocate | Anil Sharma, Adv. |
| Respondent Advocate | K.D. Tripathi, Adv. |
| Disposition | Writ petition allowed |
Ashok Bhushan, J.
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 respondent Nos. 4 and 5 by registered post but neither acknowledgment nor undelivered cover received back after service hence the service is deemed sufficient against the respondent Nos. 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 Bishwa 10 Blshwansl situate inKasba Chandpur, tahsil and district Bijnore was recorded as 'rasta'. The Sub-Divisional Officer recommended for allotting 450 square yards land to respondent No. 3 which proposal was approved by the Collector. Bijnore and consequently plot No. 472 area 7 Bishwa 10 Bishwansl 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 115P of the U.P. Zamlndari 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 vide its order dated 23.3.1990 rejected the application of the petitioner filed under Rule 115P of the U. P. Zamlndari 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 vide an 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 whichrevision 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 1984 will operate as res-judicata. It has further been stated that the respondent No. 3 is running a school since 1990 and the school building is standing there.
3. Counsel for the petitioner made following submissions in support of the writ petition :
(1) The order of Board of Revenue dated 21.4.1997 holding that the order dated 6.8.1985 passed in Revision No. 271 of 1984 in the case of Nisar Ahamad will operate as bar to any subsequent proceeding, is erroneous. The application of Nisar Ahamad was rejected on the ground that Nisar Ahamad has no locus to challenge the allotment since he is an unauthorized occupant of the Gaon Sabha land. In Nisar Ahamad's case no findings were recorded regarding validity of the lease hence the order of the revislonal court in Nisar Ahamad's case will not operate a bar in the present proceedings.
(2) The order dated 23.3.1990 passed by the Additional Collector was not an administrative order and the revision against the said order is fully maintainable.
(3) The Additional Commissioner in his order dated 25.1.1991 has stated that the respondent No. 3 do not come in the category of eligible person under Section 122C (3) of the U. P. Zamindari Abolition and Land Reforms Act as well as under Rules 115 Land 115M of the U. P. Zamindari Abolition and LandReforms Rules. The Additional Collector has stated that under Rule 115M allotment can be made on abadi site and there is no provision for allotment of any land after change of category. The Board of Revenue while refusing to approve the reference has neither adverted to nor upset the findings of the Additional Commissioner.
4. Counsel for the respondents Sri K.D. Tripathi refuting the submission of the counsel for the petitioner has submitted that the revision against the order dated 23.3.1990 passed by the Additional Collector was not maintainable under Section 333 of the U. P. Zamindari Abolition and Land Reforms Act. Elaborating his argument Sri Tripathi has submitted that according to Rule 115P (5) the order of the Collector passed under Rule 115P is final and the revision is not maintainable against the said order. Sri Tripathi has further relied on Section 122C (7) and submitted that the said section also bar filing of any revision. Submissions made by the counsel for the petitioner on merits have been refuted by Sri Tripathi and he has submitted that the allotment made in favour of respondent No. 3 was in accordance with the procedure prescribed under the rules and the Additional Collector had found the said allotment in accordance with law and the Board of Revenue having affirmed the said order, there is no ground for setting aside the Impugned orders.
5. Before considering the submissions raised by the counsel for the petitioner, the submission made by the counsel for the respondents that the revision was 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 raise and elaborate the above submission.
6. The application for cancellation of lease was made by the petitioner under Rule 115P of the U. P. Zamlndari Abolition and Land Reforms Rules, 1952. Rule 115P is quoted as below :
Rule 115P.--(1) The Collector may, of his own motion or on the application of any person aggrieved by any order of allotment of land under Rule 115L or 115M, proceed to make an inquiry in the manner given hereunder.
(2) The allottee and Land Management Committee shall be necessary parties to all such cases.
(3) The Collector on the application of any party or otherwise may pass suitable interim orders at any time before the final disposal of the case.
(4) The Collector shall call upon all persons interested in the order of allotment to appear and present their case before him. It shall not be necessary to record evidence but the memo of the day to day inquiry shall be kept on record by the Collector. On making inquiries, if he is satisfied that the allotment is irregular, he may cancel the allotment and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land shall cease.
(5) The order of the Collector under the preceding sub-rule shall be final.'
7. Relying on Sub-rule (5) of Rule 115P it has been submitted by the counsel for the respondents that since the order of the Additional Collector under Rule 115P has been made final, the revision is not maintainable against the said order. The counsel for the respondents has also referred to Section 122C Sub-section (7). Section 122C is also extracted below ;
'122C. Allotment of land for housing site for members of Scheduled Castes, agriculturallabourers etc.--(1) The Assistant Collector in charge of the subdivision of his own motion or oh the resolution of the Land Management Committee, may earmark any of the following classes of land for the provisions of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes and agricultural labourers and village artisans :
(a) lands referred to in clause (1) of Sub-section (1) of Section 117 and vested in the 'Gaon Sabha under that section ;
(b) lands coming into possession of the Land Management Committee under Section 194 or under any other provision of this Act ;
(c) any other land which is deemed to be or becomes vacant under Section 13, Section 14, Section 163, Section 186 or Section 21 ;
(d) where the land earmarked for the extension of abadi and reserved as abadi site for Harijans under the U. P. Consolidation of Holdings Act, 1953, is considered by him to be insufficient, and land earmarked for other public purposes under that Act is available, then any part of the land so available.
(2) Notwithstanding anything in Sections 122A, 195. 196, 197 and 198 of this Act. or in Sections 4, 15, 16. 28B and 34 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may with the previous approval of the Assistant Collector in charge of the subdivision allot for purposes of building of houses, to persons referred to in Sub-section (3) :
(a) any land earmarked under Sub-section (1) ;
(b) any land earmarked for the extension of abadi sites for Harijans under theprovisions of the U. P. Consolidation of Holdings Act. 1953 :
(c) any abadi site referred to in clause (iv) of Sub-section (1) of Section 117 and vested in the Gaon Sabha ;
(d) any land acquired for the said purposes under the Land Acquisition Act, 1894.
(3) The following order of preference shall be observed in making allotments under Subsection (2) :
(i) an agricultural labourer or village artisan residing in the village and belonging to a Scheduled Caste or Scheduled Tribe ;
(ii) any other agricultural labourer or village artisans residing in the village ;
(iii) any other person residing in the village and belonging to a Scheduled Caste or Scheduled Tribe.
Explanation I.--The expression 'agricultural labourer' shall have the same meaning as in Section 198.
Explanation II,--The expression Milage artisans' means a person who does not hold any agricultural land and whose main source of livelihood is manufacture or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and includes a carpenter, weaver, potter, blacksmith, silversmith, goldsmith, barber, washerman, cobbler, or any other person who normally earns his livelihood by practicing a craft either by his own labour or by the labour of any member of his family in any rural area :
Provided that no person shall be deemed to be a village artisan whose total income (including income of his or her spouse and minor children exceeds two thousands four hundred rupees in a year). Explanation III.--Preference shall be given to a person who either holds no house or has insufficient housingaccommodation considering the requirements of his family.
(4) If the Assistant Collector in charge of the sub-division is satisfied that the Land Management Committee has failed to discharge Its duties or to perform Its functions under Subsection (2) or it is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of Sub-section (3).
(5) Any land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed.
(6) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease.
(7) Every order passed by the Assistant Collector under Subsection (4) shall, subject to the provisions of Sub-section (6) and every order passed by the Collector under Sub-section (6) shall be final, and the provisions of Section 333 and Section 333A shall not apply in relation thereto.
(8) (Omitted by U. P. Act 24 of 1986).
(9) In Rule 115L of the U. P. Zamlndari Abolition and Land Reforms Rules, 1952, Sub-rule (2) shall be deemed always to have been omitted.'
8. Sub-section (7) of Section 122C has been substituted by U. P. Act No. 24 of 1986 and by the said amendment it has been expressly provided that the provisions of Section 333 and Section 333A shall not apply with regard to an order passed by the Assistant Collectorunder Sub-section (4) subject to provision of Sub-section (6) and order passed by the Collector under subsection (6). Counsel for the respondents has placed reliance on two Judgments of this Court namely : (I) Smt. Bhoodevi and Ors. v. Board of Revenue and Ors. 1954 RD 92, and (ii) Ram Yagya v. Additional Collector, Varanasi and Ors. 1999 RD 51.
9. Section 122C deals with allotment of land for housing site for members of Scheduled Caste, Scheduled Tribes, agricultural labourers and village artisans. The allotment of land is contemplated in favour of persons who fall in any of the categories mentioned in Subsection (3) of Section 122C. Subsection (3) refers to an agricultural labourer or village artisan residing in the village and belonging to a Scheduled Caste or Scheduled Tribes, any other agricultural labourers or village artisan residing in the village and any other person residing in the village belonging to Scheduled Caste or Scheduled Tribe. The emphasis in Sub-section (3) is to agricultural labourer or village artisan and person belonging to Schedule Caste or Scheduled Tribe. For entitlement of allotment a person must either be agricultural labourer or village artisan or person belonging to Schedule Caste or Scheduled Tribe. Subsection (6) provides that Collector may on his own motion and on application of any person can cancel the allotment. Sub-section (7) as stated amended by U. P. Act 24 of 1986. clearly provides that every order passed by the Collector under Sub-section (6) shall be final and the provisions of Section 333 and Section 333A shall not apply in relation thereto. There being express bar created under Sub-section (7) there is no doubt that the revision cannot be filed against an order passed by the Collector under Sub-section (6).
10. Now turning to Rule 115P it is to be noted that the rules contemplated allotment of land under Rule 115L or 115M. Rule 115L relates to allotment to the category mentioned in Sub-section (3) ofSection 122C. Thus, allotment referred to under Rule 115L is an allotment contemplated to the categories as mentioned in Section 122C (3). However, the allotment under Rule 115M is allotment of abadi sites other than those referred to under Rule 115L. The eligible categories under Rule 115M is also different from those mentioned in Section 122C (3). From the scheme of Rule 115M and Section 122C it is clear that the allotment made under Rule 115M falls outside the category of allotment referred to in Section 122C. Thus, Sub-section (7) of Section 122C will not apply with regard to allotment made under Rule 115M and order passed by the Collector under Rule 115P relating thereto. It is to be noted that although the Legislature amended Section 122C expressly providing for non-applicability of Section 333 and Section 333A with regard to orders passed under Subsection (6) of Section 122C but no such amendment was made under Rule 115P. Now the submission of the counsel for the respondents based on Sub-rule (5) of Rule 115P is to be considered. According to counsel for the respondents since the finality has been attached to the order of the Collector passed under Rule 115P, the provisions of Section 333 pertaining to revision is implledly excluded. The counsel for the petitioner in reply to the above submission of the counsel for the respondents has placed reliance on Full Bench judgment of this Court in Ram Swaroop etc. etc. v. Board oj Revenue and others, 1990 CRC 449. The aforesaid Full Bench considered the provision of Rule 285-1 of the U. P. Zamlndari Abolition and Land Reforms Rules. Rule 285-1 also contained similar provision making order of the Commissioner passed under Rule 285-1 final. The Rule 285-1 is quoted as below :
'285-1. (i) At any time within thirty days from the date of the sale, application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it ; but no sale shall be set aside on such ground unless the applicantproves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake.
(ii) ........
(iii) The order of the Commissioner passed under this rule shall be final.'
11. The Full Bench of this Court after considering the various cases held that the order passed by the Commissioner under Rule 285 (I) is a revisable under Section 333 of the U. P. Zamindari Abolition and Land Reforms Act. It has been held in paragraph 17 :
'17, Rule 285-1 as extracted above indicate that the Commissioner is to adjudicate certain rights and interest of the parties in respect of immovable property. The Commissioner is to decide as to whether there was any irregularity which was material in nature or there was a mistake in publishing or conducting the sale for which purpose a procedure is prescribed and in case the Commissioner comes to the conclusion that such things existed, he is to set aside the sale. The order so passed by the Commissioner has been made final. Obviously the proceedings so taken by the Commissioner are judicial in nature. Though it could be said that the Commissioner is not sitting as a Court to decide the same, and there is no specific provision in this behalf, the Commissioner will be deemed to be sitting in the Court and the order passed by the Commissioner will be amenable to the revisional jurisdiction of the Board of Revenue under Section 333 of the U. P. Z. A. and L. R. Act which is analogous to Section 219 .of the U. P. Land Revenue Act.'
12. The Division Bench of this Court in Smt. Krishna Devi v. Board of Revenue. V. P. Allahabad and Ors. 1972 RD 228. has considered the provisions of Rule 115N and Section333 of the U. P. Zamindari Abolition and Land Reforms Act. The question referred to the Division Bench in the aforesaid case was as to whether the revision lies to the Board of Revenue under Section 333 of the U. P. Zamfndari Abolition and Land Reforms Act against the order of the Assistant Collector in charge of subdivision passed under Rule 115N. Rule 115N, as it existed at that time, is extracted below :
'115N. (1) The Assistant Collector in charge of the subdivision shall, on the application of any person interested, filed, within three months of the date of auction, and may, at any time on his own motion, cancel for reasons to be recorded in writing, the allotment order on one or more of the following grounds :
(i) the bid accepted was inadequate ;
(ii) the auction was collusive or unfair ;
(iii) the auction proceedings were not followed in accordance with the rules ;
(iv) any other ground.
(2) No order under Sub-rule (1) shall be passed unless the allottee has been given an opportunity to show cause against the proposed action.
(3) The decision of the Assistant Collector in charge of the sub-division shall be final : Provided that the limit of 250 sq. yds. shall not apply to cases of allotment of land for construction of buildings in an area of waste land earmarked for a new abadi site and to cases of allotment for construction of building for a charitable purpose or for setting up a cottage industry in the existing abadi sites.'
13. Rule 115N Sub-clause (3) also provide that the order passed by the Assistant Collector shall be final. After examining the said provision the Division Bench held in paragraph 11 as under :
'11. It is true that Rule 115N (3) provides that the decision of the Assistant Collector shall be final. It is well-settled that such finality does not restrict the revlslonal Jurisdiction conferred upon higher Courts. In the case of Shah Chaiurbhuj v. Mauji Ram. 1938 AWR 437 (2), a Full Bench of this Court interpreted the phrase 'the decision of revenue court shall be final' occurring in Section 5 of the U. P. Agriculturists Relief Act, 1934, as not depriving the higher Courts of revisional powers under Section 115 of the C.P.C. The Full Bench held that the finality mentioned in the provision only meant that there was no right of appeal vesting in the litigants against such an order. In our opinion, this Full Bench decision equally applies to Section 333. The finality mentioned by Sub-rule (3) of Rule 115N cannot whittle down the amplitude of the revisional power conferred upon the Board of Revenue by Section 333 of the Z. A. and L. R. Act.
14. The law laid down by the aforesaid Division Bench is fully applicable to an order passed by the Collector under Rule 115P. Thus, despite Sub-rule (5) of Rule 115P making the order of the Collector under Rule 115P final, the revision is maintainable under Section 333 of the U. P. Zamlndari Abolition and Land Reforms Act. In the present case, the application was filed under Rule 115P and the allotment is not claimed under Section 122C since the respondent No. 3 is neither agricultural labourer nor village artisan or member of the Scheduled Caste or Scheduled Tribe. Thus, the order of the Collector is not referable to Sub-section (6) of Section 122C ; hence Sub-section (7) of Section 122C is not attracted and revision is maintainable under Section 333 agatnst the order of the Additional Collector dated 23.3.1990.
15. The two judgments cited by the counsel for the respondents also need to be examined. In the case of Smt. Bhoodevi and others, (supra) this Court held that mere decision to commence proceedings for cancellation or issuance of show cause notice pursuant to the said decision does not tantamount to any suit or proceedings decided and is in the nature of an administrative decision not amounting to a decision affecting any of the right of the lessees and cannot be termed as judicial decision which alone is revisable under Section 333 and 333A of the U. P. Zamlndari Abolition and Land Reforms Act. Learned single Judge in the same judgment has held that finality attached to an order under Rule 115P Sub-clause (4) vide Sub-rule (5) cannot restrict the revisional power of the Board under the Act. It was held in paragraph 10 of the aforesaid judgment :
'10. It may be pertinent here to explain the import of subsection (7) of Section 122C and Sub-rule (5) of Rule 115P of the Rules. The Board of Revenue in support of its conclusion that the revision in the instant case was not maintainable, has relied upon Sub-section (7) of Section 122C of the Act which provides that every order passed by the Assistant Collector under Sub-section (4), shall, subject to the provisions of Sub-section (6), be final and the provisions of Sections 333 and 333A shall not apply in relation thereto. It is evident that what has been excluded from the purview of Sections 333 and 333A is an order under Sub-section (4) which empowers the Assistant Collector in charge of the subdivision to make allotment himself in the event of his being satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under Subsection (2) or it is otherwise necessary or expedient so to do. The function under Sub-section (4) is of administrative nature. The Assistant Collector exercising the powers under Sub-section (4) does not act as a Court while the Collector while discharging the function under Section 122C (6), 198 (4) of the Act or under Rule115P of the Rules acts as a Court and any final order passed by the Collector under the aforesaid provisions is amenable to revisional jurisdiction of the Board. Sub-section (4) of Section 122C has nothing to do with the cancellation of allotment on the same being found Illegal or Irregular, nor has It anything to do with the decision to start with the proceeding for cancellation of allotment. An order of allotment under Sub-section (4) is made by the Assistant Collector whereas the cancellation is done by the Collector. The fact that the allotment under Sub-section (4) is final 'subject to the provisions of Sub-section (6)' as comprehended by Sub-section (7) of Section 122C unfolds the intendment of the Legislature that allotment under Sub-section (4) made by the Assistant Collector is final subject to the power of the Collector to 'cancel the same under Sub-section (6) of Section 122C of the Act or under Rule 115P (4) of the Rules. The finality attached to an order under Rule 115P (4) vide Sub-rule (5) cannot restrict the revisional powers of the Board under the Act.'
16. The other case relied on by the counsel for the respondents is Rom Yagya (supra) dealt with orders passed under Section 122C, Subsection (6). The Court in the aforesaid case considered the provisions of Section 122C, Sub-section (6) and Sub-section (7) and held that the provisions of Sections 333 and 333A are not applicable with regard to order passed under Section 122C subsection (6). The above judgment dealt with orders passed under Section 122C (6) and has rightly held that by virtue of Sub-section (7) of Section 122C the order is not revisable. The above case, however, did not relate to order passed by the Collector under Rule 115P pertaining to allotment under Rule 115M nor relate to allotment under Rule 115M. The aforesaid case relate to allotment of land under Section 122C which fact is mentioned in paragraph 1 of the Judgment. Thus, the aforesaid case isnot applicable and does not support the contention of the respondents.
17. From the above discussion It is clear that the revision was fully maintainable against the order dated 23.3.1990 passed by the Additional Collector under Rule 115P of the U. P. Zamlndarl Abolition and Land Reforms Rules and the objection raised by the counsel for the respondents has no substance.
18. With regard to first submission of counsel for the petitioner it is to be noted that the order dated 21.4.1997 of the Board of Revenue refusing to approve the reference made by the Additional Commissioner is mainly based on the order dated 6.8.1985 passed by the then Commissioner in Revision No. 271 of 1984. The Board of Revenue took the view that when against the allotment one revision filed by Nisar Ahamad was rejected and allotment proceeding was affirmed it was not permissible for different persons to initiate cancellation of allotment proceeding. The Board of Revenue took the view that the present proceeding initiated by the petitioner is barred due to above reason. The order passed in revision filed by Nisar Ahamad has been annexed as Annexure-3 to the writ petition. It is true that Nisar Ahamad has also filed an application for cancellation of the lease given in favour of the respondent No. 3 but from the order dated 6.8.1985 it is clear that the claim of Nisar Ahamad was rejected on the ground that Nisar Ahamad has unauthorisingly occupied the Gram Samaj land and administrative order was also passed by the Sub-Divtsional Magistrate for removing his unauthorised occupation and It appeared that Nisar Ahamad has filed a case for continuing his unauthorised occupation. On the aforesaid reasons and finding the revision of Nisar Ahamad was rejected. In the aforesaid revision the question of non-eligibility of respondent No. 3 for allotment was neither raised nor decided. The principle of res judicata cannot be pressed into service, since admittedly the parties in two proceedings weredifferent. The Board of Revenue erred in holding that due to the order dated 6.8.1985 passed in Revision No. 271 of 1984 filed by Nisar Ahamad. the subsequent proceedings initiated for cancellation of lease by the petitioner are barred. After considering the order dated 6.8.1985, the submission of counsel for the petitioner that the petitioner was not party to the earlier proceedings it is held that the said order did not create any kind of bar in initiation of proceedings by the petitioner for cancellation of lease of respondent No. 3. The Board of Revenue erred in taking the view that the proceeding initiated by the petitioner is barred due to the above reason.
19, The second submission of the counsel for the petitioner is that the order passed under Rule 115P by the Collector is not an administrative order and the revision is maintainable. The Division Bench has considered the provisions of Rule 115N in the case of Smt. Krishna Devi (supra) and held that the order passed by the Assistant Collector is a judicial order and was not administrative in nature. In paragraph 9 it was held that the nature of the order which is to be passed by the Collector under Rule 115P clearly indicate that the Collector has to decide the matter which decision has given finality. He has to call all persons interested in the order of allotment and hear them before taking any action. The order passed by the Collector under Sub-rule (4) of Rule 115P is not an administrative order and the submission of the counsel for the petitioner has force that the said order being not administrative, revision is maintainable against the said order. Although the Board of Revenue has noted the contention of objectors that the order of Collector is of administrative in nature and the revision was not maintainable but Board of Revenue did not give any concluded opinion on the said issue. However, in view of the above discussion, it is held that the order passed by the Collector under Sub-rule (4) of Rule 115P is not an administrative order and the revisionis maintainable against the said order.
20. The third submission of the counsel for the petitioner has also substance that the Assistant Collector in his reference order has adverted to various issues and recorded his opinion pertaining to non-eligibility of the respondent No. 3 for allotment. The Board of Revenue without adverting to said question and without upsetting the finding of the Additional Commissioner has disapproved the reference. When the reference was sent by the Assistant Collector basing its recommendation on several findings. It was incumbent on the Board to advert to the aforesaid question and express its opinion. The Board committed error in disapproving the reference without adverting to and upsetting the findings recorded by the Additional Commissioner. The counsel for the respondents submitted that since the Collector has held the allotment to be valid and the Board of Revenue having approved the said allotment it will be deemed that the Board of Revenue has recorded that the allotment made in favour of the respondent No. 3 is in accordance with law. In view of the specific issue raised by the Additional Commissioner it was incumbent upon the Board of Revenue to advert to those question and record findings. Merely because the Board of Revenue affirmed the order of the Collector, It cannot be held that the Board has considered all the issues and held the allotment to be valid.
21. From the above discussion, it is clear that the order of the Board of Revenue dated 21.4.1997 is not sustainable in law. The order of the Board of Revenue passed on 21.4.1997 is set aside and the case is remanded to the Board of Revenue, U. P. Allahabad for deciding the Reference No. 4 of 1991-92 afresh in accordance with law in the light of the observations made in this Judgment. The writ petition is allowed as indicated above. The parties shall bear their own costs.