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Chandradev v. Board Of Revenue & Others - WRIT - B No. 50448 of 2005  RD-AH 864 (13 January 2006)
Civil Misc. Writ Petition No. 50448 of 2005
Chandradev ...... ........ ..... Petitioner
Board of Revenue and others ........... Respondents
Hon'ble Janardan Sahai, J
Heard Shri Triveni Shanker counsel for the petitioner and Shri M.S. Chauhan counsel for respondent no.6.
Proceedings under Section 198 (4) of the U.P. Zamindari Abolition & Land Reforms Act were initiated against Ramchees the respondent no.6 on the basis of a complaint filed by the petitioner. The Additional Collector passed an order on 15.7.1997 cancelling the allotment of Ramchees. Against that order Ramchees filed a revision. The Additional Commissioner by order dated 31.12.1998 made a reference to the Board of Revenue to allow the revision. The revision was dismissed in default by the Board on 24.7.2000. On the application of respondent no.6, the case was restored on 16.10.2000. The Board has accepted the reference and allowed the revision by order dated 16.3.2001. Against that order the petitioner filed a restoration application. The Board by its order dated 13.5.2005 dismissed the restoration application.
The finding recorded by the Board of Revenue is that there is a recital in the order dated 16.03.2001 allowing the revision that the petitioner was heard. Shri Triveni Shanker counsel for the petitioner submits that the finding recorded by the Board that the petitioner was heard is erroneous. It is submitted that affidavit of the petitioner Chandra Deo was filed in support of restoration application in which it was averred that the petitioner had not been heard but no counter affidavit was filed to rebut on affidavit the averments made in the affidavit filed by the petitioner. Reliance is placed on paras 3 and 4 of the restoration application in which it is stated that there was a cross mark against the name of the counsel of the petitioner on the record of the Board indicative of absence. In para 19 of the writ petition an averment has been made that no counter affidavit has been filed against the affidavit filed on behalf of the petitioner in support of the restoration application. In para 11 of the counter affidavit which contains the reply to para 19 of the petition there is no averment that counter affidavit to the affidavit of the petitioner was filed. It was also submitted that the restoration application was filed by the same counsel viz., Shri Aijaz Ahmad Khan who had been representing the petitioner in the Board. Further it was submitted that in the revision, the State of U.P. and the Gaon Sabha were also parties and the recital in the order of the Board that the counsel for the parties were heard could well be a reference to Counsel for the Gaon Sabha or the State of U.P. There is no recital in the order of the Board that the petitioner's counsel was heard. There is some force in the contention of the counsel for the petitioner that the Board has not considered these aspects of the matter and has gone only by the recital contained in the order of the Board accepting the reference that the counsel for the parties were heard which could well be a reference to the counsel of the Gaon Sabha or State. It was required of the Board to have considered the aforesaid aspects .
For these reasons it appears that the Board has not applied its mind to the material on record. In the circumstances the order of the Board of Revenue dated 13.5.2005 is set aside and the Board is directed to decide the restoration application afresh in accordance with law after hearing counsel for the parties.
The writ petition is thus allowed.
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