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 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 : (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 Ahmad will operate as bar to any subsequent proceeding, is erroneous. The application of Nisar Ahmad was rejected on the ground that Nisar Ahmad has no locus to challenge the allotment since he is an unauthorized occupant of the Gaon Sabha land. In Nisar Ahmad'scase no findings were recorded regarding validity of the lease; hence the order of the Revisional Court in Nisar Ahmad'scase 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 122 -C (3) of the U.P. Zamindari Abolition and Land Reforms Act as well as under Rules 115 -L and 115 -M of the U.P. Zamindari Abolition and Land Reforms Rules. The Additional Collector has stated that under Rule 115 -M 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. 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 115 -P (5) the order of the Collector passed under Rule 115 -P is final and the revision is not maintainable against the said order. Sri Tripathi has further relied on Section 122 -C (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.
(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.;