Neutral Citation No. - 2025:AHC-LKO:38227 Court No. - 6 Case :- WRIT - B No. - 616 of 2025 Petitioner :- Rajendra Shankar Dwivedi Respondent :- The Board Of Revenue Thru. Chairman Lko And 5 Others Counsel for Petitioner :- Dinesh Kumar Mishra Counsel for Respondent :- C.S.C.,Pankaj Gupta Hon'ble Alok Mathur,J. 1. Heard Sri Dinesh Kumar Mishra, learned counsel for the petitioner as well as learned Standing Counsel for respondent nos. 1 to 4 and Sri Pankaj Gupta, learned counsel appearing for respondent no. 6. Sri Ram Prakash Singh, Advocate has put in appearance on behalf of respondent no. 5, stating that he has instructions from his client. 2. It has been submitted by learned counsel for the petitioner that a case under Section 34 of the U.P. Revenue Code, 2006 was filed by the petitioner before the Sub Divisional Magistrate, Tehsil - Harraiya, District - Basti, staking claim over land being Gata No. 144 Ga, area 0.0950 hectares and Gata no. 145, area 0.0290 hectares, situated at Village - Saraiyakhas, Tehsil - Haraiya, District - Basti on which the petitioner claims to have bhoomidhari rights and further alleges that the said land was in his possession and allegation was made with regard to the defendants in the application, wherein the they were alleged to be attempting eviction of petitioner from the said land and attempting to cut the old mango tree situated on the said land. 3. Notices were issued to the defendants and there is no dispute with regard to the fact that final orders were passed on 07.06.2024, ex-parte. Against order dated 07.06.2024, respondent no. 5 filed an appeal before the Commissioner, Basti Division, Basti, who by means of order dated 08.07.2024, the Commissioner was pleased to admit the appeal. In the said appeal the petitioner had participated in the proceedings and filed his preliminary objections with regard to maintainability of the said appeal. In the objections filed by the petitioner, it was stated that the appeal was not maintainable in the light of provisions contained in Section 209 of the U.P. Revenue Code, 2006 and most specifically sub Clause 17 wherein apart from filing an appeal where orders have been passed ex-parte. It has been further submitted that any party against ex-parte order would move an application for setting aside such order, within 30 days. It was stated that in the light of specific statutory provisions an appeal was not maintainable due to the fact that, despite objections having been raised, the Commissioner proceeded to admit the appeal and passed interim order in favour of respondent no. 5. 4. Being aggrieved by the said order petitioner moved revision before the Board of Revenue which has also been rejected by order dated 26.03.2025. With regard to impugned order it has been submitted that same is illegal and arbitrary as the same has been passed without considering the objections raised by the petitioner. 5. Heard learned counsel for the parties and perused the record. 6. From the material available on record it is evident that order dated 07.06.2024 passed by the Sub Divisional Magistrate where respondent no. 5 did not participated. Despite specific ground taken by the petitioner, the appeal was admitted without taking into account as to whether the said appeal was maintainable or not. 7. This Court is of the considered view that in case preliminary objection with regard to maintainability of the appeal was raised, which is also supported by statutory provisions, then, it should have been duly considered by the appellate authority before admitting the appeal. The Board of Revenue by not considering the arguments of the petitioner in this regard has also not proceeded in the matter in accordance with law and the matter requires interference. 8. This Court is of the considered view that undisputedly the appellate proceedings are pending where the petitioner as well as respondents would have full opportunity to canvass their submissions with regard to preliminary objections and also with regard to merits of the case and accordingly, the petitioner is relegated to the remedy of appeal, which has already been filed by respondent no. 5. 9. This Court is also of the considered view that once objections have been raised with regard to maintainability then it should have been adequately considered by the appellate authority. 10. Accordingly, we find that the matter requires interference and the order dated 26.03.2025 passed by the Board of Revenue as well as order dated 08.07.2024, passed by the appellate Authority, are arbitrary and illegal and are accordingly set aside. 11. Learned counsel for the petitioner submits that there is urgency in the matter inasmuch as the petitioner has been allotted petrol pump on the disputed land and in case his rights are adversely effected then entire exercise of allotment would adversely effect the purpose of allotment at this stage. He undertakes to cooperate in the proceedings before the appellate authority which may be expedited. 12. Accordingly, present writ petition is allowed. The Commissioner, Basti Division, Basti is directed to pass fresh orders with regard to maintainability of the appeal after taking into account the objections filed by the petitioner. The Commissioner shall also see that appellants have adequate liberty to repudiate the submissions made on behalf of petitioner and decide the aspect of maintainability expeditiously say within two weeks from the date of production of certified copy of this order, in case there is no legal impediment, in accordance with law. While deciding the issue of maintainability, the Commissioner shall also consider the application for interim relief preferred by either of the party in the said proceedings. Order Date :- 4.7.2025 A. Verma (Alok Mathur, J.) Digitally signed by :- ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench