Allahabad High Court
Mohd. Riyaz And Another vs State Of U.P. And Others on 16 August, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - C No. - 45820 of 2011
Petitioner :- Mohd. Riyaz And Another
Respondent :- State Of U.P. And Others
Petitioner Counsel :- S. Alim Shah,Faujdar Rai
Respondent Counsel :- C.S.C.,Mahesh Narain Singh
Hon'ble Amreshwar Pratap Sahi,J.
The petitioners contend that their name has been expunged in a miscellaneous proceeding from the land records on a report submitted by the Tehsildar, taking a ground that the land is of the category as defined under Section 132 of the U.P. Z.A. & L.R. Act, 1950, that is to say a public utility land and hence the petitioners cannot claim any tenancy rights over the same.
The aforesaid action was carried out presumably on the basis of the general directions given by the High Court in Civil Misc. Writ Petition No. 47176 of 2009, decided on 8.9.2009. A copy of the judgment has been produced before the Court. The relevant part of the judgment is quoted herein below:-
"The experience of the Court is that during consolidation proceedings, Consolidation Authorities/Officers liberally donate the Gaon Sabha properties to influential/resourceful persons by passing such orders as has been passed in the instant case.
Accordingly, all the Collectors of all the Districts in the State are directed to reopen such cases where names of private persons are entered in revenue records on the basis of old pattas or adverse possession over Gaon Sabha land and correct the illegality by taking suo motu action. However, no orders shall be set aside without issuing notice and hearing affected persons. if notice through registered post is not served then it may be served through publication in the newspaper also. If it is found that some Consolidation Officer or S.O.C. or D.D.C. has done similar thing, then the action must be proposed to be taken against him also.
Supreme Court has held that fraud vitiates even most solemn proceedings vide Mahboob Sahab Vs. Syed Ismail and others, AIR 1995 SC 1205 (Para-9), United India Insurance Company Vs. Rajednra Singh, AIR 2000 SC 1165 and A.V. Papaya Sastry Vs. Government of A.P. and others, AIR 2007 SC 1546 (Para-39)."
Sri Faujdar Rai and Sri S.A. Shah, learned counsel for the petitioners contend that the aforesaid direction of the High Court was in relation to such cases where the entries had no basis and the authority had been passing orders casually. The submission raised on behalf of the petitioners is that the petitioners have a valid decree under Section 229-B of the U.P. Z.A. & L.R. Act, dated 15.10.1997 in a suit where the State and the Gaon Sabha had contested the very same issues by filing a written statement and which issue has been framed and decided in favour of the petitioners under the said judgment, copy whereof is Annexure -3 to the writ petition.
They further submit that so long as the said judgment and decree is final the entries in favour of the petitioners cannot be expunged. It is also their submission that no appeal was filed against the said judgment which has attained finality and hence through a miscellaneous proceeding the effect of the said judgment cannot be taken away on the mere observation made by the High Court in the judgment dated 8.9.2009 extracted herein above.
Sri Faujdar Rai further invited the attention of the court to the judgment in the case of Farid Ahmad & others Vs. Deputy Director of Consolidation & others, reported in 1978 RD Pg. 273 to contend that the law will apply only if the contingency prescribed under Section 132 of the U.P. Z.A. & L.R. Act, is available. He submits that in the instant case the land is a cultivable and is not of the nature as described under Section 132, and as such in view of the decision in the case of Farid Ahmad (supra), the entries could not have been expunged so long as a valid decree in favour of the petitioners by a competent court stands.
Learned Standing Counsel and the learned counsel for the Gaon Sabha both have raised a preliminary objection to the maintainability of the writ petition on the ground of availability of an alternative remedy of filing a revision against the impugned order under the provisions of the U.P. Land Revenue Act, 1901, read with the provisions of the U.P. Z.A. & L.R. Act, 1950.
Learned counsel for the petitioners do not dispute the existence of the alternative remedy, but they contend that the order being patently illegal this court can take notice of the said fact and entertain the petition.
It is true that alternative remedy is not an absolute bar and there are exceptions to the same, yet in the present case, there is a speedy and efficacious remedy available to the petitioners, and hence, I am not inclined to entertain the writ petition at this stage. The same is dismissed on the ground of a statutory alternative remedy available under the 1901 Act.
Order Date :- 16.8.2011
Sahu
