Brijesh Kumar Upadhyaya & Others vs State Of U.P. & Others
2012 Latest Caselaw 5402 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(Judgment reserved on 12.10.2012)
 
(Judgment delivered on 01.11.2012)
 

 

 

 
Court No. - 58
 

 
Case :- WRIT - C No. - 39068 of 2008
 

 
Petitioner :- Brijesh Kumar Upadhyaya & Others
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Arun Srivastava
 
Respondent Counsel :- C.S.C.,B.L. Verma,V.K. Singh
 

 

 
Hon'ble Sibghat Ullah Khan,J.

In this case on 12.10.2012 when arguments were heard, the following order was passed on the order sheet:

"Heard learned counsel for the parties. Learned standing counsel has placed on record report of Deputy Collector, Tundala dated 3.3.2008. Learned counsel for the petitioner states that he has already got copy of this report.

Judgment reserved."

Gaon Sabha Plots No.832, 835, 836 and 837 situate in village Pachokhara, Tehsil Tundla District Firozabad were reserved for cattle fair. Several persons including the petitioners started asserting that in the year 1970 Gram Sabha allotted different portions of the plots in dispute to different persons who constructed their houses thereupon. However in the revenue record land in dispute continued to be recorded as reserved for cattle fair. In para-5 of the writ petition it is mentioned that "under the orders of the Hon'ble Court the Cattle Fair was directed to be carried on plot No.834, 842, 845 etc. situate in the said village." However neither the copy of the court's order has been annexed nor date of decision nor case number has been mentioned.

In para-6 of the writ petition, it is mentioned that petitioners or their predecessor-in-interest were allotted land and they constructed their houses in plots No.835, 836 and 837. In para-7 of the writ petition it is stated that against several persons occupying different portions of the plots in dispute proceedings for eviction were initiated under Section 122-B of U.P.Z.A. & L.R. Act; in several cases Tehsildar dropped proceedings; one of such cases was decided on 18.08.1981 and copy of the said order is Annexure-II to the writ petition. The number of the said case was 45 of 1980-81, L.M.C. Vs. Santosh Kumar. The case was initiated against Santosh Kumar and Brijesh Kumar sons of Lakshmi Narain. Brijesh Kumar Upadhyay son of Sri Lakshmi Narain Upadhyay is petitioner No.1 in this writ petition. Annexure-III to the writ petition is an application by Lakshmi Narain Upadhyay, father of petitioner No.1 dated 13.02.1991 inquiring as to whether plots in dispute were vacant or in the possession of the public and on what plots normally fair was being held. If Lakshmi Narain was alive in 1991 then how in 1981 proceedings were initiated against his sons is not clear. It is quite possible that Annexure-II to the writ petition may have been passed in respect of some other Brijesh Kumar and not petitioner No.1.

Annexure-V to the writ petition is copy of some meeting of Land Management Committee/ Gaon Sabha in question held on 11.10.1993 recommending that in the entire plots in dispute (total area 4 bighas 1 biswa 16 biswansis) there was abadi hence its nature must be changed and it must be entered as abadi.

Thereafter, Raj Kumar and Suraj Pal filed an application on 21.08.1999 before Deputy Collector under Section 143 of U.P.Z.A. & L.R. Act requesting for change of nature of land in the revenue record. Against that Gaon Sabha filed objections on 04.02.2000, copy of which is Annexure-VII to the writ petition. Thereafter, Deputy Collector, Tundla District Firozabad passed order on 24.06.2002 in Case No.1/2000/06/2001-02. Through order dated 24.06.2002, Deputy Collector declared the entire land in dispute, total area 0.942 hectare as abadi under Section 143 of U.P.Z.A. & L.R. Act. It is mentioned in paragraphs 17 of the writ petition that after passing of order dated 24.06.2002, in the revenue record also land was recorded as abadi.

Thereafter, application for recall of the said order was passed by one Bhagwan Das which was dismissed on 10.07.2003 by the Deputy Collector on the ground that the matter was subjudice before the Commissioner in the form of Revision No.30 of 2002 filed by Hariom. The said revision was dismissed in default on 10.05.2005, Annexure-XI to the writ petition. Thereafter, respondent No.4, Smt. Raj Kumari filed restoration application on 02.08.2007, Annexure-XIII to the writ petition (para-18 of the writ petition). Deputy Collector, Tundla through order dated 24.12.2007 set aside the order dated 24.06.2002 by allowing the restoration application filed by Smt. Raj Kumari and panel lawyer and directed the case to be put up for further proceedings on 31.12.2007. The said order has been challenged through this writ petition. The writ of prohibition has also been sought seeking to restrain the Deputy Collector from proceeding further with the main case i.e. Case No.10 of 2007-08.

Application under Section 143 of U.P.Z.A. & L.R. Act for changing the nature of land from agricultural to non-cultural can be filed only by tenure-holder. If the land belongs to Gaon Sabha then neither such application can be filed by a person who has got no concern with the land nor by a person who is in unauthorised occupation of such land, however long the period of occupation may be. Accordingly, the order of the Deputy Collector dated 24.06.2002 passed on the application of Raj Kumar and Suraj Pal inspite of objections of the Gaon Sabha is not sustainable in the eye of law.

Accordingly, restoration order dated 24.12.2007 even though passed on the application of a private person cannot be set aside. In any case, the effect of setting aside the subsequent order dated 02.08.2007 on the ground that it was passed on the application filed by a person having got no concern will be that the previous order dated 24.06.2002 which is equally illegal in view of the fact that it was passed on the application of another private person in respect of Gaon Sabha land will revive. In such situation exercise of writ jurisdiction can very well be refused.

The question as to whether declaration under Section 143 of U.P.Z.A. & L.R. Act should or should not be granted legally as well as factually requires fresh consideration by the Deputy Collector after hearing Gaon Sabha/ Land Management Committee. Accordingly, Deputy Collector is directed to pass fresh order after hearing Gaon Sabha/ Land Management Committee.

In respect of part of property in dispute, copy of judgment passed by me on 09.03.2007 in Writ Petition No.4775 of 1983, Ram Charan Vs. Additional Collector has been placed on record. In the said case proceedings under Section 122-B of U.P.Z.A. & L.R. Act were initiated against the petitioner of the said writ petition in respect of area of 5 biswas 12 biswansis of plots in dispute. Tehsildar dropped the proceedings holding that the land was allotted to the petitioner on 23.09.1970, however on revision Additional Collector held that no allotment had taken place.

I settled the land with the petitioner of the said writ petition on payment of Rs.77,000/- and odd (at the rate of Rs.100/- per square yard). In case petitioners or any other person is in occupation of small parts of the plots in dispute since 1970s then they may approach the Collector to pass similar order as has been passed in Writ Petition No.4775 of 1983. If such an order is passed in respect of a particular person and he deposits the requisite amount then after that he may also apply for grant of certificate under Section 143 of U.P.Z.A. & L.R. Act in respect of that part of the plots in dispute which is settled with him.

With the above observations writ petition is disposed of.

Order Date :- 01.11.2012

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