Shafiq Ahmad Khan And Another vs Allahabad Development Authority ...
2013 Latest Caselaw 7321 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 10
 

 
Case :- WRIT - C No. - 66876 of 2013
 

 
Petitioner :- Shafiq Ahmad Khan And Another
 
Respondent :- Allahabad Development Authority And 3 Others
 
Counsel for Petitioner :- Udayan Nandan,Shashi Nandan
 
Counsel for Respondent :- C.S.C.,Tarun Varma,Vrindavan Mishra
 

 
Hon'ble Arun Tandon, J.

Hon'ble Anjani Kumar Mishra, J.

Heard Shri Shashi Nandan, Senior Advocate assisted by Udayan Nandan, Advocate on behalf of the petitioner, Shri Tarun Verma, Advocate on behalf of the Indian Oil Corporation, Shri Ashwani Mishra, Senior Advocate on behalf of the Allahabad Development Authority and the learned Standing Counsel on behalf of the State respondents.

Petitioner seeks a writ of mandamus directing the respondents not to dispossess the petitioners from plot nos. 56 to 74 and plot nos. 59, 59-M and 78/1 situated at Tulsipur, Tehsil Sadar, District Allahabad except in accordance with law.

Before referring to the merits of the case, we may record that the petitioners in the present writ petition has disclosed a large number of proceedings which had taken place in respect of same plots. The proceedings so disclosed are as follows :

The Improvement Trust, Allahabad is stated to have initiated proceedings against Gulam Md. Khan, the predecessor in interest of the petitioner under Section 175 of the U.P. Tenancy Act for their eviction from the land in question. The proceedings travelled up to the Board of Revenue in Appeal No. 39(z) of 1972-73. The second appeal was decided under order dated 06.07.1979. It was recorded that the original records have been destroyed because of fire in the record room of Board, directed that the case be sent to the Trial Court for retrial. It is stated that this order was subjected to challenge by the predecessor in interest of the petitioner by means of Civil Misc. Writ Petition No. 9544 of 1979 wherein the further proceedings have been stayed and the writ petition is said to be pending even today.

It is then stated that the Allahabad Development Authority started the proceedings for auction of the part of the same property in garb of the fact that the land has since been acquired by the State Government under the Land Acquisition Act and has been transferred to the Allahabad Development Authority.

The petitioners before this Court along with two other persons who claimed to be the legal heirs of Gulam Mohammad Khan filed Civil Misc. Writ Petition No. 50589 of 2002 challenging the letter of the Secretary, Allahabad Development Authority dated 23.10.2002 requiring the Tehsildar, Sadar, to expunge the name of the tenure-holder and to record the name of the Allahabad Development Authority over the land in question as well as the Advertisement published by the Allahabad Development Authority for settling the land in question by way of auction dated 27.11.2002.

A Division Bench of this Court, after taking note of the proceedings under Section 175 of the U.P. Tenancy Act, specifically recorded that Gulam Mohammad Khan, who was admittedly the predecessor in interest of the petitioner had filed application under Section 18 of the Land Acquisition Act, therefore, prima facie the land has been acquired by the State Government and transferred in favour of the Allahabad Development Authority. The Court went on to hold that they did not find any good reason to hold that the Allahabad Development Authority has no power to settle the land by way of auction. The writ petition was dismissed with the observation that since the petitioners have already filed a civil suit for permanent injunction against dispossession, the Trial Court may examine all aspects of the matter and shall pass appropriate orders.

Petitioners before this Court admittedly filed Original Suit No. 827 of 2002 wherein initially a temporary injunction has been granted restraining the dispossession. On an appeal being filed by the Allahabad Development Authority, the interim injunction order was set aside and the matter was remanded for deciding afresh. After remand the injunction application has been rejected.

Petitioner no. 1 filed another Civil Suit No. 833 of 2002 wherein the other legal heir of Gulam Mohammad Khan i.e. petitioner's own brother was impleaded as defendant along with Allahabad Development Authority. In the said suit, an injunction is stated to have been granted on 12.11.2002 for maintaining status quo. The order of status quo further records that the order shall have no adverse effect on any other order of the Court of law. According to the petitioner an appeal has been filed by the Allahabad Development Authority against the said injunction order in the year 2012 which is likely to be heard on 03.01.2014.

Under the auction proceedings taken by the Allahabad Development Authority the land came to be settled that the Indian Oil Corporation for a sum of Rs.1,20,95,000/-. The entire money has been deposited by the Indian Oil Corporation in terms of the offer made on 26.03.2003.

For more than a decade the possession of the land so transferred in favour of the Indian Oil Corporation was not delivered. This lead to the filing of Civil Misc. Writ Petition No. 36621 of 2012 by the Indian Oil Corporation. In the said writ petition an order was passed by the Division Bench on 08.11.2013 requiring the Allahabad Development Authority to either deliver the possession within the specified time or to return the money with interest @ 18% to the Indian Oil Corporation.

The order was not carried out within the time permitted The Vice Chairman of the Allahabad Development Authority made an application for extension of time which was granted under order dated 20.11.2013.

In between one Chaudhary Jitendra Nath in his capacity as Hakdar Sukunrti filed Civil Misc. Writ Petition No. 64923 of 2013 before the Division Bench of this Court and contended that in Original Suit No. 855 of 2002 filed by Kayastha Pathshala through its then President Jitendra Nath Singh, against the Allahabad Development Authority, a temporary injunction has been granted and, therefore, the order issued by the writ Court asking the Allahabad Development Authority to deliver the possession may not be given effect to. This writ petition No. 64923 of 2013 has been disposed of vide order dated 26.11.2013 by providing that demarcation of the land subject matter of suit no. 855 of 2002 and that which is sought to be transferred by the Allahabad Development Authority may take place in accordance with Section 41 of the Land Revenue Act and for the purpose two weeks time has been permitted. The Division Bench further held that other prayers made in the writ petition to the effect that a declaration may be issued that the land has not been acquired and the sale deed executed in favour of the Indian Oil Corporation be set aside cannot be granted. Liberty has been granted to pursue the remedy elsewhere.

The period of two weeks was granted under the order of the Division Bench dated 26.12.2013 is to expire on 11.12.2013 and it is now that the petitioners came up with this writ petition with the prayer as noticed herein above.

We are of the considered opinion that since the petitioner is already pursuing his remedy by way of two civil suits, as noticed above, and further since his earlier writ petition challenging the proceedings taken by the Allahabad Development Authority for transfer of the land by way of auction being dismissed, no relief need be granted in the present petition. Petitioner is at liberty to seek such further protection as may be advised in his pending civil suit.

Writ petition is dismissed.

Dated :06.12.2013

VR/66876/13