Ram Aashish vs State Of U.P. And Others
2013 Latest Caselaw 4489 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - C No. - 38128 of 2009
 

 
Petitioner :- Ram Aashish
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Ram Raj,Nisaruddin
 
Counsel for Respondent :- N.N. Mishra,M.N. Mishra,Mahendra Upadhyay,P.S. Pandey,R.C.Singh,R.S. Pandey,Ram Yash Pandey,S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Heard Sri Ram Raj, learned counsel for the petitioner, Sri R.C.Singh, learned counsel for the proposed respondent, who has filed an Impleadment Application and Sri N.N.Mishra, learned counsel for the Nagar Nigam, Gorakhpur and learned Standing Counsel for the respondent no.1.

This petition has been filed by Sri Ram Aashish, who is an  erstwhile Corporator of the Nagar Nigam, Gorakhpur. The challenge raised in this petition is to the orders passed by the Sub Divisional Officer, Sadar, Gorakhpur and the learned Commissioner affirming the same in proceedings, which according to the petitioner, falls within Section 123(2) of the U.P.Z.A.&L.R.Act, 1950. The petitioner claims that the disputed land belongs to him and stood settled in his favour with an entry in Ziman 10 (A). The petitioner was favoured with an administrative order accepting the proposal by the Tehsildar on 23.2.2001. In the said background, against the order dated 23.2.2001, a Restoration Application had been filed  by the State and the said order was recalled on 10.7.2003 and a further order was passed expunging the entry on 15.11.2003.

The petitioner filed a Restoration Application for setting aside these orders of 2003. The application was rejected by the order dated 13.11.2007. Consequently the petitioner preferred a Revision, which has been dismissed by the order dated 26.3.2009. Hence this petition.

The first point argued by Sri Ram Raj  is that the  rejection of the restoration was unjustified inasmuch as the orders passed in the year 2003 were ex parte to the petitioner. In such circumstances, the authority ought to have proceeded to restore the matter after notice  and then proceed to decide the same. In essence his contention is that the Restoration Application filed by the State was allowed ex parte, therefore, the proceedings are in violation of principles of natural justice.

The second ground urged by Sri Ram Raj is that the entry in favour of the petitioner is based on his long standing possession and that there is no encroachment over any State land including any road. Learned counsel submits that the revenue number of the road is said to be under the supervision of the Zila Parishad, Gorakhpur. So far as the disputed holding is concerned it is not the property of the Nagar Nigam.

Thirdly learned counsel for the petitioner contends that the proceedings were within the authority of the Sub Divisional Magistrate, who passed the order dated 23.2.2001 and, therefore, the contention of the petitioner is that the said order is not  without jurisdiction.

He further submits that the direction issued for demolition of the construction is also without jurisdiction.

Replying to the aforesaid submissions, learned Standing Counsel, Sri R.C.Singh and Sri N.N.Misra for the Nagar Nigam, Gorakhpur contend that the petitioner has no right, title or interest over the disputed holding and that the entry of Ziman 10 (A) in 1393 Fasli in favour of the petitioner is a forged entry. They further submit that the  entry was an outcome of manipulation with the Lekhpal of the concerned area and other revenue officials and the Tehsildar committed a manifest error by making a recommendation to the Sub Division Officer for passing an order under Section 123 (2) of the 1950 Act. They further contend that the proceedings under Section 123(2) were not at all maintainable inasmuch as the said provision does not confer any authority on the officer to grant any such declaration by way of an administrative order

They further contend that the notices had been issued to the petitioner and he did not contest the restoration, in such circumstances, the question raised that the proceedings are ex parte is without any basis.

On merits also, they urged that the land, which has been encroached upon and covered by raising constructions by the petitioner, is State land, which is entered as a road, under the supervision and control of Zila Parishad. In such circumstances, the petitioner has also encroached over public utility land and, therefore, the order passed on the restoration application is justified. Removal of construction also is consequence of the same.

They further contend that this Court should not interfere on technical grounds inasmuch as no prejudice has been caused to the petitioner and even otherwise setting aside of the  impugned orders would result in the restoration of a wrong order in favour of the petitioner. An Impleadment Application has been filed by one Shyam Narain Pandey and Seema contending that the petitioner is a former Corporator of the area and his son is also Corporator. They have usurped government land and encroached upon it. They should be heard in this matter. A short counter affidavit has been filed to which a rejoinder affidavit has also been filed.

Section 123(2) of the U.P.Z.A.& L.R.Act, 1950 reads as under:-

"(2) Where any person referred to in sub-section (3) of section 122-C has built a house on any land held by a tenure-holder (not being a Government lessee) and such house exists on [June 3, 1995], the site of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure-holder on such terms and conditions as may be prescribed."

A perusal thereof indicates that a person, who is in the category of sub-section 3 of Section 122-C of the 1950 Act would be entitled to continue to hold possession over the land of Abadi, which is otherwise in the holding of a tenure holder provided that it is not a land of any other public utility. The said Section is a substantive provision conferring certain benefits  to persons  described  under sub-section 3 of Section 122-C. There is nothing on record to indicate that the petitioner belongs to the said category and to the contrary he is a former Corporator of the Nagar Nigam.

Secondly, the allegation against the petitioner is of having encroached upon public utility land. Provisions of Section 123 would not apply in relation to public utility land. The land is stated to be entered as a Raod in the revenue records.

Thirdly, the habitation should have been constructed prior to 3.6.1995 for claiming such rights.

All these conditions are not fulfilled in the present case and Section 123 does not confer a power on the Tehsildar to make any recommendation to the Sub Divisional Officer to pass any  administrative order. It is only a substantive section declaring the rights of an occupant of that category. If the petitioner had any rights, he should have approached the court of competent jurisdiction by filing a suit for such declaration but instead he obtained an administrative order on 23.2.2001 on the basis whereof he is claiming rights over the disputed land. The order dated 23.2.2001 was wholly without jurisdiction and does not fall within the administrative powers of the said authority under Section 123 of the Act, 1950.

So far as the restoration matter is concerned, the recital contained in the order dated 13.11.2007 is to the effect that the notices were given inviting objections but Ram Ashish did not file any objections. The contention of the petitioner is that no such notice was served. This contention of the petitioner is unacceptable even otherwise as he was a  Corporator of the Nagar Nigam itself and was trying to claim title against the Institution of which he was a member. Not only this, his son is also a sitting member of the Nagar Nigam, Gorakhpur. This fact has been stated in the impleadment application, which has not been denied by Sri Ram Ashish. In the aforesaid circumstances, it is clear that the petitioner was having Knowledge of these proceedings and the order obtained by him, as indicated above, was without jurisdiction.

Apart from this, it is also clear from the orders passed by the authorities that the entry obtained by the petitioner in 1393 fasli was an outcome of manipulation and fraud. On  a specific question being put by the Court, Sri Ram Raj failed to point out as to on what basis such an entry in 1393 fasli has been made in favour of the petitioner. It will be relevant to point out that Ziman 10 (A) is an entry, which relates prior to abolition of Zamindari and does not relate to an entry after the abolition of Zamindari in the State of U.P.. Apart from this, the order which had been obtained by the petitioner on 23.2.2001 categorically records that the entry is being converted into Ziman 8. This order is in favour of the petitioner and was deliberately passed to convert the nature of the entry in view of the current status of the  columns categorised in the  Land Record Manual after commencement of the Zamindari Abolition Act, 1950.

The petitioner himself by filing the revision has taken a stand that the report of the Upper Tehsildar is correct and even if a wrong Ziman has been directed to be recorded, the correct one ought to have been maintained. This stand of the petitioner itself makes it clear that there was no right upon the petitioner to claim the benefit of any entry  of Ziman 8. It is evident that the petitioner was trying to get his entry manipulated one way or other, which can  be referred to an act of manipulation or fraud.

Accordingly, the restoration application filed by  State was allowed and the entry was set aside.

There is one more aspect, which has  to be noted that an order was passed on 11.12.1997 for expunging the entry in Ziman 10-A obtained by the petitioner in 1393 Fasli. In view of this, the said order already having been passed, there was no occasion for the Lekhpal or any other officer to manipulate the continuance of the entry in 1393 fasli  thereafter as contended by the petitioner without any order of the competent authority. Thus the entries on which the petitioner is placing reliance were forged and an outcome of fraud and manipulation. In these circumstances, the petitioner has failed to establish any prejudice on that count on the merits of his claim. The order dated 23.2.2001 is without jurisdiction and the entries being an outcome of fraud and manipulation no case is made out for interference.

Apart from this, the argument of Sri Ram Raj is that an order of demolition should not have been passed. In view of the conclusions drawn herein above, it is not for this Court to grant any injunction to the petitioner in this matter.Sri Ram Raj contends that the construction is of 1986 and in such a situation the constructions could not be demolished. If the petitioner has any other right apart from the aforesaid entries, it is open to the petitioner to file a suit or seek any other remedy. I am not inclined to interfere in the discretionary jurisdiction under Article 226 of the Constitution of India for the abovementioned reasons.

The writ petition fails and is accordingly dismissed.

The interim order dated 3.8.2009 is discharged.

Order Date :- 24.7.2013

Asha

Case :- WRIT - C No. - 38128 of 2009

Petitioner :- Ram Aashish

Respondent :- State Of U.P. And Others

Counsel for Petitioner :- Ram Raj,Nisaruddin

Counsel for Respondent :- N.N. Mishra,M.N. Mishra,Mahendra Upadhyay,P.S. Pandey,R.C.Singh,R.S. Pandey,Ram Yash Pandey,S.C.

Hon'ble Amreshwar Pratap Sahi,J.

Ref.Impleadment Application

In view of the nature of dispute raised in the writ petition and the involvement of an alleged encroachment of public land, applicants have been heard under Chapter 22 Rule-5-A of the Allahabad High Court Rules, 1950.

The application is disposed of.

Order Date :- 24.7.2013

Asha