Allahabad High Court
Bhamola vs State Of U.P. And Others on 16 October, 2015
Bench: Krishna Murari, Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
"Reserved"
Case :- WRIT - C No. - 5744 of 2009
Petitioner :- Bhamola
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Brijendra Kumar,O.P.Tripathi
Counsel for Respondent :- C.S.C.,Ramesh Upadhyaya,Smt. Sunita Agrawal
Hon'ble Krishna Murari, J.
Hon'ble Amar Singh Chauhan, J.
Heard Sri P. K. Ganguly, holding brief of Sri Om Prakash Tripathi, learned counsel for the petitioner, Sri Ghanshyam Pandey, holding brief of Sri Ramesh Upadhyay appearing for the Aligarh Development Authority, Aligarh and the learned Standing Counsel representing the State-respondents.
Petitioner has approached this Court seeking a writ of mandamus to command the respondents not to dispossess him from 1/3rd part of plot no. 305 area 4-3-0 and plot no. 339 area 2-18-0 situated at village Kishanpur, Tehsil Kol, District Aligarh. A further writ of mandamus has also been prayed commanding the respondents to decide the petitioner's representation dated 01.12.2008 by a reasoned order on merits and till then he may not be dispossessed, specially by the respondent no. 4 and also to comply the judgment and order passed in the case of Chabi Nath, 2005 (2) AWC 1405 removing entry of State of U. P. through the Collector in Khatauni of petitioner and making entry of petitioner on his application and/or order of status quo till the decision of the representation.
Facts, as set out in the pleadings of the parties, relevant for the purposes of the case in brief, are as under :
Dispute relates to plot no. 305 and 339 which were recorded in the name of Dal Chand, the father of the present petition. After death of Dal Chand on 14.01.1993, his rights were inherited by the petitioner Bhanola and his two brothers, namely, Kallu alias Kalyan and Galli.
One of the brother of the petitioner, namely, Kallu alias Kalyan filed Civil Misc. Writ Petition No. 9731 of 2003 based on the same allegations on which the present petition has been filed by his brother Bhanola alleging that actual physical possession of the land declared surplus was not taken and thus, he is entitled to be extended the benefit of The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (herein after referred to Repeal Act, 1999. The reliefs in the said writ petition were identical to the reliefs claimed in the present writ petition i. e. not to dispossess the petitioner from 1/3rd area of plot no. 305 and 339 and to decide the representation and to maintain status quo during the period. The said writ petition was disposed of by a Division Bench of this Court vide judgment and order dated 03.11.2011 by making the following observations :
"In the circumstances, we accept prayer of the petitioner with regard to deciding the representation of the petitioner within a time bound frame. Accordingly we direct the authority concerned to decide the representations of the petitioner dated 7.7.2001 and 8.2.2002 by a reasoned and speaking order, in accordance with law within a period of 3 months from today. In so far as prayer for directing the respondents to maintain status-quo by not dispossessing the petitioner from the land in dispute is concerned, we do not propose to issue any direction in that regard as order of status-quo in the SLP filed by the State of U.P. in which the petitioner has filed intervener application said to have been allowed by the Apex Court which he claims is applicable to his case also.
The writ petition is accordingly, disposed of finally. No order as to costs."
In pursuance of the aforesaid judgment and order of this Court, identical claim as is being made by the present petitioner was considered by the Competent Authority, Urban Land Ceiling, Aligarh and vide order dated 17.03.2012 representation was rejected on the finding that actual physical possession of the land declared surplus in pursuance of the proceedings drawn against the father, who was recorded tenure holder, has been taken by the Collector through Tehsildar on 31.05.1986 and thereafter notice under Section 11 (8) of the Urban Land (Ceiling and Regulation) Act, 1976 (herein after referred to as Act 1976) determining the compensation of Rs.27,946.38 was issued and the Collector transferred the possession of the land in favour of Aligarh Development Authority on 26.11.199. Further finding has been returned by the Prescribed Authority, Urban Land Ceiling, Aligarh while deciding the representation of the brother of the petitioner that the Development Authority has already made a boundary wall encompassing land declared surplus in February, 2003. The third brother of the present petitioner, namely, Galli also filed Civil Misc. Writ Petition No. 52837 of 2006 based on the identical allegations making identical prayer which was also disposed of by the Division Bench of this Court vide judgment and order dated 29.09.2006 directing the respondent-authorities to decide the representation. Pursuant to the said order, representation made by Galli, the brother of the petitioner, was considered by the Prescribed Authority, Urban Land Ceiling, Aligarh and rejected vide order dated 18.09.2007 recording the same findings which have been recorded in the case of other brother, namely, Kallu alias Kalyan that actual physical possession of the land has already been taken over on 31.05.1986 and thereafter the possession has been transferred to Aligarh Development Authority who are proceeding to utilize the land for construction of a colony by the name of "Neeraj Khand" and 10% of the estimated costs along with application has also been deposited by the members of general public for allotment. It is also to be taken note of that the order dated 18.09.2007 passed by the Prescribed Authority, Urban Land Ceiling, Aligarh on the representation of Galli, the brother of the petitioner, was challenged by him by filing Civil Misc. Writ Petition No. 62009 of 2008 which has been dismissed by the Division Bench vide judgment and order dated 05.12.2008.
A perusal of the aforesaid facts establishes beyond shadow of doubt that an area of 13973.18 sq. mtrs. of two plots, namely, plot no. 305 and 339, which were recorded in the name of the father of petitioner, Dal Chand, were declared surplus in his hands. Notice under Section 10 (3) of the Act 1976 was published on 05.04.1986 and the notice under Section 10 (5) was issued and actual physical possession was taken on 31.05.1986.
In a dispute raised by two brothers of the petitioner on the same ground that actual physical possession has not been taken by the State as such the proceedings are liable to be abated, a finding has been returned by the Prescribed Authority, Urban Land Ceiling, Aligarh that actual physical possession of the land was transferred to the State, who subsequently transferred the same in favour of Aligarh Development Authority and the Aligarh Development Authority has constructed a boundary wall and the land has been utilized for development of a colony by the name of "Neeraj Khand". The finding has been affirmed by the dismissal of Civil Misc. Writ Petition No. 62009 of 2008 filed by the brother of the petitioner, namely, Galli.
Dispute in this writ petition is in respect of same two plots, namely, plots no. 305 and 339 area whereof has been declared surplus in the hands of the father of the present petitioner. The claim of two brothers of the petitioner based on identical set of facts and circumstances has already been dismissed on the finding of fact that actual possession of the land was taken over by the State on 31.05.1986 though all the three brothers were claiming separately in respect of their 1/3rd over the land in dispute but since the case of the petitioner is identical on the same facts and circumstances, there is no reason for us to take a different view one taken in the case of the brother of the petitioner, Galli in Civil Misc. Writ Petition No. 62009 of 2008 affirming the findings returned by the Prescribed Authority, Urban Land Ceiling, Aligarh that possession having been taken over.
In view of the aforesaid facts and discussions, this writ petition also stands dismissed. However, in the facts and circumstances, there shall be no order as to costs.
October 16, 2015 (Amar Singh Chauhan, J) (Krishna Murari, J)
Dcs.
