Allahabad High Court
Dhananjay Yadav vs State Of U.P. And 2 Others on 23 November, 2022
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 85
Case :- MATTERS UNDER ARTICLE 227 No. - 10321 of 2022
Petitioner :- Dhananjay Yadav
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Viveka Nand Rai
Counsel for Respondent :- G.A.
Hon'ble Subhash Chandra Sharma,J.
Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
The present application u/s 482 Cr.P.C. has been moved with prayer to stay the effect and operation of the impugned judgment and order dated 01.10.2022 passed by Additional Session Judge (F.T.C.) Court No.2, Varanasi in Criminal Revisional No.158 of 2021 (Dhananjay Yadav vs. State of U.P. and others) and order dated 31.07.2021 passed by Sub Divisional Magistrate Sadar, Varanasi in Case No.06843 of 2021 (Akhilesh Yadav vs. State of U.P. and others) under Section 133 Cr.P.C., District Varansi.
It is submitted that in this case applicant is being dispossessed on the basis of order passed by the learned Sub Divisional Magistrate in proceedings u/s 133 Cr.P.C. filed by the opposite party against which a criminal revision was filed before the Court of Session which was also rejected by order dated 01.10.2022 without considering the material on record. It is also submitted that arazi no.112 area 0.146 hectare is in the name of mother of the applicant and he has possession as bhumidar with transferable rights. The way which is in dispute lies in the area belonging to arazi no.112 regarding which order u/s 133 Cr.P.C. has been passed for removing her/his possession though the measurement was also got done through lekhpal u/s 24 of U.P. Revenue Code, 2006 report of lekhpal is on record which was also not taken into consideration by the learned court below as well as revisional court. Therefore, requested to set aside the impugned order dated 01.10.2022 and 31.07.2021.
Learned A.G.A. opposed the prayer for setting aside the orders passed as aforesaid and urged that in the measurement it was found that arazi no.112 was in the name of the mother of the applicant and arazi no.71 is abadi land which was under the possession of opposite party Akhilesh Yadav and Anil Singh. In the report of lekhpal dated 23.10.2020 it has been mentioned that arazi no.77/1 area 0.444 and arazi no.77/2 area 0.130 are abadi land as per the revenue record and the way lies in this land which is used by the people of the village as public way and it is 12 feet wide and illegal possession was made by the applicant on the land belonging to the way by installing tin shed and fixing peg for tying the animals as a result hindrance was created in the way and arazi no.112 which belonged to the mother of the applicant is adjacent to abadi land in dispute. In this way, the order was passed by the learned court below and the revisional court cannot be said to be unlawful but it is passed on the facts of the case. It is also urged that applicant made obstruction in the public way that was the reason such order was passed for removal of this type of nuisance u/s 133 Cr.P.C. In this way, this application being devoid of merit is liable to be dismissed.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and from perusal of the record, it appears as per revenue record arazi no.112 area 0.146 hectare belongs to Kamla Devi W/o Radhey and arazi no.71 is abadi land which is under possession of opposite party and the way lies in arazi no.77 in which this public way passes through. As per report of lekhpal dated 23.10.2020 and in the measurement conducted by the revenue authorities it was also found that arazi no.71 abadi land is under possession of opposite party and nowhere it is mentioned that way in dispute lies in arazi no.112. It lies in arazi no.77 as per the report of lekhpal dated 23.10.2020 and which has been used as public way by the people of the village and now nuisance has been created by the applicant by fixing peg and by installing tin shed creating hindrance on that very land. Considering all these facts, the court concerned passed the order u/s 133 Cr.P.C. directing the applicant to remove the nuisance as aforesaid by order dated 31.07.2021 and learned revisional court also dismissed the revision after taking into consideration all these facts by order dated 01.10.2022. There appears no any illegality or impropriety in both the orders but this application being devoid of merit is liable to be dismissed.
Accordingly, this application is, hereby, dismissed.
Order Date :- 23.11.2022
Ashok Gupta
