Girraj Kishor Maheshwari And 6 ... vs State Of U.P. And 3 Others
2023 Latest Caselaw 17829 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:142689-DB
 
Court No. - 29
 

 
Case :- WRIT - C No. - 13590 of 2022
 

 
Petitioner :- Girraj Kishor Maheshwari And 6 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vibhu Rai,Abhinav Gaur,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Vibhanshu Vaibhav,Vineet Sankalp
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Vibhu Rai, learned counsel appearing for the petitioners, Sri Suresh Singh, learned Additional Chief Standing Counsel appearing for State-respondent nos.1 and 2 and Sri Tejaswi Mishra, Sri Vineet Sankalp and Sri Vibhanshu Vaibhav, learned Advocates appearing for respondents-Aligarh Development Authority.

2. Rejoinder affidavits to the counter affidavits filed today on behalf of State-respondents and Development Authority are taken on record.

3. The instant writ petition has been filed with the following reliefs :-

"(i) Issue an appropriate writ, order or direction prohibiting the respondent not to dispossess the petitioner and further not to continue with the demolition of the construction contained in Gata no.10/2 and Gata no.16 situate at Ram Ghat Road, Village-Kishanpur, Tehsil-Koil, Aligarh except in accordance with law.

(ii) Issue an appropriate writ, order or direction commanding the respondent development authority to either restore the demolished constructions of the petitioners or to pay damages for demolishing the legal constructions of the petitioner."

4. The dispute in the instant writ petition is pertaining to the constructions existing over Gata no.10/2 and Gata no.16 admeasuring 997.92 square meters. The petitioners herein claim to be the successors of Sri Sonpal Maheshwari son of Late Ganesh Das Maheshwari, the original tenure holder of the land in question, based on two registered Gift Deeds dated 4.3.1982. It is stated that Sri Sonpal Maheshwari was the uncle of petitioner nos.1 to 4 herein and petitioner nos.5 to 7 are legal heirs and representatives of Late Anil Kumar Maheshwari, in whose favour Gift Deeds dated 4.3.1982 was allegedly executed by Sri Sonpal Maheshwari. It is stated in paragraph '10' of the writ petition that after execution of the Gift Deeds, the petitioners had applied for sanction of map for construction of residential house over the land in question. Vide order dated 15.10.1982, the Development Authority had duly sanctioned the map. The copy of the map and sanction order dated 15.10.1982 are appended as Annexure-'2' to the writ petition. A perusal of the sanction map, appended at page '37' of the paper book, shows that there is a reference of the land for proposed construction of house of Sri Girraj Kishore and brothers, all sons of Sri Babulal Maheshwari, situated at Ram Ghat Road, Aligarh. There is no reference of the plot number in the sanctioned map. It is pointed out by the learned counsel for the petitioners that in the sanctioned map itself, it is written that the same is with reference to the land of Sri Sonpal Maheshwari.

5. Be that as it may, the averments in the writ petition are that the petitioners have constructed shops over the land in question and in the meantime, the land acquisition proceedings had commenced with the issuance of the notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') dated 24.1.1983. It is an admitted fact of the matter that lands of Gata no.10/2 area 3 bigha and Gata no.16, area 1 bigha 10 biswa were acquired vide notifications issued under Sections 4 and 6 of the Act dated 24.1.1983 and 14.2.1983; respectively.

6. In the counter affidavit filed on behalf of the Development Authority, a copy of the Possession Memo dated 30.7.1983 has been brought on record, wherein description of Gata no.10/2 area 3 bigha and Gata no.16 area 1 bigha 10 biswa has been mentioned in the list of the plots, possession of which was handed over to the development authority. There is reference of certain constructions existing in Gata no.10/2, as can be noted from the copy of the Possession Memo at page '30' of the counter affidavit. There is reference of a boundary wall in Gata no.16. The award with respect to the acquired land had been declared on 23.9.1986 and the compensation under the award had been received by Sri Sonpal Maheshwari on 24.12.1988. A perusal of the award indicates that there is mention of assets over Plot nos.10/2 and 16 and it is mentioned therein that the valuation of the assets attached to the earth had been assessed. The description with regard to the compensation for the acquired land and the assets (things attached to the earth) has been given in the award itself.

7. There is, thus, no dispute about the fact that the land acquisition proceedings have been brought to their logical end with the making of the award dated 24.12.1988. However, it is sought to the submitted in the writ petition that Section 4 notification was challenged by Sri Sonpal Maheshwari in Writ Petition No.959 of 1985, wherein an interim order dated 15.1.1985 was passed. The said writ petition, however, had been rendered infructuous vide order dated 18.4.1991, on account of a compromise arrived between the parties outside the Court. A perusal of the copy of the judgment and order dated 18.4.1991, at page '57' of the paper book, shows that Sri Sonpal Maheshwari, Sri Jai Narayan son of Sonpal and Sri Girraj Kishore were parties to the said proceedings. The submission in the writ petition is that in view of the compromise entered under the instructions of the Vice Chairman, Aligarh Development Authority, an affidavit dated 23.9.1989 was filed in Writ Petition No.959 of 1985, which is Annexure-'3' to the instant writ petition. A perusal of the said affidavit, at page '46' of the paper book, indicates that the said affidavit was given by Sri Jai Narayan Maheshwari son of Sri Sonpal Maheshwari stating therein that with respect to the vacant land, which was lying on the spot and was not in the use of the deponent, subject matter of dispute in Writ Petition No.959 of 1985, the deponent was ready and willing to hand over physical possession thereof and further that he will not initiate any legal proceedings with respect to the same. It is also stated in the said affidavit that compensation for the land in question had been received by the deponent from the Office of the Special Land Acquisition Officer. It was further stated that whatever constructions were existing on the spot, excluding them, the deponent was ready and willing to hand over the physical possession of the vacant land.

8. It is stated in the writ petition that Sri Girraj Kishore Maheshwari, petitioner no.1 herein, was also party in Writ Petition No.959 of 1985 and was duly representing rest of the parties to the Gift Deeds, who were his brothers. It is then contended that Vice Chairman, Aligarh Development Authority sent a letter dated 2.1.1989 to the Joint Secretary, Nagar Vikas Anubhag-5, U.P. Shashan, Lucknow requesting therein that considering the request of the land owners who were ready and willing to enter into compromise, permission be granted for release of 997.92 square meters of land, which was in the exclusive ownership of the petitioners. The submission, thus, is that considering the above noted stand of the respondents, on the documents filed before the Writ Court, the writ petition challenging the Section 4 notification was dismissed as infructuous vide order dated 18.4.1991.

9. The respondents, however, started interfering with the peaceful possession of the petitioners. The original owner namely, Sri Sonpal Maheshwari filed a civil suit bearing Original Suit No.284 of 1991 seeking declaration as the owner over the built-up area and further permanent prohibitory injunction against the defendants from interfering in his peaceful possession over the disputed property. In the said suit, after death of Sri Sonpal Maheshwari, Sri Jai Narayan Maheshwari got substituted himself on 26.2.2003.

10. It is noticeable fact of the matter that though the writ petitioners (7 in number) herein claim themselves to be the owners of the plots in question by virtue of the Gift Deeds dated 4.3.1982, but there is no averment in the writ petition that they got themselves substituted as plaintiffs in the aforesaid suit after death of original owner, Sri Sonpal Maheshwari, who allegedly had gifted the land in question in favour of the petitioners. The said suit, as per the statement made in the writ petition, has been decreed vide judgment and order dated 28.5.2007, copy whereof has been filed as Annexure-'7' to this petition. A perusal of the judgment and order dated 28.5.2007 passed by the Additional District Judge, Court No.1, Aligarh in Original Suit No.284 of 1991 shows that the said suit was filed for permanent prohibitory injunction and mandatory injunction against Aligarh Development Authority and the State of U.P. It was decreed for the relief no.(A) for declaration and relief no.(B) for permanent prohibitory injunction, restraining the respondents from interfering in the peaceful possession over the disputed property. However, for relief no.(C), the suit had been dismissed.

11. It is then stated that Civil Appeal namely, First Appeal No.288 of 2007 has been filed by Aligarh Development Authority, which was admitted on 12.9.2007 and on the same day, an interim order was passed that none of the parties shall deal with the disputed property or raise any new construction on the spot in question. It is stated in the writ petition that First Appeal No.288 of 2007 has been dismissed for want of prosecution on 24.1.2018, but the restoration application has been allowed on 5.1.2022 and the appeal has been restored to its original number. It is then submitted that on 6.4.2022, the respondent-Development Authority started demolition of constructions standing over the disputed property and hence the occasion for filing the instant writ petition has arisen.

12. Taking note of the above admitted facts on the record, it is more than evident that the dispute pertains to the plots in question, subject matter of the civil suit namely, Original Suit No.284 of 1991. When we raised pointed query to the learned counsel for the petitioners as to whether the writ petitioners got themselves substituted in the First Appeal No.288 of 2007, pending as on date, no categorical reply has been given by him. Two contrary submissions have been made by the learned Advocate for the petitioners in the same breath. At the first instance, he submitted that the property, which is subject matter of Original Suit No.284 of 1991 filed by Sri Sonpal Maheshwari and substituted Sri Jai Narayan Maheshwari, is different from the property gifted to the petitioners herein by virtue of the Gift Deeds dated 4.3.1982. And then, it is further submitted that the property, which is subject matter of Gift Deeds dated 4.3.1982 is included in the property, subject matter of Original Suit No.284 of 1991.

13. In both the eventualities, the claim of the writ petitioners herein to seek the above noted reliefs cannot be entertained. The reasons are as follows:-

(i) In case the property, which is subject matter of Gift Deeds dated 4.3.1982, is different from the property, which is subject matter of Original Suit No.284 of 1991, the writ petitioners cannot seek the above noted reliefs based on the alleged compromise, which was arrived at between the Development Authority and the plaintiffs of Original Suit No.284 of 1991. As per own contention of the petitioners herein, as noted above, the compromise was signed by Sri Jai Narayan Maheshwari, the substituted plaintiff in the civil suit. The petitioner no.1 herein namely, Sri Girraj Kishore Maheshwari though was a party to the Writ Petition No.959 of 1985, which was dismissed as infructuous in terms of the alleged compromise vide order dated 18.4.1991, but he has not got himself substituted in Original Suit No.284 of 1991 on the basis of Gift Deeds, to challenge the action of the Development Authority in interfering with his possession over the property in question, despite the alleged compromise.

(ii) On the other hand, if the argument of the learned counsel for the petitioners that the property, which is subject matter of Original Suit No.284 of 1991, is same as that of the property, subject matter of Gift Deeds dated 4.3.1982, is accepted, the appropriate course of action for the writ petitioners was to seek impleadment/substitution in Original Suit No.284 of 1991, which was filed by the original owner Sri Sonpal Maheshwari, the alleged executor of the Gift Deeds. Admittedly, the petitioners herein are neither party to the Original Suit No.284 of 1991 nor to Writ Petition No.959 of 1985 (except petitioner no.1), they cannot be permitted to seek any relief based on the decisions in the aforesaid two cases.

14. For the aforesaid, the present writ petition is found misconceived, and hence, dismissed.

15. Before parting with this order, we are further required to note that one writ petition being Writ-C No.12516 of 2022 had been filed by one Sri Jai Narayan Maheshwari son of Sri Sonpal Maheshwari, the original tenure holder of the land in question. The said writ petition has been dismissed as withdrawn with liberty to file appropriate application in the pending First Appeal No.288 of 2007, in case any demolition has been carried out by the Development Authority.

Order Date :- 18.7.2023

Manish Himwan