Ram Prasad vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 6983 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 19
 

 
Case :- WRIT - C No. - 985 of 2023
 

 
Petitioner :- Ram Prasad
 
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lko. And Others
 
Counsel for Petitioner :- Ravindra Kumar Sinha,Rijuta Bajpai
 
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
 

 
Hon'ble Saurabh Lavania,J.

Heard.

Present petition has been filed for the following main reliefs:-

"(i) Issue a writ, order or direction in the nature of certiorari for quashing impugned orders dated 26.03.2018 so far as it reates to the land in the name of petitioner's father Late Kewal Son of Kandhai having his half share contained as Annexure No.1 to the writ petition and order dated 28.12.2022 passed by opposite party No.2 in appeal preferred by the petitioner against the impugned order dated 26.03.2018, under Section 207 of the U.P. Revenue Code, contained as Annexure No.2 t this writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to dispossess the petitioner from his aforesaid land of Gatas No. 248/0.4050 Hectare and Gata No.510/0.5950 Hectare, sitauted at Village-Thawar, Pargana, Tehsil and District-Lucknow forcefully, arbitrarily and illegally and to continue the name of the petitioner over the land of the both of these gatas."

It is submitted that the order dated 26.03.2018 was passed by the respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow and the order dated 28.12.2022 was passed by the respondent No.2-Additional Commissioner, Administration, Lucknow Division, Lucknow.

Being aggrieved by the order dated 26.03.2018, an appeal under Section 207(2) of the Code of 2006 along with delay condonation application was filed. The application seeking condonation of delay in filing the appeal was rejected vide order dated 28.12.2022 and consequently, the appeal was also rejected.

Main contention of the learned counsel for the petitioner is to the effect that in exercise of power conferred under Section 104/105 of the Code of 2006, respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow is not empowered to pass the order of such nature, which was impugned in the appeal. Moreover, the order was passed behind back of the petitioner and on coming to know about the same, petitioner preferred an appeal along with the application for condonation of delay, which was filed with proper explanation, however, respondent No.2-Additional Commissioner, Administration, Lucknow Division, Lucknow failed to appreciate the facts indicated in the application for condonation of delay and rejected the application, thus, indulgence of this Court is required in the matter.

Sri Hemant Kumar Pandey, learned counsel for the State very fairly stated that in similar facts and circumstances of the case, this Court interfered in the impugned order(s).

In continuation, it is stated that challenging the order dated 26.03.2018, one Musahib filed Writ Petition bearing No.26946 (M/S) of 2021 (Musahib vs. State of U.P. & Others), which was allowed vide order dated 22.11.2021 by this Court. Assailing the order dated 26.03.2018, another Writ Petition bearing No.29507 (M/S) of 2021 (Rais Ahmad & Another vs. State of U.P. & Others) was also filed, which was also allowed vide order dated 16.12.2021 by this Court. Copies of the judgment(s) placed before this Court are taken on record.

Considered the submissions advanced by the learned counsel for the parties and perused the record including the impugned order(s).

Admittedly, respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow has no power under Section 104/105 of the Code of 2006 to pass the order impugned in the present petition. By the impugned order, respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow directed the revenue official to delete the name of the petitioner and ordered vesting of land in issue in favour of the Government. It is stated that considering the powers of respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow under Section 104/105 of the Code of 2006, this Court has interfered in the order dated 26.03.2018 passed by the respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow. The relevant portion of the order dated 16.12.2021 passed in Writ Petition No.29507 (M/S) of 2021, reads as under:-

"7. I have considered the submissions advanced on behalf of learned counsel for the parties.

8. Sections 104/105 of U.P. Revenue Code, 2006 are extracted hereunder:-

"104 Transfer in contravention of this Code to be void.- Except as provided in section 103, every transfer of interest in any holding or part thereof made by a bhumidhar or any asami in contravention of the provisions of this Code shall be void.

105 Consequences of transfer by bhumidhar in contravention of the Code.-

(1) Where transfer of interest in any holding or part made by a bhumidhar is void under section 104, the following consequences shall, with effect from the date of such transfer, ensue, namely:-

(a) the subject matter of such transfer shall vest in the State Government free from all encumbrances;

(b) the trees, crops, wells and other improvements, existing on such holding or part shall vest in the State Government free from all encumbrances;

(c) the interests of the transferor and the transferee in the properties specified in clauses (a) and (b) shall stand extinguished;

(d) the extinction of interest of the transferor under clause (c) shall operate to extinguish the interest of any asami holding under him.

(2) Where any land or other property has vested in the State Government under subsection (1), it shall be lawful for the Collector to take over possession of such land and other property, and to direct that any person occupying such land or property be evicted there from, and for that purpose, the Collector may use or cause to be used such force as may be necessary and the provisions of section 59 mutatis mutandis shall apply to such property."

9. It is not in dispute that the impugned order was passed ex parte without even serving notice to the petitioner and other persons whose names have been directed to be deleted from the revenue record. Further, proceedings could not have been undertaken under Section 104/105 U.P. Revenue Code inasmuch as provisions of Section 104/105 U.P. Revenue Code are for other purposes and not for eviction from unauthorized possession. These sections deal with consequence of transfer of land against the provision of the code.

10. In view thereof, the present writ petition is allowed. Impugned order dated 26.03.2018, so far as it relates to the petitioners, is hereby quashed."

Considering the aforesaid, this Court is of the view that indulgence of this Court is required.

Accordingly, the order(s) impugned herein are set aside. respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow is directed to draw appropriate proceedings on the basis of report of Tehsildar and proceed in the matter in accordance with law after giving proper notice to the persons against whom report has been submitted by the Tehsildar. Respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow is directed to decide the case expeditiously preferably within a period of six months from the date a certified copy of this order is produced before him. The petitioners are directed to co-operate in the proceedings before the respondent No.4-Sub Divisional Magistrate/Joint Magistrate, Sadar, Lucknow.

The writ petition is allowed in aforesaid terms.

Order Date :- 3.3.2023

Vinay/-