Allahabad High Court
Sabbir Ahmad vs State Of Up And 11 Others on 23 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:93838
Court No. - 52
Case :- WRIT - C No. - 15465 of 2024
Petitioner :- Sabbir Ahmad
Respondent :- State Of Up And 11 Others
Counsel for Petitioner :- Vivek Kumar Srivastava
Counsel for Respondent :- Bhupendra Kumar Tripathi,C.S.C.,Rajpal Singh
Hon'ble Vikas Budhwar,J.
1. Heard Sri Vivek Kumar Srivastava, learned counsel for the writ petitioner as well as Sri Anand Bhaskar Srivastava, who appears for Respondent Nos. 1 to 4. Notice on behalf of the fifth respondent has been accepted by Sri Bhupendra Kumar Tripathi. Sri Nipun Singh has accepted notice on behalf of Respondent No.6.
2. The case of the writ petitioner is that the writ petitioner has instituted proceeding under Section 41 of the U.P. Land Revenue Act with respect to demarcation of Arazi No.14 (area 0.194 hectare) situate at village- Juharat, Pargana Rahupur, Tehsil Mughalsarai, District Chandauli before the fourth respondent, Sub-Divisional Magistrate, Sadar, Chandauli. A report is stated to have been submitted by Revenue Inspector on 29.11.2011, to which an objection has been filed by the contesting respondent on 25.07.2012, however, the application preferred by the writ petitioner under Section 41 of the U.P. Land Revenue Act stood allowed on 08.06.2018 against which the contesting respondent preferred appeal before Addl. Commissioner, Varanasi Region, Varanasi, in which the writ petitioner submitted their reply. However, the appeal preferred by a contesting respondent bearing no.01265 of 2018 purported to be under Section 210 of the U.P. Land Revenue Act, 1901 came to be dismissed on 13.03.2019 against which the contesting respondent preferred Revision no.741 of 2019 before the Board of Revenue, Uttar Pradesh, Lucknow, Junaid Ahmad and another vs. Nasir, which came to be allowed on 12.01.2024 being REW/741/2019 Chandauli under Section 219 of the U.P. Land Revenue Act remanding the matter back to the Sub-Divisional Magistrate, Sadar, Chandauli.
3. Questioning the order dated 12.01.2024 allowing the revision preferred by the contesting respondents the present writ petition has been filed. Learned counsel for the writ petitioner submits that the contesting respondents have no locus and there cannot be any objection by them, particularly in view of the fact that the proceeding initiated by the writ petitioner does not result in any injury to them. He further submits that the writ petitioner basically wants demarcation as per the provisions of the Land Revenue Act and the writ petitioner could not possibly have any objection, as none of their land is being affected.
4. Learned counsel for the writ petitioner submits that a totally incorrect finding has been recorded by the Revisional Court that the concerned Lekhpal did not appear before the authorities while giving the deposition and proving the report itself. A categorical finding has been recorded by the appellate authority and the same has been brushed aside without recording any reasons in this regard while holding that the orders passed by the appellate authority as well as by the Sub-Divisional Magistrate suffer from legal infirmity as the report was not proved. Additionally it has been submitted that the contesting respondents have totally taken a new ground just in order to demolish the case of the writ petitioner with regard to the fact that the demarcation has not been done from a prominent point, which ought to have been done. He submits that pursuant to the application preferred by the contesting respondents before the Principal Secretary of the concerned department, a team containing approximately six members were there and they conducted the spot survey and found that the land of the writ petitioner not being affected.
5. Learned Standing Counsel, Counsel for the Gaon Sabha as well as Counsel for Respondent no.6 have sought to argue that the order impugned in the writ petition does not suffer from any illegality, particularly in view of the fact that the Revisional Authority has only remanded the matter back and it is always open for the writ petitioner to submit its objection, once the spot inspection is conducted from a prominent point. He further submits that the ground with regard to non-holding of demarcation from a prominent point was already taken before the appellate authority as well as revisional authority. They further submit that though the said ground was not taken before the mutation proceeding, but the same would not be of much relevance, particularly in view of the fact that a report is to be prepared while making spot inspection as per the provisions contained under the statute.
6. I have heard learned counsel for the parties and perused the record.
7. It is not in dispute that an application was preferred by the writ petitioner for demarcation, which on contest came to be allowed, an appeal whereof has been preferred by the contesting respondent, which came to be rejected, against which a revision was filed and has been allowed. The revisional order recites that there was no prominent point from where the demarcation was done. Thus the matter was remitted back to conduct fresh demarcation at the level of the Sub-Divisional Officer.
8. In the opinion of the Court, the issue relatable to the fact as to whether the private contesting respondent?s land is being affected or not, would plainly and simply depend upon the demarcation. Demarcation is the only mode for determining as to whether the land belonging to some other person is included, vis--vis the land which is being sought to be demarcated at the instance of the writ petitioner.
9. In the opinion of the Court, since the order of which is being impugned before this Court is a remand order, thus the writ petition is being decided in the following manner:
(i) The interference to the order dated 12.01.2024 passed by the Board of Revenue Uttar Pradesh at Lucknow in Revision No.741 of 2019 under Section 219 of the U.P. Land Revenue Act, 1901 is declined.
(ii) The writ petition stands disposed of requiring the Sub-Divisional Magistrate, Sadar, Chandauli to conduct the demarcation as per the provisions contained under the relevant statute that too after putting to notice the writ petitioner and the private respondents and the other affected parties within a period of one month from the date of production of certified copy of the judgment by either of the parties while ascertaining the fixed point, which is relevant for the same.
10. Consequential order shall be passed depending upon the fact of the demarcation within a further period of one month from that date.
11. The parties shall not take any unnecessary adjournments and in case, any adjournment is being sought, the same shall not be more than a week in one stretch.
12. In view of above, the writ petition is disposed of.
13. Needless to point out that this Court has not adjudicated the matter on merits.
Order Date :- 23.5.2024 /N.S.Rathour
