Allahabad High Court
Dev Narayan Tiwari vs State Of U.P Thru. Secy. Revenue Deptt. ... on 22 November, 2024
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:77341-DB
Court No. - 2
Case :- WRIT - C No. - 3342 of 2023
Petitioner :- Dev Narayan Tiwari
Respondent :- State Of U.P Thru. Secy. Revenue Deptt. Civil Secrt. Lko. And Others
Counsel for Petitioner :- Shrawan Kumar,Pankaj Kumar Sahu
Counsel for Respondent :- C.S.C.,Syed Aftab Ahmad
Hon'ble Rajan Roy,J.
Hon'ble Shree Prakash Singh,J.
Heard.
The writ-petitioner has filed this writ petition seeking the following relief:
"Issue a writ order or direction in the nature of Mandamus Commanding the O.P. No. 4 to comply the orders passed by O.P. No. 1 to 3 to complete the demarcation process of the land of petitioner situated at Gata no. 6, 7, 8, 9 and 10 (according to the revenue map) of Village- harchandpur kanaura, Tehsil-Sadar, District-Lucknow"
On 23.05.2023, we have passed the following order:
"Heard.
In response to our earlier order, the S.D.M. has sent instructions stating he has constituted a team for demarcation of Gata's in question and also fixed a date for the same but the Inspector, Police Station - Talkatora informed him that some proceedings were pending under the Waqf Act relating to the same land and if demarcation exercise is undertaken, it is likely that peace & harmony in the area would be disturbed and a law & order situation would be created.
We would like to know more in this regard. Let relevant documents be produced before this Court about the proceedings allegedly pending before the Waqf Tribunal and also as to how a law & order situation would be created, if demarcation exercise is undertaken as per law.
Let the S.D.M. concerned and the Inspector, P.S.- Talkatora appear before this Court on the next date and assist the Court.
It is made clear that this order shall not be treated as a direction to conduct the demarcation exercise, as, this Court wants to know the correct factual position and gravity of the situation, if any.
List/Put up this case on 26.05.2023.
Let a copy of this order be provided to learned Counsel for the parties today itself on payment of usual charges."
Thereafter, on 26.05.2023, we have passed the following order:
"Sub Divisional Magistrate, Sadar, Lucknow and Station House Officer, Police Station Talkatora, Lucknow are present. They inform that on the administrative side an order was passed for demarcation of land bearing Gata No. 6, 7, 8, 9 and 10 situated at Village Harchandpur, Kanaura, Pargana, Tehsil and District Lucknow two or three years ago and ever since then attempts are being made to demarcate the said land, but, the fact of the matter is that some part of karbala is situated adjacent to the said land and some part of these gatas has been encroached for the said purpose. There are few graves inside the land of petitioner.
In these circumstances, leaving all questions open, let the Collector, Lucknow visit the spot, conduct an inspection and submit report to this Court by the next date. The report shall clearly mention as to how much land of Gata No. 6, 7, 8, 9 and 10 has been encroached, if it is so, for the purposes of karbala or graveyards or any other purpose. If possible, he may also indicate the period since when the encroachment is continuing, whether the encroachers are identifiable, whether there are any part of said gatas which are free from encroachment and whether the said part is in possession of the petitioner or not. The report shall be submitted confidentially in sealed cover.
Put up on 05.07.2023, as fresh.
The Officers present today need not appear again, unless specifically called."
The petitioner claims to have purchased Gata Nos. 6, 7, 8, 9 and 10 situated at Village Harchandpur, Kanaura, Tehsil Sadar, District Lucknow.
In response to our orders, quoted hereinabove, the Collector, Lucknow himself has made the spot inspection and conducted an enquiry of relevant records and submitted a report dated 04.07.2023 which runs into 3 pages excluding the Index. It is supported by several documents from Page 4 to 85. Apart from it, he has provided GPS map pertaining to the aforesaid Gatas and a Compact Disc.
We have perused the report. We do not wish to mention the contents of report in detail, except that as per the report, Sri Gajendra Singh S/o Rajpoot Singh executed a general Power of Attorney dated 09.11.2004 in favour of his nephew Shivendra Singh. The said Power of Attorney holder prepared a sale-deed on 25.10.2019 pertaining to Gata No. 6 area 8220 square meter, Gata No. 7 area 1010 square meter, Gata No. 8 area 3160 square meter and Gata No. 9 area 823 square meter. On the same date, another sale-deed was got prepared in respect of Gata No. 10 area 1260 square meter. In the said document, the petitioner Dev Narayan Tiwari was the vendee. These sale-deeds were presented in the office of Sub Registrar for registration but on account of deficiency of Stamp, they were not registered and have not been registered till date. The report further goes on to state that as per the Mutwalli of the Karbala Talkatora Sri Shadab Agha, the said land bearing Gata Nos. 5, 6, 7, 8, 9 and 10, total area 23 Bigha 12 Biswa is Waqf land of the Waqf Khuda Meerbaksha Karbala Talkatora. He has produced an order of judicial Commissioner, Awadh in Misc. Case No. 26 of 2019; Sadiq Husain Vs. Khan Bahadur Hakeem Mirza Nazeer Hasan Khan and others, wherein the aforesaid land has been held to be Waqf by user, if not by dedication. The said Sri Shadab Agha has claimed the said land as Waqf by user and has relied upon the aforesaid judgment of the judicial Commissioner.
As per report of the Collector, the said decision of the judicial Commissioner is reported in 'Awadh Cases Diary' dated 23.02.1922, Volume 26 at Pages 82 and 83. The report further says that the aforesaid lands are registered as Waqf at Waqf No. I, 1011 in Register Dafa 37 with Mutwalli Sri Shadab Khan Agha mentioned therein.
Based on the aforesaid exercise, the Collector, Lucknow in his report dated 04.07.2023 has apprised the Court that there is Roja, Ibadatkhana and hundreds of Kachcha and Pakka graveyards and hundreds of constructed houses existing on the aforesaid land whose rent is being realized by the aforesaid Waqf Karbala Khuda Meerbakhsa viz Mutwalli which is maintaining the Waqf. The aforesaid Karbala finds mention in the Imperial Gazetteer of India, 1909. He has also apprised us that within the boundaries of Gata No. 6, there is 3 Biswa of vacant land where trees etc. exist.
Most important the report says that Sri Gajendra Singh, the original Vendor has never been in possession. The petitioner, Dev Narayan Tiwari, who has raised the claim in respect of the said land, based on the sale-deeds, his sale-deed has not been registered as yet. Sri Dev Narayan Tiwari, the petitioner is not recorded in the revenue records and is not in possession on any portion of the aforesaid land.
Fased with this scenario but without recording any conclusive opinion as to the rights claimed by the petitioner, we are of the opinion that this is hardly a matter where the Writ Court proceeding under Article 226 of the Constitution of India can go on. The petitioner, at this stage, informs that on account of deficiency of Stamp, the sale-deed could not be registered but that case is going on separately before the Commissioner, Lucknow Division, Lucknow.
Be that as it may, neither the petitioner is recorded in the revenue record nor his sale-deed is registered as of now. Moreover, in view of the facts, which have been placed before us, we cannot adjudicate questions of title and possession in these proceedings. We, therefore, decline to exercise our extraordinary jurisdiction. However, we leave it for the petitioner to avail other remedies. The report of the Collector is taken on record.
If the petitioner applies for a certified copy of the said report, the same shall be provided, except the Compact Disc, unless there is a provision in Rules of the Court for providing a certified copy of the said Compact Disc, in which case it can be provided. The Compact Disc shall be kept in sealed cover.
In view of the above, the writ petition is dismissed.
[Shree Prakash Singh,J.] [Rajan Roy,J.]
Order Date :- 22.11.2024
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