Jharkhand High Court
Dharmendra Kumar Upadhyay vs The State Of Jharkhand on 25 January, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
------
LPA No. 449 of 2022
-------
Dharmendra Kumar Upadhyay, son of Ganesh Dutt Upadhyay, resident of
Village Sahijana, PO & PS Garhwa, District- Garhwa. ... ... Appellant
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Garhwa, having office at PO & PS Garhwa,
District Garhwa
3. Sub-Divisional Officer, Garhwa, having office at PO & PS Garhwa,
District Garhwa
4. The Circle Officer, Garhwa, having office at PO & PS Garhwa, District
Garhwa.
5. Vijay Kumar Tiwari, son of late Ramjit Tiwari, resident of village
Sahijana, PO & PS Garhwa, District Garhwa, Jharkhand.
... ... Respondents
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
------
For the Appellant : Mr. Manoj Tandon, Advocate;
Mr. Arun Kumar Dubey, Advocate
For the State : Mr. Ashutosh Anand, AAG-III
For the Pvt. Respt. : Mr. Pankaj Srivastava, Advocate
-------
JUDGMENT
25th January 2023
Per, Shree Chandrashekhar,J.
The appellant who was not made a party in WP(C) No. 2232 of
2021 has challenged the order dated 23rd September 2021 by which the writ
Court has issued the following direction.
"Having heard learned counsel for the parties and keeping
in view the nature of the prayer made in the present writ petition,
without entering into merit of the case, the petitioner is given
liberty to prefer a fresh representation on the present issue before
the respondent no.2. On receipt of the said representation, the
respondent no.2, after providing due opportunity of hearing to the
petitioner and other concerned persons including those in whose
favour Jamabandies of the part of the land have been opened, shall
take an appropriate informed decision in accordance with law
within a period of three months from the date of filing of the said
application.
The writ petition is, accordingly, disposed of with the
aforesaid liberty and direction."
2. Mr. Manoj Tandon, the learned counsel for the appellant refers to
the writ averments and prayers made in the writ petition to submit that the
aforesaid direction has been issued by the writ Court in a petition which was
not even maintainable.
3. In WP(C) No. 2232 of 2021, the respondent No.5 has pleaded
that the wife of the appellant-Dharmendra Kumar Upadhyay got fictitious
sale deed executed in her name on the basis of which the scheduled property
has been mutated in her name.
4. The respondent No.5 who was the writ petitioner has made the
following prayers in the writ petition:
"1. For a direction to respondent nos. 2 to 4 to ensure that no
encroachment should be made over the Gair Mazurwa Malik land
used as public Rasta for numbers of years by the local inhabitants
situated under Sadar Block, Garhwa, in Village-Sahijana under
Khata No. 178, Plot No. 173, area-55 decimal and Khata No. 100,
Plot No. 153, area 14 decimals.
ii. For direction to the respondent No.2 to take action on the
application dated 25.03.2021 made by the petitioner in accordance
with law for cancellation of Jamabandi standing in the name of
land grabbers when nature of the land is Gair Mazurwa Malik land
in revenue record which is used as public rasta."
5. On a glance at the aforesaid prayers made in the writ petition, it
is apparent that the respondent No.5 is claiming a right to easement over the
scheduled property which according to him is Gair Mazurwa Malik land but
used as public road (rasta).
6. From the writ averments, it further appears that the respondent
No.5 has tried to raise a dispute on right, title and interest of the appellant
over the scheduled property.
7. A writ petition involving any question of right, title and interest
in the land is not maintainable and any such dispute is not amenable to the
writ jurisdiction. Apparently, the writ petition was not maintainable and while
so the writ Court could not have issued a direction to the respondent No.2 to
take cognizance on the representation of the respondent No.5.
8. Having regard to the aforesaid facts and circumstances, the order
dated 23rd September 2021 is set-aside and, consequently, WP(C) No. 2232 of
2021 is dismissed.
9. LPA No. 449 of 2022 is allowed.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated:25th January 2023
Soumya/Nibha-NAFR
