WPMS/3251/2022
2023 Latest Caselaw 467 UK

                    Office Notes,
                   reports, orders
                   or proceedings
SL.
         Date       or directions                     COURT'S OR JUDGES'S ORDERS
No
                   and Registrar's
                      order with
                     Signatures
      22.02.2023                     WPMS No. 3251 of 2022
                                     Sri Vipin Sanghi, C.J.
                                           Mr. Siddhartha Singh, the learned counsel for the
                                     applicant.

                                          Mr. Rajeev Bhatt, the learned counsel for the
                                     respondents.

The petitioner has preferred the present Writ Petition, under Article 227 of the Constitution of India, to assail the order dated 20.04.2022 passed by the Assistant Collector, Ist Class/ S.D.M., Haridwar, in Case No. 41 of 2021 "Mahendra Singh Walia v. Shiv Kumar and another", under Section 176 of the U.P.Z.A. & L.R. Act, and further to seek quashing of the judgment dated 07.12.2022 passed by the Additional Commissioner, Garhwal Division, Dehradun, in Revision No. 10/2021-22 "Shiv Kumar v. Mahendra Singh", and to allow the application of the petitioner moved under Order 7 Rule 11 CPC.

The respondent has instituted the aforesaid Case No. 41 of 2022, under Section 176 of the U.P.Z.A. & L.R. Act, to seek partition of certain parcels of land. In those proceedings, the petitioner herein moved an application under Order 7 Rule 11 CPC. The averment made in the application, by the petitioner, is to the effect that some part of the land is abadi land, and, on that premise, it is the case of the petitioner that a suit for partition, under Section 176 of the U.P.Z.A. & L.R. Act, would not be maintainable.

Even if this submission were to be accepted, it would relate to only a part of the land, and not the entire land. Therefore, in my view, the application under Order 7 Rule 11 CPC could not have been maintained for rejection of the plaint. At the highest, in case the issue were to be raised by the petitioner with regard to the nature of the user of the land, i.e. whether it is agricultural or non-agricultural, the said issue would fall for consideration, by virtue of Section 331-A of the U.P.Z.A. & L.R. Act, before the Assistant Collector, In-charge of the sub-division.

The submission of the learned counsel for the petitioner is that the suit is pending consideration before the same authority.

I have no doubt that, at the appropriate stage, even if the issue is raised with regard to the nature of the user of the land, the concerned authority would act in terms of Section 331-A of the U.P.Z.A. & L.R. Act, after examining the pleadings of the parties.

This Writ Petition is disposed of in the aforesaid terms.

Consequently, pending applications, if any, also stand disposed of.

(Vipin Sanghi, C.J.) 22.02.2023 Rahul