Court No. - 34
Case :- WRIT - C No. - 28343 of 2021 Petitioner :- Abdul Wahid Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Indra Bhan Yadav,Anand Kumar Srivastava Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani
Hon'ble Alok Mathur,J.
1. Heard Dr. S.B. Singh along with Sri Anand Kumar Srivatava, learned counsel for petitioner as well as leaned Standing counsel for the State.
2. The petitioner has sought a writ of mandamus thereby directing/commanding the respondent No. 3 to 5 not to interfere in the peaceful possession of petitioner over land bearing Khasra No. 225M and 147/2 situated at Village Ali Akbarpur Pargana Faizabad, Tehsil Behat, district Saharanpur to comply the order of Board of Revenue dated 24.02.2020 passed in Revision No. 910 of 2018 and 911 of 2018.
3. It has been submitted by learned counsel for petitioner that the land situated at Village Panchayat Sherpur Pelo, Tehsil Behat, District Saharanpur was given on patta to the villagers in the year 1976. Subsequent to the said patta, the entries were made in the revenue records. The petitioner subsequently has purchased the said lands from the villagers and are in the process of constructing an University.
4. The grievance of the petitioner has arisen due to a report dated 23.09.2017 given to the Sub Divisional Magistrate, Behat wherein it has been stated that the said land is actually on a river belt and consequently patta for the said land could not be allotted to the villagers, who are the predecessor in interest of the petitioner. The said report was submitted to the S.D.M., Behat and the same was purported to have prepared under Section 128 of the U.P. Revenue Code, 2006.
5. Before any action could be taken by the authority concerned on the said report a revision was filed before the Board of Revenue which has been decided by order dated 24.02.2020, the compliance of which is being sought by the petitioner in the present proceedings.
6. A perusal of the order dated 24.02.2020 indicates that the said revision has been allowed and the proceedings initiated as per the report dated 23.09.2017 have been set aside on the ground that in case the authorities had any grievances with regard to the allotment of the patta then proceedings under the U.P. Revenue Code cannot be initiated and the said proceedings would be maintainable only with regard to law existing prior to come into force of the U.P. Revenue Code and consequently the proceedings which might have culminated against the petitioner were preempted and set aside.
7. In order to grant the relief as sought for by the petitioner, a limited inquiry is necessary to look into the legality and validity of the order which is sought to be enforced by the petitioner by means of the present writ petition.Admittedly, only a report had been submitted by the Naib Tehsildar to the Sub-Divisional Magistrate who further forwarded the matter to the Collector who registered a case against the petitioner and issued notices and would have passed an order U/S 67 of the Code after affording opportunity of hearing to the petitioner. The report itself was of no consequence, as it could not have taken away or interfered with any right of occupation of the petitioner. The proceeding before the Board of Revenue were instituted by the petitioner only prevent the Collector from passing any order against the petitioner.
8. Learned Standing Counsel on the other hand submits that the order dated 24.02.2020 passed by Board of Revenue is on the face of illegality, arbitrary and contrary to the statutory provisions. He has referred to Section 231 of the U.P. Revenue Code, according to which all cases pending before the State Government or any revenue court immediacy before the commencement of this Court, whether in appeal, revision, review or otherwise, shall be decided in accordance with the provisions of the appropriate law, which would have been applicable to them had this Code not been passed.
9. Elaborating the said provisions, it has been submitted by learned Standing counsel that any proceedings with regard to allotment of patta in the present case had commenced prior to coming into force of the Code, 2006 then certainly the proceedings would have continued with regard to law existing prior to enforcement of the Code. He further submits that a perusal of the report as annexed by the petitioner which is dated 23.09.2017 would clearly indicates that no proceedings with regard to land in question were commenced only in 2017, which is after enforcement of the Code and there is no infirmity in the proceedings initiated for cancellation of patta and consequently submitted that the order of the Board of Revenue in this regard deserves to be set aside in appropriate proceedings. When a pointed query has been put as to whether the State has assailed the order of the Board of Revenue dated 24.02.2020 it has been informed that no writ petition has been filed.
10. I have heard learned counsel for the parties and perused the record. Prima facie the proceedings initiated against the petitioner has been set at naught by the Board of Revenue by means of order dated 24.02.2020. This Court in the present proceedings is not required to adjudicate upon the legality and validity of the order dated 24.02.2020 passed by Board of Revenue but certainly a bare perusal of the said order and also from the arguments of the learned Standing Counsel prima facie it seems that the said order has infirmities but the same can be looked into at the appropriate stage in an appropriate proceeding if initiated by the State. This Court in excise of its discretionary power under Article 226 of the constitution of India will forbear from issuing a writ of Mandamus in case the order sought to be enforced is illegal or arbitrary, as in the present case
11. Considering the fact that the proceedings against the petitioner have been set aside, the only remedy open to challenge the order dated 24.02.2020 by the State is by filing a writ petition. Till such time any order is passed against the petitioner in an appropriate proceeding, no action can be taken by the State against the petitioner and therefore the respondents are required to maintain status quo with regard to the said land subject to any orders passed by the appropriate authority in appropriate proceedings.
12. Giving a thought to the report dated 23.09.2017 where the concerned authorities have stated that land on which the petitioner's institution is sought to be built is a river belt and if this fact is correct and sustained by the competent authorities then certainly it is doubtful as to whether the petitioner can continue in occupation on the said land but the appropriate proceedings have to be initiated and a finding has to be recorded after considering the version of all the parties concerned. Till such time any order is passed by the competent authority, the respondents are restrained from taking any action with regard to the land in question.
13. Learned Standing counsel has submitted that it is the bounden duty of the Government to protect its land from illegal encroachment and possession and has further assured this Court that the State Government would take a decision expeditiously to assail the order of Board of Revenue.
14. With the aforesaid observations, the writ petition is disposed of.
(Alok Mathur, J.) Order Date :- 29.10.2021 Ravi/-