Court No. - 25
Case :- WRIT - C No. - 67447 of 2012 Petitioner :- Arun And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- A.K. Rai,Amrita Rai,G.K. Malviya,Vinod Tripathi,Vishnu Kr. Singh Counsel for Respondent :- C.S.C.,Anuj Kumar,N.N. Mishra,O.P. Rai Hon'ble Siddhartha Varma,J.
Heard learned counsel for the petitioners and Sri O.P. Rai, learned counsel for the private respondent.
The instant writ petition has been filed for quashing of the orders dated 19.05.2012 passed by the Up Zila Adhikari / Assistant Collector Ist Class, Ghaziabad and the order dated 27.11.2012 passed by the Additional Commissioner, Meerut Division Meerut, whereby the Courts below have held that the suit was not maintainable.
Briefly stated the facts of the case are that the petitioners filed a suit under Section 229-B(3) of the U.P. Zamindari Abolition & Land Reforms Act, for declaration which was dismissed by the Courts below holding that the suit itself was not maintainable.
Learned counsel for the petitioners has submitted that before holding that a suit was not maintainable the Trial Court ought to have framed a preliminary issue regarding the maintainability of the suit and thereafter should have given the petitioners an opportunity to address the Court on that issue and only thereafter should have concluded as to whether the suit was maintainable.
Learned counsel for the petitioners in order to substantiate his submission that the suit was maintainable read out the relief which was claimed in the suit and therefore the same is reproduced here asunder:-
";g fd oknhx.k fuEu izkFkZuk djrs gaSA ;g fd ekuuh; U;k;ky; }kjk ?kks"k.kkRed fu.kZ; o fMxzh cgd oknhx.k fo:) izfroknhx.k bl ls ikfjr dh tkos fd oknhx.k lEifRr [ksoV ua0&5] egky irjke [kkrk ua0 &26] [kljk ua0 33] vfoHkkftr jdcbZ&8 ch?ks 13 fcLls iq[rk ;kfu 27 ch?ks yxHkx Hkwfe lhj la;qDr tehnkjh lg[krsnkj la;qDr lg[kkrsnkj Qlyh o"kZ 1337 cUnkscLr okglkgc] ds vk/kkj ij xzke flgkuh] ijxuk yksuh] rglhy o ftyk&xkft;kckn eas uD'kk okn ds vUr eas gS] 1@3 Hkkx ;kfu 3 ch?kk iDdk o 9 ch?kk dPpk ds ekfyd o dkfot gS] ?kksf"kr fd;k tk;sA c& ;g fd ekuuh; U;k;ky; }kjk LFkkbZ fu"ks/kkKk dh fu.kZ; o fMxzh cgd oknhx.k fo:) izfroknhx.k bl vk'k; dh ikfjr dh tkos fd izfroknh] oknhx.k dh fookfnr lEifRr [kkrk ua0&26] [kljk ua0 33] jdcbZ 8 ch?ks 13 fcLls iq[rk ;kfu 27 ch?ks yxHkx Hkwfe lhj tehnkjh Qlyh o"kZ& 1337 cUnkscLr okglkgc] fLFkr xzke flgkuh] ijxuk ykSuh] rglhy o ftyk&xkft;kckn dks fdlh izdkj ls fodz; djus] dCtk djus] vUrj.k ,oa oknhx.k ds iz;ksx o bLrseky eas fdlh izdkj ls fcuk fo/u&ck/kk iSnk djus ls lnSo ds fy, ckt jgsA l& ;g fd bl dk O;; oknhx.k dks izfroknhx.k ls fnyk;k tk;A n& ;g fd vU; vuqrks"k tks fgrdj oknhx.k] gks fo:) izfroknhx.k fnyk;k tk,A"
Learned counsel for the petitioners submitted that if the plaintiffs had prayed for a declaration that they be declared owners in possession then under the U.P. Zamindari Abolition & Land Reforms Act, 1950 only one conclusion was there that they had prayed for being declared Bhumidhars over the property and therefore the suit could not have been dismissed as not maintainable.
He further submits that a bare perusal of the order impugned showed that the Courts below had not looked into the relief clause properly and therefore had found that the suit was not maintainable.
Learned counsel for the petitioners submitted that the suit was definitely maintainable. At the most the Courts below could have dismissed the suit after framing issues and after hearing the parties on merits thereafter.
Learned counsel for the respondents, however, in reply has submitted that since the land has now been declared a municipality, therefore, the suit was not cognizable by the forum provided by the U.P. Zamindari Abolition & Land Reforms Act.
Having heard the learned counsel for the parties, I am of the view that the suit as had been filed was maintainable. It could not have been stated / declared by the Courts below that it was not maintainable without framing issues and without deciding them.
Under such circumstances, the writ petition is allowed and the impugned orders dated 27.11.2012 and 19.05.2012 are quashed and the matter is remanded back to the Sub Divisional Officer, where the suit shall be restored to its original number and shall be decided on merits within a period of six months from the presentation of a certified copy of this order.
Order Date :- 28.3.2018/vkj