Court No. - 18
Case :- WRIT - C No. - 19464 of 2018 Petitioner :- Barsati and another Respondent :- State Of U.P. and 3 Others Counsel for Petitioner :- Surendra Prasad Yadav Counsel for Respondent :- C.S.C.,Dharam Deo Chauhan
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Surendra Prasad Yadav, learned counsel for the petitioners; Shri Rajesh Srivastava, learned Standing Counsel for the State respondent nos.1 to 3 and Shri D.D. Chauhan, learned counsel for the Gaon Sabha.
The petitioners are assailing the impugned order dated 17.4.2018 passed by the Tehsildar, Shohratgarh, District Siddharth Nagar, wherein they have been asked to remove their construction/possession over the disputed Gata No.47Ka, 47Ka- M and Gata No.131-Ka situated at Village Kanuadeeh, Tehsil Shohratgarh, District Siddharthnagar.
Shri Rajesh Srivastava, learned Standing Counsel has raised a preliminary objection regarding maintainability of the present writ petition on the ground that earlier the petitioner had filed a Writ C No.52498 of 2017 (Barsati vs. State of UP and 3 others) assailing the orders dated 23.10.2017, 19.1.2015 and 30.1.2017, arising out of the proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short, the Act of 1950). In the said proceeding, the case had been set up that at no point of time, actual demarcation had taken place. In the aforesaid writ petition, his case was that on plot no. 47-Ka his house was standing from long time prior to coming into force of the Act, 1950. However, the court below held that the petitioner was not able to produce any document in support of his contention and infact instead it has been held that Gata No. 47-Ka area 0.055 hect. is recorded in the revenue records as Gadahi, which is Gaon Sabha land and under Section 132 of the Act, 1950 no allotment of such land can be made. Finally, the aforesaid writ petition was dismissed on 21.11.2017 with following observations:-
"From perusal of the impugned order it is demonstrated that the entire proceedings against the petitioner are in respect of plot no. 47-Ka and not 47-Kha and even from the documents filed by the petitioner alongwith the supplementary affidavit it is clearly demonstrated that the plot no. 47-Ka is recorded in the revenue record as Gadahi whereas plot no. 47-Kha is recorded as Abadi. In this view of the matter the documents filed by the petitioner do not support his case at all. Even the impugned order dated 23.10.2017 whereby he has been directed to vacate the plot in question refers to plot no. 47-Ka area 0.055 hectare and not plot no. 47-Kha.
In this view of the matter, I do not find any illegality or infirmity in the impugned orders. The writ petition lacks merit and is accordingly dismissed."
Learned Standing Counsel further states that once the proceeding under Section 122-B of the Act of 1950 has already been finzalized against the petitioners on 19.1.2015 and the revision as well as the aforesaid writ petition preferred by the petitioners have also been dismissed on 30.1.2017 and 21.11.2017 respectively, then for all practical purpose without assailing the aforesaid order in the higher Court, the same has attained finality and as such, the writ petition is liable to be dismissed.
The Court has proceeded to examine the record in question and also perused the order dated 21.11.2017 passed in the aforesaid writ petition and finds that admittedly, the petitioners assailed the orders passed by the Prescribed Authority as well as the revisional authority in the aforesaid writ petition and finally, the aforesaid writ petition was dismissed on 21.11.2017. The respondent authority, while passing the order impugned, has only taken cognizance that once the proceeding under Section 229B of the Act of 1950 has already been finalized against the petitioners, then in such situation they are liable to be evicted from the land, which is recorded as Gadahi and as such, the petitioners do not have any right over the property in question.
Consequently, the writ petition is dismissed.
Order Date :- 28.5.2018 RKP