Hon'ble A.P. Sahi, J Heard Sri Kesari Nath Tripathi, learned Senior Counsel for the petitioner assisted by Sri Ajay Bhanot, Sri Ramendra Pratap Singh for Greater NOIDA and learned Standing Counsel for Respondent Nos. 1, 2, 5 & 6. Sri Anuj Kumar has accepted notice for the Gaon Sabha. Respondent Nos. 8 and 9 are the employees of the petitioner - company, in whose name the notice under Section 122-B has been issued and served for the purpose of initiating the proceedings under Section 122-B of the U.P.Z.A. & L.R. Act.
The dispute arose on account of the alleged unlawful occupation of Plot No.803-M, area 0.2800, which is recorded as Khalihan (threshing floor). If the land is recorded as a public utility as defined under Section 132 of the U.P.Z.A.& L.R. Act and is under illegal occupation of any individual, then the same can be subjected to the proceedings under Section 122-B of the Act.
Sri Kesari Nath Tripath, assailing the enitre proceedings as being frivolous and without jurisdiction, contends that the stand of the company has been through out that the land of Plot No. 803 was never in its occupation. On the contrary, the petitioner is in occupation of Plot No.804 which has been acquired on lease and, therefore, proceedings under Section 122-B are without jurisdiction. Learned counsel, accordingly, contends that the impugned order reflects complete non-application of mind and relying on the case of Shankar Saran and others Vs. State of U.P. and others, 1987 RD 157, contends that the finding recorded being against pleadings and without consideration of the relevant material vitiates the same and, therefore, the order deserves to be set aside. The entire proceedings deserve to be dropped. Sri Tripathi further submits that not only this, the inflated and disproportionate penalty proposed agianst the petitioner also reflects non-application of mind to the tune of the area of the land as alleged to be under illegal occupation of the petitioner and on that issue also neither the report nor the order reflects any relevant discussion hence the order deserves to be quashed.
Learned counsel for the repsondents including the learned Standing Counsel opposed the petition on the ground of availability of alternative remedy and they further submit that on the objection of the petitioner, a report was called for which has been submitted and which also demonstrtes the illegal occupation of the petitioner over the land in dispute. In such a situation, the respondents urge that the petitioner is to be non-suited on the ground of availability of alternative remedy.
Replying to the said submission, Sri Tripath submits that when the order is abviously perverse and arbitrary, then it is not necessary for this Court to refuse exercise of discretion under Article 226 of the Constitution and the writ petition should be entertained and be not dismissed on the ground of alternative remedy.
Having heard learned counsel for the parties, this is not a case of complete non-application of mind inasmuch as the report, which has been filed as Annexure-13 to the writ petition, does indicate allegations of illegal occupation over Plot No.803-M. Not only this, the report is also accompanied by a sketch map. Sri Tripathi contends that the sketch map has been prepared without even following the rudimentary principles of demarcation under the Land Records Manual and even otherwise the measurement does not reflect the correct picture keeping in view the nature of the objection raised by the petitioner.
This argument on behalf of the petitioner also need not be gone into at this stage inasmuch as if the report is being disputed, then the same also becomes a question of fact and this can also be raised by the petitioner while availaing of the alternative remedy. The impugned order, therefore, cannot be said to have proceeded on a total non-application of mind so as to invoke the extra ordinary jurisdiction under Article 226 of the Constitution of India.
So far as the proposed penal compensation is concerned, if the amount is infated or otherwise totally non-reflective of the procedure prescribed in law, the same can also be a ground to be taken in the alternative remedy forum available.
Accordingly, I am not inclined to interfere with the impugned order at this stage. This writ petition is dismissed with liberty to the petitioner to avail the alternative remedy available in law. Any observations made by this Court shall not affect the merits of the case to be considered at the alternate forum as indicated under Section 122-B of the Act.
Dt. 11.7.2011 Irshad