Court No. - 1
Case :- WRIT - C No. - 31295 of 2019 Petitioner :- Geeta Devi Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Chandan Sharma,Abhishek Rai Counsel for Respondent :- A.S.G.I.,Vikas Budhwar
Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.
Heard Ms. Shambhavi Tiwari holding brief of Sri Chandan Sharma, learned Advocate appearing for the petitioner, Sri Vikas Budhwar, learned counsel for the respondent nos. 2 to 5 and perused the record.
Learned counsel for the petitioner is permitted to correct the name of respondent no. 6 in the array of parties during the course of the day.
By means of this petition under article 226 of the Constitution, petitioner has prayed for a writ of mandamus restraining the respondents from raising any construction over Gata no. 518 area 0.3890 hectare situated in village Chhitahi, Tappa Gosiyari, Pargana Magahar Pachchim, Tehsil Bansi, District Siddhartha Nagar and the plea taken is that the petitioner along with the contesting respondent no. 6 are co-tenure holders of the land in question and submits that since there is no partition of the land, therefore, possession of one co-tenure holder as per law is possession of every other co-tenure holder and in such circumstances, the respondents cannot direct for setting up a petrol pump over a particular piece of land.
From a perusal of the record it transpires that the petitioner has already filed a suit for partition under section 116 of the U.P. Revenue Code, 2006 and in which an interim application has been filed by the petitioner on 22nd August, 2019 on which there is an interim order of status quo passed by the Sub Divisional Magistrate on 30th of August, 2019 which is operating. It is submitted also at this stage on behalf of the petitioner that there is a complaint already filed by the petitioner on 4.9.2019 before the respondent no. 5. However, there is nothing brought on record to demonstrate whether the complaint has been filed in compliance of the procedure prescribed for under clause-18 of the brochure published by the respondent Corporation.
Sri Vikas Budhwar, learned counsel appearing for the respondent Corporation submits that the petitioner has a remedy to get the interim order executed by the Sub Divisional Magistrate in the pending suit filed against his co-tenure holder, who happens to be an allottee of the retail outlet by the respondent Corporation. He further submits that the petitioner can also file an appropriate complaint in compliance with the procedure prescribed for under Clause 18 hereinabove.
In such view of the matter, we are of the considered opinion that no injunction can be granted by this Court in a matter where the co-tenure holders are locked in a revenue suit for partition in respect of the agricultural land, inasmuch as, since there is a provision under the brochure published by respondents for entertaining complaint, if the compliance is made by depositing requisite fee as per the provisions, it is always open for the petitioner to approach the authority concerned.
Accordingly while declining to interfere with the order of allotment of retail outlet by respondent Corporation to the respondent no. 6, we are disposing of this writ petition with a limited direction that in case the petitioner moves an appropriate complaint in terms of the provisions as contained in Clause-18 of the brochure within two weeks, the same shall be looked into by respondent Corporation and appropriate orders shall be passed on such complaint within a further period of next four weeks however, after putting notice and giving proper opportunity of hearing to the respondent no. 6. Needless to add the order will be reasoned and speaking one.
(Ajit Kumar, J.) (Ramesh Sinha, J.) Order Date :- 26.9.2019 Shiraz