Court No. - 2
Case :- WRIT - C No. - 29214 of 2002 Petitioner :- Ilma And Another Respondent :- Gram Panchayat And Others Counsel for Petitioner :- S.L.Mishra,M.K. Rajvanshi,Manu Saxena,Vinod Kumar Baranwal,Vivek Kumar Shukla Counsel for Respondent :- C.S.C.,Anuj Kumar,Devendra Kumar,Manish Kumar Kashyap,P.K.Singh,Rajesh Yadav,Sunil Kumar Yadav,V.P. Singh Kashyap
Hon'ble Suneet Kumar,J.
Heard the learned counsel for the parties.
Petitioners by the instant petition seek the following reliefs:
"i) a direction, order or writ in the nature of prohibitor restraining the respondents from disturbing the peaceful possession of the petitioners till they are evicted from the land by due procedure established by law i.e. by an eviction suit under Section 202 of the Act;
ii) a direction, order or writ in the nature of mandamus commanding the respondent not to allot the plot No.2232/1 area 12-12-0 situated in village Pargana Tehsil Kairana, Pargana Jhanjhana, District Muzaffar Nagar, till pendency of the writ petition."
It is urged that petitioners before the Court belong to the Scheduled Caste community; plot in dispute vests in Gaon Sabha and was in the possession of the petitioners since 1973. In view of the provisions contained in sub-clause 4F of Section 122-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. (for short 'the Act'), it is submitted that bhumidhari/sirdar or asami rights have matured in favour of the petitioners. In other words, petitioners cannot be evicted from the said land.
Gaon Sabha in the counter affidavit has categorically stated that the petitioners were never in possession of the plot in dispute; the plots are covered under Section 132 of the Act, therefore, the same could not have been allotted or possessed. Para-4 & 5 of the affidavit reads thus:
"4. That the contents of paras 4 & 5 to the writ petition are not admitted hence denied. It is submitted that both the petitioners Ilma and Chauhal have never been in possession over the land in question this land in question i.e. plot no. 2232/1 and 2232/2 has been given new number 1887 & 1888 and has been recorded as banjar jhari in the village revenue record. A photo copy of the C.H. Form 41 as well as khasra of the year 1409 fasli showing the land in question as banjar jhari are being filed herewith and is marked as Annexure CA I & II to this affidavit.
5. That the contents of para 6 to the writ petition are not admitted hence denied. It is submitted that the land in question being land of banjar jhari is to be covered under section 132 of the U.P. Zamindari Abolition and Land Reforms Act and the petitioners are trying to take benefit of Section 122-B (4F) of Uttar Pradesh Zamindari Abolition and Land Reforms Act, showing themselves as landless agricultural labourers and stating that they are in continuous possession over the land in question but they cannot claim this benefit firstly this land is public utility land and secondly neither they are the resident of this gaon sabha Rangana nor they are living here. Photo copy of the resolution of the gaon sabha dated 16.7.2002 clearly shows that they are not resident of this village and as such they cannot acquire any type of right over the land in question is being filed herewith and is marked as Annexure CA-III to this affidavit."
Learned counsel for the applicant seeking impleadment submits that the Gaon Sabha has allotted patta to the applicant (Shashidhar).
Since disputed question of fact and law are involved, which cannot be gone into at this stage in the writ jurisdiction. The assertion that petitioner is not in possession of the disputed plot is a question of fact, which can be gone into by the Assistant Collector under Section 122B (2) of the Act.
In view thereof, writ petition is disposed of with liberty to the parties to file an appropriate petition before the Assistant Collector supported by evidence. In the event, objection/application is filed, it is expected that the Assistant Collector shall consider and decide the same by a reasoned and speaking order after hearing all the contesting parties, including, Gaon Sabha, in accordance with law.
It will be open to the parties to make an application along with the petition with regard to protecting the possession as on date pending decision.
Order Date :- 28.7.2021 Mukesh Kr.