Court No. - 30
Case :- WRIT - C No. - 35501 of 2018 Petitioner :- Nafees Ahmad And 3 Others Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Lok Nath Pandey,Bashishth Narayan Upadhyay Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioners and Sri Rajesh Kumar, learned Standing Counsel appearing for the respondents.
Present writ petition has been filed seeking quashing of the impugned order dated 30.7.2018 passed by the Upper Commissioner (Ist), Moradabad Division, Moradabad and the order dated 14.7.2009 passed by the Sub-Divisional Magistrate, Kanth, district Moradabad in Case No. 29/2009, under Section 33/39 of Land Revenue Act.
Submission of learned counsel for the petitioners is that the petitioners are recorded as Khatedar of Shreni-3 from the Fasli Year 1360 and when their names were directed to be deleted by order dated 14.7.2009 passed under Section 33/39 of the Land Revenue Act a revision was filed, which was allowed and the order dated 14.7.2009 was set aside on the ground that the entries in the revenue record are not shown to be forged or suffer from any mistake and therefore, the same cannot be deleted under the provisions of Section 33/39 of the Land Revenue Act. Thereafter, a restoration application was filed by the respondent no. 4 Nagar Panchayat and vide order dated 30.7.2018 the restoration application was allowed and the order dated 24.12.2010 was set aside and the matter was taken up for hearing on merits and the revision was dismissed by the impugned order dated 30.7.2018 holding that the names of the petitioners are recorded as Asami and as per Rule 176-A five years have already expired and therefore, the names of the petitioners are liable to be deleted from the revenue record.
Challenging the aforesaid order, submission of learned counsel for the petitioners is that the petitioners are recorded as Asami over the land in question and their case is covered under Section 21 (e) of the U.P. Z.A. & L.R. Act, 1950 and therefore, the proceedings under Rule 176-A are not attracted in the present case. Learned counsel for the petitioners has placed reliance on judgment of this Court in the case of Mulayam Singh Vs. Additional Commissioner, Kanpur Laws (All) 2015-7-13.
Per-contra, learned Standing Counsel appearing for the respondents has submitted that it was nowhere the case of the petitioners that their case is covered by Section 21 (e) of the Act and therefore, they cannot be permitted to raise this question for the first time.
I have considered the rival submissions and have perused the record.
In view of the fact that the names of the petitioners were recorded as Asami in the revenue record in Shreni-3 and this fact is not in dispute, therefore, it would serve the interest of justice if an opportunity is granted to the petitioners to prove their case that their case is covered under Section 21 (e) of the U.P. Z.A. & L.R. Act, 1950. Hence, in the opinion of this Court, no fruitful purpose would be served by calling for a counter affidavit or keeping this writ petition pending particularly in view of the fact that construction of boundary wall as per photographs annexed with this writ petition is underway and pendency of this writ petition may prejudice the rights of both parties.
Under such circumstances, the matter is remanded back to the Sub- Divisional Officer, Tehsil Kanth, district Moradabad for consideration of the objections as are being raised before this Court. In case the objections are filed within a period of 15 days from today before the Sub-Divisional Officer, Tehsil Kanth, district Moradabad, the same shall be considered and decided, in accordance with law, as expeditiously as possible, preferably within a period of one month from the date of production of a certified copy of this order.
Till then the orders impugned herein shall remain in abeyance and shall be subject to fresh orders that may be passed by the Sub-Divisional Officer.
For a period of six weeks or till disposal of fresh objections that may be filed by the petitioners, whichever is earlier, the parties are directed to maintain status quo.
With the aforesaid observations/directions, this writ petition is disposed of. No order as to costs.
Order Date :- 26.10.2018 p.s.