Court No. - 18
Case :- WRIT - C No. - 13533 of 2018 Petitioner :- Nathi Ram Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashutosh Mishra,Raj Kumar Kesari Counsel for Respondent :- C.S.C.,Rajesh Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri Raj Kumar Kesari, learned counsel for the petitioner, Sri Rajesh Yadav, learned counsel for the respondent-Gram Sabha and Sri Rajesh Kumar Srivastava, learned Standing Counsel for the State- respondents.
Petitioner is before this Court assailing the order dated 29th January, 2018 passed by the third respondent (Up- Ziladhikari, Rampur Maniharan, Saharanpur) under Section 122B (4F) of the U.P. Zamindari Abolition and Land Reforms Act read with Section 144 of the U.P. Revenue Code, 2006 in case No. T201809600500463. He also seeks a writ of mandamus commanding the respondents to record the name of the petitioner in the revenue records over Khasra No. 1 Min. area 0-2-0, 2 Min. area 0-6-0, 3 area 1-8-0 and 4 Min. area 11-17-0 total area 3-18-0 situate in village Chhachhrauli, Paragana Rampur, Tehsil Rampur Maniharan, District Saharanpur with bhumidhari rights and to restrain them not to interfere in his peaceful possession over the said plots.
It is the case of the petitioner that in earlier consolidation proceeding huge land of village Chhacchrauli was reserved for pasture land. After some time, there was no requirement of pasture land, the Gram Sabha had resolved to change some posture land into Navin Parti land/Banjar land. The father of the petitioner Singaru resident of the same village being landless agricultural labourer and being scheduled caste by caste was allotted patta of Khasara no. 1 to 5 having total area of 4 bighas and 10 biswas on 30th June, 1975 and since then he was in physical possession over the same by cultivation. After the death of the father of the petitioner, he moved an application before Paraganadhikari, Tehsil Devband, District Saharanpur under Section 122-B 4 (F) of the U.P. Zamindari Abolition and Land Reforms Act stating therein that he is in continuous possession over the disputed land through cultivation. The land in dispute is recorded as grassland in the revenue record but the same are being used as agricultural land. The said case was registered as Case No. 20 of 1994 (Nathi vs. Gaon Sabha). During the pendency of the said proceedings, on the direction of Parganadhikari, spot inspection was done by the Tehsil Authorities and had submitted their report that since more than 14 years petitioner being the scheduled caste and being landless labourer is in physical possession over the land in question and that crops of wheat and basrseem are standing over the land in question. After considering all facts and circumstances, the Paraganadhikari, Devbank has passed an order dated 22nd March, 1995 directing for the name of the petitioner being recorded over the land in question. Thereafter the name of the petitioner has been recorded over the land in question.
It is further stated that in pursuance to the order passed by the Writ Court dated 3rd July, 2006 in Writ Petition No.7026 of 2004 (Prakash & Others versus Board of Revenue & Others), the Gaon Sabha directed the petitioner to deposit Rs. 50,000/- per hectare towards damages/compensation so that he may not be dispossessed from his land. The petitioner being Scheduled Caste deposited a sum of Rs. 39,900/- on 30th December, 2006 in favour of Gaon Sabha and since then he is continuously cultivating the land in dispute.
It is further stated that the said order of the Writ Court dated 3rd July, 2006 has been challenged before the Hon'ble Supreme Court by means of S.L.P. No. 17260 of 2006 (Anil vs. Palla & Others). The Hon'ble Supreme Court of India vide order dated 11th January, 2016 has dismissed the special leave petition, while affirming the order of the Writ Court dated 3rd July, 2006.
It is further stated that when the respondents have not recorded the name of the petitioner over the land in dispute with Bhumidhari rights, then the petitioner filed Writ Petition No. 53932 of 2016 (Nathi Ram vs. State of U.P. & 4 Others). The Writ Court vide order dated 11th November, 2016 disposed of the writ petition requiring the petitioner to first approach the appropriate authority by means of a proper application. In pursuant to the order of the Writ Court dated 11th November, 2016, petitioner made an application on 14th December, 2016 before respondent no.2 (Collector, Saharanpur) under Section 122-B (4F) of the U.P. Zamindari Abolition and Land Reforms Act. The petitioner has also filed an application before respondent no.3 (Up-Ziladhikari, Rampur Maniharan, District Saharanpur). The said application was registered as Case No. T201809600500463 (Nathi Ram vs. Gram Sabha) under Section 122-B (4F) of the U.P. Zamindari Abolition and Land Reforms Act.
Respondent no.3 has dismissed the aforesaid case filed by the petitioner by passing the order impugned dated 29th January, 2018, which is illegal and in arbitrary manner. It is further stated that name of the petitioner has been recorded as Asami in the revenue record over the land in dispute in the year 1995 and more than 23 years have lapsed, petitioner has become entitled to get the right of Bhumidhar with transferable right over the land in dispute. However, respondent no.3 has illegally rejected the claim of the petitioner. The impugned order has been passed in violation of order of the Writ Court dated 3rd July, 2016 and the order of the Hon'ble Supreme Court dated 11th January, 2016. Learned counsel for the petitioner has also placed reliance upon the order passed by the Writ Court dated 26th May, 2017 in Writ Petition No. 24067 of 2017 (Harpal Singh And Another vs. State of U.P. & 3 Others), wherein in similar and in identical matter, the Writ Court has granted interim protection to the petitioners of said writ petition. Therefore, the petitioner is also entitled to interim protection on the ground of parity.
Sri Rajesh Yadav, learned counsel for the respondent- Gram Sabha and Sri Rajesh Kumar Srivastava, learned Standing Counsel for the State-respondents have vehementally opposed the writ petition on the ground that the Up-Ziladhikari in proceedings under Section 122-B (4F) of the U.P. Zamindari Abolition and Land Reforms Act by passing the order impugned has rightly recorded that the land in dispute is recorded as Pasuchar, no settlement as per the provisions contained in Section 122-B of the U.P. Zamindari Abolition and Land Reforms/Section 77 of the U.P. Revenue Code, 2006 can be made and as such no relief can be granted to the petitioner in the present writ petition.
Sri Rajesh Kumar Srivastava, learned Standing Counsel has further submitted that the present writ petition is also not maintainable on the ground that against the order impugned passed by the competent authority under Section 122-B (4F) of U.P. Zamindari Abolition and Land Reforms Act, the petitioner has an efficacious statutory alternative remedy by way of revision before the competent authority. On the contrary the petitioner has filed the present writ petition. It is further submitted that in the case of Harpal Singh (Supra), wherein interim order has been passed by the Writ Court on 26th may, 2017, which has been relied upon by the petitioner seeking parity, the petitioners of the said case have first approached the revisional authority and thereafter approached this Court. As such the present writ petition is liable to be dismissed on this score.
Confronted with the situation, learned counsel for the petitioner states that in case the present writ petition is dismissed on the ground of statutory alternative remedy and the petitioner is not extended any interim protection, then petitioner is very likelihood of dispossession from the land in dispute and therefore, entire exercise of the petitioner may go in vain.
This Court has considered the rival submissions made by the learned counsel for the parties and has gone through the records of the present writ petition. This Court is of the considered opinion that the petitioner may be asked to prefer a revision assailing the order impugned before the competent court of law.
Accordingly, the present writ petition is disposed of by requiring the petitioner to prefer a revision against the order impugned before the authority concerned, supported by all such documents as he may be advised within three weeks from today, along with stay application and a certified copy of this order. On such revision being preferred, the revisional authority shall consider and decide the stay application first, in accordance with law, expeditiously preferably within a period of three months thereafter.
Till the disposal of the stay application to be filed along with revision, status quo as on today qua the land in dispute shall be maintained.
(M. C. Tripathi, J.) Order Date :- 30.4.2018 Sushil/-