Court No. - 46
Case :- WRIT - C No. - 40734 of 2018 Petitioner :- Paras Nath And 4 Others Respondent :- State Of U.P. And 17 Others Counsel for Petitioner :- Avadhesh Kumar Upadhyay Counsel for Respondent :- C.S.C.,Kamlesh Kumar Tiwari,Ram Babu Yadav
Hon'ble Saral Srivastava,J.
Heard Sri Avadhesh Kumar Upadhyay, learned counsel for the petitioners, Sri Rajesh Kumar, learned Standing Counsel for the respondent nos. 1 to 3, Sri Anil Kumar Aditya holding brief of Sri K. K. Tiwari, learned counsel for the respondent nos. 5 to 18. Sri R. B. Yadav, Advocate has accepted notice on behalf of respondent no. 4.
The petitioners claim to be the owner of Plot No. 2075 Ka having an area of . 484 hectare situated in Mauja Barkacha Kala, Tappa-Chaurasi, Pargana-Kantit, Tehsil-Sadar, District-Mirzapur. One Brij Bhushan Singh, respondent no. 5 filed an application under Section 24 (1) of U. P. Revenue Code, 2006 before the Sub Divisional Officer, Sadar, Mirzapur, respondent no. 3 for demarcation of Arazi No. 2075 Kha having area 2.1720 hectare and Arazi No. 2075 Ga having area 2.642 hectare situated in the aforesaid village. The application of the respondent no. 5 was allowed and the aforesaid plots namely 2075 Kha and 2075 Ga have been demarcated by order dated 22.06.2017 passed by respondent no. 3.
Feeling aggrieved against the aforesaid order, petitioners preferred an objection before respondent no. 3. which was also dismissed by respondent no. 3 by order dated 03.01.2018. Thereafter, the petitioners preferred the statutory appeal Nos. C201816000000310 and C201816000000311 of 2018, under Section 24 (4) of U. P. Revenue Code, 2006. Both the appeals were decided by the Commissioner together. The appellate authority by order dated 14.08.2018 dismissed the appeals of the petitioners by recording a finding that during demarcation no extra land of any adjacent plot was found and further nobody has raised objection in respect of demarcation. He further recorded a finding that in the memo of appeals the petitioners could not point out as to which rakba and how much area of the petitioners has been affected by the demarcation. The said order is impugned in the present writ petition.
Challenging the aforesaid order, counsel for the petitioners contended that the petitioners were not impleaded in the proceedings under Section 24 of the U.P. Revenue Code, 2006 by respondent no. 3 though they were necessary party and without hearing them, the order dated 22.06.2017 for demarcation of plot Nos. 2075 Kha and 2075 Ga was passed. Thus, the submission is that the appellate authority has failed to appreciate the fact that the rights of the petitioners have been prejudiced on account of demarcation of land.
Per contra Sri Rajesh Kumar, learned Standing Counsel contends that in the memo of appeal the petitioners have not stated the fact as to which area and how much area of the petitioners' plot was affected in the demarcation and in this view of the fact the order of the Commissioner is just and proper. He further submits that the Sub-Divisional Magistrate in his order dated 22.06.2017 has recorded no extra land of the adjacent plot was found during demarcation. Hence, the order impugned in the writ petition is just and proper and do not call for interference of this Court inasmuch as it has not prejudiced the petitioners' right. He further contends that petitioners have also the remedy of filing an application under Section 24 of the U. P. Revenue Code, 2006 for demarcation of his plot, if the petitioners is of the opinion that some portion of his land has been encroached upon.
The argument of Sri Rajesh Kumar, learned Standing Counsel is adopted by Sri Anil Kumar Aditya, learned counsel for the respondent nos. 5 to 18.
Having considered the submissions advanced on behalf of learned counsel for the parties and from perusal of the record, it is not in dispute that the respondent no. 5 filed an application for demarcation of plot nos. 2075 Kha and 2075 Ga. Petitioners are the owner of plot No. 2075 Ka. Thus, the petitioners have no concern with the plots for which the demarcation was sought by respondent no.5. Further, the counsel for the petitioners also could not point out that the finding of respondent no. 3 that no extra land was found during demarcation is the wrong or perverse, further, the appellant has not stated in his appeal as to how much area of his plot has been encroached upon. Thus, it is evident from the aforesaid fact that the order impugned in the writ petition has not prejudiced the rights of the petitioners in respect of enjoyment of their plot. As there is no prejudice to the petitioners, consequently, this Court is of the opinion that this case is not fit calling for interference by this Court in exercise of power under Article 226 of the Constitution of India.
Consequently, the writ petition lacks merit and, is accordingly, dismissed. However, if the petitioners desire, they may file an application under Section 24 of U.P. Revenue Code, 2006 for demarcation of plot against the order rejecting the recall application of the petitioners.
Order Date :- 30.4.2019/AKT