Court No. - 34
Case :- WRIT - C No. - 9926 of 1983 Petitioner :- Suraj Mal Respondent :- State Of U.P. & Others Counsel for Petitioner :- N.C.Rajvanshi, A.K.Pandey, M.K.Rajvanshi Counsel for Respondent :- S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri P.C. Shukla, Advocate holding brief of Sri M.K. Rajvanshi, learned counsel for petitioner, learned Standing Counsel for respondents and perused the record.
2. This writ petition is directed against taking of possession of alleged surplus land vide memo dated 19.06.1983 (Annexure-4 to the writ petition) without considering petitioner's choice of surrender of particular part of land.
3. It is not in dispute that an area of 4 bigha, 10 biswas and 9 biswancies and 39/40 kachwancies of petitioner's land was declared surplus. Aforesaid proceeding attained finality after dismissal of petitioner's appeal before Supreme Court on 12.05.2017. Thereafter, petitioner submitted an application requesting authorities to take surplus land as per choice indicated by petitioner in his application dated 12.05.1983 but instead of acting thereon, respondents proceeded to take possession of land in their discretion by impugned possession memo dated 19.06.1983.
4. While entertaining this writ petition, this Court passed following order :-
"Standing Counsel to obtain instructions and file counter affidavit indicating whether the application for the petitioner dated May 12, 1983 indicating choice, was considered and the reasons, if any, why the choice has not become acceptable. Counter affidavit may be filed within three weeks. Rejoinder affidavit within one week.
List thereafter."
4. Learned counsel for petitioner submitted that despite aforesaid order nothing has been done by respondents.
5. Learned Standing Counsel could not dispute that possession of surplus land should have been taken as per choice indicated by petitioner. I find on record that on 03.05.2011, this Court passed a detailed order which reads as under :-
“Shri N.C.Rajvanshi, learned senior counsel assisted by Shri P.C. Shukla learned counsel, appearing for the legal representatives of the original petitioner states that Annexure-2 to the writ petition is copy of the application given by the petitioner giving the choice of surplus land to be taken from him. In the Supplementary counter affidavit which was filed yesterday by learned standing counsel pursuant to order dated 13.1.2011 it has been stated in para-3 that possession of declared surplus land was taken on 31.3.2008. According to Shri Rajvanshi, learned counsel the area declared as surplus is 4 bigha, 10 biswas and 9 biswancies in terms of irrigated land. Shri Rajvanshi states that the surplus land may be taken from khata no.147 khasra no.5-B area 6 bigha 12 biswas and 13 biswancies and if the said area is not sufficient (if it was held un irrigated) then the remaining surplus land may be taken from khasra no.8 of the same khata area of which is 5 bigha 11 biswas and 18 biswancies which is situate in village kasampur, pargana, tehsil and district Meerut. It has also been stated in the affidavit filed yesterday by the State that land has not yet been allotted.
Accordingly, it is directed that the land of which possession was taken on 31.3.2008 shall be delivered back to the legal representatives of the original petitioner and the surplus land shall be taken from the aforesaid khata no.147 simultaneously. Legal representatives of the original petitioner are restrained from creating any hindrance in the exchange of possession by the State authorities. The exchange of possession shall positively take place within ten days preferably on 9.5.2011. On the said date legal representatives of the original petitioner shall reach the office of Tehsildar at 10 A.M. sharp. After exchange report must immediately be sent to this court through Shri N.P.Pandey, learned standing counsel. The writ petition will formally be disposed of on the next date which is fixed as 17.5.2011.
List on 17.5.2011.
Office is directed to supply a copy of this order free of cost to Shri N.P.Pandey, learned standing counsel by tomorrow.
Office is also directed to supply a certified copy of this order on payment of usual charges to the learned counsel for the petitioner by tomorrow.”
6. It clearly said that possession taken on 31.03.2008 shall be delivered back to legal representatives of original petitioner and surplus land shall be taken from Khata No. 147 simultaneously. Legal representatives of original petitioner simultaneously were also restrained from creating any hindrance in exchange of possession by State Authorities. Since surplus area declared is lesser than total area of Khata No. 147, Khasra No. 5-B, I find that issue in question has already been taken care by aforesaid order. I also find that no objection, modification or recall application has been filed by respondents against said order.
7. In view thereof, this writ petition is disposed of in terms of directions contained in the order dated 03.05.2011 and impugned possession memo dated 19.06.1983 (Annexure-4 to the writ petition) is hereby quashed. Competent Authority will execute a fresh memo of possession in the light of exchange of land as directed above. This exercise shall be completed within one month from the date of production of a certified copy of this order.
8. There shall be no order as to cost.
Order Date :- 31.10.2018 Siddhant Sahu