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2005 DIGILAW 143 (ALL)

Harpal v. State of U. P.

2005-01-28

S.K.SINGH

body2005
S. K. SINGH, J. ( 1 ) HEARD learned counsel for the petitioners and learned State counsel. ( 2 ) PRAYER in this petition is for issuance of the writ in the nature of mandamus or prohibition restraining the respondents from evicting the petitioner from the disputed land and pond except in accordance with law. There is further prayer for issuance of writ in the nature of mandamus commanding the respondents from interfering in the possession of the petitioners over the land in dispute By moving amendment application prayer for quashing the order of the Settlement officer Consolidation dated 11. 4. 2001, has been made and another prayer has also been added that the Deputy Director of Consolidation be directed to dispose of the pending revision against the order of the Settlement Officer Consolidation dated 11. 4. 2001 within a reasonable time. ( 3 ) ARGUMENT of the learned counsel for the petitioners can be summarised. ( 4 ) DISPUTE is in respect to plot Nos. 843 and 837 situated in village Palri Pargana Shikarpur district Muzaffarnagar. Claim of the petitioner is that name of their predecessor was recorded for a long time and admittedly when the present consolidation proceedings started name of petitioners father was recorded as assamt. It is clamed that several objections came before the consolidation Officer in respect to the entry over the land in dispute including one by the petitioners father besides Ramesh Chandra and Gaon Sabha and they are pending. In the meantime matter went to the Settlement Officer Consolidation at the instance of the Gaon Sabha in which it is said that the order was passed by the Settlement Officer, Consolidation after calling report from the Consolidation Officer and by order dated 11. 4. 2001 name of petitioners father was directed to be expunged. Claim is that as order passed by the appellate authority was without any opportunity to the petitioners father and without their being any order of the Consolidation officer, petitioners father filed revision along with stay application. In the revision filed before the Deputy Director of Consolidation an order directing to maintain status quo regarding the disputed plots was granted. It has-also come that petitioners father filed a civil suit for injunction, i. e. , Original Suit No. 158 of 2001 in which an injunction was granted in his favour and his interest was protected. In the revision filed before the Deputy Director of Consolidation an order directing to maintain status quo regarding the disputed plots was granted. It has-also come that petitioners father filed a civil suit for injunction, i. e. , Original Suit No. 158 of 2001 in which an injunction was granted in his favour and his interest was protected. Inspite of the aforesaid grievance as placed before this Court appears to be that respondents in collusion with each other are trying to interfere in the petitioners possession although the order of Settlement Officer, Consolidation dated 11. 4. 2001 is illegal. Although revision is pending before the Deputy Director of Consolidation in which there is interim protection to the petitioners and a civil suit is also pending in which also there is interim stay but petitioners submit that as the respondents are bent upon to harass the petitioners the writ petition should be entertained straightway as alternative remedy cannot be said to be absolute bar. Submission is that the claim of the petitioners is related to bread and butter and, therefore, the Court is to entertain the writ petition and is to grant relief, as prayed. In support of the submission that writ petition can entertained straightaway irrespective of alternative remedy reliance has been placed on decision given in the case of Harbanslal Sahnia and Anr. v. Indian oil Corporation Ltd, and Ors. , AIR 2003 SC 2120 , decision given in the case of Babu Lal and ors. v. Collector, Varanasi and Ors. , 1995 ACJ 1319 and decision given in Bidi Supply Co. v. Union of India and Ors. , AIR 1956 SC 479 . ( 5 ) IN view of the aforesaid matter has been examined. ( 6 ) IN view of the facts as has come on record, there is no dispute about the fact that against the order of the Settlement Officer, Consolidation petitioner has filed revision before the Deputy director of Consolidation which is still pending. The Deputy Director of Consolidation is fully empowered to consider propriety and illegality in any order passed by the subordinate authority. The Deputy Director of Consolidation is conferred with very wide powers as he can examine any factual aspect beside the legal aspect. There is already interim protection given by the revisional court in favour of the petitioners. The Deputy Director of Consolidation is fully empowered to consider propriety and illegality in any order passed by the subordinate authority. The Deputy Director of Consolidation is conferred with very wide powers as he can examine any factual aspect beside the legal aspect. There is already interim protection given by the revisional court in favour of the petitioners. At the same time in the suit filed from the petitioners side petitioners interest has been adequately protected by grant of injunction. In view of the aforesaid it is clear that it is not a case where the petitioners have not approached to the competent forum rather competent court against the order of the Settlement Officer, Consolidation has been already approached. Needless to say that question of right and ownership in respect to the land in dispute cannot be directly adjudicated and decided by this Court and the proper forum is the consolidation courts where matter is already pending. Thus, as petitioners have already availed the alternative remedy as available to them they cannot claim that this Court should undertake the job of trial court, appellate court and the revisional court to examine the facts and the evidence and to decide the question of title straightaway. ( 7 ) IN the decision given by the Apex Court in the case of Harbans Sahnia (supra) against the cancellation of petroleum dealership writ petition was filed straightaway and thus as the action was against the natural justice and was based on irrelevant and non-existent facts, it was held that writ petition was maintainable. It is the case where petitioners have already challenged the order of the Settlement Officer, Consolidation before the Deputy Director of Consolidation which is statutory forum provided under Section 48 of the U. P. C. H. Act and thus decision as referred by the learned counsel has no application to the facts. It is the case where petitioners have already challenged the order of the Settlement Officer, Consolidation before the Deputy Director of Consolidation which is statutory forum provided under Section 48 of the U. P. C. H. Act and thus decision as referred by the learned counsel has no application to the facts. ( 8 ) IN the decision given in the case of Babu Lal and another (supra) referred by the learned counsel situation was that there was an order by the concerned authority for demolition of the premises and, therefore, a limited relief was granted by this Court in respect to demolition part and for vindicating rights and title the petitioners were relegated to approach the competent civil court and it was held that this Court is not proper forum for deciding the question of ownership and possession of the premises. It was also held in the case of Babu Lal and another (supra) that if the petitioners have already availed an alternative remedy for redressal of their grievance then writ petition is not maintainable. The last decision in the case of Bidi Supply Co, (supra) as referred by the learned counsel, no decision on the matter in issue can be said to have been given. Reliance as placed on para 25 of the aforesaid decision has nothing to do with the facts of the present case. ( 9 ) IN view of the aforesaid discussion, it is clear that this is not the case where petitioners have no remedy against the order of the Settlement Officer, Consolidation rather they having statutory, alternative remedy has already availed the same and it is also not the case where the lower courts have not granted interim protection to the petitioners as Deputy Director of consolidation as well as the civil court has granted full interim protection to the petitioners in respect to their rights. On these facts, this Court is not satisfied that this is a case to entertain the writ petition and by accepting the rights and title of the petitioners grant relief of injunction against the respondents. Claim of the petitioners for adjudication will lead to taking of the evidence and recording of the findings on the question of fact for which this is not the stage to go into the merits in the petitioners claim. Claim of the petitioners for adjudication will lead to taking of the evidence and recording of the findings on the question of fact for which this is not the stage to go into the merits in the petitioners claim. ( 10 ) SO far the grievance of the petitioners that inspite of there being injunction/stay granted in their favour by the Deputy Director of Consolidation and the civil court, respondents in collusion with each other are creating complication and are trying to interfere in the petitioners possession suffice it to say that the remedy of the petitioners is to approach the learned Collector and the senior Superintendent of Police of the district by placing before them the stay orders which lands in their favour and it is for them to ensure the strict compliance of those orders. Needless to say that it is the duty of the learned Collector and the Senior Superintendent of Police to get the orders of the Court complied in its true sense faithfully. It is the duty of the administration to maintain law and order situation and, therefore, they are bound to take action in the light of the orders of the Court on which reliance has been placed by the petitioners. Thus, it is for the petitioners to approach the concerned administrative authority along with certified copy of this order, annexing the copy of the interim orders in their favour so that needful may be done by the higher officials. ( 11 ) SO far the prayer for a direction to decide the revision by the Deputy Director of consolidation which has been filed against the order of the Settlement Officer, Consolidation dated 11. 4. 2001 is concerned, as the petitioners are complaining in respect to their unwarranted harassment for which they have come to this Court also it will be in the ends of justice to accept that prayer. Otherwise also any pending proceedings before any Court has to be disposed of at earliest unless there is any legal impediment. 4. 2001 is concerned, as the petitioners are complaining in respect to their unwarranted harassment for which they have come to this Court also it will be in the ends of justice to accept that prayer. Otherwise also any pending proceedings before any Court has to be disposed of at earliest unless there is any legal impediment. Be that as it may, on the facts it will be useful to give a direction to the concerned revisional court to decide the pending revision if it has not already been decided, with all expedition without allowing any unwarranted adjournment to either of the parties preferably within a period of two months from the date of receipt of the certified copy of this order, after giving adequate opportunity of hearing to all the parties concerned. ( 12 ) FOR the analysis made above, this Court instead of granting any relief straightaway in this petition to quash the order of the Settlement Officer Consolidation dated 11. 4. 2001 and to grant any injunction against the respondents, proposes to dispose of the writ petition in the light of the observations as made above. ( 13 ) FOR the reasons recorded above, writ petition stands disposed of. . .