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2014 DIGILAW 95 (ALL)

Bal Kishan v. State of U. P.

2014-01-09

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh, J. 1. Heard Sri M.D. Singh Shekhar, learned senior Counsel assisted by Sri A.K. Srivastava holding brief of Sri R.D. Tewari, learned Counsel for the petitioners, learned standing Counsel for the State-respondents and Sri A.K. Umrao holding brief of Sri M.N. Singh, learned Counsel for respondent No. 5. By means of this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 28.10.2013 passed by the Sub Divisional Officer, Tehsil Dhaulana, district Hapur in case No. 2 of 2013 (Bal Kishan v. State) by which the petitioners' application seeking benefit of section 131-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short the Act), to be declared them as Bhumidhar with transferable right, has been rejected. 2. While assailing this order learned Counsel for the petitioners submitted that earlier the petitioners have approached this Court through Writ C No. 39061 of 2013 (Bal Kishan and others v. State of U.P. and others) seeking a writ of mandamus directing the Sub Divisional Officer to dispose of their application filed under section131-B of the Act pending before him. The writ petition was disposed of on 22.7.2013 with liberty to the petitioners to file an application before the Sub Divisional Officer and the Sub Divisional Officer was directed to consider the same and pass appropriate order on the application of the petitioners within three months from the date of production of a certified copy of the order before him. 3. It appears, thereafter the petitioners' application has been rejected by the impugned order dated 28.10.2013 taking note of the fact of the pendency of the application seeking recall of the order dated 6.4.2011 passed in Writ C No. 14660 of 2003 (Bal Kishan and others v. Uppar Aayukta, Meerut and others). It appears with respect to land in dispute which is situated at Khasra No. 694 measuring 1.158 Hectare the petitioners have filed a suit under section 229B of the Act which was numbered as Original Suit No. 21/18 of 2001. In the aforesaid suit Sharafat, Saukat and Liakat have filed an application seeking impleadment of their names in the pending suit but their application was rejected. Against that order they have preferred revision before the Commissioner of the Division. Pending revision the suit filed under section 229-B of the Act was decreed on 11.9.2002. In the aforesaid suit Sharafat, Saukat and Liakat have filed an application seeking impleadment of their names in the pending suit but their application was rejected. Against that order they have preferred revision before the Commissioner of the Division. Pending revision the suit filed under section 229-B of the Act was decreed on 11.9.2002. It appears, thereafter the revision filed by Sharafat, Saukat and Liakat was allowed. It is contended that by the judgment and decree dated 11.9.2002 passed in original Suit No. 21/18 of 2001 has not been set aside. Present petitioners have challenged the order dated 30.11.2002 passed by the Additional Commissioner, Meerut Division, Meerut allowing revisions Nos. 21 of 2001 and 56 of 2003 filed by Sharafat, Saukat and Liakat by which the order rejecting the impleadment application was set aside and they were directed to be impleaded in the suit. The writ petition was allowed by this Court on 6.4.2011. 4. It appears that seeking recall of the order dated 6.4.2011 an application was filed by Sharafat, Saukat and Liakat in which an order was passed on 30.9.2013 to list it with previous papers. While passing the impugned order the Sub Divisional Officer taking note of the order dated 30.9.2013 has opined that since the matter is disputed the benefit of 131-B of the Act cannot be extended to the petitioner. 5. Sri Singh, learned senior Counsel has invited attention of the Court towards order dated 18.12.2013 passed on the Delay Condonation Application No. 286292 of 2013 and on Recall Application No. 286295 of 2013 by which the application filed by Sharafat, Saukat and Liakat were rejected. In the submission of the Sri Singh the order passed by the Sub-Divisional Officer is faulty for two reasons; firstly, in view of the decree passed under section 229-B which is still in existence and has not yet been touched by any Court of law, there was no occasion for the Sub Divisional Officer to reject the application taking note of the fact of the pendency of the application seeking recall of the order by which writ petition was allowed and secondly, even if the recall application was pending, unless it was allowed, it could make no difference, however, in the present scenario the said application has already been rejected and there is no hurdle in the way of the Sub-Divisional Officer to allow the petitioner's application. 6. 6. On being confronted as to weather the order dated 18.12.2013 was ever placed before the Sub Divisional Officer before passing the impugned order learned Counsel for the petitioner has very fairly conceded that this order was not placed before him. Taking note of that, with the consent of the learned Counsel for the parties, the writ petition is disposed of with the observation that the petitioners may be seek recall of the order dated 28.10.2013 along with a certified copy of the order of this Court as well as the order dated 18.12.2013 passed by this Court on the recall application of the other side filed in Writ C. No. 14660 of 2003. In case such an application is filed by the petitioners that shall be decided by the sub Divisional Officer expeditiously not later than two months from the date of its filing and thereafter shall pass a reasoned order on the application of the petitioner filed under section 131-B for declaring them as Bhumidhar of the land in dispute with transferable right after hearing all concerned.