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2015 DIGILAW 247 (ALL)

CHIRAUNJI v. STATE OF U. P.

2015-02-09

ANJANI KUMAR MISHRA

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JUDGMENT Hon’ble Anjani Kumar Mishra, J.—The instant writ petition and the aforementioned 28 writ petitions constitute a bunch, as they involve similar facts and have been preferred praying for similar reliefs. Hence, they are bunched and being decided by the present common order. 2. Heard Pt. Sita Ram Vishwakarma, learned counsel for the writ petitioners, learned Standing Counsel for the State-respondents and Sri Diwakar Singh, who represents the Gaon Sabha. 3. An objection has been raised by Sri Diwakar Singh that the Gaon Sabha is a necessary party to the writ petition, but it has not been impleaded therein. In view of the statement so made, Sri Diwakar Singh has been permitted to intervene and I have heard him in opposition. 4. By means of the instant writ petition, the following, amongst other, reliefs have been prayed for: “I. Issue a writ order or direction in the nature of mandamus commanding the respondent to decide the application dated 16.2.2012 under Section 131B of U.P. Z.A. and L.R. Act., pending before the respondent No. 2 to become Bhumidhar with transferable rights regarding the land Khasra No. 625M area 0.2280 and area 0.0800 hq. A.F.R. II. Issue a writ order or direction in the nature of mandamus commanding the respondent to pass order for becoming Bhumidhar with transferable rights in compliance of G.O. No. 340/Ek-1-10-2[13]/1994 Rajasva Anubhag 1 Lucknow dated 15.3.1995 upon the application of the petitioner.” As stated earlier, in other writ petitions, similar reliefs, mutatis mutandis, have been claimed. 5. In view of the submissions made by the learned counsel for the petitioners, and upon a perusal of the writ petition, it is manifest that miscellaneous applications have been filed by the respective petitioners seeking benefit of the provisions of law as contained in Section 131B of the UP ZA & LR Act (for short, the Act). 6. It is the contention of the petitioners that they have been in possession of Gaon Sabha land in excess of 10 years after such land was allotted in their favour, and in view of Section 131B, each of them is liable to be recorded as bhumidhar with transferable rights thereon. It is with this prayer that respective miscellaneous applications have been filed. It is with this prayer that respective miscellaneous applications have been filed. The case of the petitioners is that such an application, though filed, has not been decided by the respondent concerned and, therefore, a direction for early disposal of the said application has been prayed for. 7. A writ of mandamus is issued only once it has been established that the authority concerned is under a legal obligation to act in a particular manner but has failed to so act despite a request being made in this regard. The case of the petitioners is that in view of the provisions of law as contained in Section 131B, as also the notification of the State Government dated 15.3.1995, a copy whereof has been filed as Annexure-2 to the writ petition, each of them is entitled to claim the relief, as has been prayed for by means of the said miscellaneous application. 8. In this connection, it would be relevant to note the provisions of law contained in Section 331 of the UP ZA and LR Act, relevant portion whereof is extracted below: “331. Cognizance of suits, etc. under this Act.—(1) Except as provided by or under this Act no Court other than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof, or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application: Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof, the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof. Explanation.—If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the Civil Court may not be identical to that which the revenue Court would have granted. Explanation.—If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the Civil Court may not be identical to that which the revenue Court would have granted. (1-A) Notwithstanding anything in sub-section (i), an objection, that a Court mentioned in Column 4 of Schedule II, or, as the case may be, a Civil Court, which had no jurisdiction with respect to the suit, application or, proceedings, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional Court unless the objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (2)....” 9. From a bare reading of the aforesaid section it is clear that only a Court specified in the II Schedule can take cognizance of a suit, or an application, etc. It further emerges from a detailed scrutiny of the II Schedule of the Act that there is no forum provided for considering any application under Section 131B of the Act. 10. It can, therefore, be said with certainty that the application filed by the respective petitioners is a miscellaneous application and that no forum has been provided under the Act for entertaining such an application. Since there is no forum for entertaining such an application, it necessarily follows that the authority to whom the application has been made is under no legal obligation to decide the same, and for this reason alone the mandamus prayed for by the petitioners cannot be granted. 11. It is further clear that, in fact, the petitioners are seeking a declaration for being declared as bhumidhar with transferable rights in accordance with the provisions contained in Section 131B of the Act. In my considered opinion, and in view of the discussion above, this relief cannot be granted by means of a miscellaneous application, as has been filed in the instant cases. The only remedy, therefore, available to the petitioners is by means of a declaratory suit under Section 229B(3) of the Act. In my considered opinion, and in view of the discussion above, this relief cannot be granted by means of a miscellaneous application, as has been filed in the instant cases. The only remedy, therefore, available to the petitioners is by means of a declaratory suit under Section 229B(3) of the Act. This remedy, admittedly, has not been availed of by the petitioners and the applications, that have been filed by the respective petitioners in the above bunch of petitions, appear to be nothing but a ploy to bye-pass a statutory legal remedy provided under the Act. 12. Accordingly, and for the reasons given above, I see no justification to issue the mandamus prayed for. 13. All the writ petitions are accordingly dismissed. 14. However, the dismissal of the petitions shall not preclude the respective petitioners from filing a suit for declaration of their respective right, title or interest, if any, before a Court of competent jurisdiction. ——————