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2015 DIGILAW 3786 (ALL)

Bans Raj Singh v. State of U. P.

2015-12-03

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya, J. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the State-respondents. Sri Diwakar Singh, learned counsel has put in appearance on behalf of Gaon Sabha-respondent no.4. 2. By means of this writ petition the petitioner has come up to this Court challenging the proceedings initiated under Section 176 of the UPZA&LR Act by which a suit for partition has been filed by the respondents. 3. Learned counsel for the petitioner submits that the suit for partition is with regard to Abadi land, which is a gaon sabha land and as such, the said suit is not maintainable. It is further submitted that the State Government is a necessary party but in the said suit the State has not been made a party. 4. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of Chairman-cum-Managing Director, Coal India Limited and others Vs. Ananta Saha and others, reported in (2011) 5 SCC 142 . Paragraphs no.32 and 33 are quoted herein below: "32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls. 33. In Badrinath v. Govt. of Tamil Nadu & Ors., AIR 2000 SC 3243 , this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders.(See also State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191 ; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors. AIR 2010 SC 3745 )." 5. There can be no dispute against the proposition laid down. However, in the present case, the petitioner has to make an application before the court concerned where the proceeding is pending. 6. Learned counsel for the petitioner further submits that the suit is not maintainable in the absence of necessary party. AIR 2010 SC 3745 )." 5. There can be no dispute against the proposition laid down. However, in the present case, the petitioner has to make an application before the court concerned where the proceeding is pending. 6. Learned counsel for the petitioner further submits that the suit is not maintainable in the absence of necessary party. According to the learned counsel for the petitioner, the State Government is a necessary party since the suit has been filed against Abadi land and the State has not been made a party and, therefore, the suit must fail. For the aforesaid purpose, learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and others, reported in (2010) 7 SCC 417 . In paragraph 15 it has been held that the necessary party has not been joined and, therefore, in such a case suit is liable to be dismissed. 7. Again there can be no dispute with the proposition laid down in the aforesaid decision but the petitioner has to make an application before the authority concerned where the matter is pending. 8. Learned counsel for the petitioner further submits that the alternative remedy is not a bar for which he has relied upon a decision of this Court in the case of Smt. Vijaya Jain Vs. State of U.P. and others, reported in 2015(98) AdJ 503(DB). There can be no dispute with the aforesaid proposition also. At this stage there is no cogent reason to interfere with the proceeding where the petitioner can apply for dismissal of suit upon the reasons mentioned herein but the petitioner has not made any application before the concerned authority. 9. I have considered the submissions of the learned counsel for the petitioner. 10. If a suit has been filed in respect of a gaon sabha land, the petitioner can always raise an objection in the said suit and if any interim injunction is granted, the petitioner has also remedy of filing a revision against the said order. 11. The writ petition for the aforesaid reasons is hereby dismissed.