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2016 DIGILAW 2842 (ALL)

Fakir Chand v. State of U. P.

2016-08-17

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra, J. 1. This writ petition has been filed challenging the proceedings of Case No.46 of 2013 initiated under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, as well as orders passed therein. 2. Facts, which are not in dispute, are that petitioner is a Bhumidhar of Khasra No.115, and an application was filed by him for exchange of such plot with plot no.198. The prayer made by petitioner for exchange was considered, and recommended by the Gaon Sabha. It transpires that the prayer for exchange was allowed, after calling for necessary reports from the revenue authorities, vide order of the concerned authority dated 20th February, 1975. An application, consequently, was moved by the petitioner for exchange to be given effect to in the revenue records. Pursuant to such order, petitioner exchanged his holding of plot no.115 with plot no.198. Petitioner, however, did not remove his possession and thus proceedings were initiated under Section 122-B of the U.P.Z.A. & L.R. Act against the petitioner in respect of plot no.115. It appears that at this stage, petitioner moved an application for the earlier exchange to be set aside on the premise that he wants to retain his original plot no.115. An order came to be passed by the Sub Divisional Officer on 19th May, 1984, ultimately rejecting the exchange sought by the petitioner. In view of the fact that ultimately exchange did not materialize, the proceedings under Section 122-B drawn against the petitioner were dropped, vide order dated 19th January, 1985, in respect of plot no.115. Petitioner then filed an original suit no.166 of 1990 before the civil court for declaration that he is in possession of plot no.198, which was decreed in the absence of any contest by the Gaon Sabha, and an injunction was issued. The State or its authorities were not impleaded as a party respondent in the suit. It further transpires that though petitioner claimed his abadi over plot no.198, but no declaration has been brought on record to show that the plot was declared to be non-agricultural under Section 143 of the Act of 1950. 3. The State or its authorities were not impleaded as a party respondent in the suit. It further transpires that though petitioner claimed his abadi over plot no.198, but no declaration has been brought on record to show that the plot was declared to be non-agricultural under Section 143 of the Act of 1950. 3. From the materials, which have been brought on record, it is apparent that petitioner's claim over plot no.198 was based upon the exchange offered by him in lieu of his land of plot no.115, and once the exchange proceedings had failed/withdrawn, there was no right available to petitioner over plot no.198. Proceedings under Section 122-B have now been initiated against the petitioner for his eviction from plot no.198. The proceedings are challenged on the ground that once the decree passed in original suit no.166 of 1990 has attained finality, the respondents have no right to initiate proceedings for eviction against him. 4. In the writ petition, petitioner, however, has not disclosed the nature of right possessed by him over plot no.198, except to state that he has filed an original suit, in which a decree has been passed in his favour. The details about filing of application for exchange as well as its ultimate rejection of the proceedings drawn under Section 122-B etc. in respect of plot no.115, which have been noticed above, have all been brought on record by respondent no.7 Kunwarpal Singh. A counter affidavit has been filed, but the facts stated by respondent no.7 have not been disputed or denied. 5. From the materials, which appear on record, it is apparent that petitioner's possession as well as filing of suit in respect of plot no.198 was based upon an exchange offered by the petitioner himself in the past. Petitioner as a consequence of such proceedings for exchange is now claiming right in respect of both plots i.e. khasra plot nos.115 and 198. Admittedly, petitioner's entitlement was confined to plot no.115, and his right over plot no.198 was dependent upon the exchange offered by him of plot no.115. It is not in dispute that exchange has ultimately not materialized. Proceedings under Section 122-B in respect of plot no.115 have been dropped, and the petitioner continues to remain in possession over the said plot. Once the proceedings for exchange with plot no.198 have failed, the petitioner has no right left over plot no.198. It is not in dispute that exchange has ultimately not materialized. Proceedings under Section 122-B in respect of plot no.115 have been dropped, and the petitioner continues to remain in possession over the said plot. Once the proceedings for exchange with plot no.198 have failed, the petitioner has no right left over plot no.198. The writ petition has been filed on the strength of suppression of material facts. Petitioner has also not approached this Court with clean hands. Filing of the writ petition as well as challenge to the proceedings for eviction are based upon a manipulated exercise undertaken by the petitioner, who was previously the Pradhan of the Village. In the facts and circumstances of the present case, this Court is satisfied that petitioner has not approached this Court with clean hands, and in view of the facts, noticed above, has absolutely no right over the plot no.198. The decree obtained in respect of plot no.198 would also not be of any avail to the petitioner, as State or its authorities were not a party to the suit. Even otherwise, in the absence of any declaration under Section 143 of U.P.Z.A. & L.R. Act in respect of plot no.198, suit itself was not maintainable before the civil court, as it would be the revenue court only which could have jurisdiction in such cases. 6. In such circumstances, petitioner is not entitled to any relief, as is prayed in this petition. Proceedings under Section 122-B do not suffer from any infirmity, nor are liable to be quashed on the basis of the decree passed by the civil court. The writ petition, consequently, fails and is dismissed. 7. Since the petitioner has not approached this Court with clean hands, and material facts have been suppressed, as such, a cost of Rs.25,000/- is imposed upon the petitioner, which shall be deposited with the Mediation Centre, High Court, Allahabad, within a month from today, failing which the District Magistrate concerned shall realize the same, as arrears of land revenue.