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2016 DIGILAW 3441 (ALL)

Girish Pati Tripathi v. State of U. P.

2016-10-07

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Adya Prasad Tewari, for the petitioner, Standing Counsel, for State of U.P. and Sri Pradeep Kumar IV, for private respondents. 2. The writ petition has been filed for issue of mandamus, directing Consolidation Officer to ensure actual physical possession of the petitioner over plots 928, 935 and 939 of village Laxmipur, tahsil and district Mahrajganj, in pursuance of delivery of possession dated 10.01.2016. 3. Smt. Tara Devi (wife of the petitioner) filed an objection under Section 9 of U.P. Consolidation of Holdings Act, 1953, for recording her name, over the land recorded in basic consolidation year khatas 78, 79 and 80 of the village on the basis of will dated 14.01.1974 executed by Smt. Manna Pati, in her favour. Consolidation Officer allowed her objection by order dated 23.10.2002. Sadanad and others filed an appeal from aforesaid order, in which the parties entered into compromise and Settlement Officer Consolidation decided the appeal in terms of compromise by order dated 22.11.2002. The petitioner filed an application under Rule 109-A of the Rules for giving effect to the aforesaid order, which was allowed by Consolidation Officer by order dated 28.08.2003. 4. Smt. Tara Devi filed an application dated 12.03.2004 under Rule 109-A of the Rules for demarcation of her chaks and delivery of possession over it, as in the meantime, village was notified under Section 52 of the Act. Thereafter she filed Writ B No. 279 of 2004, in which mandamus has been issued by this Court on 26.07.2004 to demarcate the chak of Smt. Tara Devi and deliver possession over it within one month. When the order was not complied with, she filed Civil Contempt Petition. Then demarcation of the chak and delivery of possession was made on 10.01.2016. 5. The petitioner filed an application before District Magistrate on 25.04.2016, on the allegations that at the time of demarcation of chak and delivery of possession on 10.01.2016, wheat crop were standing over disputed land. Now the petitioner wanted to raised construction over it. In order to avoid any obstruction, he wants take permission so that construction could be raised without any obstruction. On this application, a report was called for. Revenue Inspector submitted his report dated 27.05.2016 that sufficient police force is required to prevent any obstruction on the spot. Now the petitioner wanted to raised construction over it. In order to avoid any obstruction, he wants take permission so that construction could be raised without any obstruction. On this application, a report was called for. Revenue Inspector submitted his report dated 27.05.2016 that sufficient police force is required to prevent any obstruction on the spot. The petitioner made a complaint on 29.05.2016 to Police Station Shyamdeura that on 29.05.2016 at about 7.30 AM some unknown persons came on the spot and removed demarcation stone of his plots and also snatched Rs.1,47,000/- from his care taker Khalil. Now this petition has been filed, with the allegations that in spite of report of Revenue Inspector, no protection is provided to the petitioner for raising constructions. 6. By the order dated 04.08.2016, Standing Counsel was directed to obtain instruction from local authorities in the matter. In pursuance thereof Assistant Consolidation Officer inspected the spot and submitted report dated 20.08.2016 that the petitioner is in possession of the disputed land and on spot his building materials were also found. 7. One Kamaruddin son of Saddiq has filed a Counter Affidavit in this writ petition and has stated that he had obtained a sale deed dated 05.08.1983 from Smt. Sharda Devi wife of Devrajpati and another sale deed dated 12.08.1989 from Lakshmeshwar Pati, co-sharers in disputed land. On the basis of these sale deeds, he has 1/4 share in disputed land. The order of Consolidation Officer dated 23.10.2002 was exparte against him. The order of Settlement Officer Consolidation dated 22.11.2002, based on compromise was collusive and not binding upon him. An appeal (registered as Appeal No. AN 980/2007-08 of 2003 was filed by him from the order of Consolidation Officer, which is still pending before Settlement Officer Consolidation, Mahrajganj, in which an interim order was granted on 30.01.2008. Kamaruddin also filed Writ B No. 27624 of 2016, which disposed of by order dated 02.06.2016, directing Settlement Officer Consolidation to decide the appeal expeditiously, if possible within a period of six months and also to clarify interim order. 8. Kamaruddin also filed Writ B No. 27624 of 2016, which disposed of by order dated 02.06.2016, directing Settlement Officer Consolidation to decide the appeal expeditiously, if possible within a period of six months and also to clarify interim order. 8. From aforesaid facts, it is clear that wife of the petitioner concealing material fact relating to pendency of Appeal No. AN 980/2007-08 of 2003 and interim order passed in it, filed Writ B No. 279 of 2004, in which mandamus has been issued by this Court on 26.07.2004 to demarcate the chak of Smt. Tara Devi and deliver possession over it within one month exparte. Thereafter, she filed Civil Contempt Petition and under terror of it got demarcation of the chak and delivery of possession on 10.01.2016. Now concealing material facts relating to aforesaid appeal and interim order passed in it, this writ petition has been filed without impleading Kamaruddin and others. The petitioner cannot be allowed to raise construction over disputed land as regular appeal from order of Consolidation Officer is pending before Settlement Officer Consolidation, in which interim order has also been granted. The conduct of the petitioner and his wife was not fair. 9. In view of the aforesaid discussions, the writ petition is dismissed.