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2016 DIGILAW 938 (ALL)

Kalamat Miyan v. State of U. P.

2016-03-15

ABHINAVA UPADHYA

body2016
JUDGMENT Abhinava Upadhya, J. Heard learned counsel for the petitioners and the learned Standing Counsel appearing for the State-respondents. 2. By means of this writ petition the petitioners haves come up to this Court challenging the order dated 8.1.2016 passed by the Tehsildar under Section 122-B of UPZA&LR Act. After the notice to the petitioner, the said order has been passed on the ground that the land upon which the petitioner is in unauthorized occupation is a land covered under Section 132 of the Act. The said finding has been recorded on the basis of the entries in the revenue record as well as the report of the Lekhpal. 3. In defence learned counsel for the petitioners submits that the petitioner's ancestors were in occupation of the said land since before the basic year and have also now raised construction which is the only dwelling house of the petitioner and is standing on the plot since more than ten years. Against the order the petitioners have preferred a revision before the District Magistrate, Deoria under Section 333 of the Act which is still pending. The petitioner claims to have also filed a civil suit in the court of Civil Judge (Junior Division), Court No.10, Deoria being Case No. 83 of 2016 along with the application under Order 39 Rule 1 and 2 CPC 4. Learned counsel for the petitioner further submits that neither the revision is being decided nor temporary injunction has been granted in the suit whereas the authorities are standing at the door steps of the petitioner and are ready to demolish the construction. 5. Considering the facts and circumstances of the case, in my view, it would be appropriate if an order is passed under Section 122-B of the Act, then the petitioners have a right to approach the court of competent jurisdiction for establishment of his right which necessarily requires examination of evidence and cross-examination of witnesses which can be done only by the trial court and not a writ court. As such, I am not inclined to interfere with the same. As such, I am not inclined to interfere with the same. However, the fact remains that even according to the report of Lekhpal the petitioner's construction is standing on the land for the last more than 10 years, therefore, it would be appropriate to give some relief to the petitioner to pursue the remedy that he is pursuing by way of filing revision as well as civil suit. Accordingly, it is directed that for a period of two months or till any order that may be passed either in revision or in civil suit whichever is earlier, the construction standing on the disputed land shall not be demolished. The authorities will thereafter comply with the order if any is passed by the revisional authority or the civil court. 6. With the aforesaid direction/observation, the writ petition stands finally disposed of.