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2017 DIGILAW 1088 (ALL)

Saroj Devi v. State of U. P.

2017-04-24

S.N.SHUKLA, SHEO KUMAR SINGH-I

body2017
JUDGMENT Sheo Kumar Singh-I, J. 1. Heard Mr. S.K. Kalia, learned Senior Advocate, assisted by Mr. Arvind Kumar, learned counsel for the petitioner, Mr. Vinay Bhushan, learned Additional Chief Standing Counsel for the State and Mr. Ravindra Pratap Singh, learned counsel for respondent No. 3. 2. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for issuing a writ, order or direction in the nature of mandamus commanding the opposite parties to remove the encroachment from the land Gata No. 618-Kha and after removing the Board or iron khokha from the land, to handover peaceful possession of the land to the petitioner. 3. The brief facts giving rise to filing of the present writ petition are that previously Gata No. 618-Kha was entered in the name of Shri Shyam Lal Sharma and Shri Pritam Ram Sharma in the revenue records and the petitioner had purchased the agricultural land i.e. Gata No. 618-Kha from the aforesaid persons through a registered sale deed dated 28.03.2006. The original number of Gata No. 618 was 231/12 and later on after the consolidation operation it was divided into six parts and the same was recorded in CH Form 41 prepared under Rule 93 of the U.P. Consolidation of Holdings Rules, 1954. On the basis of records, the land i.e. Gata No. 618-Kha, which was in the names of Shri Shyam Lal Sharma and Shri Pritam Ram Sharma, was purchased by the petitioner through the registered sale-deed and after mutation proceedings, the name of the petitioner was recorded in the revenue records. 4. It has been narrated by the petitioner that Gata No. 618-Ka has been recorded as Gaushala. The allegations of the petitioner for cause of action are that the husband of the petitioner namely Shri Anil Kumar Shastri is a Dharam Guru and Katha Vachak and during the period when he was out of station, the respondents had installed a temporary bus stop in the year 2010 and the Board was also installed upon the land which is said to be in Gata No. 618-Kha belonging to the petitioner. The petitioner had made requests several times to remove the encroachment and iron khokha which is said to be in the land of the petitioner but the respondents have not taken any action, thus, the present writ petition. 5. The petitioner had made requests several times to remove the encroachment and iron khokha which is said to be in the land of the petitioner but the respondents have not taken any action, thus, the present writ petition. 5. In the short counter affidavit filed on behalf of opposite party No. 3, it has been stated that the land in dispute is situated in Tehsil Misrikh, District Sitapur, which is a religious place (Namisharanya), where crowd of pilgrims come regularly on the different religious occasions and looking to the extreme requirement of the bus station and on the instruction of opposite party No. 2 i.e. District Magistrate, Sitapur, the said iron khokha has been placed as a temporary bus station for operation of buses on certain occasions. Respondent No. 3 has further submitted that the aforesaid iron khokha is of temporary nature and according to the revenue records and revenue officials, it is in Gata No. 618-Ka, which is not the land of the petitioner. 6. Respondent Nos. 1, 2 and 4 have filed separate counter affidavit in which it has been narrated that temporary bus stand/iron khokha has been installed at land Gata No. 618-Ka and not on the land Gata No. 618-Kha and as such the claim of the petitioner is absolutely misconceived and false. During the consolidation operation, Gata No. 231/12 M was kept out of the consolidation proceedings for the reason that the same was entered as grove land. The area is about 20.70 acres and in the name of six tenure holders whose names have been entered in the basic year of khatauni. At the time of preparation of the plan on the basis of CH Form 2-A the boundaries of the aforesaid six tenure holders were not determined. On the basis of above facts, it has been narrated in the counter affidavit that a temporary bus stand/iron khokha is situated on land Gata No. 618-Ka, which is Gaushala and not entered in the name of the petitioner. On the basis of above facts, it has been narrated in the counter affidavit that a temporary bus stand/iron khokha is situated on land Gata No. 618-Ka, which is Gaushala and not entered in the name of the petitioner. In addition, following facts have also been narrated in the counter affidavit: - “Before entering into the discussions in respect of the factual controversy involved in the present case, the respondents during negotiations with the petitioners have offered a piece of land from the entire area of land Gata No. 618 M as the said piece is situated near the bhumidhari land of the husband of the petitioner Sri Anil Kumar Shastri bearing Gata No. 594 over which some of part of Ashram of the petitioner’s husband is situated. At this juncture it is clarified that some part of the Ashram is situated on bhumidhari Gata No. 596 entered in the name of the petitioner. However, the petitioner has expressed her unwillingness in respect of the said offer. Notwithstanding anything contained hereinabove, the respondents undertake to settle the issue by giving piece of land of equal area near the plots of the petitioner and her husband over which the Ashram and Yajnashala are situated.” 7. It is submitted by learned counsel for the petitioner that the petitioner is the owner of Gata No. 618-Kha. Perusal of revenue records reveal that Gata No. 618-Kha was previously recorded in the names of Shri Shyam Lal Sharma and Shri Pritam Ram Sharma in CH Form 45 as Annexure No. 4 and also in khatauni of fasli year 1413-18 Annexure No. 3 to the writ petition. It is also crystal clear that the petitioner purchased the aforesaid land from Shri Shyam Lal Sharma etc. and vide order dated 09.05.2006, passed in Case No. 80 passed by Naib Tehsildar, Aurangabad, the aforesaid Gata No. 618-Kha was mutated in the name of Smt. Saroj Devi, daughter of Deo Saran. 8. The writ petition was filed by aforesaid Saroj Devi and after her death, her legal heirs have been incorporated in the petition. There is no dispute regarding ownership of the petitioner on land of Gata No. 618-Kha. 9. 8. The writ petition was filed by aforesaid Saroj Devi and after her death, her legal heirs have been incorporated in the petition. There is no dispute regarding ownership of the petitioner on land of Gata No. 618-Kha. 9. The only question, which is the bone of contention between the parties, is that the version of the petitioner is that encroachment/temporary bus stand/iron khokha of the respondents is installed on land of Gata No. 618-Kha while the version of the respondents is that the aforesaid temporary bus stand/iron khokha has been installed on the land of Gata No. 618-Ka, which is recorded as Gaushala and is within the domain of respondent Nos. 1 and 2 and they have every right in public interest to make temporary arrangement to meet out the adverse situation during the religious functions to control the mob and to provide them maximum transport facilities. 10. The argument of the petitioner is based on certain remarks on the map through pencil. 11. Learned counsel for the respondents has submitted that in the map of Gata No. 618 prepared at the time of re-numbering and the map prepared after re-numbering but prior to preparation of final map the parts of aforesaid Gata No. 618 have been numbered from Ka to Cha by using pencil. Para 432 of Consolidation of Holdings Manual provides that the consolidation Lekhpal will mark the number of the plots through Pencil and thereafter the Assistant Consolidation Officer, after examination of each and every number, approve the said marking of plot numbers by red ink. On the basis of use of Hindi numerals in other plots and using English numerals in Gata No. 618, learned counsel for the respondents has submitted that the entries regarding Ka to Cha are unauthorized and doubtful and are not acceptable and are also not in accordance with the Manual. It has further been submitted that there is no marking in respect of division of Gata under question by the consolidation authorities and the Gata has not been divided so far. It has further been submitted that there is no marking in respect of division of Gata under question by the consolidation authorities and the Gata has not been divided so far. In the event, when the parts of any plot, which are joint, are not divided, the determination of boundaries is done in light of the provisions contained in Rule 13B of U.P. Land Revenue (Survey and Record Operation) Rules, 1978 and by adopting the said principle the first digit of re-numbering will start from North-West portion and accordingly temporary bus stand/iron khokha is provided at the said place every year during Parikrama Mela at Gata No. 618-Ka which is Gaushala. 12. In light of the controversy regarding location of the area, the District Magistrate, Sitapur, had directed the Settlement Officer Consolidation to examine the issue and submit a detailed report, which has been submitted by the officer concerned and is annexed with the counter affidavit. Settlement Officer Consolidation has reported that words Ka, Kha, Ga and Gha are in Hindi while the area has been written in English and the words are of different nature, the disputed plot has been numbered in English but in other plots, there is no use of English, the aforesaid entry and the numbering are in violation of Para 431, 432, 434 (1) and 445 of the Consolidation Manual, thus, are doubtful. 13. Learned counsel for the respondents has also challenged the maintainability of the writ petition under Article 226 of the Constitution of India but since there is dispute and to meet out the ends of justice, it would be appropriate to decide the matter finally. 14. In light of the above facts, we are of the view that it is the admitted case that the petitioner is the owner of the land Gata No. 618-Kha but location of this plot is subject to measurement by the revenue authorities in light of the provisions contained in the Manual. 15. Considering the submissions and rival contentions of the parties, it would be appropriate to direct the District Magistrate, Sitapur, to get the plot in dispute indicated and bifurcated in accordance with Land Revenue Manual and the rules relating to measurement through the competent revenue officer and demarcation be made properly. 15. Considering the submissions and rival contentions of the parties, it would be appropriate to direct the District Magistrate, Sitapur, to get the plot in dispute indicated and bifurcated in accordance with Land Revenue Manual and the rules relating to measurement through the competent revenue officer and demarcation be made properly. In case, temporary bus stand/iron khokha is found to be in the area of Gata No. 618-Kha, which is in the ownership of the petitioner, the same shall be got vacated immediately. It would also be open for the parties to settle the matter by amicable means through mediation in light of the averments made in paragraphs 4 and 15 of the counter affidavit. The writ petition is decided accordingly.