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Allahabad High Court · body

2018 DIGILAW 1563 (ALL)

Raj Kumar Yadav v. State of U. P.

2018-07-17

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Sri Udai Chandani, counsel for the petitioner and Sri Kaladhar Singh, counsel for respondent nos. 8 and 9 as well as the Standing Counsel representing respondent nos. 1 to 7. 2. The facts of the case are that the petitioner claims himself to be son of one Mishri Lal Yadav while respondent nos. 8 and 9 claim themselves to be daughter of Mishri Lal Yadav and deny that petitioner was the son of Mishri Lal Yadav. 3. It transpires from the records annexed with the writ petition that the name of the petitioner was not recorded in the family register while Mishri Lal Yadav was alive but the names of respondent nos. 8 and 9 were recorded in the family register during the life time of Mishri Lal Yadav. However, after their marriage, the names of respondent nos. 8 and 9 were subsequently removed from the family register. After the death of Mishri Lal Yadav, the petitioner filed an application before the Assistant Development Officer (Panchayat), Mehnagar, Azamgarh to include his name in the family register of the village as the son of Mishri Lal Yadav and on the said application, proceedings were instituted by the concerned Assistant Development Officer (Panchayat) Mehnagar, Azamgarh. It is apparent from the records annexed with the writ petition itself that there is some dispute between the petitioner and respondent nos. 8 and 9 regarding succession to the property of the aforesaid Mishri Lal Yadav. Subsequently, by an order dated 30.12.2017, the concerned Assistant Development Officer (Panchayat) Mehnagar, Azamgarh rejected the application of the petitioner. However, the order dated 30.12.2017 has been referred as an inquiry report. Aggrieved by the aforesaid order, the petitioner filed an application before the District Magistrate who vide his order dated 31.1.2018 directed the Block Development Officer to submit a report. The Block Development Officer submitted his report dated 31.1.2018 stating that the allegations made in the application filed by the petitioner to the District Magistrate were baseless and false.? 4. The order dated 30.12.2017 passed by the Assistant Development Officer (Panchayat) Mehnagar, Azamgarh has been challenged in the present writ petition with a further prayer for writ of mandamus directing respondent nos. 2 and 4 not to implement the order dated 30.12.2017 passed by the Assistant Development Officer (Panchayat) Mehnagar, Azamgarh. 5. 4. The order dated 30.12.2017 passed by the Assistant Development Officer (Panchayat) Mehnagar, Azamgarh has been challenged in the present writ petition with a further prayer for writ of mandamus directing respondent nos. 2 and 4 not to implement the order dated 30.12.2017 passed by the Assistant Development Officer (Panchayat) Mehnagar, Azamgarh. 5. The contention of counsel for the petitioner is that the Assistant Development Officer (Panchayat) Mehnagar, Azamgarh was directed by the concerned District Magistrate only to hold an enquiry on the application of the petitioner and as the document dated 30.12.2017 is essentially an enquiry report submitted by the Assistant Development Officer (Panchayat) Mehnagar, Azamgarh in pursuance to the order of the District Magistrate, therefore, the order incorporated in the said document rejecting the application of the petitioner is without jurisdiction and liable to be set-aside. 6. I have considered the submissions of counsel for the petitioner and perused the records. 7. Under Rules 5 and 6 of the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970 (hereinafter referred to as, 'Rules, 1970'), the concerned Assistant Development Officer is empowered to either correct the family registers or to include the name of any person in the family registers of the village. In view of the aforesaid, the order dated 30.12.2017 passed by the Assistant Development Officer (Panchayat) Mehnagar, Azamgarh cannot be said to be without jurisdiction merely because the order has been titled as an enquiry report. Thus the challenge to order dated 30.12.2017 has no force and is rejected. 8. The order dated 30.12.2017 was appealable under Rule 6-A of the Rules, 1970 and the petitioner was entitled to file an appeal against the said order before the concerned Sub-Divisional Officer under the aforesaid rules. A limitation of 30 days has been prescribed in the aforesaid provision for filing an appeal against the order of the Assistant Development Officer. 8. The order dated 30.12.2017 was appealable under Rule 6-A of the Rules, 1970 and the petitioner was entitled to file an appeal against the said order before the concerned Sub-Divisional Officer under the aforesaid rules. A limitation of 30 days has been prescribed in the aforesaid provision for filing an appeal against the order of the Assistant Development Officer. However, considering the fact that the delay in filing the appeal was also, to some extent, because of the order dated 31.1.2018 passed by the District Magistrate directing the Block Development Officer to enquire into the allegations made by the petitioner, it is directed that if the petitioner files an appeal before the concerned Sub-Divisional Officer under Rule 6-A of the Rules, 1970 within 30 days from today, the said appeal shall be decided in accordance with law by the Sub-Divisional Officer within three months from the date of filing of the said appeal.? 9. With the aforesaid directions, the writ petition is disposed of.