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2018 DIGILAW 2100 (ALL)

Ram Mohan v. State of U. P.

2018-10-03

VIVEK KUMAR BIRLA

body2018
JUDGMENT : VIVEK KUMAR BIRLA, J. 1. Sri Pranesh Kumar Mishra has filed his Vakalatnama on behalf of the respondent nos. 6 to 9, which is taken on record. 2. Heard Sri Krishna Ji Khare alongwith Sri Shiv Lal, learned counsel for the petitioner, Sri Pranesh Kumar Mishra, learned counsel appearing for the respondent nos. 6 to 9 and the learned Standing Counsel appearing for the State respondents. 3. Present petition has been filed with the following prayer:- "(a) To issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 25.6.2018 (Annexure No. 8) passed by respondent no. 3. (b) To issue a writ, order or direction in the nature of mandamus commanding the respondents to remove illegal encroachment from Arazi No. 192, 192Ka, 192Kha, 192Ga, 192Gha, 191-a, 192Chha, 192Ja, 192Ta, 536, 536Ka, 536Kha, 536Ga, 536Gha, 536, 536Cha, 536Chha, 536Ja, 536Jha, 536Ta, 536Tha and 536 Da situated in Village-Bigahana, Pargana Kairagarh, Tappa-Chaurasi, Tehsil Meja, District Allahabad. (c) ..... (d) ....." 4. The impugned order is appealable under Section 210 of U.P. Land Revenue Act, 1901. The appeal is also provided in Section 38(4) of the U.P. Revenue Code, 2006. 5. Submission of learned counsel for the petitioner is that since the order has been passed without condoning the delay in filing the restoration application and order has been passed on merits without affording any opportunity of hearing to the petitioner in rebuttal of the documents filed by the contesting respondents, the order is illegal and therefore, the alternative remedy would not be a bar in entertaining the present petition. 6. Per contra, learned counsel for the respondents have supported the impugned order. 7. The proceedings are arising out of the proceedings for correction of the entries of the revenue record. While disposing of Writ C No. 59051 of 2016 (Ram Mohan vs. State of U.P. and others), which was filed challenging the order dated 4.4.2016, whereby on a restoration application filed by the respondent no. 7. The proceedings are arising out of the proceedings for correction of the entries of the revenue record. While disposing of Writ C No. 59051 of 2016 (Ram Mohan vs. State of U.P. and others), which was filed challenging the order dated 4.4.2016, whereby on a restoration application filed by the respondent no. 6 to 9 an interim order has been granted staying the portion of the order dated 3.9.2009 passed in the proceedings under Section 33/39 of the U.P. Land Revenue Act for correction of the entries in the revenue records, this Court has observed that the court below shall consider and decide the restoration application filed in Suit No. 30 of 2009-10 expeditiously preferably within a period of three months. It was further observed that in the meantime, the portion of the order dated 4.4.2016 granting stay of the proceeding in Suit No. 30 of 2009-10 shall remain in abeyance and shall be subject to any final order which may be passed by the court below in the restoration application. The aforesaid order dated 15.12.2016 is quoted as under:- "Heard Sri Mohammad Ali Ausaf, learned counsel for the petitioner, Sri Diwakar Singh, learned counsel for the respondent no.5 and Sri Abhishek Shukla, learned standing counsel for the respondents no.1 to 4. 8. In view of the order sought to be passed it is not necessary to issue notice to the respondent nos.6 to 9. 9. The petitioner is seeking quashing of the order dated 4.4.2016 whereby on a Restoration Application filed by the respondents no.6 to 9 an interim order has been granted staying the portion of the order dated 3.9.2009 passed in the proceedings under Section 33/39 of the U.P. Land Revenue Act for correction of the entries in the revenue records. 10. It appears that plots in question Arazi Nos.192,192Ka, 192Kha, 192Ga, 192Gha, 192a, 192Chha, 192Ja, 192Ta, 536, 536Ka, 536Kha, 536Ga, 536Gha, 536, 536Cha, 536Chha, 536Ja, 536Jha, 536Ta, 536Tha and 536 Da were Gaon Sabha land being pond. 11. In order to restore these lands as pond Public Interest Litigation No.63380 of 2012, Prem Singh vs. State of U.P. and others was filed. The said PIL was disposed of by the High Court by order dated 6.12.2012 giving liberty to the petitioner to approach the respondents no.2 and 3. 11. In order to restore these lands as pond Public Interest Litigation No.63380 of 2012, Prem Singh vs. State of U.P. and others was filed. The said PIL was disposed of by the High Court by order dated 6.12.2012 giving liberty to the petitioner to approach the respondents no.2 and 3. In compliance of the aforesaid order the S.D.M., Meja, District Allahabad has passed an order on 20.1.2014 wherein it is mentioned that proceedings for removing encroachment from plots in question has already been initiated through proceedings under Section 122-B of the U. P. Z. A. & L.R. Act in Suit No.229, State of U.P. vs. Moti Lal and others. It is stated that during the pendency of proceedings an application for restoration/recall of the order dated 3.9.2009 passed in the proceedings under Section 33/39 of the U.P. Land Revenue Act for correction of the entries in the revenue record was filed by the respondents no.6 to 9. On this application date has been fixed but in the meantime the operation of the order dated 3.9.2009 has been stayed. 12. I have gone through the impugned order and in my opinion it is always open to the court below to hear the restoration application on its merit but the order which has already been passed in the proceedings under Section 33/39 of the Land Revenue Act as far back as on 3.9.2009 should not be stayed. It may have a bearing upon the proceedings under Section 122-B of the U.P. Z. A. & L.R.Act. 13. This writ petition is therefore disposed of with a direction to the court below to consider and decide the restoration application filed in Suit No.30 of 2009-10 expeditiously preferably within a period of three months from the date a certified copy of this order is received in his office. 14. In the meantime the portion of the order dated 4.4.2016 granting stay of the proceeding in Suit No.30 of 2009-10 shall remain in abeyance and shall be subject to any final order which may be passed by the court below in the restoration application." 15. In such view of the matter, I am not inclined to entertain the present petition as the alternative statutory remedy is available to the petitioner. 16. In such view of the matter, I am not inclined to entertain the present petition as the alternative statutory remedy is available to the petitioner. 16. However, it is provided that in case the appeal is filed within 15 days from today, no objection regarding limitation shall be taken by the appellate authority and the appeal shall be decided on its own merits without being influenced by any observation made by this Court in the light of judgments of this Court in the cases of Chandra Bali vs. Additional Commissioner and others 2012 (4) ADJ 13 and Radha Devi vs. State of U.P. and others 2016 (6) ADJ 753 wherein directions for time bound disposal of such cases have been given and provisions of U.P. Janhit Guarantee Adhiniyam, 2011 have been considered. 17. It shall also be open to the petitioner as well as to the contesting respondents to place all the relevant documentary evidence on record before the appellate authority. 18. With the aforesaid observations, present petition stands disposed of.