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2018 DIGILAW 2158 (ALL)

Jai Prakash v. State of U P

2018-10-09

VIVEK KUMAR BIRLA

body2018
JUDGMENT : VIVEK KUMAR BIRLA, J. 1. Heard Sri S.C. Verma, learned counsel for the petitioners who has filed his Vakalatnama today, which is taken on record as well as Sri Rajesh Kumar, learned counsel appearing for the respondents no. 1 to 3 and Sri Manoj Kumar Yadav, learned counsel appearing for the respondent no. 4. 2. Present writ petition has been filed seeking quashing of the impugned order dated 27.8.2018 passed by the respondent no. 2 in Revision No. 299 of 2018, Jai Prakash and others Vs. Gram Sabha and others and the order dated 25.6.2015 passed by the respondent no. 3 in Case No. T20131429051473 under Section 122-B of U.P. Z.A. & L.R. Act. A further prayer in the nature of mandamus commanding and directing the respondents not to dispossess and interfere in the peaceful utility of the petitioners over the land in question has also been made. 3. The proceedings under Section 122-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 Act (hereinafter referred to as the Act) were initiated against the petitioners. The order was passed against the petitioners by the respondent no. 3 directing eviction of the petitioners and for recovery of damages. The revision filed against the same was also dismissed and a finding was recorded by both the courts below that plot no. 164 is a Bhita land reserved for public purpose and is covered by Section 132 of the Act and as such no right accrues in favour of the petitioners who are in illegal possession over the same. This finding was affirmed by the revisional court by recording that the petitioners have admitted their possession. 4. 164 is a Bhita land reserved for public purpose and is covered by Section 132 of the Act and as such no right accrues in favour of the petitioners who are in illegal possession over the same. This finding was affirmed by the revisional court by recording that the petitioners have admitted their possession. 4. Challenging the impugned orders, submission of learned counsel for the petitioners is that earlier proceedings under Section 122-B of the Act were initiated against the petitioners in the year 1992, however, vide order dated 10.9.1992 the same were dropped and therefore, a second proceedings initiated under the same provision i.e. section 122-B of the Act are not maintainable; that the land has already settled in the petitioners in view of the provision of Section 123 of the Act; that the Bhita land is nowhere mentioned in Section 132 of the Act and apart from that there is no finding that the land on which the petitioners are in possession is a Bhita land; that the proceedings under Section 122-B of the Act are summary in nature and the petitioners cannot be evicted in the summary proceedings particularly in view of the fact that a declaratory suit filed under Section 229-B of the Act is pending; and that the declaratory suit should have been filed by the Gaon Sabha under Section 229 of the Act. 5. Per-contra, learned Standing Counsel has supported the impugned orders and submits that there is no occasion to interfere in the orders impugned herein as from the documentary evidence in the shape of Khasra -Khatauni which has come on record it is clear that plot no. 164 is a Bhita land and the petitioners are in illegal possession over the same. He further submitted that under Section 123 of the Act no such right can accrue over the land falling under Section 132 of the Act. Learned Standing Counsel further submits that a declaratory suit filed by the petitioners under Section 229-B of the Act is still pending and their father was directed to file such suit in the year 1992, however, the same was not filed by him and in any case the interim relief against the same can be prayed for under Section 229-D of the Act by filing an application before the court below. 6. I have considered the rival submissions and have perused the record. 7. 6. I have considered the rival submissions and have perused the record. 7. On perusal of record, I find that the order dated 10.9.1992 has merely suspended the proceedings initiated under Section 122-B of the Act and the proceedings were never dropped. The petitioners' father was given an opportunity to file declaratory suit for declaration of his right which he admittedly never filed. As such, submission of learned counsel for the petitioners that this is second proceeding under Section 122-B of the Act is in fact not a second proceeding. Apart from that a perusal of the order dated 25.6.2015 clearly mentions that regarding maintainability of these proceedings an objection was raised vide application dated 24.3.2015 which was rejected on 5.5.2015. The same is not on record and there is no challenge to the said order. Apart from that as already noticed that proceedings were only suspended, therefore, present proceedings could have been very well continued. The land is a Bhita land and is reserved for public purpose and falls within Section 132 of the Act and such land cannot settle under Section 123 of the Act. For settlement of the land under Section 123 of the Act various factors are to be considered by the authority concerned and admittedly there is nothing on record to indicate that any such factors have been considered in the light of the provisions of Section 123 of the Act, therefore, the question for settlement of the land under the aforesaid provision does not arise. A reference may be made in this regard to the judgment of the Hon'ble Apex Court in the case of Sunari Devi Vs. Board of Revenue and others (2017) 10 ADJ 165 . 8. Even otherwise, an opportunity was given to the father of the present petitioners in the year 1992 itself, however, the same was never availed by him for the reasons best known to him. The submission that Bhita land is not covered under Section 132 of the Act is concerned, the argument could not be substantiated by the learned counsel for the petitioners by producing any case law inasmuch as after various judgments right from the judgment of the Hon'ble Apex Court in the case of Hinch Lal Tiwari Vs. Kamala Devi AIR 2001 SC 3215 and Jagpal Singh Vs. Kamala Devi AIR 2001 SC 3215 and Jagpal Singh Vs. State of Punjab & Haryana and others (2011) 11 SCC 396 the Bhita land has always been discussed and considered as a land reserved for public purposes falling under Section 132 of the Act and as such there is no force in the argument of learned counsel for the petitioners. 9. In so far as the submission that in summary proceedings the petitioners cannot be evicted also has no force inasmuch as eviction of such unauthorized occupants has been provided by the Statute itself and suit for declaratory rights has also been provided, which is pending, therefore, in the light of the statutory provisions made for eviction of such unauthorized occupants by providing summary proceedings no other view can be taken by this Court that such proceeding is illegal or unauthorized. 10. In view of the aforesaid discussion, this writ petition is devoid of merit and is, accordingly, dismissed. 11. However, since the declaratory suit is pending, it is provided that in case the petitioners file any application for grant of interim relief in the declaratory suit, the same shall be considered by the competent court within a period of 15 days from today on its own merits strictly in accordance with law and for a period of 15 days, status quo as on date shall be maintained. 12. No costs.