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2018 DIGILAW 937 (ALL)

Amit Tomar v. State of U. P.

2018-04-17

MAHESH CHANDRA TRIPATHI

body2018
JUDGMENT AND ORDER : 1. Heard Shri Rahul Mishra, learned counsel for the petitioners and Shri Rajesh Srivastava, learned counsel for the State respondents. 2. Petitioners are before this Court assailing the validity of impugned press note/auction notice dated 07.04.2018 issued by Sub Divisional Magistrate, Shamli, District Shamli as well as the order dated 15.03.2018 passed by Tehsildar, Shamli District Shamli. It has also been urged that the respondents may be restrained not to proceed/finalize the auction proceeding for creating third party right in respect of Khata no. 11 situated at village Shamlii Tehsil and District Shamli, Khata no. 21 and 124 situated at village Mundet, Pargana Shamli, District Shamli and Khata no. 280 situated at Village Khedi Karmu, Pargana Shamli, District Shamli. 3. Record in question reflects that earlier petitioners have been before this Court by preferring Writ Petition No. 54557/2017, Amit Tomar and Another vs. State of U.P. and Others assailing the validity of auction notice dated 25.09.2017 and other proceedings made consequent thereto as well as the impugned order dated 05.10.2017. The said writ petition was finally allowed on 17.11.2017 by quashing the orders impugned on the ground that the order dated 05.10.2017 by which the objections were decided by the fourth respondent was a three lines order, and asking the Tehsildar, Shamli, District Shamli to decide the objection of the petitioners afresh and pass a reasoned and speaking order in accordance with law. It was also provided that till the objection is decided the fourth respondent shall not proceed with the auction of the grove in question. Thereafter the present order impugned dated 15.03.2018 has been passed and subsequently the impugned auction proceeding has also been initiated and as such, the petitioners are before this Court with the aforementioned prayer. 4. Learned counsel for the petitioners precisely submits that the property in question is a big chak of land and the petitioners claim that they are co-tenure holders in the land in question and the impugned auction notice has been issued without proper demarcation of the land in question. He further submits that even the order impugned dated 15.03.2018, which has been passed in compliance of the order passed by this Court, was passed in most casual manner and without providing any opportunity of hearing to the petitioners and as such, this Court should come to the rescue and reprieve of the petitioners. 5. He further submits that even the order impugned dated 15.03.2018, which has been passed in compliance of the order passed by this Court, was passed in most casual manner and without providing any opportunity of hearing to the petitioners and as such, this Court should come to the rescue and reprieve of the petitioners. 5. On the other hand, Shri Rajesh Srivastava, learned Standing Counsel raised an objection that once the petitioners are disputing the present auction proceeding based on the fact that proper demarcation of the land has never been done, then it is incumbent upon the petitioners to move an appropriate application under Section 116 of U.P. Revenue Code 2006 for the partition of the property in question. 6. Confronted with this situation, learned counsel for the petitioners states that in the present matter admittedly on the basis of alleged Will dated 19.01.2016, the claim over the property in dispute has been set up by the State and as such, they are the beneficiary and it is incumbent upon them to proceed under Section 116 of U.P. Revenue Code 2006 for demarcation as without actual demarcation/partition, the auction cannot be effectuated. He has also informed to the Court that 16.04.2018 was the date fixed for auction and the same is deferred. 7. Admittedly, on the basis of alleged Will, the claim has been set up by the State Authorities that they are the owner of the property in question and in such peculiar situation, it is incumbent upon the State Authorities to get the proceedings initiated under Section 116 of U.P. Revenue Code 2006 before proceeding in the auction proceeding. 8. In the aforesaid facts and circumstances, this Court proceeds to ask the Collector concerned to initiate the proceeding under Section 116 of U.P. Revenue Code, 2006 forthwith and finalize the same expeditiously, preferably within a period of three months. Learned counsel for the petitioners, on the basis of instructions received assured to the Court that petitioners would not avoid the said proceeding and would give all sort of co-operation for finalization of the same. It is made clear that till the finalization of the said proceeding, the respondents shall not create any third party interest in the property in question. 9. With these, the Writ Petition is disposed of.