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2019 DIGILAW 1231 (ALL)

Neelam Singh v. State of U. P.

2019-05-07

SARAL SRIVASTAVA

body2019
JUDGMENT : Saral Srivastava, J. 1. Supplementary affidavit filed on behalf of petitioner today is taken on record. Heard Sri Tinku Singh, learned Counsel for the petitioner and Sri Rajesh Kumar Tripathi, learned Standing Counsel for the State. 2. The case of the petitioner is that a private girl school run by petitioner is in possession over plot No. 2130 having area 0.3240 hectare which is evident from the field book (Bandobast Khasara) and the said land was recorded as Aabadi. Later on, in the consolidation proceeding, the number of plot No. 2130 was changed to 1698 and it was recorded as land to be used for Girls School. 3. According to the petitioner, the nature of land cannot be changed in the consolidation proceeding in the revenue record. The petitioner further stated that she is running a school over the plot in question. 4. It appears that the proceeding under section 67 (2) of the U.P. Land Revenue Act, 2006 (sic) initiated against the petitioner for being in unlawful possession over the property in dispute. The petitioner filed objection before respondent No. 3, Assistant Collector/Tehsildar, Chayal, District Kaushambi. The respondent No. 3, Assistant Collector-I/Tehsildar by order dated 20.2.2018 held that the possession of the petitioner over the plot in question is unlawful and the petitioner was directed to remove construction over the land in question and further directed to deposit a sum of ` 1.5 lakhs towards repair and damage of public land. 5. Feeling aggrieved by the said order, the petitioner preferred recall application, which was also dismissed by the Assistant Collector by order dated 16.1.2019. Thereafter, petitioner preferred the appeal before the District Magistrate/Collector, which was numbered as Case No. 00098/2019, which was also dismissed by the Collector, Kaushambi, by order dated 26.2.2019 by holding that the plot No. 1698 having area 0.324 hector is reserved for the girls school, therefore, the possession of the petitioner over the said plot is illegal. 6. Challenging the aforesaid order, the Counsel for the petitioner contended that the said plot is ancestral property of petitioner and they are in possession over the plot since long and the possession of petitioner over plot in question is since the village has come into existence. It is contended that proceeding under section 65-67 of the U.P. Revenue Act (sic) initiated against her is nothing but abuse of the process of the Court. 7. It is contended that proceeding under section 65-67 of the U.P. Revenue Act (sic) initiated against her is nothing but abuse of the process of the Court. 7. Per contra, learned Standing Counsel submitted that the petitioner in his objection filed in Court of Tehsildar stated that she has purchased the property in dispute, but she did not file any evidence in this regard. He further submitted that the finding recorded by the Court below is based upon proper appreciation of evidence and material on record. It is admitted fact that the consolidation proceedings have taken place in the year 1970 and during consolidation proceeding the land was reserved for the girls school, about 30 years have passed but the petitioner has raised no objection regarding change of nature of disputed land. 8. I have considered the rival submissions of the parties and perused the record. 9. The petitioner in her objection filed before the Tehsildar, stated that the land has been purchased by her/but the petitioner has not filed any evidence before the Court below that the land was purchased by her. The document Jot Akar Patra 41 (CH 41) and 45 (CH 45) has not been challenged by the petitioner, rather the petitioner has set up a new case in this Court that the land is her ancestral property and ancestors has been residing on the said plot which is evident from the Bandobasti Khasra of which 1320 fasali and therefore, her possession on plot is not unlawful. 10. The petitioner in the writ jurisdiction, cannot be allowed to set up new case which is contrary to the stand taken by the petitioner before the Court below. Thus, the submission of the petitioner that the plot is of her ancestors and they are residing since long over the plot in question is not sustainable. Further, it is also evident from the record that the land was reserved for girls school in consolidation proceeding in the year 1970 and after about 48 years, nature of land cannot be changed. The petitioner has failed to make out that her possession was proper and lawful. Thus, the order passed by the Court below is just and proper and is based on the material evidence on record. 11. Consequently, the present case is not fit for exercise of its power under Article 226 of the Constitution of India. 12. The petitioner has failed to make out that her possession was proper and lawful. Thus, the order passed by the Court below is just and proper and is based on the material evidence on record. 11. Consequently, the present case is not fit for exercise of its power under Article 226 of the Constitution of India. 12. The writ petition lacks merit and is dismissed.