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2019 DIGILAW 2588 (ALL)

Chandar v. State of U. P.

2019-11-18

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. 1. Supplementary affidavit filed on behalf of the petitioner is taken on record. List has been revised. No one appears on behalf of respondent No. 5. Heard the Counsel for the petitioner and the learned Standing Counsel representing respondent Nos. 1 to 4. 2. The facts of the case are that the petitioner instituted Case No. 103/90 under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') praying for a decree declaring him to be Sirdar of 4 Bigha in Plot No. 9-Sa in Khata No. 240, which was recorded in the name of Gaon Sabha in the revenue records inter alia alleging that he was a member of Scheduled Caste community and in possession of the disputed plot and had perfected his rights under section 122-B(4-F) of the Act, 1950. The Sub Divisional Officer, Sadar vide his judgment and decree dated 20.2.1991 decreed Case No. 103/90 and declared the petitioner to be Sirdar of the disputed plot after recording a finding that the petitioner was in possession of 4 Bigha in Plot No. 9-Sa since 19.10.1981. 3. Aggrieved by the judgment and decree dated 20.2.1991 passed by the trial Court, the Gaon Sabha filed Appeal No. 31/91 which was partly allowed by the Additional Commissioner (Judicial), Meerut Division, Meerut (hereinafter referred to as, 'Additional Commissioner') vide his judgment and order dated 20.12.1991 and the judgment and decree dated 20.2.1991 passed by the Trial Court was modified and the petitioner was declared to be Sirdar of only 2 Bigha in Plot No. 9-Sa. The judgment and order dated 20.12.1991 passed by the Additional Commissioner has been affirmed by the Board of Revenue, U.P. vide its judgment and order dated 18.7.2003 passed in Second Appeal No. 85(Z)M/2000-01. The judgment and orders dated 20.12.1991 and 18.7.2003 have been challenged in the present writ petition. 4. The first Appellate Court while modifying the order passed by the Trial Court has relied on the order dated 30.4.1982 passed by the Assistant Collector, Class-I, Bulandshahr (hereinafter referred to as, 'Assistant Collector') in proceedings registered against the petitioner under section 122-B of the Act, 1950 wherein the petitioner was found to be in possession of only 2 Bigha in the disputed plot. A reading of the order passed by the Trial Court shows that even though the said order dated 30.4.1982 was filed as evidence in the case, but the trial Court did not consider the findings recorded by the Assistant Collector in his order dated 30.4.1982. The first Appellate Court rejected the testimony of the Lekhpal, who had apparently deposed in favour of the petitioner. The testimony of the Lekhpal has not been annexed with the writ petition and has not been produced before the Court, but a reading of the order passed by the Trial Court shows that the Lekhpal had only testified regarding the present possession of the petitioner over the disputed plot. The evidence before the Court below showed that the possession of the petitioner since 1981 was only on 2 Bigha in the disputed plot and not on 4 Bigha in the disputed plot. The findings recorded by the first Appellate Court was affirmed by the Board of Revenue after assessing the evidence available on record and there is no perversity in the aforesaid findings so as to occasion interference by this Court under Article 226 of the Constitution of India. 5. In the supplementary affidavit filed today, the petitioner has annexed a copy of the notary affidavit sworn by the present Gram Pradhan of the Village stating that the petitioner is in possession over 4 Bigha of the disputed plot for the last 30 years. The notary affidavit was sworn on 22.6.2016 and is not a part of the records of the proceedings in the Court below, and therefore can not be taken notice of by this Court under Article 226 of the Constitution of India. 6. Apart from the aforesaid, there is a delay of almost 8 years in filing the writ petition. The impugned order was passed by the Board of Revenue on 18.7.2003 and the writ petition was filed on 5.1.2012. In paragraph No. 22 of the writ petition, the petitioner has explained the laches in filing the writ petition by stating that the present writ petition could not be filed earlier due to poverty of the petitioner. The impugned order was passed by the Board of Revenue on 18.7.2003 and the writ petition was filed on 5.1.2012. In paragraph No. 22 of the writ petition, the petitioner has explained the laches in filing the writ petition by stating that the present writ petition could not be filed earlier due to poverty of the petitioner. However, in paragraph No. 4 of the supplementary affidavit filed by the petitioner in 2013, it has been stated that the delay in filing the writ petition was due to the fact that the petitioner was seriously ill during this period and in support of his averment the petitioner has filed different medical certificates issued by the concerned physician, which have been annexed as Annexures to the supplementary affidavit. Apparently, the averment made in paragraph No. 22 and paragraph No. 4 of the supplementary affidavit are contradictory. 7. In view of the aforesaid, the laches in filing the writ petition have also not been properly explained by the petitioner. 8. For all the aforesaid reasons, it is not a fit case for interference by this Court under Article 226 of the Constitution of India. The writ petition lacks merit, and is, according dismissed.