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2019 DIGILAW 2637 (ALL)

Vinod Kumar v. Collector, Lucknow

2019-11-25

SANGEETA CHANDRA

body2019
JUDGMENT : Sangeeta Chandra, J. 1. Heard learned Counsel for the petitioners. 2. The petitioners are aggrieved by the order dated 27.5.2019 passed by the Assistant Collector/Sub Divisional Magistrate, Tehsil Sarojini Nagar, Lucknow in Case No. 02169 of 2019 (Rampal v. Gram Sabha and pray that the petitioners' peaceful possession over the land having Gata No. 915-Sa/0.0167 hectare in Khata No. 00341 situated in Gram Sevai, Pargana Bijnore, Tehsil Sarojini Nagar, Lucknow be not disturbed. 3. This Court has perused the impugned order. By the impugned order, the respondent No. 2 has allowed the application for exchange under section 101 of U.P. Revenue Code, 2006 moved by respondent No. 6 on which, the Gram Sabha report had been called for. The respondent No. 5 had not objected to such exchange. A report of the Tehsildar was also perused by the respondent No. 2 and then the impugned order has been passed. 4. The petitioner has no concern with Gata No. 915-Sa as it is recorded as usar land belonging to the Gram Sabha. The Gram Sabha, which is the owner of the property in question has given its no objection for its exchange with a land offered by respondent No. 6. There is no difference in the area or valuation of the property exchanged. The petitioners allegedly are using Gram Sabha land recorded as usar in the revenue records as sahan and has constructed a room over it. In fact, they are encroaching the Gram Sabha land and now Gram Sabha has transferred ownership by giving its no objection. Obviously, respondent No. 6, who has been given the permission for exchange, will construct over the land, which has been given in exchange to him. 5. Learned Counsel for the petitioners has stated that there was an order of status quo over Khata No. 00341 situated at Gram Sevai given on 13.4.2018 by the respondent No. 2 himself in Case No. 84/17-18/T201810460513406. 6. This Court has perused the copy of khatauni, which has been filed as Annexure to the writ petition. It is apparent there from that the land has been recorded as usar with respect to several gatas i.e. more than 20 of them, out of which, on some land, an interim order has been passed in the case filed under section 144 by Hari Prasad. It is apparent there from that the land has been recorded as usar with respect to several gatas i.e. more than 20 of them, out of which, on some land, an interim order has been passed in the case filed under section 144 by Hari Prasad. The petitioners are not party to the said case in which, interim order has been passed by the respondent No. 2. It is not clear as to how the petitioners are affected. It is the settled position in law that only the parties to the suit are affected by an interim order granted therein. 7. Learned Counsel for the petitioners says that even if the petitioners are under unauthorized possession of Gram Sabha land, they cannot be evicted there from without following the due procedure of law. It is their case that the Gram Sabha has not taken proceedings under section 67 of the U.P. Revenue Code and transferred ownership without giving any show cause notice to the petitioners. 8. Learned Counsel for the petitioners has placed reliance upon a judgment of the Supreme Court in the case of Sri Samir Sobhan Sanyal v. Tracks Trade Private Ltd. and others 1996 SCC (4) 144. 9. This Court has carefully perused the judgment cited by the learned Counsel for the petitioners. The facts therein were that the appellant had admittedly been inducted as a tenant on behalf of 1/3rd party i.e. M/s. India Foils Ltd. into the premises situated in Calcutta. The property belongs to a 4th person. The landlady, the 4th person, had entered into a lease with 3rd party and demised the said property to the Company M/s. India Foils Ltd. The possession of the premises was thereafter given to the appellant on the basis of the said lease entered into between the landlady and the Company. Later on, the landlady entered into an agreement with the 6th respondent for sale of property for a sum of Rs. 40 lacs. For enforcement thereof, the 6th respondent filed a Title Suit No. 137 of 1986 for specific performance and the landlady while filing written statement therein had referred to the appellant being inducted into the premises by the Company, which was the lease holder of the property and that the defendant landlady was, therefore, not in a position to offer the suit property free from encumbrances. Nevertheless, the appellant was not made a party to the suit. The suit was decreed and the question before the Court was whether the appellant can be dispossessed in execution of the decree in Title Suit No. 137 of 1986, despite the appellant not being a party to the same. Moreover, there were several other facts where the 6th respondent, when he was unable to get the premises vacated from the appellant, had given an interest in the decree to the 3rd respondent Pranav Merchandise Pvt. Ltd. and having brought the litigation, the 3rd respondent made an effort to evict the appellant therein. The Supreme Court observed that it was a high-handedness to take over the property from the possession of a person without due process of law. It observed that high-handed action taken by respondent Nos. 1, 3 and 6 in having the appellant dispossessed without following the due process of law cannot be overlooked nor condoned. 10. In the case cited before this Court, the appellant therein had legally entered into the demised property, and given possession by the then lease holder. 11. The petitioners, on the other hand, have illegally entered into the possession of Gram Sabha land and since the Gram Sabha has now exchanged the land with private respondent No. 6, they pray that they cannot be evicted there from. 12. One who does equity alone shall be entitled to equity. Writ jurisdiction being equity jurisdiction is not meant for dishonest litigants. 13. The writ petition being devoid of merit, is dismissed. No order as to costs.