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2022 DIGILAW 584 (ALL)

Sushma Agarwal v. State of U. P.

2022-04-19

VIKAS BUDHWAR, VIVEK KUMAR BIRLA

body2022
JUDGMENT : 1. Heard Sri R.P.S. Chauhan, learned counsel for the petitioners, Sri Dharmendra Singh Chauhan, learned counsel appearing for the respondent no.4-Bareilly Development Authority as well as Sri Mohan Srivastava, learned Standing Counsel for the respondent nos.1, 2, 3 and 5. 2. The present petition has been filed with the following prayer : "i. Issue, a writ, order or direction in the nature of mandamus commanding the respondent no.1 to 5 to abate the proceedings of the Urban Land (Ceiling and Regulation) Act, 1976 vide Case No.1108/134/82 (State vs. Sher Khan) proceeded before the respondent no.3 Competent Authority, Urban Land Ceiling, Bareilly in respect of plot no.442/1 situated at village Haru Nagla, Tehsil Sadar, District Bareilly under the provisions of Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and declare the land outside the ambit of The Urban Land (Ceiling and Regulation) Act, 1976. ii. Issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the peaceful title and possession of the petitioners over plot no.62 measuring 520.65 sq. meter, part of plot no.442/1 situated at Village Haru Nagla, Tehsil Sadar, District Bareilly. iii. To issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 to 5 to enter the name of the petitioners in the revenue/municipal records of plot no.62 measuring 520.65 sq. meter, part of plot no.442/1 situated at Village Haru Nagla, Tehsil Sadar, District Bareilly." 3. At the very outset, learned counsel for the Bareilly Development Authority has produced a copy of the order dated 15.02.2022, passed by a co-ordinate Bench of this Court in Writ (C) No.2576 of 2022 (Smt. Sangeeta Gangwar vs. State of U.P. and Others) to contend that arising out of the same property belonging to the same owner, namely, Sher Khan, which was sold to the Rohilkhand Sahkari Avas Samiti Ltd., Bareilly, respondent no.10 herein, the petition was disposed of by this Court by directing the respondent no.3 to decide the application of the petitioner within a time bound period. 4. The aforesaid order is quoted as under : "The instant writ petition has been filed praying for a mandamus commanding respondent nos. 4. The aforesaid order is quoted as under : "The instant writ petition has been filed praying for a mandamus commanding respondent nos. 1 to 5 to abate the proceeding under Urban Land Ceiling and Regulation Act, 1976 registered as Case No. 1108/134/82 (State Vs Sher Khan) in respect of plot No. 62 measuring 180 square meter, part of plot no. 443/1 and 444 situated at Village Haru Nagla, Tehsil Sadar, District Bareilly and for a further direction to respondents not to interfere in the peaceful possession and title of the land in question. The petitioner claims that the subject land as well as surrounding land belonged to one Sher Khan. He sold the said land to respondent no. 10, a Co-operative Housing Society. Petitioner being member of the said Cooperative Society was allotted the subject land. The petitioner claims that the proceedings under Urban Land Ceiling and Regulation Act, 1976 initiated against Sher Khan had abated as actual physical possession of the land declared excess was never taken. Respondent nos. 6 to 9 are said to be heirs of Sher Khan. It is submitted that they are not disputing the sale deed executed by their pre-decessors in favour of respondent no. 10 nor the sale deed executed by respondent no. 10 in favour of petitioner. The petitioner is said to have made representation before the competent authority on 4.1.2022 for abating the proceedings and for restoring her name in the municipal/revenue records. However, no decision having been taken on the said application, the present writ petition has been filed. Learned Standing Counsel as well as learned counsel appearing on behalf of Bareilly Development Authority submitted that third respondent is competent to examine the claim of petitioner in the first instance as it has to be verified whether the petitioner is in actual physical possession of the land or not and whether the proceedings under Section 10(6) of the Act, 1976 have been undertaken or not. They point out that there is a possession memo on record dated 29.03.1995 (1.4.95), though it is being challenged by the petitioner. We are of the opinion that interest of justice would be sub-served if respondent no. 3 is directed to consider and decide the claim of the petitioner in the first instance as various factual issues arises for consideration. They point out that there is a possession memo on record dated 29.03.1995 (1.4.95), though it is being challenged by the petitioner. We are of the opinion that interest of justice would be sub-served if respondent no. 3 is directed to consider and decide the claim of the petitioner in the first instance as various factual issues arises for consideration. Accordingly, without expressing any opinion on merits of the case, we dispose of the writ petition with direction to respondent no. 3 to decide the application of the petitioner dated 4.1.2022 within twelve weeks of receipt of true attested copy of the instant order, in accordance with law, by means of a speaking order, after due notice and opportunity of hearing to all concerned." 5. Learned counsel for the petitioner has sought to argue the matter on merits and submitted that earlier one petition being Writ (C) No.32049 of 2021 (Smt. Kiran Bala Garg vs. State of U.P. and Others) was entertained by this Court vide order dated 22.12.2021 whereby the parties were directed to maintain status quo and counter affidavit was called for. 6. We find that the above quoted order was passed subsequent to the order passed in Kiran Bala Garg case. Learned counsel for the petitioners could not dispute the fact that the property involved in the present case as well as in the aforesaid case the original owner was Sher Khan and his legal heirs have been impleaded as respondent nos.6 to 9 in the present petition as well. 7. In such view of the matter, we do not find any good ground to take a different view of the matter. 8. Accordingly, the present petition stands disposed of in terms of the order dated 15.02.2022, passed by a co-ordinate Bench of this Court in Writ (C) No.2576 of 2022 (Smt. Sangeeta Gangwar vs. State of U.P. and Others). 9. The petitioners are, however, at liberty to file fresh representation before the respondent no.3-Competent Authority, Urban Land Ceiling, Bareilly.