Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1013 (ALL)

Malti Devi v. State of U. P.

2023-04-12

KSHITIJ SHAILENDRA

body2023
JUDGMENT Kshitij Shailendra, J. Rejoinder affidavit filed today is taken on record. 2. Heard Shri Adya Prasad Tewari, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Shri Juned Alam, learned counsel for the respondent nos.5 to 7. 3. This court on 15.03.2023 passed a detailed order which is quoted hereinbelow:- "Pursuant to the earlier order dated 8.2.2023, the petitioner has filed supplementary affidavit, which is taken on record. This writ petition has been filed claiming the following reliefs:- "(i) issue a writ, order or direction in the nature of mandamus commanding the Sub Divisional Officer, Tehsil Sadar, District Maharajganj to ensure the actual delivery of possession to the petitioner over plot no.1151M measuring area 0.012 hectare and 0.016 hectare allotted to the petitioner by the Sub Divisional Officer for housing site and plantation situated at Village Chaumukha, Tehsil Sadar, District Maharajganj in accordance with the provisions of Section 65 of U.P. Revenue Code, 2006 within the time frame. (ii) issue a writ, order or direction in the nature of mandamus commanding the Sub Divisional Officer to ensure that the private respondents may not put any obstacle in use an occupation of the petitioner over the land allotted to her by taking coercive measure against the private respondents in accordance with the provision contained under section 65 of the U.P. Revenue Code, 2006." Contention of the learned counsel for the petitioner is that the aforesaid property was allotted in favour of the petitioner in the year 2016, however, till today possession of the same has not been delivered to her. A perusal of the supplementary affidavit filed today reveals that the petitioner has filed a civil suit being Original Suit No.153 of 2020, against the private respondents alleging that pursuant to the allotment made in her favour in the year 2016, a residential house has been constructed by her and, insofar as, the allotment in respect of the plantation is concerned, for the said purpose, the possession has also been delivered to her. Necessary averments in this regard have been made in paragraph nos.3 and 4 of the plaint of the suit. The cause of action giving rise to file the suit has been alleged as interference being caused by the private respondents i.e. the defendants of the suit in the plaintiff's/petitioner's actual and physical possession. Necessary averments in this regard have been made in paragraph nos.3 and 4 of the plaint of the suit. The cause of action giving rise to file the suit has been alleged as interference being caused by the private respondents i.e. the defendants of the suit in the plaintiff's/petitioner's actual and physical possession. This Court has also perused the injunction order dated 19.8.2020 whereby the Civil Judge concerned has restrained the private respondents/defendants in the suit from interfering in the petitioner's/plaintiff's possession and also from causing any damage to the trees as well as from dispossessing the petitioner and from interfering in the construction activity being carried out by the petitioner. Learned counsel for the petitioner submits that insofar as the possession of the housing site as well as plantation part is concerned, possession is with the petitioner, however, certain portion of the said Gata has been illegally encroached upon by the private respondents concerning which proceedings under Section 67 of the U.P. Revenue Code, 2006 were launched by the Gaon-Sabha, which were decided, in which the order of dispossession was passed on 28.3.2022. A copy of the said order has been annexed as Annexure-SA2 to the supplementary affidavit dated 2.8.2022. Further contention is that the notice of demolition was also affixed on the cemented construction of the private respondents on 4.6.2022. Further contention of the petitioner is that despite applications moved by the petitioner, no further proceedings after 4.6.2022 have been undertaken by the State-respondents/Gaon-Sabha, therefore, this Court may issue necessary mandamus. Although counter affidavit filed by the State is on record, no counter affidavit has been filed by the respondent nos.5 to 7 despite directions contained in the order dated 8.2.2023. Learned counsel for the private respondent nos.5 to 7 submits that the copy of the supplementary affidavit has been served upon him today itself and he may be granted further time for filing counter affidavit. In view of the peculiar facts and circumstances of the case, particularly filing of civil suit, grant of temporary injunction on the one hand and finalization of the proceedings under Section 67 of the U.P. Revenue Code, 2006 on the other hand, this writ petition requires to be finally heard. List this case in top ten cases on 12.4.2023. Learned counsel for the private respondents shall positively file counter affidavit by the end of this month. List this case in top ten cases on 12.4.2023. Learned counsel for the private respondents shall positively file counter affidavit by the end of this month. Rejoinder affidavit, if any, to the main writ petition as well as supplementary affidavits may be filed within one week thereafter. Learned counsel for the petitioner is also directed to serve copies of the entire pleadings upon Sri Sudhir Bharti, learned counsel representing Gaon-Sabha, who may also obtain the necessary instructions. Sri Tewari shall also serve a copy of supplementary affidavit dated 2.8.2022 upon learned counsel for the respondent nos.5 to 7 by tomorrow. In order to facilitate adjudication of case on merits and to avoid wastage of dates, office shall ensure placement of affidavit(s) on record before the date fixed by- a. checking the online status of affidavits on official website of this Court. b. by instructing and coordinating with associated staff of the section(s) concerned." 4. Pursuant to the aforesaid order, counter affidavit has been filed by the respondent nos.5 to 7 against which rejoinder affidavit has also been filed by the petitioner. 5. This writ petition has been filed seeking direction in the nature of mandamus commanding the Sub Divisional Officer to ensure the actual delivery of possession to the petitioner over Plot No.1151M allotted to the petitioner. 6. Pendency of civil suit and operation of an injunction order has already been noted in the afore-quoted order dated 15.03.2023, however, Shri Tewari sticks to his stand that pleadings regarding possession in the civil suit were confined to some portion of the property in dispute whereas the fact that in respect of remaining portion of the same, the petitioner has not been delivered possession although allotment made in her favour still subsists. 7. There is no dispute about the fact that proceedings for dispossession of the private respondents were instituted under Section 67 of the U.P. Revenue Code-2006 (in short 'the Code 2006') in which first order was passed on 28.03.2022. 8. There is also no dispute about fact that against the aforesaid order dated 28.03.2022, the respondents have filed appeal under Section 67 (5) of the Code-2006. A copy of the memo of appeal has been filed as 'Annexure C.A.-3" to the counter affidavit filed on behalf of respondent nos.5 to 7. The said appeal is pending. 9. 8. There is also no dispute about fact that against the aforesaid order dated 28.03.2022, the respondents have filed appeal under Section 67 (5) of the Code-2006. A copy of the memo of appeal has been filed as 'Annexure C.A.-3" to the counter affidavit filed on behalf of respondent nos.5 to 7. The said appeal is pending. 9. Learned counsel for the petitioner submits that since there is no interim order in the appeal, the order of dispossession should be given effect to. He also refers to 'Annexure No.5' to the writ petition which is a report of revenue officials to the effect that on 22.06.2020, possession was delivered to the petitioner. However, he submits that alleged delivery of possession is only on papers but actual and physical possession has not been delivered to the petitioner. 10. Learned counsel for the respondent nos.5 to 7 submits that the petitioner is insisting upon delivery of possession on the basis of lease granted in her favour, however, since the allotment was illegally made, the respondent nos.5 to 7 have already filed a case under Section 66(1) of the Code-2006 registered as Case No.D-202005470000659 of 2020 which is pending. He, therefore, submits the allotment made in favour of the petitioner is under scrutiny in the statutory proceedings. 11. Insofar as, the contention of Shri Tewari to the effect that in absence of interim order passed in appeal, no protection can be given to the private respondents, I have perused Section 67(6) of the Code-2006 which provides that notwithstanding anything contained in any other provision of this Code, and subject to the provisions of this section, every order of the [Assistant Collector] under this section shall, subject to the provisions of sub-sections (5) be final. 12. In the opinion of the Court, language of Section 67(6) of the Code-2006 is clear to the effect and merely because no interim order has been passed in the pending appeal under Section 67 (5) of the Code-2006, order of dispossession is certainly subject to the finality attached as per Section 67 (6) of the Code-2006. 13. In the totality of the facts and circumstances of the case, no direction for delivery of actual and physical possession on any portion of land can be issued in favour of the petitioner. 14. 13. In the totality of the facts and circumstances of the case, no direction for delivery of actual and physical possession on any portion of land can be issued in favour of the petitioner. 14. However, the said question may arise once the proceedings under Section 67 (5) of the Code-2006 attain finality. Simultaneously, the right of the petitioner to get possession shall be dependent upon lease granted in his favour which proceedings are also pending under Section 66(1) of the Code 2006. On the ground of pendency of statutory proceedings, no relief can be granted to the petitioner as on today. 15. The parties shall be at liberty to agitate their respective claims with regard to the possession over any portion of land after conclusion of proceedings in the aforesaid two cases. 16. The writ petition is, accordingly, disposed off. 17. Considering the nature of proceedings, it is directed that court concerned where proceedings under Sections 67(5) and 66(1) of the Code-2006 are pending, the same shall be decided expeditiously after affording full opportunity of hearing to all concerned and after following the statutory provisions within a period of six months from the date of production of certified copy of this order.