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2023 DIGILAW 1595 (ALL)

Satendra Singh v. State of U. P.

2023-07-05

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Anil Bhushan, learned Senior Counsel assisted by Sanjay Kumar Mishra, Counsel for the petitioners and learned Standing Counsel for State-respondents. 2. Brief facts of the case are that late Mahboob Ali was bhumidhar with transferable right of Khasara No.19 area 1-10- 0 Bigha, Khasara No.20 area 0-13-0 Bigha Khasara No.21 area 0-9-0 Bigha, Khasra No.22 area 1-15-0 Bigha situated in village-Salarpur, Pargana and Tehsil-Dadri, District-Gautam Budh Nagar. After death of Mahboob Ali his heirs namely Sarjeet, Jaljeet and Charni were recorded in the revenue record. After death of Surjeet his heirs Dalip, Rati Ram, Bheem and Rajpal were recorded. After death of Dalip, legal heirs Rajendra (petitioner No.2), Virendra, Davendra and Satendra (petitioner No.1) were recorded as his heirs and legal representative. Charni had executed sale deed regarding his share on 19.10.1983 in favour of respondent No.4 but Sarjeet or his heirs had not executed any sale deed in favour of respondent No.4. Collector Ghaziabad passed an order dated 07.04.1993 vesting the land purchased by respondent No.4 in State in the proceeding Under Section-154 (2)/167 (2) of U.P.Z.A and L. R. Act in Case No.3/87-88. The petitioner's land was also shown in the order dated 07.04.1993 in the schedule-B although there was no sale by petitioner's or his ancestors in favour of respondent No.4 Petitioners filed an application on 29.07.2021 under section 152 of C.P.C. against the order dated 07.04.1993 in case No. 3/87-88. Petitioners had filed writ petition before this Hon'ble Court being writ petition No.8402 of 2022 and same was disposed of by this Hon'ble Court on 20.05.2022. A copy of the order dated 20.05.2022 is being filed herewith and is marked as Annexure No.8 to this writ petition. Petitioners had filed writ petition before this Hon'ble Court being writ petition No.8402 of 2022 and same was disposed of by this Hon'ble Court on 20.05.2022. A copy of the order dated 20.05.2022 is being filed herewith and is marked as Annexure No.8 to this writ petition. District Magistrate vide impugned order dated 11.10.2022 dismissed the petitioners' application dated 29.07.2021 hence this writ petition for quashing the impugned order dated 11.10.2022 passed by Collector/District Magistrate Gautam Budh Nagar under section 152 of C.P.C. in application No.2 of 2021 (Rajendra Singh and another v. State of U.P.) as well as for commanding the Collector Gautam Budh Nagar to rectify the order dated 07.04.1993 under Section 154 (2) and 167 (2) of U.P.Z.A. and L.R. Act and remove the share of the petitioners from the Schedule B of Khasra No.19, area 1-10-0 Bhgha, Khasra No.20 area 0-13-0 Bigha, Khasra No.21 area 0-9-0 Bigha and Khasra No.22 area 1-15-0 Bigha of the revenue village Salarpur, Pargana and Tehsil-Dadri, District-Gautam Budh Nagar. 3. Learned Senior Counsel for the petitioners submitted that an application filed under Section 154 (2) and 167 (2) of U.P.Z.A. and L.R. Act against the order dated 07.04.1993 has been rectified on misconceived ground although in respect to other person, the application under Section 152 C.P.C. was allowed on merit. He further submitted that application filed by petitioners on the ground mentioned in the application was maintainable as such the dismissal of the same by the Collector is illegal. He further placed reliance upon judgement reported in (2011) 10 ADJ 296 Surajbhan Sharma v. State of U.P. and others in order to demonstrate that application for rectification is maintainable before the court concerned. He submitted that impugned order be set aside and application filed by the petitioners be allowed. 4. On the other hand, learned Standing Counsel submitted that order dated 07.04.1993 was passed in accordance with law. He further submitted that application filed by petitioners under section 152 of C.P.C. for rectification is not maintainable. He further submitted that impugned order was passed in accordance with law and no interference is required in the matter. 5. I have considered arguments advanced by the counsel for the parties and perused the record. 6. He further submitted that application filed by petitioners under section 152 of C.P.C. for rectification is not maintainable. He further submitted that impugned order was passed in accordance with law and no interference is required in the matter. 5. I have considered arguments advanced by the counsel for the parties and perused the record. 6. There is no dispute about the fact that in the proceeding under Section 154 (2)/ 167 (2) of U.P.Z.A. and L.R. Act, the impugned order dated 07.04.1993 was passed and there is also no dispute about the fact that application filed by the petitioners for rectification of the order dated 07.04.1993 has been dismissed vide impugned order dated 11.10.2022. 7. In order to appreciate the controversy, paragraph No. 33 of judgment passed in Surajbhan Sharma (Supra) is relevant which is as follows: "33. In view of the conclusions drawn herein above, there is no impediment in the passage of the District Magistrate to decide the application of the petitioner and to carry out the rectification after verifying the status of the land which is claimed by the petitioner to be not a part of the transaction covered by the order dated 7.4.1993. The Collector, therefore, has to carry out this exercise in the light of the observations made herein above and pass orders objectively without allaying any affairs in this regard. Consequently, the order dated 6.9.2011 is quashed. The Collector, Gautam Budh Nagar, will proceed to pass an order within 6 weeks of the date of presentation of a certified copy of this order before him after allowing the petitioner an opportunity in case the petitioner has to provide any information in this regard" 8. Impugned order dated 11.10.2022 has been passed in arbitrary manner without considering the ratio of law laid down in Surajbhan Sharma (Supra) as such the same can not be sustained in the eye of law. 9. Considering the facts and circumstances of the case as well as ratio of law laid down in case of Surajbhan Sharma (Supra) the impugned order dated 11.10.2022 cannot be sustained. The impugned order dated 11.10.2022 passed by the Collector/District Magistrate, Gautam Budh Nagar/respondent No.2 is liable to be set aside and the same is hereby set aside. 9. Considering the facts and circumstances of the case as well as ratio of law laid down in case of Surajbhan Sharma (Supra) the impugned order dated 11.10.2022 cannot be sustained. The impugned order dated 11.10.2022 passed by the Collector/District Magistrate, Gautam Budh Nagar/respondent No.2 is liable to be set aside and the same is hereby set aside. The writ petition is allowed in part and matter is remitted back before the Collector to consider and decide the petitioners' application afresh on merit considering the ratio of law laid down in Surajbha Sharma (supra) expeditiously preferably within a period of six weeks from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties.