Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 317 (ALL)

Iqbal Ahmad v. State of U. P.

2023-01-31

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Ms. Shreya Gupta, learned counsel for the petitioners, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents, Mr Arohi Bhalla and Mr. Shivam Yadav, counsel for respondent no. 27 and Mr. Kunal Ravi Singh, counsel for respondent nos. 5 to 26. 2. Brief facts of the case are that petitioners along with others namely, Anwar Ahmad, Abrar Ali and Smt. Tamizan are co-sharer in the land in question i.e. Khasra No. 33 & 46. Prior to the initiation of the proceeding under Section 24 of the Uttar Pradesh Revenue Code, 2006, Anwar Ahmad and four others including petitioners filed a suit for partition under Section 176 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act for Khasra No. 33 along-with other khasra numbers, the aforesaid suit was numbered as Suit No. 20 of 1998-99. In the aforementioned partition suit, parties to the suit are co-sharer of various khata and plot numbers. The aforementioned partition suit was decreed vide judgment and decree dated 16.08.2003 whereby a decree for partition was issued in respect of Khata Nos. 30, 31 & 32 and Khasra No. 33 & 46 are part of Khata No. 32. Against the judgment and decree dated 16.08.2003, respondent no.3rd set filed an appeal in the Court of Commissioner, which was registered as Appeal No. 56 of 2002- 03 and the appeal was dismissed vide judgment and decree dated 27.12.2003. The judgment and decree of first appellate court was challenged before the Board of Revenue and the same was allowed vide judgment and decree dated 06.02.2004 modifying the decree to the effect that plaintiff shall be entitled to 35/95 share and defendants shall be entitled to 61/96 share. The judgment of the partition suit was challenged before this Court through Writ Petition No. 11891 of 2004 by Anwar Ahmad, which was entertained and interim order was passed to the effect that preparation of final decree may go on but final decree shall not be signed, the aforementioned writ petition is still pending before this Court. During pendency of the aforementioned writ petition before this Court, another Writ Petition No. 33310 of 2018 was filed by one Riyaz Ahmad with the prayer to demarcate and separate the Plot No. 33/1, 33/3, 33/2, 33/4, 46, 47, 48 and 49 situated at Village-Shahbad @ Mitthepur, Paragana Loni, Tehsil and District-Ghaziabad. During pendency of the aforementioned writ petition before this Court, another Writ Petition No. 33310 of 2018 was filed by one Riyaz Ahmad with the prayer to demarcate and separate the Plot No. 33/1, 33/3, 33/2, 33/4, 46, 47, 48 and 49 situated at Village-Shahbad @ Mitthepur, Paragana Loni, Tehsil and District-Ghaziabad. The aforementioned Writ Petition No. 33310 of 2018 was disposed of vide order dated 03.10.2018 with a direction to the petitioners to make an application under Section 24 of the Uttar Pradesh Revenue Code, 2006 within a period of two weeks and the same shall be decided within a period of six weeks from the date of presentation of the application and deposit of the statutory fee with notices to all concerned parties. After passing of the order dated 03.10.2018, respondent 2nd set filed an application under Section 24 of the Uttar Pradesh Revenue Code, 2006. Petitioners were not arrayed as a party in aforementioned Writ Petition No. 33310 of 2018, as such, petitioners were not aware of the aforementioned proceeding initiated by respondent 2nd set. Respondent no. 3 vide order dated 29.04.2019, allowed the application/case under Section 24 of the Uttar Pradesh Revenue Code, 2006 filed by respondent 2nd set in respect to Khasra No. 33 on the basis of the report of Tehsildar dated 13.03.2019. Petitioners were not aware about the aforesaid proceeding under Section 24 of the Uttar Pradesh Revenue Code, 2006. However, petitioners came to know about the same when respondent 2nd set tried to interfere in possession of the petitioners in the month of May, 2019. Petitioners were able to obtain the copy of the order dated 29.04.2019 in the month of July, 2019, hence this writ petition. 3. This Court while entertaining the writ petition has passed the following interim order dated 26.08.2019: "The petitioner has preferred the present writ petition challenging the order dated 29.4.2019 passed by the respondent no.2/Sub Divisional Officer/Assistant Collector (Ist Class), Ghaziabad in Case No.00205 of 2019 (Yamin v. S.G.S. Construction and Developers Company and others. It is contended by Sri A. K. Singh, learned counsel for the petitioners that the aforesaid order was obtained by the respondents by concealment of fact. It is further contended that in respect of plot no.33 proceedings are pending before this Court in Civil Misc. It is contended by Sri A. K. Singh, learned counsel for the petitioners that the aforesaid order was obtained by the respondents by concealment of fact. It is further contended that in respect of plot no.33 proceedings are pending before this Court in Civil Misc. Writ Petition No.11891 of 2004 (Anwar Ahmad and others v. Board of Revenue, Meerut Bench, Meerut and others). It is further contended that the disputed plots are also subject matter in the aforesaid writ petition and concealing the aforesaid facts and without impleading the petitioners, who are necessary parties, the orders have been obtained by the private respondents. Heard Sri A. K. Singh, learned counsel for the petitioners. Learned Standing Counsel has accepted notice on behalf of respondent nos.1 to 4. Issue notices to respondents no.5 to 27 returnable at an early date. Steps be taken within two week. The matter requires consideration. Counter affidavit be filed by all the respondents within six weeks. Rejoinder affidavit may be filed within two weeks' thereafter. List immediately after expiry of aforesaid period. Until further orders of this Court, the status quo on the spot shall be maintained." 4. The interim order dated 26.08.2019 was further clarified vide order dated 07.11.2019 to the effect that interim order dated 26.08.2019 would operate only insofar as Plot No. 33 is concerned. In pursuance of the order/notice issued to the contesting respondent's counter-affidavit along with stay vacation application has been filed by respondents. Petitioners have filed their rejoinder-affidavit also. 5. Learned counsel for the petitioners submits that impugned order dated 29.04.2019 is illegal as petitioners along with others are recorded tenure-holder of the plot in dispute and even the decree of partition has been passed in the suit filed by petitioners along with others but the final decree could not be passed as such the proceeding under Section 24 of the Uttar Pradesh Revenue Code, 2006 without making party to the petitioners is wholly illegal. She further submitted that respondent 2nd set and 3rd set are in connivance to each other and in the garb of the proceeding under Section 24 of the Uttar Pradesh Revenue Code, 2006, they are trying to take possession of the land owned and possessed by the petitioner. She further submitted that respondent 2nd set and 3rd set are in connivance to each other and in the garb of the proceeding under Section 24 of the Uttar Pradesh Revenue Code, 2006, they are trying to take possession of the land owned and possessed by the petitioner. She further submitted that respondent 2nd set namely, Yamin and others have concealed the material facts of pendency of Writ Petition No. 11891 of 2004 while getting the order from this Court in Writ Petition No. 33310 of 2018. She further submitted that order impugned has been passed without notice and opportunity of hearing to the petitioners as such the remedy of appeal has provided under Section 24 sub-clause 4 of the Uttar Pradesh Revenue Code, 2006 will not bar the petitioners to file writ petition before this Court, she further placed reliance upon the judgment of this Court reported in 2009 (1) AWC 437 (SC), Committee of Management and another v. Vice-Chancellors and others on the point of alternative remedy. 6. On the other hand, the counsels appearing for the private respondent nos. 5 to 26 and respondent no. 27 as well as the Standing Counsel submitted that petitioners have an alternative remedy of appeal as provided under Section 24 (4) of the Uttar Pradesh Revenue Code, 2006, as such, writ petition is liable to be dismissed on alternative remedy. They further submitted that impugned order has been rightly passed exercising power under Section 24 of the Uttar Pradesh Revenue Code, 2006, as such, no interference is required against the impugned order. They further submitted that on the basis of the interim order passed by this Court the petitioners are interfering with the possession of the contesting respondents, as such, petitioners are not entitled to any interim order in the matter and interim order is to be vacated forthwith. Counsel for the respondent no. 27 submitted that on behalf of respondent no. They further submitted that on the basis of the interim order passed by this Court the petitioners are interfering with the possession of the contesting respondents, as such, petitioners are not entitled to any interim order in the matter and interim order is to be vacated forthwith. Counsel for the respondent no. 27 submitted that on behalf of respondent no. 27 an appeal under Section 24(4) of the Uttar Pradesh Revenue Code, 2006 being Computerised Case No. C201911000001602 S.G.S. Construction & Developers Private Limited v. Yameen & others has been filed against the order dated 29.04.2019 which has been allowed by Commissioner vide order dated 21.03.2022 setting aside the order dated 29.04.2019 and matter has been remitted back before U.P. Zila Adhikari to decide the case afresh in the light of interim order dated 26.08.2019 passed in Writ No. 25056 of 2019 as such no interference is required as impugned order dated 29.04.2019 has already been set aside by Commissioner, Meerut Division Meerut vide order dated 21.03.2022. They further submitted that disputes are pending between the parties even before the Apex Court also with respect to the possession of the parties and they placed the order of the Supreme Court, which has been annexed along with the counter-affidavit. They finally submitted that no interference is required against the impugned order and writ petition is liable to be dismissed. Counsel for the respondent no. 27 has also filed written submission which has been taken into consideration. 7. In reply counsel for the petitioner submitted that if respondent no. 27 do not pursue his matter before Sub-Divisional Officer in pursuance of the order dated 21.03.2022 the interest of the petitioners will be effected who are recorded tenure-holder of Khasra No. 33 as such petitioners are entitled for opportunity of hearing before passing any order under Section 24 of the Uttar Pradesh Revenue Code, 2006 in respect to Khasra No. 33. He further submitted that impugned order dated 29.04.2019 be set aside at the instance of petitioners also and matter be sent back before respondent no. 3 for fresh decision. He further submitted that since respondents are adamant to disturb the possession of the petitioners as such interim protection is also required. 8. I have considered the argument advanced by learned counsel for the parties and perused the record. 9. 3 for fresh decision. He further submitted that since respondents are adamant to disturb the possession of the petitioners as such interim protection is also required. 8. I have considered the argument advanced by learned counsel for the parties and perused the record. 9. There is no dispute about the fact that proceeding/case filed by respondent 2nd set under Section 24 of the Uttar Pradesh Revenue Code, 2006 has been decided vide impugned order dated 29.04.2019 without impleading the petitioners, who are recorded tenure-holders of the plots i.e. Khasra No. 33 resulting into denial of opportunity of hearing to the petitioners in the proceeding under Section 24 of the Uttar Pradesh Revenue Code, 2006. 10. In order to appreciate the controversy, the perusal of Section 24 of the Uttar Pradesh Revenue Code, 2006 as well as Rule 22(6) and 22(7) of the Uttar Pradesh Revenue Code Rules, 2016 will be necessary, which are as follows: Section 24 of U.P. Revenue Code, 2006:- Disputes regarding boundaries. - (1) The SubDivisional Officer may, on his own motion or on an application made in this behalf by a person interested, decide, by summary inquiry, any dispute regarding boundaries on the basis of existing survey maps or, where they have been revised in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953, on the basis of such maps, but if this is not possible, the boundaries shall be fixed on the basis of actual possession. (2) If in the course of an inquiry into a dispute under sub-section (1), the Sub-Divisional Officer is unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant, the Sub-Divisional Officer shall- (a) in the first case, ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession; (b) in the second case, put the person so dispossessed in possession, and for that purpose use or cause to be used such force as may be necessary and shall then fix the boundary accordingly. (3) Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within three months from the date of the application. (3) Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within three months from the date of the application. (4) Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within thirty days of the date of such order. The order of the Commissioner shall be final." Rule 22(6) and 22(7) of the Uttar Pradesh Revenue Code Rules, 2016:- 22(6)- The Sub-Divisional-Officer shall pass order on the same day or on the next working day, directing the Revenue Inspector or other revenue officer to demarcate the plot or plots as the case may be after fixing a date and serving the notice in respect thereof to all the tenure holders concerned. This exercise shall be completed within a period of one month from the date of order passed by Sub-Divisional-Officer. 22(7)- The notice under sub-rule (6) of this rule shall be served on the concerned tenure holder or in his absence on his adult family member. The notice shall also be served on the Chairman of the Land Management Committee." 11. Since petitioners have not been impleaded in the proceeding under Section 24 of the Uttar Pradesh Revenue Code, 2006 and the impugned order has been passed in violation of Rule 22(6) & 22(7) of Uttar Pradesh Revenue Code Rules, 2016 which will affect the petitioners' right and title in the plots in dispute, as such, interest of justice requires that matter should be remitted back before the respondents-authorities to consider and decide the case under Section 24 of the Uttar Pradesh Revenue Code, 2006 on merit afresh after affording opportunity of hearing to the petitioners. 12. On the point of alternative remedy, the decision of Apex Court in Committee of Management (supra) is relevant in which Apex Court has held that alternative remedy will not be barred to entertain a writ petition when impugned order has been passed without jurisdiction or in violence of principle of natural justice. Paragraph Nos. 21 & 24 of the judgment are relevant which are as follows : 21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. Paragraph Nos. 21 & 24 of the judgment are relevant which are as follows : 21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, & Ors. (1998) 8 SCC 1 : "15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ...." [See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546 ] In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore. 24. Whether in a case of this nature such a power has properly been exercised or not, in our opinion, being an intricate question should ordinarily fall for determination by the High Court itself. Our attention has also been drawn to a decision of a Seven-Judge Bench of this court in the case of P.A. Inamdar & Ors. v. State of Maharashtra & Ors. (2005) 6 SCC 537 wherein it has been held : "126. The observations in para 68 of the majority opinion in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation if read in isolation, appear conflicting or inconsistent with each other. A few observations contained in certain paragraphs of the judgment in Pai Foundation if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat-sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter-comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society." 13. The same impugned order dated 29.04.2019 has been set aside in appeal under Section 24(4) of the Uttar Pradesh Revenue Code at the instance of the respondent no. 27 and the matter has been remitted back before respondent no. 3 for fresh decision taking into consideration the interim order dated 26.08.2019 passed in the present Writ Petition No. 25056 of 2019 as well as taking into consideration the case status of Writ No. 11891 of 2004, as such, interest justice requires that impugned order dated 29.04.2019 be set aside at the instance of petitioners also who are recorded tenure-holder of Khasra No. 33. 14. Considering the ratio of law laid down by Apex Court in Committee of Management (supra) as well as considering the entire facts and circumstances coupled with the fact that writ petition was filed in the year 2019 and affidavits are exchanged between the parties, the dismissal of the writ petition on the ground of alternative remedy will not be proper. 15. 15. This Court while entertaining the writ petition has granted the ex-parte interim order dated 26.08.2019 which has been clarified by vide subsequent interim order dated 07.11.2019 that interim order for maintaining status quo will be applicable insofar as Plot No. 33 is concerned, as such, the interest of justice requires that interim protection with respect to Khasra No. 33 be granted to the parties to maintain status quo with respect to Khasra No. 33. 16. Considering the entire facts and circumstances, the impugned order dated 29.04.2019 passed by respondent no. 3 is liable to be set aside and the same is hereby set aside. 17. Writ petition is allowed and the matter is remitted back before respondent no. 3 i.e Sub-Divisional Officer / Assistant Collector, District-Ghaziabad to decide the case under Section 24 of the Uttar Pradesh Revenue Code, 2006 afresh on merit after affording opportunity of hearing to the petitioners expeditiously preferably within a period of three months. 18. In view of the interim order granted by this Court at the time of admission of the writ petition in the year 2019 which is still continuing, it is directed that parties shall maintain status quo with respect to the possession so far as Plot No. 33 is concerned. 19. No order as to costs.