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2023 DIGILAW 550 (ALL)

Ijlasi Devi v. State of U. P.

2023-02-23

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Mr. L.K. Tripathi, learned Additional Chief Standing Counsel has placed the instruction before the Court in compliance of the order of this Court dated 13.1.2023 which is taken on record. 2. Heard Mr. Ram Bachan Yadav, Counsel for the petitioner and Mr. L.K. Tripathi, learned Additional Chief Standing Counsel for the State-respondents. 3. The instant petition has been filed for mandamus commanding the respondent No.4 to restore the house of the petitioner in its previous position which has been demolished in part by the authorities in spite of the pendency of civil suit before the Civil Court as well as the proceeding pending before the Revisional Court. It is also prayed that necessary action be taken against the authorities who have illegally demolished the the petitioner's construction in part without conducting legal procedure. 4. Brief facts of the case are that petitioner is bhoomidhar of plot No. 2043 area 0.0080 hectare and house is situated over the same. Private respondent No.8 is the owner of adjacent plot 1950. Civil suit No. 892 of 2022 was filed by petitioner for injunction impleading private-respondent No.8 Bacchu as defendant. In the aforementioned civil suit, interim injunction for maintaining status quo has been passed which is still in operation. Proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against the petitioner in respect to plot No. 2042 area 0.0001 hectare which is recorded as chak marg in the revenue records. Tehsildar vide order dated 8.9.2022 passed the order for ejectment of the petitioner from plot No. 2042 area 0.001 hectare and also imposed damages against the petitioner. Against the order of ejectment and damages dated 8.9.2022 petitioner filed a restoration application on 7.10.2020 before the Tehsildar which is still pending for disposal. It is mentioned in the writ petition that boundary wall of the petitioner's construction has been demolished in compliance of the order of ejectment and damages passed against the petitioner on 8.9.2022. In Paragraph 10 of the petition, it is mentioned that authorities have demolished the part of the construction on 22.11.2022. Hence this writ petition. 5. Counsel for the petitioner submitted that petitioner is recorded owner of plot No. 2043 and have raised the construction in his plot. He further submitted that petitioner has not raised any construction in the plot No. 2042. Hence this writ petition. 5. Counsel for the petitioner submitted that petitioner is recorded owner of plot No. 2043 and have raised the construction in his plot. He further submitted that petitioner has not raised any construction in the plot No. 2042. He further submitted that civil suit against the private-respondent No.8 is pending in which the interim injunction for maintaining status quo is operating in respect to plot No. 2043 and in disobedience of injunction order, the part of the petitioner's construction has been demolished by the authorities. He submitted that against the order of ejectment and damages passed against the petitioner in respect to plot No. 2042 in the proceeding under Section 67, restoration application is pending before the respondent No.4, Tehsildar, as such, the act of demolition of petitioner's construction by the State-authorities is wholly illegal and petitioner is entitled to the relief claimed in the writ petition. Counsel for the petitioner placed reliance upon the Division Bench judgement of this Court reported in (2022) 0 Supreme Allahabad 1038 Vijay v. State of U.P. and Others as well as the Government order dated 3.8.2022. Counsel for the petitioner submitted that in view of the ratio laid down in the aforementioned Division Bench Judgement rendered in Vijay (Supra), petitioner is entitled to the relief claimed in the writ petition for restoration of his demolished construction. 6. In reply, Mr. L.K. Tripathi, learned Additional Chief Standing Counsel submitted that petitioner's construction situated in plot No. 2042 which is recorded as chak marg. He further submitted that order for ejectment and damages has been passed against the petitioner in respect to plot No. 2042. He further submitted that civil suit has been filed in respect to plot No. 2043 and the interim injunction has been granted in respect to plot No. 2043. He further submitted that if version of the petitioner is accepted that the petitioner's construction is situated in plot No. 2043 then he should taken proper remedy in the pending suit under Order 39, Rule 2A of the civil procedure code. He further submitted that petitioner had filed a restoration application against the order of ejectment and damages dated 8.9.2022 which is pending but the order has not been recalled, stayed or set aside, as such, petitioner is not entitled to the relief claimed in the writ petition. 7. He further submitted that petitioner had filed a restoration application against the order of ejectment and damages dated 8.9.2022 which is pending but the order has not been recalled, stayed or set aside, as such, petitioner is not entitled to the relief claimed in the writ petition. 7. The instruction dated 28.1.2023 submitted by State is relevant for perusal which is as under:- 8. I have considered the arguments advanced by Counsel for the parties and perused the record. 9. There is no dispute about the fact that petitioner is recorded owner of plot No. 2043 area 0.0080 hectare and civil suit is pending regarding the plot No. 2043. 10. There is also no dispute about the fact that plot No. 2043 is recorded as chak marg and order for ejectment and damages has been passed against the petitioner on 8.9.2022 against which petitioner's restoration application is pending but the order of ejectment and damages has not been recalled or set aside. 11. Since the petitioner has been found in unauthorized possession of plot No. 2043 in the proceeding under Section 67 of U.P. Revenue Code, 2006 which is subject to the further order passed by the Tehsildar in the restoration application filed by the petitioner, as such, no relief can be granted to the petitioner at this stage unless the order for ejectment and damages passed against the petitioner is recalled or set aside. 12. So far as, the Division Bench Judgement of this Court in Vijay (Supra) is concerned, it has been held by Division Bench of this Court that in respect to for private dispute, the administrative authorities should not interfere particularly when parties are litigating before the Civil Court, the Division Bench has also considered the Government order dated 3.8.2022 which has been placed by learned Counsel for the petitioner also and the Government order is to the effect that administrative authorities should not enter into the private dispute between the parties but in the present matter, the dispute is otherwise, the civil suit is pending before Civil Court in respect to plot No. 2043 and in respect to plot No. 2042 Tehsildar has already passed an order for ejectment and damages against the petitioner. 13. 13. In the instant case, the proceeding under Section 67 has been initiated and the order for ejectment and damages has been passed against the petitioner, as such, it cannot be said that administrative authorities have entered into the private dispute of the authorities concerned. It is also material that unless the order for ejectment and damages is recalled, set aside or stayed, petitioner cannot say that his construction has been demolished in the illegal manner. 14. Considering the entire facts and circumstances, no interference is required in the matter. 15. Writ petition is devoid of merit and is accordingly dismissed. 16. However, respondent No.4, Tehsildar is directed to decide the petitioner's restoration application dated 7.10.2022 filed against the order dated 8.9.2022 expeditiously preferably within period of three months. 17. Learned Standing Counsel shall serve the copy of the instruction upon Counsel for the petitioner during course of the day.