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Durg Vijai Nath Yadav And Others v. Commissioner Gorakhpur And Others - WRIT - C No. 55820 of 2000 [2006] RD-AH 868 (13 January 2006)


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Court No.26

Civil Misc.Writ Petition No.55820 of 2000

       Durg Vijai Nath Yadav and others


Commissioner Gorakhpur Division Gorakhpur and others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order-dated 13.9.2000 (Annexure 6 to the writ petition) passed by the respondent No.1.

The facts arising out of the present writ petition are that the dispute relates to Arazi No.87(ka) area and 87(kha), area .16 decimal which is situated  at village Tikuli, Banaras Tappa Rampur Kotha, Pargana- Bhauapur, Tehsil Bansgaon, District- Gorakhpur.  The plot Nos. 82 and 86 were allotted by the Land Management Committee in favour of one Janki.  The Sub-Divisional Magistrate vide its order dated 29.2.1988 approved the allotment made in favour of Janki. One Sambhal, respondent No.3 in the present writ petition made an application before the respondent No.2 under section 198 (4) of U.P.Z.A.& L.R. Act.  The said application was allowed vide its order-dated 18.3.1996. Copy of the same has been filed as Annexure 1 to the writ petition.  The respondent No.3 made an application before the Sub-Divisional Magistrate, Bansgaon under section 122-B (4-F) and 123 of U.P.Z.A. & L.R. Act regarding Arazi Nos. 87(ka) and 87(kha), area .16 decimal. In the said application the respondent No.3 has sought a relief declaring the respondent No.3 as Bhumidhar of non transferable right on the ground that the land in dispute was settled under section 122(B) (4-F) of U.P.Z.A.& L.R. Act.  Vide its order-dated 4.7.1996 the said application was allowed by the respondent No.2 in view of the order-dated 18.3.1996.  When the petitioners came to know regarding the aforesaid order passed by the respondent No.2 on 4.7.1996 they moved an application for recalling the said order dated 4.7.1996.  It has been stated by the petitioners that the order-dated 4.7.1996 has been passed without affording an opportunity to the petitioners.  It has also been stated that the petitioners have not been impleaded even as a party to the proceeding. The respondent No.2 after hearing the parties vide its order dated 26.11.1997 recalled the order dated 4.7.1996 and rejected the application filed by the respondent No.3 under section 122-B (4-F) of the U.P.Z.A.& L.R.Act.  The respondent No.3 aggrieved by the aforesaid order filed a revision before the Commissioner, Gorakhpur Division, Gorakhpur.  The respondent No.1 vide its order dated 13.9.2000 allowed the revision and has cancelled the order dated 26.11.1997 and the matter has been remanded back to the respondent No.2 for reconsideration.

Aggrieved by the aforesaid order the petitioners have approached this Court.

The writ petition was entertained and by its order dated 2.1.2001, this Court has stayed the order dated 13.9.2000.  The respondent No.3 has filed a counter affidavit.

It has been submitted on behalf of the petitioners that the petitioners are Bhumidhars of Plot Nos. 87(ka) and 87(kha) and from the order dated 18.3.1996 (Annexure 1 to the writ petition) which is under section 198(4) of the Act and was initiated by the respondent No.3 against one Janki for cancellation of patta which was allotted in favour of Janki.  There was no whisper or averment made in the said application or in the order regarding the plot Nos. 87(ka) and 87(kha) as the plot Nos. 87(ka) and 87(kha) are the bhumidhar plots of the petitioners.  It has further been submitted on behalf of the petitioners that in the order dated 4.7.1996 the petitioners were not given any opportunity, therefore, when the petitioners came to know they made an application for cancellation of the order dated 4.7.1996 and the application of the petitioners was allowed. Before the revisional court the respondent No.3 has also included the plots of the petitioners.  The revisional court without considering this aspect of the matter that there was no dispute regarding the plot Nos. 87(ka) and 87(kha) of which petitioners  are Bhumidhars but the respondent No.3 only to defeat the claim of the petitioners has included the said plots which are the bhumidhari of the petitioners.  The further submission of the petitioners is that at no point of time there was any dispute regarding the plot Nos. 87(ka) and 87(kha).  The effect of the remand order will be that the petitioners will not be afforded an opportunity and the rights of the petitioners are going to be effected by any order passed by the Sub-Divisional Magistrate.

On the other hand, Sri Wazid Ali, Advocate, who appeared for the respondent No.3 has submitted that on the plot Nos. 87(ka) and 87(kha), the respondent No.3 is in possession and there is a pakka house situated in the said plot.  It has further been submitted that the order dated 26.11.1997 was passed without giving an opportunity to file an objection, therefore, the respondent No.1 has rightly set aside the matter and the matter has been remanded back for reconsideration.

I have heard learned counsel for the petitioners and counsel for the respondents and have perused the record.

Taking into facts and circumstances of the present case, in my opinion, there is no illegality in the order passed by the respondent No.1 remanding the matter to the competent authority to consider the matter as a fresh regarding adjudicating the rights of the parties.  The writ petition is being disposed of with the direction to the respondent No.2 to decide the case on the basis of the order of respondent No.1 after affording an opportunity to the petitioners and if possible, the petitioners will be permitted to file an objection supported by an evidence and document to show that the plots Nos. 87(ka) and 87(kha) are the bhumidhar plots of the petitioners.  It is further directed that the respondent No.2 will pass a detailed and reasoned order according to law, preferably, if possible, within a period of six months from the date of production of the certified copy of this order.

 There shall be no order as to costs.




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