Allahabad High Court
Harikishan And Another vs State Of U.P. And 6 Others on 6 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1573
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 6 Case :- WRIT - C No. - 13790 of 2019 Petitioner :- Harikishan And Another Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Tripurari Sharan Shukla Counsel for Respondent :- C.S.C.,Anirudh Kumar Upadhyay,Dharam Deo Chauhan Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioners and learned Standing counsel for the State-respondents.
At the very outset, counsel for the petitioners has stated that a counter affidavit has been served upon him in court today. He therefore, may be granted time to file rejoinder affidavit.
However, looking into the facts of this case, this Court is ignoring the counter affidavit and for the same reason not granting any time to filing rejoinder affidavit.
Challenge in this writ petition is to an order passed by the trial Court in a declaratory suit under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act, filed by the petitioner, claiming bhumidhari rights over plot no.576 area 0.166 biswa, situated in village Parigawa, Pargana Naugarh, Tehsil Shohratgarh, District Siddharth Nagar.
This suit was dismissed on 22.09.2013. The petitioner filed an appeal, which has been dismissed by the Commissioner, Basti on 24.01.2019.
The petitioner is claiming bhumidhar rights over the plot in question, which is manifestly a pond. He claims on the basis of a fisheries lease granted in favour of his father in the year 1988.
In the writ petition, it has also been averred that as regards, the plot in question, a suit under Section 122B 4F of the U.P. Zamindari Abolition and Land Reforms Act was filed, ostensibly under the directions of the writ Court. In these proceedings, the father of the petitioner is stated to have been declared a bhumidar with transferable rights vide order dated 24.02.2000.
Against this order, a revision was filed by respondent no.5, which came to be dismissed on 07.12.2000 by the District Magistrate, Siddharth Nagar.
Yet another revision is alleged to have been filed by the respondent no.5 before the Commissioner being revision No.74 of 2000, which was allowed on 22.02.2001.
Against this order and claiming it that it had been passed in a second revision, which was not maintainable, the petitioner filed a revision before the Board of Revenue, which was dismissed on 13.02.2002. The petitioner thereafter, filed a writ petition No.19889 of 2002, which was also dismissed.
It appears that some observation was made by the writ Court while dismissing the writ petition on the basis whereof, petitioner is stated to have been instituted a suit under Section 122B (4F) of the U.P. Zamindari Abolition and Land Reforms Act.
It is stated that in the suit, under Section 122B (4F) of the U.P. Zamindari Abolition and Land Reforms Act, an order of status-quo was passed in favour of the petitioner on 07.11.2007. This order was recalled , it is alleged, illegally.
The petitioner filed a revision No.11 of 2014, against the order vacating his interim order, which was dismissed on 18.04.2014.
Petitioner, thereafter, filed Writ Petition No.32896 of 2014, which was ultimately disposed of, vide order dated 25.01.2018, directing that the proceedings be decided within a period of three months. The interim order in favour of the petitioner was ordered to be continued during the pendency of the proceedings.
The aforesaid are one set of the proceedings regarding the same land . The second set of proceedings arise out of an allotment of the plot in question for fisheries lease, to one Shiv Kumar, respondent no.6, in this writ petition. It is alleged that this allotment was made in violation of the interim orders operating in favour of the petitioner.
The petitioner is also stated to have instituted a case for cancellation of the lease, aforenoted.
The suit, the third set of proceedings, wherefrom the instant writ petition arises is Suit No.69 of 2011 under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act, which has been filed, subsequently.
This suit has been dismissed as has been the consequential appeal.
From the facts noticed above, it is emerges that one suit has been filed by the petitioner under Section 122B (4F) of the U.P. Zamindari Abolition and Land Reforms Act, allegedly, on the observations made by the writ Court.
In this connection, it would relevant to state that the provision aforesaid, namely, Section 122B (4F) of the U.P. Zamindari Abolition and Land Reforms Act, is a defence to be invoked by a person against whom, proceedings for his eviction are indicated under Section 122B of the Act. It is not a weapon of offence. This is so because no forum has been provided in Schedule-II of the U.P. Zamindari Abolition and Land Reforms Act for filing of such an application or suit The suit, therefore, in my considered opinion, as also any subsequent proceedings arising therefrom, are wholly without jurisdiction.
In so far as the proceedings for cancellation of the fisheries lease granted in favour of the respondent no.6 is concerned, the same is stated to be pending. The U.P. Zamindari Abolition and Land Reforms Act provides the manner for grant of a lease as also its cancellation. It is settled law that such provisions are a complete code themselves.
In any case, the instant suit under Section 229B of the Act, filed by the petitioner wherefrom this petition arises, has been decided by the trial and the first appellate court.
The petitioner has a statutory alternative remedy of a second appeal before the Board of Revenue as clearly specified at serial No.34 of Schedule II to the U.P. Zamindari Abolition and Land Reforms Act, which has not been availed by him.
Under the circumstances, this Court does not consider it a fit case for interference primarily on the ground that the statutory alternative remedy was not availed by the petitioner.
In any case, the instant suit would not be maintainable, if the contention of counsel for the petitioner is that he had filed a suit under Section 122B (4F) seeking an identical relief. However, as already noted above, no such suit lies because the provision of law contained in Sub-section (4F) of Section 122B of a defence and not a weapon of offence.
It would also be relevant to observe that a plot, which had been granted to the petitioners father for a fisheries lease is admittedly a pond and land governed by the provisions of Section 132 of U.P.Zamindari Abolition and Land Reforms Act. No one can became a bhumidhar with transferable rights of such land governed by Section 132 of the Act. The declaration claimed by the petitioner, therefore, is entirely misconceived and cannot be granted, under any circumstance.
In view of what has been stated above, this Court does not find any merit in the writ petition.
It is, accordingly, dismissed.
Order Date :- 06.01.2020 RKM