Allahabad High Court
Shiv Poojan vs State Of Up And 4 Others on 20 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:51068 Court No. - 53 Case :- WRIT - C No. - 9471 of 2024 Petitioner :- Shiv Poojan Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Devi Prasad Mishra Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta Hon'ble Kshitij Shailendra,J.
1. Heard Shri Devi Prasad Mishra, learned counsel for the petitioner, learned Standing Counsel for State respondents No. 1 to 3 and Shri Pankaj Kumar Gupta, learned counsel representing respondent No. 5-Gaon Sabha.
2. This writ petition has been filed claiming following reliefs:
(i) Issue a writ, order or direction in the nature of certiorari calling for the records of case and quash the impugned judgement and order dated 10.10.2023 passed by the District Magistrate/Collector, district Basti, in Case No. 1764 of 2021 (Computerized Case No. D202117140001764) (Shiv Poojan vs. Government of U.P.), Annexure No. 1 to the writ petition, and impugned judgment and order dated 21.10.2021 passed by the Tehsildar, Tehsil Harraiya, district Basti passed in Case No. 6316 of 2014 (Computerized Case No. T20141714016316)(Gaon Sabha vs Shiv Poojan) in respect of Arazi No. 240M/0.112 hectare (Nai Parti) (Annexure No. 2 of W.P.) and judgment and order dated 13.10.2023 passed in Case No. 11219 of 2021 (Computerized Case No. T22117140111219)(Gaon Sabha vs Shiv Poojan) (Annexure No.3 of W.P.).
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to correct the wrong revenue entry entered and existing in the Khatauni of Gata No. 240, area 0.4930 hectare Shreni 5-1 Krishi Yogy Bhoomi (Parateejdeed) of village Bhataha, Tappa-Manawarpara, Post Haribanshpur, Pargana Nagar Paschim, Tehsil Harraiya, District Basti by recording the same as Sadharan Abadi according to the C.H. Form 45 (annexure No. 4 to the writ petition) as Sadharan Abadi.
3. Learned counsel for the petitioner has raised various submissions before the Court. The first submission is that the proceedings were registered under section 122-B of Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950, however the same have been decided treating the same as under section 67 of the Uttar Pradesh Revenue Code, 2006 and the appeal preferred by the petitioner has been treated as an appeal under section 67 (5) of the said Code and has been decided contrary to the provisions of section 231 of the Code. He further submits that the consolidation records depict that the land in question is recorded as "general Abadi" and, therefore, the proceedings could not be initiated treating the same as Gaon Sabha land.
4. On the other hand, Shri Pankaj Kumar Gupta, learned counsel for the Gaon Sabha has placed before this Court a final order dated 12.03.2024 passed by a co-ordinate Bench of this Court in Writ-C No. 7930 of 2024 (Avanindra Mani Tripathi vs State of U.P. and 4 others). He submits that against the identical orders of the same nature and same dates in relation to the same Gata and entertaining the identical challenge on the identical grounds, the said writ petition has been dismissed. The entire order is reproduced as under:
"1. Heard Sri Devi Prasad, learned counsel for the petitioner and learned Standing Counsel for the State as well as Sri Pankaj Kumar Gupta, learned counsel appearing for Gaon Sabha.
2. Through this writ petition, a challenge has been made to the order dated 10.10.2023 passed in appeal filed by the petitioner under Section 67(5) of the U.P. Revenue Code, 2006 and the order dated 18.11.2020 passed in proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 as well as order dated 13.10.2023 passed on the recall application moved under Section 209 (H) of the U.P. Revenue Code, 2006.
3. Facts giving rise to the present case are that the proceedings for eviction started on the basis of report dated 01.11.2014 submitted under Rule 115-C of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 in the Court of Tehsildar, Tehsil- Harraiya, District- Basti in respect to Gata No.240-M stating that the petitioner has built a house on the land of Gaon Sabha. Notice in Form 49-Ka was issued which was served. As the petitioner remained absented, an order for eviction along with damages was passed.
4. Petitioner filed an appeal under Section 67(5) of U.P. Revenue Code, 2006 and also moved a recall application under Section 209 (H). The appeal was dismissed vide order dated 10.10.2023, and the recall application was also dismissed on 13.10.2023, hence the present writ petition.
5. Learned counsel for the petitioner has submitted that that father of petitioner had constructed a hut over the said Arazi No.240, and for the last 40 years they are residing in the said house. According to him, the land has been recorded in the consolidation proceedings in CH-Form 41 & 45 as abadi (sadharan). Once, the land has been recorded as abadi, no proceedings for correction of entry of CH-Form 41 & 45 had been carried out, and the respondents illegally issued notice for eviction claiming it to be the land of Gaon Sabha recorded as navin parti.
6. Learned counsel has further submitted that already an application for exchange of the land of the petitioner being Gata No.284-Ka/0.219 hectares and Gata No.250-M/0.118 hectares in lieu of house and sahan occupied over Gata No.240-M/0.493 hectares is engaging attention of Sub Divisional Magistrate. The Land Management Committee had already passed a resolution on 21.10.2020 accepting the exchange offer.
7. Sri Pankaj Gupta, learned counsel appearing for the Gaon Sabha submits that that it is an admitted case that petitioner is not the owner in possession of Gata No.240-M/0.493 hectares which is already recorded as navin parti, and is the property of Gaon Sabha. The application moved for exchange under Section 101 of the U.P. Revenue Code, 2006 by the applicant clearly in para 2 admits this fact.
8. According to Sri Gupta, once the petitioner himself admits that the land in question is the property of the Gaon Sabha, eviction proceedings launched on the report of Lekhpal need no interference. He then invited attention of the Court to order dated 02.02.2021 passed in Writ-C No.2858 of 2021 by Co-ordinate Bench of this Court which is on the petition filed by the petitioner himself seeking a direction for accepting the application for exchange.
9. I have heard respective counsel for the parties and perused material on record.
10. It is an admitted case by the petitioner that he is not the owner in possession of Gata No.240/0.493 hectares which is recorded as navin parti i.e. property of the Gaon Sabha. In para 2 of the application moved by the petitioner for exchange of land, which is part of the record as Annexure 2, clearly reveals that petitioner himself has accepted the land in question to be the land of Gaon Sabha.
11. The argument led by petitioner as to entry in Form CH- 41 & 45 cannot be accepted as it is his own admission that the land in question is recorded as navin parti of the Gaon Sabha and petitioner wants to exchange his bhumidhari land with this land.
12. The construction of the alleged house is on the land of Gaon Sabha which is clearly demonstrated from the records and the reports submitted by the Lekhpal cannot be disputed which has led to the passing of eviction order which was confirmed by the appellate authority.
13. Once, it is an admitted position that Gata No.240-M was recorded as navin parti of the Gaon Sabha and petitioner having made construction over it, does not entitle him to continue over the said land unless and until the application for exchange is allowed by the Sub-Divisional Officer.
14. Considering the facts and circumstances of the present case, I find that the petitioner has failed to make out any case for interference of this Court while exercising jurisdiction under Article 226 of the Constitution of India.
15. Writ petition fails and is hereby dismissed."
5. Learned counsel for Gaon Sabha further submits that the only difference between the aforesaid order and the present case is that on a previous occasion, Writ C No. 2858 of 2021, referred to in paragraph 8 of the aforesaid order, was filed by the concerned petitioner, whereas the present petitioners had filed Writ-C No. 2840 of 2021 (Shivpujan vs State of U.P. and 3 others), which was disposed of vide order dated 02.02.2021.
6. Referring to the aforesaid proceedings, Shri Gupta further submits that, in fact, the petitioner is bound by the admissions made by him before the courts of law; first, before the Sub Divisional Officer and, secondly, before this Court, inasmuch as, treating the land in question as Gaon Sabha land (Naveen Parti), the petitioner, in the year 2021, had moved an application under section 101 of the U.P. Revenue Code, 2006 requesting exchange of the property. Admittedly, the said proceedings under section 101 of the Code of 2006 are pending and the direction of the writ Court contained in the order deciding Writ-C No. 2840 of 2021 has not yet been complied with.
7. As far as the first submission made by the learned counsel for the petitioner regarding alleged violation of section 231 of the Code of 2006, learned counsel for Gaon Sabha has placed reliance upon the following judgment/orders:
(i) Writ B No. 297 of 2022 (Brijesh vs State of U.P. and 4 others) decided on 10.08.2022.
(ii) Vikram Singh Junior High School vs The District Magistrate (Finance & Revenue) and others, (2002) 9 SCC 509
(iii) State of Karnataka vs Muniyalla, (1985) 1 SCC 196.
8. By placing reliance on the aforesaid authorities, Shri Gupta submits that mere mention of wrong provision would be of no significance as nomenclature would not decide the nature of the proceedings and once proceedings have been decided on merits by the authorities competent to decide the same under the statutory provisions, the argument of the petitioner that the proceedings were initiated under section 122-B of Act of 1950, but have been decided under the provisions of Code of 2006, is of no substance.
9. I have considered the aforesaid submissions and I find that the petitioner himself filed an appeal under section 67(5) of the Code of 2006 against the order dated 21.01.2021 and it is, therefore, the same provision has been mentioned by the Collector in the order impugned dated 10.10.2023. Even ignoring the provision mentioned in the memo of appeal or in the order, I find that the Collector is the authority competent to decide the proceedings under the Code of 2006 as well as challenge made to an order under section 122-B of the Act of 1950. Once the Collector has decided the appeal on merits, even if the contention of the petitioner to the effect that section 67(5) of the Code of 2006 was wrongly mentioned in the order impugned, the same would not change the nature and effect of the order that has been passed on merits, particularly, when this Court does not find any inherent lack of jurisdiction in any of the authorities that have passed the orders impugned nor has any argument on that line been advanced on behalf of the petitioner.
10. Learned counsel for the petitioner vehemently submits that merely because the petitioner made a claim for exchange, the same would not amount to an admission and the matter has to be decided on the basis of the record.
11. I am not inclined to accept the submission so advanced. Though, it is true that admissions are not conclusive proof of the matter admitted, they certainly estop a person from taking a somersault. Reference to section 31 of the Evidence Act, 1872 can be made in this regard, as under:-
"31. Admissions not conclusive proof, but may estop.-
Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained."
12. The petitioner, in the opinion of the Court, cannot blow both hot and cold in the same breath, that is to say that once he successively invoked the jurisdiction of the courts at district and High Court level by making a claim for exchange of land, he cannot, later on, contend that the orders impugned treating the land as Gaon Sabha land are factually or legally incorrect. If the petitioner's claim for exchange has not yet been decided, it is open for him to take recourse under the law and this Court is not sitting in contempt jurisdiction to examine alleged violation of any order passed by writ Court directing decision in matter of exchange.
13. The reasoning assigned by the coordinate Bench of this Court in the aforesaid order dated 12.03.2024 deals with all submissions advanced by the concerned petitioner on merits of his claim, which have been advanced by the learned counsel for the petitioner in the present case also.
14. Learned counsel for the petitioner, in the last, submits that insofar as the order dated 12.03.2024 deciding Writ C No. 7930 of 2024 is concerned, since the order was reserved by the concerned co-ordinate Bench of this Court, he could not address the Court on the second prayer made in the said petition. Learned counsel, therefore, insisted upon this Court to examine the second prayer irrespective of dismissal of identical Writ C No. 7930 of 2024 filed by another person.
15. I have examined even the second prayer made in the present writ petition. The prayer for correcting the revenue entries cannot be directly entertained by the writ Court, moreso when the orders impugned in the petition arise from proceedings of different nature and, therefore, even the second prayer has no substance.
16. The writ petition is dismissed with liberty to the petitioner to avail remedies, as may be available to him under the law as regards prayer No.2.
Order Date :- 20.3.2024 Sazia