Allahabad High Court
Phoolpati vs State Of U.P. And Others on 9 May, 2012
Author: Ran Vijai Singh
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 6 Case :- WRIT - C No. - 21705 of 2012 Petitioner :- Phoolpati Respondent :- State Of U.P. And Others Petitioner Counsel :- Amulya Ratan Srivastava Respondent Counsel :- C.S.C.,Mahesh Narain Singh Hon'ble Ran Vijai Singh,J.
I have heard Sri Amulya Ratan Sriavastava, learned counsel for the petitioner, Sri Rajesh Kumar, learned standing counsel and counsel for the Gaon Sabha.
Considering the nature of the order which this Court intends to pass, no notice is issued to respondent no. 4 and the writ petition is taken up for final disposal with the consent of learned counsel for the parties.
Through this writ petition, the petitioner has prayed for following reliefs.
(i) Issue a writ order or direction in the nature of mandamus commanding the respondent authorities to restore possession of the petitioner over part of the patta land situated over Plot No. 190 area 0.03 decimal situated in Village Babhnauli, Post Office Mansa Chhapar, District Kushinagar.
(ii) Issue a writ order or direction in the nature of mandamus commanding the respondent authorities to restrain the respondent no. 4 from interfering in peaceful possession of petitioner over part of the patta land in plot no. 190 area 0.03 decimal situated in village Babhnauli, Post Office Mansa Chhapar, District Kushinagar.
(iii) Issue a writ order or direction in the nature of mandamus commanding the respondent authorities to restrain the respondent no. 2 to pass appropriate and reasoned orders on the petitioner application filed before him in respect of possession over part of the Patta Land in plot no. 190 area 0.03 decimal situated in village Babhnauli, Post Office Mansa Chhapar, District Kushinagar.
(iv) Issue any other writ order or direction which the Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iv) Award cost of the writ petition to the petitioner.
The facts giving rise to this case are that it appears the petitioner was granted a lease for housing side over an area of 0.03 decimal over Plot no. 190 in Village Babhnauli, Post Office Mansa Chhapar, District Kushinagar.The aforesaid land was given on lease on 3.1.1974 in favour of the petitioner's husband namely Sudharshan. After allotment, on the some portion of the land, a small house was constructed by the husband of the petitioner and the petitioner along with husband and children started to live therein. Thereafter the vacant area of the lease land has been forcefully occupied by the respondent no. 4. The petitioner herein it appears has filed an application under Section 122-D of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as Act) for restoration of possession.
Sri Amulya Ratan Srivastava, learned counsel for the petitioner contends that on the aforesaid application, the Additional District Magistrate who was officiating as District Magistrate, Kushinagar had directed the Tehsildar for handing over the possession of the land in dispute to the allottee. This order appears to have been passed on an application on 25.11.2011, on the administrative side, copy of which has been brought on record along with application as annexure 3 to the writ petition. No final decision has been taken thereafter. Hence this writ petition.
In the submissions of Sri Srivastava, the aforesaid application although do not contain any provision under which it has been filed but he submits that it is referable under Section 122-D of the Act and that deserves to be decided, hence direction be issued to decide the same at the earliest possible.
Before entering into the nature of the controversy and the relief sought for, it would be appropriate to reproduce the language used in Section 122-D of the Act, which is reproduced below :-
Section 122-D. Restoration of possession to allottees :- (1)Where any land, refereed to in sub-section (2) of Section 122-C, is allotted to any person for the purposes of building of house and any person other than the allottee is in occupation of such land in contravention of the provisions of this Act, the Assistant Collector may, of his own motion, and shall, on the application of the allottee, put the allotee in possession of such land may, for that purpose, use or cause to be used such force, as he considers necessary.
(2) Where any person, after being evicted under this section, reoccupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees :
Provided that the Court convicting the accused may, while passing the sentence, direct that the whole or such portion of the fine, that may be recovered, as the Court considers proper, be paid to the allottee as damages for use and occupation.
(3) Where in any proceeding under sub-section (2), the Court, at any stage after cognizance of the case has been taken, is satisfied by affidavit or otherwise that-
(a) the accused is in occupation of the land to which such proceeding relates, in contravention of the provisions of this Act, and
(b) the allottee is entitled to the possession of such land, The Court may, summarily, evict the accused from such land pending the final determination of the case, and may put the allottee in possession of such land.
(4) Where in any proceeding under sub-section (2), the accused is convicted, the interim order passed under sub-section (3) shall be confirmed by the Court.
(5) Where, in any proceeding under sub-section (2), the accused is acquitted or discharged and the Court is satisfied that the person so acquitted or discharged is entitled to be put back in possession over such land, the Court shall, on the application of such person, direct that delivery of possession be made to him.
(6) Nothwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under sub-section (2) may be tried summarily.
(7) For the purpose of speedy trial of offences under this section, the State Government may, in consultation with the High Court, by notification, constitute special Courts consisting of an officer not below the rank of Sub-Divisional Magistrate; which shall, subject to the provisions of the Code of Criminal Procedure, 1973, exercise, in relation to such offence, the powers of a Judicial Magistrate of the first Class.
(8) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sub-section (2) shall be cognizable and non-bailable.
From the bare reading of Sub-section 1 of Section 122-D of the Act, it transpires that if any land is allotted to any person for the purposes of constructing building/house and any person other than the allotte is in occupation of such land in contravention of the provisions of this Act, the Assistant Collector may, of his own motion, and shall, on the application of the allottee, put the the allottee in possession of such land, he may for that purpose, can use or cause to be used such force. The Sub-section 2 of the aforesaid section provides that if after the eviction of the unauthorized occupant, any person reoccupies the land in that eventuality the act of the unauthorised occupant shall be punishable with imprisonment for a term which may be upto two years. Sub-Section 3,4, 5, 6, 7 and 8 of Section 122-D of the Act talks about the power to take cognizance and also initiate the proceedings for penal action. Sub-Section 7 of Section 122-D provides that for the purpose of speedy trial of offences under this section, the State Government may, in consultation with the High court, by notification, constitute special Courts consisting of an officer not below the rank of Sub-Divisional Magistrate, which shall, subject to the provisions of the Code of Criminal Procedure, 1973, exercise, in relation to such offence, the powers of a judicial Magistrate of the First Class. The language used in Sub-section 122-D is identical to Section 198-A (1 and 2) which is with respect to the handing over the possession to the lease holder after evicting the unauthorized occupant over the lease land. First one is related to the agricultural purpose and the second one is for the housing side.
Here in this case, the case of the petitioner is that after the allotment of the land, the husnand of the petitioner was put in possession and thereafter he constructed the house and was residing there. He/she may have perfected his/her right over the allotted land and in case after the allotment and perfection of right over that land somebody forcefully occupies any portion of the land from the bare reading of aforesaid section, it would not be incumbent upon the Sub-Divisional officer to entertain the application under Section 122-D and evict such person. The objection of this Section is to put in possession the allottee of the land after evicting the person if any who is found to be in possession over the lase land or re-enter in the lease premises and reoccupies same after eviction.
The matter may be examined from another angle also. In the submissions of learned counsel for the petitioner, the land was allotted for housing purpose over an abadi. The question would be as to whether when land is declared as abadi, the provisions of the Act would be applicable. For appreciating the controversy it would be useful to go through the provisions contained under Section 143 of the Act which run as under :-
Section 143 Use of holding for industrial or residential purposes :-
(1) Where a (bhumidhar with transferable rights) uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.
(1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector in charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration.) (2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this chapter (other than this section shall cease to apply to the (bhumidar with transferable rights) with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.
(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.
From the bare reading of Sub-section 2 of Section 143 of the Act after declaration as mentioned in Sub-section 1 (declaration of abadi), the provisions of this chapter (other than this section shall cease to apply to the (bhumidar with transferable rights) with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject) meaning thereby the provisions of the Act would not be attracted after declaration of the land as abadi and that shall be governed under the general law or personal law to which he/she is subject.
It is well settled that where a Statute requires to do certain thing in a particular method, then that thing must be done in that very method and other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid legal proposition is based on a legal maxim " Expressio unius est exclusio alterius", meaning thereby that 'if a Statute provides for a thing to be done in a particular manner, then it has to be done in that very manner and other manner and procedure is ordinarily not permissible'. (Vide Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Vs. State of Rajasthan, AIR 1961 SC 1527; Haresh Dayaram Thakur Vs. State of Maharashtra & Ors., (2000) 6 SCC 179; Dhanajaya Reddy Vs. State of Karnataka etc. etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633).
The language used in Sub-section 2 of Section 143 of the Act is unambiguous and clear in letters as well as spirit, there is no scope of any ambiguity or confusion, therefore in its literal meaning the provisions contained in section prohibit the application of this provision after allottee is put in possession. In my considered opinion, the provisions contained under Sub-section (2) of Section 143 of the Act is mandatory in character.
Otherwise also, the petitioner would not be entitled to seek a writ of mandamus as it is well settled that for issuing a writ of mandamus, there must be a statutory duty imposed upon the authority concerned and there is failure on the part of that authority to discharge that statutory obligation. Further, the person seeking writ of mandamus must show that he has a legal right to the performance of a legal duty by the party, against whom mandamus is sought. Reference may be given to the judgment of the Apex Court in State of M.P. Vs. G.C.Mandawar, AIR 1954 SC 493 and Lekhraj Sathramdas Lalvani Vs. N.M.Shah, Deputy Custodian Cum Managing Officer, Bombay & Ors. AIR 1966 SC 333, Union of India and another Vs. S.B.Vohra and others (2004) 2 SCC 150 and Oriental Bank of Commerce Vs. Sunder Lal Jain and another (2008) 2 SCC 280.
In view of the foregoing discussions, I do not find any merit in this petition. The writ petition is dismissed. The petitioner is at liberty to take any other legal recourse either under the general law or personal law.
Order Date :- 9.5.2012 Pratima