Vibhuti and Another v. State of U.P. and 3 Others

Court No. - 51 Case :- WRIT - C No. - 32483 of 2023 Petitioner :- Vibhuti And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bhagwan Dutt Pandey Counsel for Respondent :- C.S.C.,Prakash Chandra Tripathi,Sudhir Bharti Hon'ble Chandra Kumar Rai,J.

¶1Supplementary affidavit filed today is taken on record.

¶2Heard learned Counsel for the petitioners, Mr. Prakash Chandra Tripathi, Counsel for respondent no.4, Mr. Mridul Kumar, learned Standing Counsel for the State-respondents and Mr. Sudhir Bharti for respondent no.3, Land Management Committee.

¶3The instant petition has been filed challenging the orders dated

30.8.2023 and 17.6.2009 passed by Sub Divisional Officer in the proceeding under Sections 176 or 116 of the U.P.Z.A. and L.R. Act.

¶4Counsel for the petitioners submitted that partition proceeding was conducted in ex-parte manner. He further submitted that restoration application filed by the petitioners has been rejected by the Sub-Divisional Officer hence this writ petition without availing the remedy of appeal or revision as matter has been decided in ex-parte manner even the kurra prepared by Lekhpal has been confirmed by the Sub-Divisional Officer in violation of principles of natural justice. He further placed the copy of the proceeding in order to demonstrate that opportunity has not been afforded to the petitioners. He further submitted that in the kurra submitted by the Lekhpal, the right of the petitioners has been affected and the petitioners have been given share in the backside and the contesting respondents have been adjusted in the front side adjacent to the road. He submitted that impugned order be set aside and the petitioners should be given opportunity to file objection against the kurra prepared by the Lekhpal.

¶5On the other hand, learned Counsel appearing for respondent no.4 submitted that proper opportunity was afforded to the parties and the order has been passed by the Sub Divisional Officer in the suit for partition filed in the year 2008-2009. He further submitted that kurra submitted by the Lekhpal was confirmed by the Court vide order dated 17.6.2009 after issuing summon to the parties. He further submitted that final decree has been prepared and the possession has been delivered to the parties, as such, writ petition against the order of the Sub Divisional Officer dated

17.6.2009 and 30.8.2023 is not maintainable rather the petitioners should avail remedy as provided under the U.P.Z.A. and L.R. Act or the U.P. Revenue Code, 2006 by way of appeal before appropriate Court.

¶6I have considered the arguments advanced by learned Counsel for the parties and perused the records.

¶7There is no dispute about the fact that suit for partition has been decreed by the Trial Court and even the final decree has been prepared in the suit proceeding.

¶8In order to appreciate the controversy, the perusal of the order dated

30.8.2023 will be relevant which is as under:- "

आददशकपतक

नययययलययउपजजलयजधकयरर

मणडलयगगरखपपर,जनपदयमहयरयजगगज,तहसरलयफरदनदय

वयदसगखययय-RST/47/2009-2010

कगपययटररककतवयदसगखययय-T201605470403299

सपदयमयबनयमववभयतरआवद

अनतगरतधयरयय-176, अजधवनयमय-

उ०प०ज०वव०भय०वय०अजधवनयम,1950 "

ममनदउभयपकककदववदयनअजधवकयगणककतकरपयणरबहसकगसपनयएवगपतयवलरकयअवलगकनवकयय।

वदनयगक08.08.2023

कगउभयपककककउपसससवतममसवयगकदतरयलदखपयलकदसयसआपजतकतयर

तसयरदसटगरदशनकतयरकगसनयतसयससलरयवनररकणवकयय।पसतपतवयदममपयवयरजधकयररदयरय

पयरसमभकआददशवदनयगक18.03.2009

कगपयररतवकययगयय,

जजसकदअनपयलनममकदतरयलदखपयल

दयरयकपरयरफयटवनकशयरगभदरवदनयगक20.04.2009

कगतमययरकरपसतपतवकययगययजजसककपपवष

पयवरपयररतआददशवदनयगक17.06.2009

दयरयकरवदययगययजजसकदववरदववभयवतवसभयवतदयरय

कययमरपयसरनयपतवदनयगक04.08.2012/09.08.2012

कगतरनसयलबयदपसतपतवकययगयय।

पतयवलरममपपनयममकदककररपगटरमगययरगयर।रयजसववनररककदयरयवदनयगक21.02.2023

कगअपनर

आखययएवगनकशयरगभदरदयजखलवकययगययरयजसववनररककककआखययकदअनपसयरसभरपक अपनद-

अपनदअगशववहससदककभयवमपरमकयनवनमयरणकरचपकदहम।कययमरपयसरनयपतवदनयगक

09.08.2012

तसयआपजतवदनयगक18.03.2023/26.07.2023

ककवबनदपवयरउभयपकककक

सपनवयईवबहसतसयकदतरयलदखपयलकदफयटवदनयगक20.04.2009

तसयरयजसववनररकककक

आखययवदनयगक21.02.2023

उभयपककककउपसससवतममममकदपरससलरयवनररकणवदनयगक

08.08.2023

कदउपरयनतइसमतपरपहहगचयहहवकफयटवदनयगक20.04.2009

कदअनपसयरसभर

पककयवबजहम।अतययहकहनयहमवकउनहमइसफयटककजयनकयररनहहसर।सतयसयवबतनहहहग

रहयहम।अतयआददशवदनयगक17.06.2009

कगवनरसतकरपपनयसपनवयईकरनदकयकगईयपवकयपक

आधयरनहहहम।अतयकययमरपयसरनयपतववभयवतवसभयवतवदनयगक04.08.2012/09.08.2012

पगषणरयनहहहम,

जगवनरसतवकयदजयनदयगगयहम। आददश

उपयपरकवववदचनयकदआधयरपरकययमरपयसरनयपतववभयवतवसभयवतपपतगणददवरदरनवदनयगक

04.08.2012/09.08.2012

वनरसतवकययजयतयहम।बयदआवशयककययरवयहरपतयवलरदयजखल

दफतरहग। (

रमदशकपमयर)

उपजजलयजधकयरर

फरदनदय-महरयजगगज। "

¶9Considering the findings of fact recorded by Sub Divisional Officer while rejecting the restoration application filed by petitioners, there is no scope of interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

¶10It is also material that kurra has been confirmed and final decree has been prepared in the suit for partition suit in the year 2009, as such, the writ petition against the order of Sub Divisional Officer rejecting the restoration application cannot be entertained at all.

¶11Writ petition is accordingly dismissed with liberty to petitioners to initiate proper proceeding as provided under the Act/ Code and Rules framed thereunder. Order Date :- 12.10.2023 Vandana Y. High Court of Judicature at Allahabad