Umesh v. State of U.P. and 5 Others

Court No. - 51 Case :- WRIT - C No. - 33982 of 2023 Petitioner :- Umesh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ram Sajiwan Mishra,Tarun Kumar Shukla Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi Hon'ble Chandra Kumar Rai,J.

1.Heard Mr. Ram Sajiwan Mishra, learned counsel for the petitioner, Mr. Govind Kumar Saxena, learned Additional Chief Standing Counsel for the State-respondents and Mr.Bhupendra Kumar Tripathi, learned counsel for gram sabha.

2.The instant writ petition has been filed challenging the preliminary decree, final decree as well as the order rejecting the restoration application filed by the petitioner.

¶3Learned counsel for the petitioner submitted that suit has been wrongly entertained by the Sub Divisional Officer under Section 176 of U.P.Z.A.&L.R. Act. He further placed report dated 23.05.2015 in order to demonstrate that suit was not maintainable before revenue court, as such entire proceeding of partition suit is vitiated. He further submitted that impugned orders are wholly without jurisdiction as such the same are liable to be set aside.

¶4Mr. Govind Kumar Saxena, learned Additional Chief Standing Counsel for the State-respondents and Mr. Bhupendra Kumar Tripathi, learned counsel for gaon sabha submitted that remedy of appeal before Commissioner against the impugned judgment/ order is available as such the writ petition be dismissed on the ground of alternative remedy.

¶5I have considered the arguments advanced by the learned counsel for the parties and perused the record.

¶6There is no dispute about the fact that suit for partition has also been decreed under the impugned judgment and restoration application filed by petitioner has been rejected.

¶7In order to appreciate the controversy, the perusal of Schedule II under U.P.Z.A. & L.R. Act, 1950 will be relevant, which is as under:- SCHEDULE II [Sections 331] SI. No. Sectio n Description of proceedings Court of original jurisdiction Court of ___________________________ First Appeal | Second Appeal [Suit for division of a holding of a Bhumidhar] Assistant Collector, First Class Commissioner Board

¶8Since petitioner has alternative remedy against the impugned judgment as such writ petition under Article 226 of the Constitution of India cannot be entertained.

¶9Considering the entire facts and circumstances of the case, the writ petition is dismissed on the ground of alternative remedy. Order Date :- 6.11.2023 PS* High Court of Judicature at Allahabad