Disposed

Anukh Lal and Another v. State of U.P. and 4 Others

Allahabad HC4 Apr 2018WRIC/12220/2018

Case brief

AI extract

What is this about?

Writ petitioner challenged orders dismissing appeals and notices for alleged encroachment on land recorded as Charagah. Upheld concurrent pendency of Section 161 exchange application and Section 67 proceedings. Directed abatement of encroachment proceedings until Section 161 disposal.

What did the court decide?

Respondent to finalize Section 161 proceeding and then proceed; Section 67 notice proceedings kept in abeyance.

Anukh Lal and Another Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 18

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Case :- WRIT - C No. - 12220 of 2018

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Petitioner :- Anukh Lal And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Lalji Chaudhary Counsel for Respondent :- C.S.C.,Diwakar Singh

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard learned counsel for the petitioners and learned Standing Counsel. Shri Diwakar Singh appears for Gaon Sabha.

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The petitioners are before this Court assailing the order dated 7.3.2018 passed by second respondent i.e. Collector, Fatehpur in Case No.00384 of 2018 (Anukh Lal v. Gaon Sabha) under Section 67 (5) of Uttar Pradesh Revenue Code, 2006 dismissing the appeal of the petitioners; the order dated 26.12.2017 passed by the Tehsildar, Sadar, Fatehpur in Case No.T2017022543013185 (Gaon Sabha v. Anukh Lal & Ors.) under Section 67 of U.P. Revenue Code, 2006 dismissing the application dated 19.12.2017 of petitioners for abating the said suit and further assailing the notice R.C. Prapatra-20 under Rule 67 (2) & 67 (5) dated 23.08.2017 issued by Assistant Collector/ Tehsildar Sadar, Fatehpur to petitioners. It is further prayed for a direction to abate the Case No. T2017022543013185 pending before the fourth respondent i.e. Tehsildar Sadar, Fatehpur.

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It is averred that the present matter relates to Gata No.682 area 0.2750 hect. and Gata No.816 area 0.3240 hect., which is recorded as 'Charagah' i.e. pasture land in revenue records situated in Village Korai, Pargana & Tehsil Fatehpur Sadar, Distt. Fatehpur. The same is reflected from Khatauni of 1420 F. to 1425 f. of Khata No.00702. Allegations have been leveled against the petitioners that they are under illegal encroachment over Gata No.682 area 0.040 hect. and Gata No.816 area 0.081 hect.

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It is claimed that the father of the petitioners namely Gajraj son of Bharat was allotted his chak on his original holding Gata No.681 including nearly plots Gata No.181, 818, 682, 683/1, 816 total 5 gatas area 1.8587 hect. as per order dated 31.12.1988 passed by the Consolidation Officer during consolidating proceedings. When C.H. form-23 in respect of village Korai was prepared during consolidation proceedings, the said Rakba of aforesaid plots was clearly mentioned as given to petitioner's father. It is also claimed that thereafter the father of the petitioners has made his house and sahan on Gata

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No.682 area 0.2300 hect. and also made construction of temple and tube well was installed by him on Gata No.816 in the year 1990. This much is also reflected that consequently the State Government has proceeded to cancel the consolidation proceeding and as such all the proceedings have been abated and the disputed land again recorded as 'Charagah' and meanwhile the name of the petitioners were also recorded over their original holding after the death of their father. Consequently, the petitioners have filed Case No.4 of 2013 (Anukh Lal & Ors. V. Gaon Sabha) under Section 161 of UPZA & LR Act on 17.1.2013 supported with affidavit along with application of same date before Up-Ziladhikari, Fatehpur for exchange of disputed lands Gata No.682 and Gata No.816 in lieu of Gata No.818, bhumidhari land of the petitioners. The said case is stated to be still pending.

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In this backdrop, learned counsel for the petitioners states that on one hand the petitioner under the aforesaid circumstances themselves have moved the application under Section 161 and the same was registered as Case No.4 of 2013 and on the other hand the respondents have issued notices under Section 67 (2) and 67 (5) of the Revenue Code, 2006 (in short "the Code"), which is unsustainable. In this backdrop, precise submission has been advanced that in view of law laid down by Hon'ble Apex Court in National Institute of Mental health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256, two simultaneous proceeding can not go on and it was incumbent upon the respondents to firstly decide the application so moved under Section 161 and thereafter proceed in the matter. Learned counsel for the petitioners also submits that in view of law laid down in Radhika Konel Parekh v. Konel Parekh , AIR 1993 Madras 90, regarding same matter directly and substantially in issue in earlier and subsequent suits, the subsequent proceeding cannot sustain.

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So far as the legal and factual aspects are concerned, the same are not disputed by learned counsel for the respondents.

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Considering the facts and circumstances of the case and with the consent of learned counsel for the parties, the writ petition stands disposed of asking the respondents to firstly finalise the proceeding under Section 161 and then proceed in the matter. Till the disposal of the said application under Section 161, the entire proceedings pursuant to notice under Section 67 (2) and (5) shall be kept in abeyance.

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Order Date :- 4.4.2018 SP/

Anukh Lal and Another v. State of U.P. and 4 Others

Case brief

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Anukh Lal and Another v. State of U.P. and 4 Others

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