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ALLAHABAD HIGH COURT
Ran Vijai Singh, J.
Phoolpati -Appellant
Versus
State of U.P. And Others -Respondent
C.M.W.P. No. 21705 of 2012
Decided On : 09-05-2012
possession - Land Dispute - U.P. Zamindari Abolition and Land Reforms Act, 1950, Section 122-D
Fact of the Case:
The petitioner sought restoration of possession over a leased land, which was forcefully occupied by another party. The petitioner's husband had been granted a lease for housing purposes, and after construction, a portion of the land was occupied by the respondent.
Finding of the Court:
The court found that the provisions of Section 122-D of the U.P. Zamindari Abolition and Land Reforms Act, 1950, were not applicable in this case. It also held that the petitioner was not entitled to a writ of mandamus as there was no statutory duty imposed on the authority concerned.
Issues: The issues involved the applicability of Section 122-D of the Act and the entitlement to a writ of mandamus.
Ratio Decidendi: The court interpreted the provisions of Section 122-D and Section 143 of the Act, emphasizing that the statutory duty must be imposed on the authority for the issuance of a writ of mandamus.
Final Decision: The writ petition was dismissed, and the petitioner was advised to seek legal recourse under the general law or personal law.
I have heard Sri Amulya Ratan Sriavastava, learned counsel for the petitioner, Sri Rajesh Kumar, learned standing counsel and counsel for the Gaon Sabha.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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
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