Court No. - 7

Case :- WRIT - C No. - 24176 of 2022

Petitioner :- Ramagya Tiwari And 3 Others

Respondent :- State Of U.P. And 6 Others

Counsel for Petitioner :- Rajesh Kumar Rao,Krishna Mohan Tripathi

Counsel for Respondent :- C.S.C.,Munna Tiwari,Sudhir Bharti

Hon'ble Chandra Kumar Rai,J.

Heard Mr. K.M. Tripathi, Counsel for the petitioners, Mr. Munna Tiwari for

respondent Nos. 6 and 7, Mr. Ajit Kumar Singh, learned Additional

Advocate General assisted by Mr. Abhishek Shukla, learned Additional

Chief Standing Counsel for State-respondent Nos.1, 2 and 4 and Mr.

Sudhir Bharti for respondent No5.

The instant petition has been filed for mandamus commanding the Sub-

District Magistrate, Tehsil-Tamkuhiraj, District-Kushinagar to summon the

record of the proceeding under Section 67 of the U.P. Revenue Code,

2006 and consolidate the same along with the proceedings under

Section 67-A of the U.P. Revenue Code, 2006 and decide both the

proceedings together. It is further prayed that respondents be restrained

from demolishing the residential house of the petitioners during

pendency of the aforementioned proceeding.

Brief facts of the case are that petitioners are in possession of plot No.

428 area 0.40 hectare much prior to 30.6.1995. Petitioners are residing

in the plot No. 428 area 0.40 hectare by constructing residential house

since the time of their ancestors. The proceeding under Section 67-A of

the U.P. Revenue Code, 2006 has been initiated at the instance of the

petitioners which have been registered as Case Nos.

T202105440308941, T202105440308939, T202105440308938 and

T202105440308940 before the Sub-District Magistrate, Tehsil-

Tamkuhiraj, District-Kushinagar. The reports were submitted by the

authorities in the aforementioned case in which it is mentioned that

petitioners' construction are situated prior to 30.06.1995. One public

interest litigation No. 1449 of 2020 was filed before this Court with

respect to the removal of illegal encroachment over plot No. 428 area

0.40 hectare which was disposed of vide order dated 17.12.2020 with

direction that alternative remedy be availed regarding the removal of

illegal encroachment accordingly the proceeding under Section 67 of the

U.P. Revenue Code, 2006 has been initiated against the petitioners in

respect to plot No. 428 regarding which the petitioners have already

initiated proceeding under Section 67-A of the U.P. Revenue Code, 2006.

The particulars of the four cases registered under Section 67 of the U.P.

Revenue Code, 2006 are as follows :-

(i) T202105440308941, (ii) T202105440308939, (iii) T202105440308938

& (iv) T202105440308940.

Hence this writ petition for consolidating the cases pending under

Section 67-A of the U.P. Revenue Code, 2006 as well as 67 of the U.P.

Revenue Code, 2006 in respect to same plot No.428 and for interim

protection in respect to their construction.

Counsel for the petitioner submitted that petitioners are in possession of

the plot No. 428 since the time of the ancestors and their possession

was found even before the relevant date as reported by the authority in

the pending proceeding as such proceeding initiated under Section 67 A

of the U.P. Revenue Code, 2006 be disposed of expeditiously. He further

submitted that petitioners have already initiated proceeding under

Section 67-A of the U.P. Revenue Code, 2006, as such, the subsequent

initiation of the proceeding against the petitioners under Section 67 is

abuse of process of law. He submitted that in the interest of justice

requires that both the proceeding be consolidated and decided together.

On the other hand, Additional Advocate General assisted by Mr.

Abhishek Shukla, learned Additional Chief Standing Counsel for State as

well as Mr. Munna Tiwari, Counsel for private respondents No.6 & 7

submitted that both the proceedings are pending in different Courts, as

such, they will be decided independently and petitioner