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2023 Supreme(Online)(ALL) 12199
ALLAHABAD HIGH COURT
Chandra Kumar Rai, J
Mohammad Jalil – Appellant
Versus
State Of U P And 5 Others – Respondent
WRIT - C No. - 35519 of 2022
For the Appellants/Petitioners: Prem Narayan Rai, Ram Pyare
For the Respondents: C.S.C., Pankaj Kumar Gupta
The court determined that the proper partition must be executed for the minjumla plot before any construction, establishing essential procedural compliance under the U.P. Revenue Code.
Headnote:(A) U.P. Revenue Code, 2006 - Section 30(2) - Writ petition for mandamus filed against the construction of a water tank on bhumidhari plot without proper partition - Petitioner claims rightful ownership based on revenue records - Authorities directed to follow partition proceedings for minjumla plot as per the relevant provisions. (Paras 7-12)
(B) Jurisdiction of High Court in Writ Petitions - The writ jurisdiction is made for matters where the respondent authorities do not comply with legal mandates affecting the rights of parties. (Paras 10, 11)
Facts of the case:
The petitioner, Mohammad Jalil, asserted ownership of Khasra no. 542 Kha and opposed construction on the ground that it is a minjumla plot requiring partition before construction. The government contended the petitioner should proceed according to existing laws for partition.
Findings of Court:
The court emphasized the need for compliance with partition procedures as set out in the U.P. Revenue Code, stating that the petitioner should file the appropriate application within two weeks for the partition to be addressed.
Issues: The core issue was whether the construction mandated by the authorities on the disputed land violated legal partition requirements.
Ratio Decidendi: The court noted that the petitioner's claim must align with prescribed legal processes for dealing with minjumla plots, reinforcing the argument for adhering to statutory procedures before construction is allowed.
Result: The writ petition is finally disposed of, directing the petitioner to file for partition.
Hon'ble Chandra Kumar Rai,J.
Supplementary affidavit filed by learned counsel for the petitioner is taken on record.
Heard learned counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Pankaj Kumar Gupta, learned counsel for respondent- Gaon Sabha.
The instant petition has been filed for mandamus commanding the respondents not to construct the water tank in the petitioner's bhumidhari arazi / Khasra No.542 Kha area 0.044 hectare situated at Village- Ridhaura, Pargana- Amoda, Tappa- Belwa, Pargana- Amod, Tahsil- Haraiya, District- Basti without making any partition on spot under the provisions of U.P. Revenue Code, 2006 .
Learned counsel for the petitioner submitted that by way of the exchange proceeding petitioner became owner of Khasra no.542 Kha area 0.044 hectare and is recorded in the revenue records. He further submitted that the authorities are constructing water tank in the bhumidhari plot of the petitioner which is against the law. He next submitted that the plot no.542 Kha although is Milzumla number, as such, unless the proper partition took place the construction of the water tank is against the law.
On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel submitted that the petitioner should initiate proper proceeding under Section 30 (2) of U.P. Revenue Code, 2006 for partition of Milzumla number, as the Khasara No. 542 Kha is minjumla plot so, no interference is required in the matter.
I have considered the argument advanced by learned counsel for the parties and perused the record.
There is no dispute about the fact that plot no.542 kha is a Milzumla plot.
In order to appreciate the controversy the provisions of Section 30 (2) of U.P. Revenue Code, 2006 as well as Rule 26 of U.P. Revenue Code Rules, 2016 are relevant for perusal, which are as follows:
Section 30 (2) of U.P. Revenue Code, 2006 :
"(2) The minjumla number shall be divided physically in the manner prescribed and revenue records including map and khasra shall be corrected accordingly."
Rule 26 of U.P. Revenue Code Rules, 2016 :
"Rule 26. (1) The Board shall, by general or special order direct the Collector that the minzumla numbers shall be divided physically and revenue records shall be corrected accordingly.
(2) On the order under sub-rule (1) of this rule, the Collector shall get a partition scheme of minzumla numbers prepared for each village.
(3) For the purpose of preparation of partition scheme of minzumla numbers, a provisional partition scheme of minzumla numbers shall be prepared by the Lekhpal in R.C. Form-5.
(4) The provisional partition scheme of minzumla numbers shall be prepared by the Lekhpal in consultation with concerned tenure holders and Land Management 13 Committee.
(5) In the preparation of provisional partition scheme of minzumla numbers, the following principles shall be observed:-
(a) The portion allotted to each tenure holder shall be as compact as possible.
(b) As far as possible no tenure holder shall be given all the inferior or all the superior classes of land.
(c) If the tenure holders of minzumla number are in separate possession on the spot on the basis of mutual division, the same shall, as for as possible, be allotted as per the separate possession.
(d) Every tenure holder shall, as for as possible, be allotted the area at the place on which his private source of irrigation or any other improvement is in existence.
(e) If the plot or any part thereof, is of commercial value or is adjacent to road, abadi or other land of commercial value, the same shall, as for as possible, be allotted to each tenure holder proportionately adjacent to such road, abadi or other land of commercial value.
(6) The Lekhpal shall prepare and place on record a map showing in different colours, the area given to each tenure holder.
(7) After preparation of provisional partition scheme of minzumla numbers a notice in R.C. Form-6 shall be issued to each tenure holder o
