Nishan Singh vs State of Uttarakhand and Others

B.S. Verma, J.

(Stay Application No. 10218 of 2010)

Heard learned Counsel for the Petitioner and perused the record.

By means of this writ petition, the Petitioner has sought the following relief:

a. Issue a writ, order or direction in the nature of certiorari for quashing the order dated 22-11-2010 passed by Respondent No. 3 filed as Annexure No. 4, whereby the proposal to grant patta to 23 persons in Khasra No. 126 Ga of village Buranagar, Tehsil Gadarpur, district Udham Singh Nagar has been made.

b. Issue a writ, order or direction in the nature of mandamus directing the Respondents not to interfere with the peaceful possession of the Petitioner on Khasra No. 126 Ga of village Buranagar, Tehsil Gadarpur, district Udham Singh Nagar.

c. Issue any other writ, order or direction, which this Hon''ble Court may deem fit and proper in the circumstances of the case.

d. Award the cost of writ petition to the Petitioner.

According to the Petitioner, he is in possession of the land of plot number 126 Ga corresponding to old plot No. 53/3 and the Petitioner had filed a regular suit No. 22/08 of 2009-10 u/s 229B of the U.P.Z.A. and L.R. Act on 17-8-2010, wherein a prayer was made that the Petitioner be declared bhumidhar with transferable rights in Khasra No. 126 Ga measuring 1.325 hectare. The same is pending for disposal. It is further submitted that on 30-10-2010, a meeting of Gram Sabha had been convened and resolution was passed to grant Patta in plot No. 126 Ga to landless persons each measuring 100 Sq. Yards and the same was forwarded by the concerned Lekhpal to the Tehsildar. Consequently, the said proposal has been approved by the Assistant Collector/Sub Divisional Officer Bazpur on 22-11-2010.

The main ground of challenge raised by the Petitioner is that the agenda of the meeting, which had been issued by the Gram Sabha on 27-10-2010 was not made in accordance with law and with manipulation and connivance of the revenue officers, the Patta of the land has been allotted to 23 persons de hors the Rules and the procedure has not been followed.

The Petitioner himself admitted in paragraph No. 13 of the petition that the Assistant Collector approved the resolution of Gram Sabha on 22-11-2010, which is impugned in the present writ petition.

By a perusal of the averments made by the Petitioner, it reveals that the land was allotted by the Assistant Collector in exercise of his power under Rule 115L of the U.P.Z.A. and L.R. Rules, 1952 (for short the Rules), which reads as under:

115L. Abadi sites for preferential categories.-(1) The Assistant Collector-in-charge of the sub-division may, wherever land earmarked for the extension of abadi for harijans forunder the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953, and any other land of abadi site vested in Gaon Sabha is insufficient to meet the housing requirements of persons referred to in Sub-section (3) of Section 122C, proceed to earmark land abadi sites in accordance with Sub-section (1) of the said section.

(2) XXX XXX (3) Before allotting housing sites to persons referred to in Sub-section (3) of Section 122C the Assistant Collector-in-charge of the sub-division shall, in respect of each village, cause to be prepared the following lists and extracts:

(i) a list in Z.A. Form 49D showing separately particulars of persons of the three categories mentioned in Sub-section (3) of Section 122C;

(ii) a list in Z.A. Form 49E of lands enumerated in Sub-section (2) of Section 122C; and

(iii) an extract of village map showing the plots given in the above list.

(4) In making allotment of housing sites under this rule, the order of preference mentioned in Sub-section (3) of Section 122C shall be observed.

(5) No premium shall be charged for allotment of housing sites under this rule.

In view of the provision of Rule 115P of the Rules, the Petitioner has an alternate remedy to move an application before the Collector and he may raise all the grounds therein, which have been raised in the writ petition.

On the ground of alternate remedy, the writ petition is dismissed in limine.