High Court
Case Details
Court No. - 39 Case :- WRIT - C No. - 24299 of 2022 Petitioner :- Sumitra Devi And 6 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Akhilesh Singh,Girish Vishwakarma Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Manjive Shukla,J.
Legal Reasoning
Rejoinder affidavit and the reply to the personal affidavit filed by the District Magistrate, Gorakhpur on behalf of the petitioner is taken on record. The entire original record pertaining to the land in question has been produced before us by the A.D.M. (administration), Shri P.D. Gupta Additional District Magistrate (Administration), Gorakhpur and the same has been perused by us. The petitioner herein seeks compensation for utilization of land in Gata no. 2- ग situated in village Sigha (Hasanpur Magher), Tehsil Sahjanwa, District Gorakhpur, for widening/construction of Pipiganj -Sisai-Charanon Road, in the writ petition, it is stated that as per the entries in the Khatauni of fasli year 1428-1432 (July 2019 to June 2025), the petitioners are recorded bhumidhar of the plot in question and as per the report of the Lekhpal dated 09.07.2021, it is evident that the said plot has been utilized for construction of road. The petitioners being poor person have been forcibly dispossessed without payment of compensation. The contention of the learned counsel for petitioner is that deprivation of the tenure holder of the petitioner from their personal property, is in violation of Article 300A of the Constitution of India.
Decision
In contradiction to the averments made in the writ petition, in the personal affidavit filed on behalf of the District Magistrate, Gorakhpur under the order passed by this Court, it is stated that an inquiry in which the entire original records pertaining to the land in dispute had been conducted. A revenue team was also constituted to make inspection of the site of land in dispute. A detailed inquiry report dated 07.01.2023 was forwarded to the District Magistrate by the revenue team. From the perusal of the inquiry report, it transpired that though in the Khatauni for 1427- 1432 fasli, the the name of the petitioners have been recorded as bhumidhar with transferable right in category 1-क, but in the basic year Khatauni for fasli year 1359, the corresponding khasra has ग (old no. 2/4), recorded as been shown as land of category 2- 'banjar' land. The copy of Khatauni of 1359 fasli is appended as Annexure-ii to the said affidavit. For the next fasli year i.e. 1366- 68 fasli, the land in question was still recorded as 'barren' land in the category of 5(3)(ड.) Annexure-iii is appended as the Khatauni for 1366-1368 fasli. The record of the subsequent fasli year i.e. 1374-1385 fasli are missing from the District Record Room as well as Tehsil Record Room and, as such, the entry pertaining to the land in question for the said years could not be ascertained. Further, Khatauni for 1389-1391 fasli appended as Annexure-VIII, at page 33 of the paper book, shows that the predecessors in interest of the petitioner name Ram Kishun son of Mata Bikh had been recorded in the category 3 i.e. holder of Assami Patta and the same entry was found in the Khatauni for 1392-1397 fasli. However there is an entry in the remark column as under:- आददश शशममन परगनम अधधकमरश सदर धमरम 229 " क (ख) 2/4 व 86 ममधलयत 8.25 पपसद सद शदणश 1 असनकमणशय दजर हह।" बश आददश ददनमनक असपष आरमजश सन० The entry for 1398-1403 fasli further records the name of the petitioner in category 1-'क' 'ख' as bhumidhar with non-transferable right. For 1404-1410, entry was in the category of bhumidhar with non-transferable right and for the first time, this entry had been changed in the Khatauni for fasli year 1401-1415. The names of the ancestors of the petitioner, namely Batohi, Bhola and Shankar sons of Ram Kishun has been recorded as bhumidhars with transferable rights. It is categorically stated in the affidavit that on verification of the entire revenue records, it transpired that there is no order of the competent revenue court conferring right in land in favour of the petitioner as bhumidhar with transferable rights. It is then stated that the village underwent consolidation in 1415 fasli. In CH-form- 45, the name of the ancestors of the petitioners has been recorded as bhumidhar with transferable rights and subsequent entries in the Khatauni were accordingly, made. A copy of the original register R-6 namely Namantran Bahi has been placed before us by Shri Apurva Hajela, learned standing counsel to assert that every order of transfer of rights passed by the competent revenue authority are entered in the said register. The statement in the reply submitted on behalf of the petitioners with regard to the order passed by the revenue authority for grant of bhumidhar with transferable rights is that an order dated 17.03.1989 has been passed by the Sub-Judicial Officer, Gorakhpur recording the name of Ram Kishun, the predecessor in interest of the petitioners, as bhumidhar with transferable rights. But there is no such order or record nor there is any entry of such an order in the relevant Khatauni for fasli year 1392-1397 in the remark column, wherein there is an entry of an order passed by Sub Judicial Officer, Sadar under Section 229-B of U.P. Z.A. & L.R. Act. It is submitted by the learned standing counsel for the number of the case registered in the suit under Section 229-B or the date of the order had not been indicated in the remark column of the said Khatauni. As there is no document for grant of right in favour of the predecessor in interest of the petitioner as bhumidhar with transferable rights, the claim of the petitioner for grant of ग situated in compensation for utilization of land in Gata no. 2- village Sigha (Hasanpur Magher), Tehsil Sahjanwa, District Gorakhpuri is liable to be turned down. Having noted the above facts brought before us, on a pointed query made by the court, the learned counsel for petitioner could not bring any material before us so as to establish that the predecessors-in-interest of the petitioners were granted bhumidhari rights in the land in question. The contention of the learned counsel for petitioners is based on the averments in paragraph '12' of the reply affidavit filed by the petitioners wherein various objections have been taken with regard to the inquiry report and statement made in the inquiry for missing entries of fasli year 1374-85. The contention in the said affidavit that the land in question is not 'Banjar' land and the statement of the respondents to mislead the Court is without any basis. In view of the above, we do not find any substance in the claim of the petitioner. The relief, as prayed for, cannot be granted. The Writ Petition is dismissed. However it goes without saying it would be open for the petitioner to file suit before the competent court to establish his right, title and interest in the land in question and, in case, the petitioner succeeds in the said suit, he may claim compensation. Order Date :- 28.2.2023 A. Farooqui Digitally signed by :- AIMAN FAROOQUI High Court of Judicature at Allahabad