SHANTI DEVI Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS writ petition has been moved under Article 227 of the Constitution of India for quashing the impugned order dated 02 -04 -2004 (copy annexure -2 to the petition) passed by Sub -Divisional Officer, Rudrapur district Udham Singh Nagar and order dated 14 -07 -2004 (copy annexure -1 to the petition) passed by the Commissioner, Kumaon Divison, Nainital.

(2.) BRIEF facts of the case, as alleged in the petition are that the petitioner and respondent NO.4 are joint Bhumidhars with transferable rights over the agricultural land measuring 0.645 hectares and 0.063 hectares situated in Khasra No. 32(1) to 32(4) and 32(2 as detailed in Khata Khatauni no. 745 and 424 respectively. The land is situated in Tehsil Kichha, district Udham Singh Nagar. However the plots are shown as "Abadi" in column No. 24 of C.H. form No. 2A and included in form C.18 by the consolidation authorities. The said plots are declared to be out of Chak proceedings under the U.P. Consolidation of Holdings Act, 1953 though no declaration under section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1 of 1951 (for the short "U.P.Z.A. & L.R. Act") has been made. The aforesaid plots fall within the definition of "Land" under section 3(14) of U.P.Z.A. & L.R. Act. In the month of November 2003 the petitioner and respondent no. 4 desired to get partition of the joint holding and approached the revenue authorities for the same. Since the consolidation authorities informed the petitioner that the plots are excluded from the consolidation proceedings the parties went before the respondent no. 2 (Sub -Divisional Officer) for getting partitioned the plots under section 176 of U.P.Z.A. & L.R. Act. In the said proceedings the statement of the respondent no. 4 was recorded as P.W.1 and that of the petitioner as P.W.2. However, the suit was dismissed by the respondent no. 2 for want of jurisdiction. Aggrieved by the said order (copy annexure -2 to the petition) a revision was preferred before the respondent no. 1 (Commissioner, Kumaon Division, Nainital) who remanded the case to the Consolidation Officer for disposal. The petitioner has challenged the orders of the Sub -Divisional Officer, Rudrapur and Commissioner, Kumaon Division as illegal on the ground that the plots were Abadi and no Chaks were to be carved out from therein.

(3.) THE respondent no. 4 has filed a short counter affidavit in which it has been alleged that the land in question is within the purview of the consolidation authority and the suit before the revenue authorities was barred by section 49 of U.P. Consolidation of Holdings Acts. The respondent no. 4 never intended to file joint petition for partition before the Sub -Divisional Officer, later on, she wanted to file it before the Consolidation Officer. Lastly, it has been mentioned that the petition is not maintainable as U.P.Z.A. & L.R. Act provides complete scheme including that of appeal against the orders passed under section 176 of the said Act.