JAWAHIR Vs. STATE OF U.P. AND OTHERS

JUDGEMENT

(1.) This is a second writ petition praying for writ of mandamus directing the respondents not to take possession from the petitioner in pursuance of the Government Order dated 8.5.2009. Earlier the first writ petition was filed bearing No. 43462 of 2007, Jawahir son of (adopted) Late Jagardev v. State of U.P. A Division Bench of this Court vide order dated 13.4.2009 while disposing of the said writ petition directed the Collector, Varanasi to make a fresh independent inquiry as to whether the petitioner is in actual physical possession for which the Collector will record the oral evidences of the neighbours and examine other evidence relevant for deciding the issue relating to the actual physical possession of the petitioner. It was, further directed that the Collector shall also examine the title of the petitioner qua the disputed land. If, it is, found that the petitioner possess the title and is in actual physical possession of the land in question he shall not be dispossessed and the land shall not be treated as vacant land. After the aforesaid order was passed the petitioner filed an application alongwith the certified copy of the aforesaid order passed by this Court dated 13.4.2009 before the Collector, Varanasi. The application of the petitioner has been rejected by the Collector by means of an order impugned dated 6.1.2010. The Collector has not disclosed the statement made by the Pradhan of village Hariharpur though he has stated that statement of the Pradhan was taken. He further stated that neighbours adjacent to the land in dispute refused to give any statement. Non-discloser of the statement of the Pradhan belies the observations of the Collector that other villagers refused to give statement. The Collector has himself recorded a finding that there is no document on record available to show that the possession has been taken over by the State Government. The Collector has recorded a finding that the land has been transferred to Varanasi Development Authority by the office of the competent authority vide office letter No. 3756 dated 6.11.1998.

(2.) It is only the State Government who has power to transfer the land to any other authority or for any other public purpose. The office of the competent authority cannot transfer the land under the Act. Therefore, the order of the Collector is not in conformity with the judgment/order dated 13.4.2009 passed by this Court. The petitioner's land shall not be treated to have been declared as vacant land under the Urban Land (Ceiling & Regulation) (Repeal) Act, 1999.

(3.) A writ of mandamus is issued declaring that the land declared vacant cannot be treated to be vacant as possession has never been taken by the State Government as is evident from the Collector's order.