LAL MOHAN MINOR Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued commanding the respondents not to dispossess the petitioner from his share in his ancestral house having an area of 2300 sq. ft. which is situate in village Marawa, tehsil and district Basil, except in accordance with law.

(2.) The case pleaded in the writ petition is that the petitioner Lal Mohan and his brother Vijai Pal Chowdhury (respondent No. 4) are grandsons of Sahdeo and their names were mutated over the said plot after the death of Sahdeo. There is an ancestral house over plot No. 293 in which the petitioner and his brother Vijai Pal Chowdhury had equal share. The plot over which the house stood was not acquired in accordance with the Land Acquisition Act. However, for the purpose of construction of a road, respondent Nos. 5 and 6 (Executive Engineer and Junior Engineer of Rashtriya Nirman Khand) obtained a sale deed of the house in question in favour of the State of U. P. on 23.9.1999 from Vijai Pal Chowdhury and on the strength of the aforesaid sale deed, they want to dispossess the petitioner. The main ground on which the petitioner claims that he cannot be dispossessed is that he is co-sharer of the plot over which the house exists and as he is not one of the executants of the sale deed, his title to the extent of his share over the plot has not passed to the State of U. P.

(3.) The State has filed a counter-affidavit and a supplementary counter-affidavit by which certain documents have been brought on record. The petitioner has also filed a rejoinder-affidavit. From the material brought on record, the following position emerges : The State Government Issued a notification under Section 4 (1) of the Land Acquisition Act on 11.4.1991 and a corrigendum thereof was published in the Gazette on 3.9.1991 notifying that certain plots were needed for a public purpose, namely, for construction of a road. This was followed by another notification under Section 6 of the Act which was published in the Gazette on 7.10.1991. The notifications show that an area of one bigha 13 biswas and 12 biswancies (1-13-12) of plot No. 239 has been acquired. The petitioner has filed C.H. Form-23 which shows that Sahdeo was not the exclusive owner of plot No. 293 but he had only half share in the same. The other co-sharer in the said plot is Bhagwan Das, son of Bhagirathi, who was real brother of Sahdeo. The pedigree of the parties is given in the plaint of O.S. No. 84 of 1998 filed by petitioner's brother Vijai Pal Chowdhury against the State of U. P. In the Court of Civil Judge (Junior Division), Basti. Along with counter-affidavit of the State, a letter dated 12.1.2000 sent by the Special Land Acquisition Officer, Basti, to the Executive Engineer. Rashtriya Marg Khand, has been filed and it is mentioned therein that eighty percent of the estimated amount of compensation amounting to Rs. 2,01,372.19 was paid to Sahdeo son of Beral for 0-16-16 area of land and Rs. 1.60,018.98 was paid to Bhagwan Das son of Bhagirathi for 0-13-7 area of land on 21.8.1993. This compensation was paid in accordance with Section 17 (3A) of the Land Acquisition Act. The letter further mentions that there was no construction over the land which fell in the share of Bhagwan Das and, consequently, the compen sation amount determined for his area of land came to Rs. 89,081 only and as an excess amount of Rs. 70,937.00 had been paid, proceedings for recovery of the said amount were being taken. This is permissible under Section 17 (3B) of the Act and the excess amount paid can be recovered as arrears of land revenue. Thereafter, the State Government obtained a sale deed of the house standing over 2300 sq. ft. area of plot No. 293 from Vijai Pal Chowdhury (real brother of the petitioner, Lal Mohan) for a consideration of Rs. 2,83.075 on 23.9.1999. The State Government paid cheque No. 078549 dated 23.9.1999 of Rs. 2.83,075.00 to Vijai Pal Chowdhury. Prior to the sale deed, Vijai Pal Chowdhury had filed O.S. No. 84 of 1998 against State of U. P. and others praying that a decree of injunction be passed against the defendant for restraining them from making any road over an area of Rs. 0-16-16 of plot No. 293 and not to demolish the construction standing thereon. Learned counsel for the parties have made a statement that subsequently this suit has been dismissed in default. The petitioner Lal Mohan also filed O.S. No. 274 of 2000 impleading the State of U. P.. the Engineers of Road Construction Division and Vijai Pal Chowdhury as defendants in the Court of Civil Judge (Senior Division). Basti. The prayer in this suit is that it be declared that the plaintiff is owner of half share in the property which was conveyed by the sale deed dated 23.9.1999 which was executed by Vijai Pal Chowdhury in favour of the State of U. P. A further prayer has been made that the defendants may be restrained from interfering with the plaintiffs possession over the house situate over the said land.