RAHMATULLAH Vs. STATE OF U P

JUDGEMENT

(1.) Civil Misc. Writ Petition No. 41979 of 2004 filed by Rahmatullah and two others-Azamatullah and Smt. Naseem Begum - sons and daughter respectively of Saiyed Ullah Khan, was disposed of by this Court vide judgment and order dated 22.11.2005. It may be mentioned here that the petitioners, Rahmatullah and Ors., in the aforesaid writ petition, had sought a writ, order or direction in the nature of certiorari quashing the order dated 6/7.7.2004, passed by the District Magistrate, Mathura, filed as Annexure-1 to the writ petition. They had further sought a writ, order or direction in the nature of mandamus commanding the respondent Nos. 5, 6 and 7, namely, Munish Kumar Jain, Vijay Kumar Seth and Jain Inter College, respectively, not to transfer and change the nature of the land in question pending disposal of the writ petition or till the date of reverting back the possession of the land in question to the petitioners by the respondent Nos. 1 and 2. According to the petitioners, land recorded in Khewat No. 1/1 of Plot No. 278 having an area of 0.061 hectares, Plot No. 279 having an area of 0.101 hectares. Plot No. 280 having an area of 0.218 hectares. Plot No. 394/2 having an area of 0.182 hectares. Plot No. 441/3 having an area of 0.004 hectares and Plot No. 443/2 having an area of 0.069 hectares, in all seven plots having a total area of 0.675 hectares, situate in village Keshavpur. Manoharpur, Pargana, Tehsil and district Mathura, were recorded in the name of the ancestors of the petitioners, i.e., the grandfather, namely Munshi Abdulla Khan son of Mahmood Khan (Pathan) alongwith one Asha son of Mohan (Kumhar) since 1330 F. After the death of Munshi Abdulla Khan, the name of his two sons, namely Asid Ullah Khan and Saiyad Ullah Khan alias Samad Ullah Khan, were recorded and thereafter the names of the petitioners came to be mutated in the revenue record in place of their father vide order dated 22.5.1993. It is stated by the petitioners that their father Saiyad Ullah Khan alias Samad Ullah Khan was the only surviving heir and representative as Asid Ullah Khan had expired without issue and, therefore, the entire property devolved in favour of the petitioners. They claim that Khewat of the year 1408 F. and khasra of 1409 F. discloses that the names of the petitioners have been recorded as owners of the plots in question. According to the petitioners, there existed the land of the State of U.P. bearing Khasra No. 303 having an area of 0.105 hectares, Khasra No. 304/1 having an area of 0.210 hectares and Khasra No. 305 having an area of 0.417 hectares. According to the petitioners, the then Chief Minister of the State of U.P., Ms. Mayawati, was to visit Mathura on 14.6.2003. The respondent No. 1, i.e., the District Magistrate, Mathura, requested the petitioners to provide their land in question for the purpose of carrying out the function and programme of the Chief Minister peacefully, which was consented by the petitioners. The possession of the plots in question were temporarily taken by the District Magistrate, Mathura and the City Magistrate, Mathura, alongwith other officials of the district administration. The district administration prepared a platform for the purpose of address by the Chief Minister and barricading was also done for the audience and for the purpose of security a pucca boundary wall was also constructed alongwith a huge gate fixed at the entrance. After the programme was over, the district authorities failed to deliver peaceful possession of the land in question to the petitioners. The petitioners made request to the district authorities to restore the possession of the petitioners over the plots in question, which they had taken over for the purpose of the function of the Chief Minister and as the authorities were busy in some administrative work, the possession was not delivered immediately. The petitioners had made an application on 3.7.2003 for delivering the possession, which was followed by a reminder on 23.7.2003. When nothing was done in the matter, the petitioners approached this Court by filing Civil Misc. Writ Petition No. 38215 of 2003, Rahmatullah and Ors. v. District Magistrate, Mathura and Ors., which was disposed of by this Court vide judgment and order dated 4.9.2003 with a request to the District Magistrate, Mathura, to examine the whole issue and pass an appropriate order and if there is no legal impediment in restoring the possession of the open land belonging to the petitioners, he may do so, preferably within a week from the date of filing of a certified copy of that order alongwith a copy of the writ petition alongwith its annexures. The petitioners filed a certified copy of the order alongwith other documents before the District Magistrate, Mathura, vide application dated 22.9.2003. After calling for a report from the Additional District Magistrate, Mathura, the matter was kept pending. The District Magistrate, in the meantime, was transferred and a new incumbent took charge. The petitioners again made an application on 6.10,2003. The report was again called for by the District Magistrate. It appears that Munish Kumar Jain, who is respondent No. 5 in the present writ petition, on some misapprehension approached this Court by filing Civil Misc. Writ Petition No. 14981 of 2004, which was dismissed by this Court as not maintainable, vide judgment and order dated 12.4.2004. The Court, however, clarified its earlier order dated 4.9.2003 by passing the following order: This writ petition has been filed raising the grievance that this Court had passed an order on 4th September, 2003, issuing direction to the learned District Magistrate, Mathura, to consider the representation of the Rahmatullah Khan (respondent No. 3) and the petitioner apprehends that under the garb of the order the District Magistrate, Mathura, shall dispossess him and hand over possession to the said respondent No. 3. The order passed by us on 4th September, 2003, means only direction to examine the whole issue and pass an appropriate order and if there is no legal impediment in restoring the possession of the open land it can be handed over to the petitioner therein. We have not passed any order to restore the possession without any reason or without any opportunity of hearing to the person concerned. No order has yet been passed. The apprehension of the petitioner may be totally misconceived. In fact this writ petition is not only misconceived but challenging the order passed by us on 4th September, 2003, deciding the Writ Petition No. 38215 of 2003. It is settled legal proposition that an order passed in a writ petition cannot be challenged by filing a writ petition. Thus, the petition is dismissed as not maintainable. Moreso, even the petitioner has filed suit which is pending consideration before the competent civil court, therefore, we see no reason that the District Magistrate, Mathura, shall pass an order without examining the issue involved therein.

(2.) Thereafter, the District Magistrate, Mathura, had decided the application/representation made by the petitioners vide order dated 6.7.2004 and had declined to pass any order in favour of the petitioners on the ground that the land mentioned in Khewat No. 1/1 is highly disputed and the request for delivery of possession cannot be acceded to.

(3.) After the exchange of the affidavits, the matter came up for consideration before the Court on 22.11.2005. The Court while disposing of the writ petition noted the contention of the learned senior counsel, Sri T.P. Singh, to the following effect: The learned Counsel invited the attention of the Court to Annexure S.R.A.-2, filed alongwlth the supplementary rejoinder-affidavit of Shri Sanjeev Singh affirmed on 19.9.2005, in which the learned Civil Judge (S.D.), Mathura, vide order dated 12.9.2005, had decided the Issue No. 3 regarding the jurisdiction of the civil court In entertaining and deciding the suit. He has held that the civil court has no jurisdiction and the revenue court alone has the jurisdiction. According to Sri Singh, in view of the subsequent development, even though the order passed by the District Magistrate on 6.7.2004 might have been technically correct, yet in view of the subsequent development, as in the eyes of law, the suit is not pending, there is no dispute regarding title, which fact should be reconsidered by the District Magistrate.