# Mohd. Shad v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 3 ILRA 1847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-29
- **Case number:** Writ-C No. 1934 of 2024
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-shad-v-state-of-u-p-ors-opp-parties-51557
- **Pages:** 4

## Headnote

Civil Law - Constitution of India,1950Article 226- Gram Nyayalay Act,2008Section 34(b)-The petitioner challenges
decision of Gram Nyaylay-The petitioner
owns land where he constructed a houseThe respondent no 3 owns adjacent land
and
alleged
encroachment
by
the
petitioner-the Gram Nyaylay granted a
permanent
injunction
against
the
petitioner-Held, the Section 34(c) of the
Act,2008 allows appeals even for cases
under Rs. 5000/- the valuation of the suit
was
below
Rs.
1000/-
moreso,
the
principle of res judicata was wrongly
ignored by the gram Nayalay-The court
determined that res judicata constitutes a
legal question, making the petitioner's
case eligible for appeal-The petitioner had
an alternate remedy through appeal u/s
34(c) of the Act,2008.(Para 1 to 13)

The writ petition is dismissed. .(E-6)

## Text

3 All. Mohd. Shad Vs. State of U.P. & Ors.
1847
23. All the residents of Akbar
Nagar 1 and 2 shall vacate the disputed
premises on or before the mid night of
31.3.2024 and thereafter, it shall be open
for the respondent-authorities to clear the
said area.

24. With the aforesaid directions,
present writ petitions as well as all
interlocutory applications stand disposed
of.

25. Petitioner no.6-Abdulla of
Writ-C No.527 of 2024 and petitioner
nos.1-Mohd. Shafeek and 5-Smt. Shahana
of Writ-C No.642 of 2024, have already
been separated from this bunch of writ
petitions and writ petitions on their behalf
have already been dismissed by this Court
by its order dated 27.2.2024 passed in a
bunch of writ petitions, leading one being
Writ-C No.11383 of 2023 "Syed Hamidul
Bari vs. State of U.P. and others".

26. Similarly, petitioner no.1Sayed Mujeeb Ahmad of Writ-C No.1396
of 2024, petitioner no.65-Mohd. Ehtisham
Khan
of Writ-C
No.1583
of
2024,
petitioner no.3-Imran Raja of Writ-C
No.1210 of 2024, petitioner No.54-Mohd.
Abdul Hasan of Writ-C No.1315 of 2024,
petitioner no.2/6-Mohd. Shakeel of Writ-C
No.1391 of 2024, petitioner nos.4-Sumit
Kumar and 6-Ravi Kumar of Writ-C
No.1598 of 2024 and petitioner no.113Smt. Umaima Khatoon of Writ-C No.1316
of 2024, have also been separated from this
bunch and writ petitions on their behalf
have also been dismissed by this Court in
the light of order dated 27.2.2024 passed in
Writ-C No.11383 of 2023 and other
connected matters, by a separate order
passed in their respective writ petitions.
----------
(2024) 3 ILRA 1847
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.02.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1934 of 2024

Mohd. Shad ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Shrawan
Kumar
Verma,
Ram
Akshayavar
Vishvakarma

Counsel for the Opp. Parties:
C.S.C., Rayees Ahmad Khan

Civil Law - Constitution of India,1950Article 226- Gram Nyayalay Act,2008Section 34(b)-The petitioner challenges
decision of Gram Nyaylay-The petitioner
owns land where he constructed a houseThe respondent no 3 owns adjacent land
and
alleged
encroachment
by
the
petitioner-the Gram Nyaylay granted a
permanent
injunction
against
the
petitioner-Held, the Section 34(c) of the
Act,2008 allows appeals even for cases
under Rs. 5000/- the valuation of the suit
was
below
Rs.
1000/-
moreso,
the
principle of res judicata was wrongly
ignored by the gram Nayalay-The court
determined that res judicata constitutes a
legal question, making the petitioner's
case eligible for appeal-The petitioner had
an alternate remedy through appeal u/s
34(c) of the Act,2008.(Para 1 to 13)

The writ petition is dismissed. .(E-6)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Shrawan Kumar Verma,
learned counsel for the petitioner as well as
Sri S.K. Khare, learned Standing Counsel
for respondent no. 1 and Sri Rayees Ahmad
1848 INDIAN LAW REPORTS ALLAHABAD SERIES
Khan, learned counsel appearing for
respondent no. 3.

2. The petitioner is aggrieved by
the judgment and order dated 10.01.2024,
passed by the Judicial Magistrate, Gram
Nyayalay, Tulsipur, Balrampur wherein he
has
allowed
the
suit
preferred
by
respondent no. 3 seeking permanent
injunction against petitioner, who was
respondent no. 2 in the said suit.

3. It has been submitted by learned
counsel for the petitioner that petitioner is
owner and in possession over Gata No.
1589/0.06
dismil
in
which
he
has
constructed a house, while respondent no. 3
is owner of Gata No. 1590/2.23 acres,
situated at Village - Gulahariya Hisampur,
Pargana and Tehsil - Tulsipur, District -
Balrampur. Both the plots are adjacent to
each other and in the suit preferred by
respondent no. 3 it was alleged that
petitioner has encroached upon the land of
respondent no. 3/plaintiff illegally and
consequently relief of permanent injunction
was sought. Respondent no. 2/petitioner
herein appeared before the Gram Nyayalay
and participated in the suit proceedings.
After examining the contentions as well as
evidence on record the suit was allowed by
means of impugned judgment and order
dated 10.01.2024.

4. Preliminary objection has been
raised
by
learned
counsel
for
the
respondents
stating
that
against
the
impugned judgment passed under the Gram
Nyayalay Act, 2008 (hereinafter referred to
as "the Act, 2008") the said judgment is
appellable before the district Courts as per
Section 34 of the Act, 2008.

5. Learned counsel for the
petitioner has opposed the said preliminary
objection stating that in the present mater
valuation of suit was less then Rs.1000/-
and as per sub-section (b) of Section 34 of
the Act, 2008 an appeal does not lie where
the valuation of the suit does not exceed
Rs.1000/- and consequently, the petitioner
does not have any other remedy except for
filing writ petition.

6. Heard learned counsel for the
parties and perused the record.

7. The primary issue raised by the
respondents is with regard to availability of
alternate remedy of appeal to the petitioner
who is aggrieved by the impugned
judgment dated 10.01.2024. For the sake of
convenience Section 34 of the Act, 2008 is
quoted herein below :-

"34. Appeal in civil cases.- (1)
Notwithstanding any thing contained in the
Code of Civil Procedure, 1908 (5 of 1908)
or any other law, and subject to sub-section
(2), an appeal shall lie from every judgment
or order, not being an interlocutory order,
of a Gram Nyayalaya to the District Court.
(2) No appeal shall lie from any
judgment or order passed by the Gram
Nyayalaya-
(a) with the consent of the parties;
(b) where the amount or value of
the subject matter of a suit, claim or
dispute does not exceed rupees one
thousand;
(c) except on a question of law,
where the amount or value of the subject
matter of such suit, claim or dispute does
not exceed rupees five thousand.
(3) Every appeal under this section
shall be preferred within a period of thirty
days from the date of the judgment or order
of a Gram Nyayalaya:
Provided that the District Court
may entertain an appeal after the expiry of
3 All. Mohd. Shad Vs. State of U.P. & Ors.
1849
the said period of thirty days if it is
satisfied that the appellant had sufficient
cause for not preferring the appeal within
the said period.
(4) An appeal preferred under subsection (1) shall be heard and disposed of
by the District Court within six months
from the date of filing of the appeal.
(5)
The
District
Judge
may,
pending disposal of the appeal, stay
execution of the judgment or order
appealed against.
(6) The decision of the District
Court under sub-section (4) shall be final
and no appeal or revision shall lie from the
decision
of
the
District
Court:
Provided that nothing in this sub-section
shall preclude any person from availing of
the judicial remedies available under
articles 32 and 226 of the Constitution."

8. No doubt sub-section (b) of
Section 34 of the Act, 2008 no appeal will
lie where valuation of suit does not exceed
Rs.1000/-, but according to sub-section (c)
of Section 34 of the Act, 2008 it is provided
that where question of law arises for
consideration and valuation of suit does not
exceed Rs.5000/- then an appeal would be
maintainable.

9. It is noticed that sub-section (c)
of Section 34 of the Act, 2008 starts with
the word "except" and therefore it can
safely be assumed that sub-section (c) is in
the nature of exception to sub-section (b) of
Section 34 of the Act, 2008 which bars
filing of appeal in case where valuation of
the suit is less then Rs.1000/-.

10. In the present case one of the
ground taken by the petitioner to oppose
the suit was that on the previous occasion
where cause of action was similar, the said
suit was dismissed and the said dismissal of
the suit acted as re-judicata in the present
suit proceedings. There were other grounds
also taken by the petitioner to oppose the
said suit. All the grounds are not considered
presently while deciding the issue of
maintainability of the present writ petition
and also considering whether the petitioner
has alternate remedy of appeal.

11. The petitioner has challenged
the impugned order on the ground of resjudicata and has submitted that the Gram
Nyayalay has wrongly decided the said
issue and in fact the suit proceedings were
barred by the principle of res-judicata. The
petitioner also does not dispute the fact that
this question if raised would be a question
of law in the appellate proceedings and in
the light of above submissions there is no
doubt that case of the petitioner would fall
under sub-section (c) of Section 34 of the
Act, 2008 and where valuation of the sit
does not exceed Rs.5000/- and question of
law arises for determination then certainly
appeal can be preferred against the order of
Gram Nyayalay under sub-section (c) of
Section 34 of the Act, 2008.

12. In the light of above, this Court
is of the considered view that the petitioner
has efficacious alternate remedy of appeal
under sub-section (c) of Section 34 of the
Act, 2008 and since the petitioner has
efficacious alternate remedy against the
impugned judgment this Court would not
entertain the present writ petition against
the order of Gram Nyayalay, in the peculiar
facts of the present case.

13. In the light of above, the
preliminary
objection
raised
by
the
respondents is sustained. The writ petition
is dismissed on the ground of availability
of alternate remedy under sub-section (b)
of Section 34 of the Act, 2008.
1850 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 1850
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ -C No. 2208 of 2024

Deepak Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Kumar Singh, Sri H.N. Singh (Sr.
Advocate)

Counsel for the Respondent:
Ms. Anujali Upadhya, C.S.C.

Civil Law - Land Acquisition Act, 1894 -
Sections 4, 6, 9, 11 & 17 - Constitution Of
India,1950 - Article 226 & 300-A - Writ
petition
seeking
mandamus
to
restrain
respondents from demolishing construction and
interfering with possession on acquired land
(Plot No. 534, Village Tushyana, Gautam Buddh
Nagar) - Held, land acquired under Section
4(1)/17(4)
and
Section
6(1)/17(1)
with
possession taken on 02.02.2007 and award
made on 27.04.2010 - Acquisition proceedings
attained finality, vesting land in St. free from
encumbrances - No writ of mandamus can be
issued to restrain St. from utilizing acquired land
- Petitioner's claim of settled possession or
regularization under Greater Noida Industrial
Development Rural Abadi Sites Regulation, 2011
rejected
-
Pending
revision
before
St.
Government does not justify restraining St. - No
violation of Article 300-A as acquisition lawful.
(Para 8-19)

Writ petition dismissed.

List of Cases Cited:
1. Indore Development Authority Vs Manoharlal,
(2020) 8 SCC 129

2.
Land
&
Building
Department
through
Secretary & anr. Vs Attro Devi, Civil Appeal No.
2749 of 2023 (decided on 11.04.2023)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J & Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. This writ petition has been filed
with the prayer to issue a writ of mandamus
commanding
the
respondents
not
to
demolish the construction of petitioner
situated on plot no.534 having an area of
0.7510 hectare situated in village Tushyana,
Pargana and Tehsil Dadri, District Gautam
Buddh Nagar. A further prayer is made to
command the respondents not to interfere
in the peaceful possession of the petitioner
on the aforesaid plot.

2. Facts of the case, as emerge from
the record, are that the State Government
exercising its power of eminent domain
issued
a
notification
under
Section
4(1)/17(4) of the Land Acquisition Act,
1894 (hereinafter referred to as 'the Act') on
10.4.2006 for acquisition of the plot in
question. Urgency clause was invoked and
the inquiry contemplated under Section 5-A
of the Act was dispensed with. A
declaration under Section 6(1)/17(1) of the
Act came to be made on 30.11.2006. The
respondents took possession of the entire
acquired land of plot no.534 on 2.2.2007.
An award in terms of Section 11 of the Act
was made by the District Magistrate on
27.4.2010. It is undisputed that by invoking
the power of acquisition under the Act the
State acquired the entire land of plot no.534
and the acquisition proceedings have
attained finality. Neither the award is under
challenge nor any of the proceedings
undertaken thereunder. The effect of such