S.U.Khan - (1.) LIST revised. No one appears either for the petitioner or for private respondents. Learned standing counsel for the respondent Nos. 1 to 3 is present.
(2.) IN normal course in such a situation writ petition is to be dismissed in default on the principles of explanation inserted by C.P.C.(amendment) Act 1976 to order 41 Rule 17 C.P.C. However, in some rare cases this principle has to be ignored in exercise of writ jurisdiction particularly when petitioner is behaving in an extremely unjust manner and public property is involved. Learned standing counsel has been heard who has also filed counter- affidavit annexing therewith copies of relevant khataunis. In this case on 24.11.2010, 18.1.2011, 14.2.2011 and 28.2.2011 following orders were passed. "24.11.2010 "Petitioner is making his claim over a pond. Almost all ponds vested in State at the time of zamindari abolition. However, in case petitioner can show that immediately after zamindari abolition his name was entered as seerdar or bhoomidhar over the pond in dispute then his case may be considered. Accordingly, list for further arguments on 20.12.2010. On the said date copies of revenue records must be filed. Meanwhile no Court whether revenue, civil or consolidation shall proceed further with any case in respect of right of the petitioner pertaining to the pond in dispute comprised in plot Nos. 1365, 1375 and 1736 total area about 4.25 acres situate in village Sawayan post office Sarpatah District Jaunpur. Office is directed to supply a copy of this order free of cost to Shri Indrasen, learned standing counsel by tomorrow. 18.1.2011 List after three weeks. Meanwhile, rejoinder-affidavit shall be filed. 14.2.2011 Two weeks and no further time for filing rejoinder affidavit is granted. List peremptorily on 28.2.2011 showing the name of Sri A.S. Diwakar also as learned counsel for the respondent. 28.2.2011 Even though in view of earlier orders no further time is warranted to be granted to file any rejoinder-affidavit, however, Sri H.S.N. Tripathi, learned counsel for the petitioner repeatedly requests for only ten days further time. Prayer is accepted. List peremptorily at the top of the list on 10.3.2011." Gaon Sabha passed a resolution on 4.6.1996 to allot the pond in dispute to respondents 4,5 and 6 Purushottam, Mohan, Ayodhya Yadav and one Shilajit who is not party in this writ petition. The proposal was approved by Naib Tehsildar on 30.5.1996. Petitioners filed objections before the S.D.O. against the said allotment on 18.5.1996 which were registered as case No. 36 Ram Adhar and others v. Gaon Sabha. They claimed that the pond belonged to them and they were in possession since before Zamindari Abolition and these ponds were never let out by gaon sabha for fisheries purposes hence the auction in question (dated 4.6.1996) should be cancelled. The right of the gaon sabha to auction the ponds was challenged on the ground that the ponds did not belong to the gaon sabha.
(3.) THE objections were rejected through order dated 12.7.1996 passed by Deputy Collector/S.D.O. Sahahganj, District Jaunpur, which has been challenged through this writ petition. In the impugned order it is mentioned that twice chakabandi had taken place in the village in question still ponds in dispute continued to be recorded in the revenue record as pond belonging to gaon sabha and that if earlier the said ponds were not let out for fisheries purposes it did not mean that gaon sabha had no right to auction the pond for fisheries purposes. Alongwith the counter-affidavit filed by the State today copy of khatauni 1359 fasli and CH form 41 and 45 have been filed showing that plots in dispute were always recorded as pond belonging to gaon sabha before the S.D.O.;