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2008 Supreme(All) 2432
[2009(1) ADJ 355]
ALLAHABAD HIGH COURT
BEFORE : RAKESH TIWARI, J.
SHIV KUMAR, ETC. .........Petitioners
Versus
A.D.M./UPPER COLLECTOR, MUZAFFARNAGAR
AND OTHERS, ETC. ......Respondents
(Civil Misc. Writ Petition Nos. 1070, 1071, 1072, 1073, 1074
and 1075 of 1992, decided on 5th November, 2008)
Counsel :
Arun Kumar for the Petitioner; Anuj Kumar, S.C. for the Respondents.
Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 122-B (4-A)—Land Revenue Manual—Para A-124—Proceedings under Section 122-B of U.P. Z.A. and L.R. Act—Landless agricultural labourer—Allotment of Patta by Gaon Sabha—Revision of Gaon Sabha was allowed by A.D.M./Upper Collector, directing dispossession of petitioners from land in dispute, filed against order of Asstt. Collector, withdrawing notice and proceedings under Section 122-B, initiated on a complaint of Lekhpal/Secretary, L.M.C.—Petitioners challenged findings of Collector on ground that proceedings under Section 122-B, can only be initiated against lands, recorded in name of Gaon Sabha—And that once Gaon Sabha settled that lands in favour of Corporation, which was recorded owner of lands as Bhumidhars, with non-transferable rights, proceedings could not have been initiated by Gaon Sabha—Petitioners had illegally encroached Gaon Sabha lands—Impugned orders of Addl. Collector/Upper Collector was in accordance with provisions of law—Thus, proceedings against petitioners, were not without jurisdiction, or authority—Held, order impugned upheld—However, as petitioners claimed themselves to be landless agriculture labourers, they may apply to Gaon Sabha for Patta afresh—Which may be considered by Gaon Sabha. [Paras 4, 5, 14, 18 and 19]
Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the petitioner and learned Standing Counsel.
2. The counsel for the petitioner states that all the connected writ petitions pertain to the same land, facts and circumstances and having arisen out of a common judgment dated 31.12.1991 may be decided together. The counsel for the respondents has no objection to this prayer, hence these petitions are being decided by this common judgment as questions of fact and law indicated the same.
3. The petitioner has challenged the order of the Additional District Magistrate/Upper Collector. Muzaffarnagar dated 31.12.1991.
4. By the aforesaid order, the authority has allowed the revision of the Gaon Sabha under Section 122-B (4-A) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act), directing dispossession of the petitioner from the land in dispute filed against the order of the Assistant Collector, Muzaffarnagar dated 16.2.1991 withdrawing the notice and proceedings under Section 122-B initiated on the complaint of the Lekhpal/Secretary, Land Management Committee, Village Purkazi Dehat, Pargana Purchapar District Muzaffarnagar.
5. The fact as culled out from the record and from the arguments of the learned counsel for the petitioner are that Khata No. 1047 Khasra plot No. 1174 was recorded in the name of U.P. Chalchitra Nigam Lucknow. In khatauni for the year 1398-1403 Fasli, the above khata is not recorded in the name of Gaon Sabha. These documents have been appended as Annexure 1 and 2 to the writ petition respectively.
6. The petitioner claims himself to be the landless agricultural labourer belonging to Scheduled Caste. It is averred in the writ petition that he has occupied the part of the aforesaid land with the permission of the recorded tenure holder prior to 30th June, 1985 and thereafter constructed a Jhopari on it; that he applied to the Gaon Sabha for allotment of the land on 20.4.1989 vide resolution No. 2 with Pradhan of the Village who proposed allotment of the portion of the land to the petitioner on which he had built Jhopari (thased house) on the ground that they are in occupation of the land for more than five years.
7. It also appears from the averments made in the writ petition that the Lekhpal objected to the resolution on the ground that the land was recorded in the name of Chalchitra Nigam, Lucknow, hence, the allotment cannot be made by the resolution by the Pradhan of the village without permission of the Competent Authority.
8. The Assistant Collector, Sadar, Muzaffarnagar in the aforesaid backdrop, issued a notice to the petitioner under Rule 115-D on 31.7.1990 and initiated proceedings under Section 122-B of the Act. The objections were filed by the petitioner inter alia that the land was recorded in the name of U.P. Chalchitra Nigam, Lucknow and Gaon Sabha has to allot the said part of land to him on which he had built his thashed roof house (Jhopari). The Assistant Collector by his order dated 16.2.1991 withdrew the notice dropping the proceedings allegedly on the ground that provision of Section 122-B of the 1950 Act could not be invoked in respect of a land which is not recorded in the name of Gaon Sabha. Similar orders were also passed in respect of other persons who have also encroached upon the land along with the petitioner. Aggrieved by the aforesaid order, the Gaon Sabha filed revision in the Court of A.D.M. Muzaffarnagar. The A.D.M., Muzaffarnagar allowed the revision by the order dated 31.12.1991 directing eviction of the petitioner from the land in dispute holding that :
"i{kx.k ds fo}ku vf/koDrkvksa ds rdZ lquus ,oe izLrqr fuxjkuh o voj U;k;ky; ds i=kofy;ksa dk HkfyHkkafr voyksdu o v/;;u djus ij eSa bl er dk gWw fd i=koyh ij 30 twu lu~ 1985 ls iwoZ dk izfroknhx.k dk dCtk gksus dk dksbZ Bksl izek.k ,oa lk{; miyC/k ugha gS] ftlds dkj.k mUgsa mldk ykHk fn;k tk lds] tgka rd fookfnr Hkwfe ds xkao lHkk lEefr gksus vFkok u gksus dk izu gS] ;g lgh gS fd vfHk
