S. P. SRIVASTAVA, J.

List has been revised. No body has appeared on behalf of the Gapn Sabha. A counter-affidavit has been filed by the Gaon Sabha. Heard learned counsel for the petitioner.

2. The petitioner has filed the present writ petition under Article 226 of the Con stitution of India for quashing the order dated 29-10-83 passed by the Assistant Col lector and the order dated 22-11-83 passed by the Collector, Muzaffarnagar.

3. The brief facts are that on a report of the Lekhpal, proceedings were initiated against the petitioners under Section 122-B of the U. P. Imposition of Ceiling on Land Holdings Act in respect of Plot No. 445 measuring 5 biswas 1 biswansi and plot No. 451-M measuring 1 biswa which was recorded in the paper as Khalihan and Rasta. The petitioners filed objection to the effect that they have taken Plot No. 724/1 measuring 35 yards East-West and 22 yards in North-South from Zamindar on 25-8-47 for construction of house after paying Rs. 251- as nazrana and are in possession since then. His contention was that Plot No. 724/1 was given to the Gaon Sabha under the consolidation proceedings but it was wrong ly mentioned as Plot No. 445 in the revenue record. Plot No. 451 is Rasta but the petitioners have neither made any encroachment on Rasta nor on the land used for Khalihan. The petitioners have also contended that besides other evidence they also applied before the Tehsildar that spot inspection may be made to verify this fact that the petitioners have not encroached any Rasta or Khalihan but neither the Teh sildar nor the revisional authority made any spot inspection or got the land surveyed and they decided the proceedings without making spot inspection. His contention is that the land on which the petitioners have made construction is the land which they got from Zamindar and the same is not a land of public utility. Therefore, the entire proceeding is vitiated in law.

4. Counter-affidavit has been filed on behalf of the Gaon Sabha. In counter-af fidavit it is stated that the petitioners have illegally occupied the land which was reserved for Khalihan and Rasta in a proceeding under Consolidation of Holding Act.

5. From the judgment of the Tehsildar it is apparent that it has been held by Tehsildar that Plot No. 724/1 was settled by Zamindar in favour of the petitioners on 29-8-47 but the finding of the Tehsildar is that its old number was 450 and not 445 or 451. Since there is no proceeding for evic tion of old Plot No. 450, the contention of the petitioners is not correct. He according ly passed an order of eviction from 5 biswas 1 biswansi area in Plot No. 445 and 1 biswas area in Plot No. 451-M, treating these plots as Khalihan and Rasta and awarded damages of Rs. 220. Aggrieved by the order of Tehsildar a revision was filed. The revisional court also affirmed the same find ing.

6. A bare perusal of the order of revisional authority would show that it has mentioned that application for spot inspec tion was filed and prayer for measurement was made, but the revisional authority placed reliance on the report of Lekhpal and did not permit to make spot inspection by the Tehsildar.

7. After hearing learned counsel for the petitioner and after going through the record and counter- affidavit I am of the view that if it was admitted that the petitioners got some land from Zamindar in 1947 and raised construction and in the meantime consolidation intervened in which old plots were given new numbers then it was incum bent on the part of the Tehsildar to have ascertained as to whether the petitioner has occupied the land which was allotted to him or he has made encroachment over some extra land other then the land allotted to him and a survey was to be made by the Tehsildar before the order for ejectment from the plots in question. As the petitioners have specifically asserted that they have not occupied the land ear-marked for Khalihan or Rasta. If for that purpose an application was also filed, the Tehsildar

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