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2020 Supreme(All) 430
IN THE HIGH COURT OF ALLAHABAD
Sunita Agarwal, Siddhartha Varma, JJ.
Baboo Ram and Another – Petitioners
Versus
The Commissioner Basti and Others – Respondents
WRIT C No. 41708 of 2001
Decided On : 05-03-2020
Advocate Appeared:
For the Petitioner: P.P. Chaudhary, A.K. Singh
For the Respondent: C.S.C., Dharm Raj Chaudhary, P.N. Pandey, Rama Nand Pandey
Point of Law:
Proceeding for eviction of an unauthorised occupant can be undertaken as per the provisions in Section 122-B of the Act, which requires that the Assistant Collector has to issue notice calling upon the person in unauthorised occupatin to explain his conduct and also to show cause as to why he may not be held liable to pay compensation
Headnote:
Constitution of India, Art. 226 – Order dated 13.9.2001 passed by the Additional Commissioner in revision expunging the names of the petitioners therein had been set aside on the ground that it was passed without issuing notice to them petitioners being similarly situated persons challenging the common order dated 13.9.2001 are entitled for the same relief – Held, Eviction of even an unauthorised occupants from the Gram Sabha land can be made by undertaking appropriate proceedings under Section 122-B of the Act. Further, an enquiry into the plea of fraud put forward before the Commissioner was required and in the event of notice the aggrieved person against whom allegations of fraud are made may come up with the plea that he is innocent. The notice is all the more necessary as on eviction of an unauthorized occupant from the Gram Sabha land in a proceeding either on suo motu motion or at the instance of any person, including Gram Sabha, compensation for damages, misappropriation or wrongful occupation can be levied which can be recovered from such person as arrears of land revenue – Petition disposed of
Facts of the Case:
Petition has been filed for quashing of the order dated 13.9.2001 passed by the Additional Commissioner, Basti in Revision no.29 of 2001. The said revision was registered on an application dated 10.8.2001 filed by one Vishram, resident of Village-Saraini, Tehsil-Bhanpur, District- Basti
Finding of the Court:
Eviction of even an unauthorised occupants from the Gram Sabha land can be made by undertaking appropriate proceedings under Section 122-B of the Act. Further, an enquiry into the plea of fraud put forward before the Commissioner was required and in the event of notice the aggrieved person against whom allegations of fraud are made may come up with the plea that he is innocent. The notice is all the more necessary as on eviction of an unauthorized occupant from the Gram Sabha land in a proceeding either on suo motu motion or at the instance of any person, including Gram Sabha, compensation for damages, misappropriation or wrongful occupation can be levied which can be recovered from such person as arrears of land revenue.
Result: Petition disposed of
JUDGMENT :
1. This Special Bench has been constituted by Hon'ble the Chief Justice on a reference made by learned Single Judge vide judgment and order dated 8.3.2017 in the present petition.
2. We have heard learned counsel for the parties and perused the record.
3. The petitioners before the learned Single Judge placed reliance on the judgment and order dated 12.7.2011 in Writ Petition no.5820 of 2002 (Kanhaiya and others) wherein the order dated 13.9.2001 passed by the Additional Commissioner in revision expunging the names of the petitioners therein had been set aside on the ground that it was passed without issuing notice to them. The counsel for the petitioners herein insisted that the petitioners being similarly situated persons challenging the common order dated 13.9.2001 are entitled for the same relief. The observations made in the referral order in this regard are relevant to be noted hereunder:-
“Another supplementary affidavit has been filed by the petitioners on 20.01.2012, in which the petitioners have said that their writ petition was similar to Writ Petition No. 5820/2002 filed by Kanhaiya and others and said writ petition was allowed by order of Coordinate Bench of this Court dated 12.07.2011, copy of the said order has been filed as annexure 1 to the supplementary affidavit and a prayer has been made for grant of similar relief.
The judgment and order dated 12.07.2011 shows that the same contention was raised before this Court in Writ Petition No. 5820 of 2002, that the private respondent had filed an application on the basis of which the Additional Commissioner treated the same to be a revision and without issuing notice to the petitioners had passed the order dated 13.09.2001 expunging their names and directing for recording of plot no.46 as 'charagah'. The Hon'ble Court thereafter has recorded that the party, who could have been affected had not been given an opportunity or notice in the matter. In such circumstances, the order impugned passed by the Additional Commissioner dated 13.09.2001, was quashed and the matter was remanded back to respondent no. 1 i.e. Additional Commissioner for taking appropriate decision, after issuance of notice to the petitioners and after inviting objections.
While passing the order dated 12.07.2011 the Hon'ble Court also observed thus:
"While passing any order, respondent no.1 will also take into consideration whether in the facts and circumstances as it has been informed that the consolidation proceeding is going on, he will have a jurisdiction to pass such order or not. All these objections have to be taken into consideration by the respondent no.1."
Since this writ petition is by similarly situated petitioners as those of Writ Petition No. 5820 of 2001, which has been allowed by Coordinate Bench of this Court, which order is ordinarily binding upon this Court also, I can not take any contrary view unless I refer the matter to the Chief Justice for constitution of a Division Bench to hear and decide the following questions of law:-”
4. It appears that having different opinion, facing with the previous directions in a similar matter, the learned Single Judge deemed it fit and proper to make a reference while framing the following Questions of law to be answered by the larger Bench:-
“A. Whether the Additional Commissioner was empowered to treat an application bringing to his notice the fraud committed by the revenue authorities, as a revision and take necessary action because under U.P.Z.A & L.R. Act, the powers of revision are vested under Section 333 of the U.P.Z.A & L.R. Act and include the power to correct an error where the subordinate revenue authority has acted in the exercise of jurisdiction illegally or with material irregularity and the Revisional Authority may pass such order in the case as he thinks fit?
B. Whether an order passed by the Sub Divisional Officer in case filed under Section 229 B U.P.Z.A. & L.R Act, which was passed without reference to the issues involved i
