Damages cannot be imposed on a trespasser who voluntarily surrenders possession of disputed land before a final order of eviction is passed.

K.P. Singh, J.

1. This writ petition arises out of proceedings under section 122-B of the UP ZA and LR Act.

2. It appears on the report of Lekhpal proceedings for ejectment of the petitioners under section 122-B of the UP ZA and LR Act (hereinafter referred to as the Act) were initiated. In the aforesaid proceedings Lekhpal and Pradhan were examined who had deposed that the petitioners were not in possession over the disputed land yet the Tahsildar through his order dated 27-10-1983 ordered for ejectment of the petitioners and also awarded damages to the tune of Rs. 957/- payable to the Gaon Sabha as is evident from Annexure II attached with the writ petition. Thereafter an application was moved that the arguments were not complete, therefore the matter may be fully heard and then decided. That application appears to have been dismissed on 28-11-1983 (See Annexure III). Thereafter, the petitioners preferred a revision petition which has been dismissed through the order dated 23-4-1984 contained in Annexure V. A review petition was also filed which also failed. Aggrieved by the orders of the revenue courts the petitioners have approached this Court under Article 226 of the Constitution.

On 27-7-1986 a learned Single Judge of this Court has granted interim prayer to the petitioners in the following words :

"Meanwhile if damages awarded against the petitioners have not already been realised, the same shall not be realised until further order of this Court."

3. This case came up for admission before me on 23-3-1987. The learned counsel for the petitioners has contended before me that the petitioners were not in possession over the disputed land so no damages should be realised from them. If this relief is granted to the petitioners, they shall be satisfied with their fate as they had never been in possession over the disputed land. I reserved the case on that day and directed it to be listed for orders on 30-3-1987.

4. After hearing the learned counsel for the petitioners in this case I think that no damages should be realised from the petitioners in the facts and circumstances of the case mentioned above. In Hans Raj v. Gaon Sabha, 1980 AWC (Rev.) 39 a learned Member, Board of Revenue, has indicated in his judgment vide para. 6 as below :-

"When the applicant did not claim possession damages could not have been imposed on the applicant in view of Rajaswa Anubhag-12 G. O. No. 8639/75-Sa- 12-2384/75, dated 10-9-1975 and Board's Order No. 11693/G-5-639/73, dated 22-10-1975."

In another case Chhota Lal v. Gaon Sabha, reported in 1982 AWC (Revenue) p. 87 a learned Member, Board of Revenue has also indicated that when the trespasser asserted on oath that he had left possession of the disputed land voluntarily no damages could be imposed upon him vide Rajaswa Anubhag- 12-G. O. No. 8639/75-Sa-12-2884/75, dated 10-9-1975 and BO No. 11693/G-5- 639/73, dated 22-10-1975.

5. Shri Girish Chandra Chaturvedi, Ayukt Avam Sachiv, U. P. Administration also has issued communication to all the District Magistrates of Uttar Pradesh excluding districts Pauri Garhwal, Tehri Garhwal, Uttai Kashi, Chamoli, Almora and Pithoragarh and in that communication he has said as below :-

".....................Kuchh shroton se is sambandh ken yah prashna uthaye gaye hain ki atikraman hatao abhiyan men prarambh ki gai bedakhli ki karyawahi ka nistaran swechhapurvak kabza hat jane ki dasha men kis prakar kiya jai. In uthaye gaye prashno ke sambandh men mujhe nimnankit adesh jari karne ka nirdesh hua hai :- (1) Anadhikrit kabzon ke ve mamle jinme abhi zamindari vinash niyamawali ke niyam 115-gha ke antargat karyawahi prarambh nahi hui hai swechcha se kabza hat jane ki dasha men hon prarambh nahi ki jayegi aur jin mamlon men karyawahi to prarambh ho chuki hai kintu abhi antim adesh nahi huye hain we mamle drop kar diye jayenge. (2) Anadhikrit kabzon ke jitne mamlon men kabiz vyakti swechha se kabza chhod denge unme khatauni ki shreni 4 men ankit indraz ki kharij k