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1984 DIGILAW 423 (ALL)

Riaz Ahmad v. Board of Revenue

1984-05-18

K.P.SINGH

body1984
JUDGMENT K.P. Singh, J.- This writ petition arises out of proceedings under Rule 115-C of the U.P. Zamindari abolition and Land Reforms Act. 2. The writ petition was allowed by me on 22nd December, 1983. A question has arisen as to whether the disputed land had vested in Town Area Committee, Shahpur, Pargana Shikarpur, district Muzaffarnagar and whether the aforesaid Town Area Committee could initiate proceedings against the petitioners under Rule 115-C of the U.P.Z.A. and L.R. Act. The following observation was made by me in my order dated 22.12.1983 :- "In the present case, the proceeding against the petitioners has been initiated at the instance of Gaon Samaj but the question whether notification under section 117 of Act I of 1951 had been issued by the State in favour of Gaon Samaj whereby the disputed property might have vested in the Gaon Samaj, which initiated proceedings against the petitioners, has not been examined by the revisional Court. No doubt, on the findings of fact recorded by the revisional court, the petitioners may be liable to ejectment and to pay damages, but before granting relief to Gaon Samaj, it is necessary that its title to the disputed property may be examined in the light of the provision of section 117 of the U.P. Act No. 1 of 1951 and the relevant notification in this regard may be indicated by the revisional Court." 3. Thereafter an application was moved for recalling the order dated 22.12.1983 allowing the writ petition on the ground that notification No. 617/XIV-(In exercise of the powers conferred by section 117 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), the Governor is pleased to declare that as from the first day of November, 1952- (1) all land whether cultivable or otherwise except land for the time being comprised in any holding or grove, and (2) all forests within the village boundaries, situate in a circle, which have vested in the State under the said Act, shall subject to the exceptions shown in Schedules I and II hereto, vest in the Gaon Samaj established for the circle had been issued but by mistake it could not be brought to the notice of the Court, hence no useful purpose would be served by maintaining the order dated 22.12.1983. A photostat copy of the notification has been filed with the review application and is dated October 11, 1952. 4. I granted time to the parties to put forward their claims, but the counsel for the petitioner could not satisfactorily rebut the affidavit filed by the contesting opposite party, hence on 20th March, 1984 recalled my order dated 22.12.1983. The relevant extract from that order reads as below : "Three weeks time was granted to the counsel for the parties to file necessary affidavit in support of their contentions. The learned counsel for the contesting opposite party has filed an affidavit of Sri Pramod Puri and has demonstrated that the disputed land was not covered by the excepted area of 283 acres in Madarpur. The learned counsel for the petitioner wants further time to file an affidavit. I am not inclined to grant any further time. In the present Case I have no reason to doubt the affidavit filed on behalf of the contesting opposite party on 7.3.84. It is note-worthy that after examining the order sheet of this case it appears that due to some mistake I committed an error in observing that none had appeared on behalf of the contesting opposite party. The ends of justice demand that the order dated 22.12.1983 be recalled and the writ petition be restored to its original number. As I have not granted time to the learned counsel for the petitioner today. I think it proper to direct this case to be listed for hearing on 5th April, 1984." 5. When the case came up for hearing in pursuance of my order dated 20th March, 1984, the learned counsel for the petitioners has contended that the order dated 20th March, 1984 should be recalled and the previous order 22nd December, 1983 be restored. 6. Order 47 Rule 9 of the Code of Civil Procedure reads as below ;- "No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained." 7. In view of the above provisions the application moved by the petitioners on 30th April, 1984 deserves rejection and accordingly I reject the same. 8. But after hearing the learned counsel for the parties on merits I feel that the writ petition should be allowed and the case should be sent back. 9. In view of the above provisions the application moved by the petitioners on 30th April, 1984 deserves rejection and accordingly I reject the same. 8. But after hearing the learned counsel for the parties on merits I feel that the writ petition should be allowed and the case should be sent back. 9. The learned counsel for the petitioners has contended before me that the notification No. 617/XIV dated October 11. 1952 (Photostat copy of the notification filed with the review application of the contesting opposite party) is in fact and law inapplicable to the facts and circumstances of the case. He suggested that while recalling my order dated 22.12.1983. I committed an error in placing upon the aforesaid notification. 10. The perusal of the notification does indicate that the aforesaid notification is inapplicable to the facts and circumstances of the present case and the grounds on which the learned counsel for the contesting opposite party convinced me to rely upon the notification while passing the order dated 20th March 1984 are also incorrect. The notification mentions Shahpur of Tahsil Muzaffarnagar Pargana Gordhanpur district Muzaffarnagar, where as the disputed property is situate in village Shahpur, Pargana Shikarpur, district Muzaffarnagar. I think that learned counsel for the contesting opposite party erroneously relied upon the notification No. 617/XIV mentioned above while pressing his review application. At the time of hearing the writ petition the learned counsel for the petitioner placed reliance upon the notification No. 164-IA-4-3 (l)-69 dated May 15, 1971 in support of his contention that the disputed property had vested in Shahpur Town Area Committee. The aforesaid notification has been attached with the supplementary affidavit. 11. Section 1 of U.P. Act No. 1 of 1951 reads as below :- (1) "This Act may be called the Uttar Pradesh Zamindari Abolition and land Reforms Act, 1950. (2) It extends to the whole of the Uttar Pradesh except the areas which on the 7th day of July, 1949, were included in a municipality or a notified area under the provisions of the United Provisions Municipalities Act, 1916 (U.P. Act II of 1961) or a Cantonment under the provisions of the Cantonment Act, 1924 (U.P. Act II of 1924) or a town area under the provisions of the United Provinces Town Area Act, 1914 (U.P. Act I of 1914) Provided................ Provided further that where any area which on July 7, 1949, was included in a Municipality, Notified Area, Cantonment or Town Area, cease to be so included therein at any time after that date and no notification has been in respect thereof under section 8 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 : - (I) In case it has ceased to be so included at any time before June 29, 1971, this Act shall extend to such area from June 29, 1971, and (II) in any other case, this Act shall extend to such area from the date on which the area ceases to be so included." 12. Since proceedings giving rise to the present writ petition were initiated at the instance of Town Area Committee Shahpur through its Chairman, Pargana Shikarpur, district Muzaffarnagar and it involves ejectment of the petitioners from the disputed land, it is necessary that title of the opposite party no. 3 must be established to the disputed land before the petitioners are directed to be evicted. It is necessary that the revisional Court must come to the conclusion that the disputed property vested in opposite party no. 3 through certain notifications and they should be quoted in the judgment hereafter. 13. In view of the provisions of section 1 Act No. 1 of 1951 it is necessary to indicate as to whether the disputed land was situate in Town Area, and therefore, it was beyond the perview of Act No. I of 1951 or not. How far the notification of the year 1971 mentioned above is applicable to the facts and circumstances of the present case. 14. Though I have rejected the review application filed by the petitioners reviewing my previous order dated 20th March, 1984 in view of the provisions of Order 47 Rule 9 of the Code of Civil procedure, but on merits I arrive at the same conclusion that the impugned judgment of the revisional Court dated 22.11.1978 suffers from patent error of law, as it has failed to examine how the disputed property vested in Gaon Sabha and opposite party no. 3 in the present writ petition. The ends of justice demand that the revisional Court be asked to examine the claim of the opposite party no. 3 in the disputed land before granting it relief of ejectment against the petitioners. 15. 3 in the present writ petition. The ends of justice demand that the revisional Court be asked to examine the claim of the opposite party no. 3 in the disputed land before granting it relief of ejectment against the petitioners. 15. In the result, the writ petition succeeds and the impugned judgment of the revisional authority dated 22.11.78 is hereby quashed and the revisional authority is directed to examine the claim of opposite party no. 3 in the disputed land with reference to the relevant notifications whereby the disputed land might have vested in the Gaon Sabha or opposite party no. 3 in the circumstances of this case. There would be no order as to costs.