Research › Browse › Judgment

Allahabad High Court · body

1988 DIGILAW 837 (ALL)

Gaon Sabha v. Birja Harijan

1988-09-09

BRIJESH KUMAR

body1988
JUDGMENT Brijesh Kumar, Member - Gaon Sabha Tikardih, pergana Ghiswa, district Jaunpur filed this revision petition against the judgment and order dated 15.12.1976 passed by the Additional Commissioner, Varanasi Division, Varanasi in revision No. 21/73 of 1976 filed against the order dated 30.9.1976 passed by the Tahsildar, Assistant Collector 1st class, Machhalishahr, Jaunpur. The grounds of revision are that section 5 of the UPCH Act were not attracted in this case as much as the cause of action against the opposite party Birja Harijan accrued after the final consolidation scheme was proposed and the land in dispute was reserved for Harijan abadi, that the proceedings u/r 115-C of the UPZA and LR Rules were started much after the confirmation of the statement of proposals and preparations of the consolidation records wherein the land in suit was finally shown as Harijan abadi and hence nothing was left for adjudication of title or correction of records with regard to which the proceeding can be initiated under the provisions of the UPCH Act. 2. The learned Additional Commissioner after hearing the parties abated the proceedings by means of his order dated 15.12.1976. The present revision has been filed against this very order. The Hon'ble member GS Sial before whom this case came up for hearing, referred the case to the Chariman/Senior-most Member for constituting a Bench to give a ruling on the point whether the proceeding u/s 122-B of the UPZA and LR Act can proceed against a trespasser on the Gaon Sabha land or the proceedings shall abate u/s 5 (2) of the UPCH Act. A bench consisting of Sarvarsi PC Saxena and IB Singh, Members heard the case on 12.9.1979 and decided that the proceeding will not abate u/s 5 (2) of the UPCH Act. On 11.12.1979, the opposite party Birja Harihan moved an application with the prayer that the ex-parte order passed by the Bench should be set aside and he should be given an opportunity of being heard. On 11.12.1979, the opposite party Birja Harihan moved an application with the prayer that the ex-parte order passed by the Bench should be set aside and he should be given an opportunity of being heard. A Division Bench consisting of Sri Roshal Lal and R.P. Gupta reviewed the case on 2.12.1981 and referred the matter to the chairman/Seniormost Member for constituting a Large Bench consisting of at least three or more Members to consider the question whether the proceeding u/s 122-B of the UPZA and LR act pending on the date of publication of notification u/s 4(2) of the UPCH Act covering the land in dispute will abate u/s 5 (2)(a) of the UPCH Act or not. On this reference a Larger Bench Consisting of Sarvarsi G.S. Tewari, CBD Dwivedi and Kaushal Kishore Members was constituted. The Bench decided the issue on 7.4.1983 after going through the question in depth and taking into consideration various rulings given on the subject from time to time and answered the question in negative. 3. I have heard the learned DGC (R) on 29.8.1988. None was present on behalf of the opposite party despite due notice. Briefly stated, the facts of the case are that proceedings u/r 115-C of the Rules were initiated on the report of Ram Lakhan Yadav, Pradhan Gaon Sabha. It appears from the report that plot Nos. 809/.2 , 810/.2 and 159/.2 and 162/.4, earmaked for Harijan, abadi was encroached upon by Birja Harijan, hereinafter referred to as opposite party. On receipt of the report, notice in form 49-A was issued in reply to which the opposite party. After recording evidence and hearing the parties, the Assistant Collector 1st class Machhalishahr passed the order the ejectment on 30.9.1976 and also directed the opposite party to pay Rs. 850/- as damages. Aggrieved by this order, the opposite party Birja Harihan prepared a revision before the Divisional Commissioner. The learned Additional Commissioner bated the proceedings on the ground that the village was under consolidation scheme. The Gaon Sabha preferred a revision against the order. 4. On a reference having been made, A Full Bench had held on 7.4.1983 that such proceedings cannot abate u/s 5 (2) of the UPCH Act. I have carefully gone through the ruling which deals with in its entirety and I have no reason to differ with the ruling given by the Bench. 5. 4. On a reference having been made, A Full Bench had held on 7.4.1983 that such proceedings cannot abate u/s 5 (2) of the UPCH Act. I have carefully gone through the ruling which deals with in its entirety and I have no reason to differ with the ruling given by the Bench. 5. In the result, the revision petition is allowed and the order passed by the Additional Commissioner dated 15.12.76 is set aside and the case is remanded to the learned Additional Commissioner for disposal of the revision pending before him on merits. Let the records be sent back to the courts concerned.