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1992 DIGILAW 322 (ALL)

State v. Shaukat

1992-02-28

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This reference has been made under Section 333-A of U.P.Act No. 1 of 1951 by the Additional Commissioner, Meerut Division, Meerut vide his order dated 29.3.1984, for setting aside the order dated 16.2.1979 passed by Tahsildar/Assistant Collector 1st Class, Nagina in a case under Section 122-B of U.P. Act No. 1 of 1951. 2. Heard learned counsel for the applicant. Opposite party is absent. Perused the record. 3. In a proceeding under Section 122-B of U.P. Act No. 1 of 1951 the trial court passed a final order against the opposite party on 31.8.1978 ejecting him from the portion of plot No. 30 area 1.80 Verg Gaj and he imposing damages Rs. 242/-. After that order, an application was given on 15.1.1979 by the opposite party that his argument was not heard and the order was passed. On this application the trial court set aside the order dated 31.8.1978 and fixed the case for hearing on 14.2.1989. This order was passed on 6.2.1979. After hearing it the Tahsildar finally dropped the proceeding and directed that opposite party should remove the encroachment within a month. If the opposite party failed to remove the encroachment the Gaon Sabha will again make a report under Section 122-B. Against that order revision was filed before the Additional Commissioner under Section 333-A of U.P.Act No. 1 of 1951 who has made the reference that the trial court had renewed its order which was finally passed by him. He had no jurisdiction to review the order, therefore, it should be set aside. He also recommended that if there was no possession of the opposite party there was no need to make direction to remove the encroachment. It means there was an encroachment. 4. I fully agree with the recommendation of the Additional Commissioner and set aside order dated 6.2.1979 and 16.2.1979 but at the same time I am of the opinion that the trial court passed order dated 31.8.1978 on a proforma order by filling the blanks. That is no order in the eye of law, hence that order too is set aside and the case is remanded to the trial court to decide it afresh in accordance with law.