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1998 DIGILAW 1148 (ALL)

Jiv Nandan v. Collector, Mau

1998-09-25

SUDHIR NARAIN

body1998
JUDGMENT : SUDHIR NARAIN, J. 1. This writ petition is directed against the order passed by the Collector, Mau-respondent No. 1, whereby he allowed the revision and directed the Assistant Collector, respondent No. 2, to decide the case afresh. 2. The facts in brief are that the Lekhpal submitted a report on 23.4.1994 before the Assistant Collector, respondent No. 2 that the petitioner is in unauthorised occupation over plot No. 206 area 0.040 hectare of village Nathanpura, Pargana and Tehsil Ghosi, district Mau. The petitioner was thereafter given a notice dated 6.8.1994 in Z. A. Form 49 asking him to show cause why he should not be evicted from the plot in dispute. The petitioner submitted an objection before respondent No. 2 that he was having his dwelling house over the land in dispute from much before coming into force of U. P. Zamindari Abolition and Land Reforms Act (in short the Act) and his family members are living therein. He claimed that he was landless agriculturist. He was not in unauthorised occupation. The lekhpal was examined by the Assistant Collector. He stated that the petitioner was in possession but he has withdrawn his possession from the land in dispute. The Assistant Collector found that the statement of the Lekhpal was contrary to the report submitted by him and he discharged the notice by his order dated 17.7.1995. Poojan, respondent No. 3, preferred a revision before the Collector against the said order. Respondent No. 1 by order dated 17.7.1998 allowed the revision and directed respondent No. 2 to make further inquiry in the matter and find out the true position and determine the rights of the parties. 3. Sri A. K. Gaur, learned counsel for the petitioner, contended that respondent No. 3 was not entitled to file a revision in proceedings u/s 122B of the Act which was initiated on the report of the Lekhpal submitted to the Assistant Collector. 4. Sub-section (4A) of Section 122B of the Act provides that any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the grounds mentioned under clauses (a) to (e) of Section 333. This provision does not confine the right to file revision by the Land Management Committee alone against the order of the Assistant Collector. This provision does not confine the right to file revision by the Land Management Committee alone against the order of the Assistant Collector. A person who is a Member of the Gaon Sabha can claim the right to use the land of the Gaon Sabha as it is a public property. If a person who is in unauthorised occupation of such land is not removed by the Gaon Sabha, a member of the Gaon Sabha who has right to use the land of Gaon Sabha, can be said to be an aggrieved person. The proceedings u/s 122B of the Act can be initiated under sub-section (2) of the Act by the Assistant Collector on the basis of the information received under sub-section (1) of the Act or otherwise also. This indicates that any person can inform the Assistant Collector about the unauthorised occupation of the land by any person and if the Assistant Collector is prima facie satisfied that the property of the Gaon Sabha or a Local Authority is in unauthorised possession of any person, he can take proceeding for his eviction. Respondent No. 3 was claiming that the land in dispute was reserved for removal of skin of dead animal and the members of the Gaon Sabha were entitled to use such land for that purpose. The revision filed by respondent No. 3 in the facts and circumstances of the case was maintainable against the order of the Assistant Collector. 5. The second submission of learned counsel for the petitioner is that respondent No. 3 had filed a time-barred revision. He had also filed an application to condone the delay. Respondent No. 1, considering the facts and circumstances of the case, condoned the delay and entertained the revision. Learned counsel for the petitioner has urged that respondent No. 1 has not specifically recorded a finding regarding sufficient cause for condonation of delay and in absence of such finding, he was not justified in condoning the delay in filing the revision. He has placed reliance upon the decision of the Supreme Court in P. K. Ramachandran v. State of Kerala and others JT 1997 (8) 189, wherein it was held that if the delay of 565 days was condoned without any explanation for such long delay, the discretion exercised in condonation of delay cannot be sustained. He has placed reliance upon the decision of the Supreme Court in P. K. Ramachandran v. State of Kerala and others JT 1997 (8) 189, wherein it was held that if the delay of 565 days was condoned without any explanation for such long delay, the discretion exercised in condonation of delay cannot be sustained. In Ram Naresh v. Deputy Director of Consolidation, Basti and others 1990 RD 340, it was held that unless the Court applied its mind in respect of condonation of delay, it cannot be deemed that the delay was condoned. Respondent No. 1 was conscious of the fact that there was delay in filing the revision and he condoned the delay taking into account the facts and circumstances of the case. The authority can take into consideration all the relevant factors while considering an application for condonation of delay. Respondent No. 3 was not a party in the proceedings u/s 122B of the Act. He was claiming that the land was reserved in the consolidation proceedings for removing the skin of dead animals and when he came to know of the order, he filed the revision. The order passed by respondent No. 1, in the facts and circumstances of the case, cannot be held to be arbitrary and illegal. 6. The third submission of learned counsel for the petitioner is that the State of U. P. was not made a party in the revision. The land in the Gaon Sabha is vested by a notification issued by the State Government u/s 117 of the Act and after the vesting of the land in the Gaon Sabha, it is the duty of the Land Management Committee to take appropriate proceedings for eviction of the unauthorised occupant of the land of Gaon Sabha. The State of U. P., if not impleaded, in a revision filed u/s 122B (4A) of the Act, the revision will not be incompetent. 7. Lastly, it is submitted that on the facts of the present case, respondent No. I was not justified in remanding the matter to the Assistant Collector for deciding the matter afresh. The State of U. P., if not impleaded, in a revision filed u/s 122B (4A) of the Act, the revision will not be incompetent. 7. Lastly, it is submitted that on the facts of the present case, respondent No. I was not justified in remanding the matter to the Assistant Collector for deciding the matter afresh. As noted above, the contention of the petitioner was that his ancestors had constructed a house over the land in dispute and the family of the petitioner was residing in the dwelling house which was existing on this land since prior to the enforcement of the Act and he acquired right u/s 9 of the Act. The Lekhpal made statement that the petitioner has removed his possession. This was not the case of the petitioner. The version of respondent No. 3 was that the land in dispute was reserved for removing the skin of dead animals and that aspect also required consideration. In these circumstances, respondent No. 1 was justified in remanding the matter to the Assistant Collector. 8. I do not find any merit in this writ petition. It is accordingly dismissed.