Research › Search › Judgment

Uttarakhand High Court · body

2007 DIGILAW 337 (UTT)

ZAHIR v. ADDITIONAL COLLECTOR, HARIDWAR

2007-06-13

B.S.VERMA

body2007
JUDGMENT Since similar questions are involved for determination in all the four writ petitions, therefore, for the sake of convenience, they are being decided by this common order. It may be added that all these writ petitions, except Writ Petition (M/S) No. 1164 of 2001 have arisen out common judgment and order dated 29.10.1999 passed by the Additional Collector Haridwar, passed in Revision Nos. 51 to 97-98, 49 of 1997-98 and 48 of 1997-98, arising out of order dated 6.8.1988 passed by the respondent no. 2. Writ Petition No. 1164 of 2001 has been preferred against the judgment and order dated 16.7.1999 arising out of order dated 29.3.1997 passed by the respondent no. 2. By the impugned orders, the revisions preferred by the petitioners against the Gaon Sabha have been dismissed by the Additional Collector Haridwar. 2. Relevant facts of the case giving rise to these writ petitions are that the petitioners were allotted a piece of land of the Gram Sabha after passing a resolution by the respondent no. 3. The possession over the land was given to the petitioners and receipt was also issued to them. Thereafter the petitioners constructed their houses on the allotted land and they have been residing there, because the petitioners have no other place to live in. According to the petitioners, papers were sent to the Sub Divisional Officer for obtaining his approval on the resolution of the Gaon Sabha, who in turn called for report from the Tehsildar. The Tehsildar obtained report from the subordinate revenue officers and made recommendation in favour of the petitioners. Subsequently, proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act were drawn for eviction of the petitioners on the report of the Lekhpal, who had reported that the petitioners are in unauthorized occupation of the Banjar land of Gaon Sabha and have constructed pucca house thereon. 3. Notices Z.A. From 49-A were issued to the petitioners. Notice was issued to petitioner Zahir in respect of plot no. 223 area 0.015 hectare, notice to Fateh Din was in respect of plot no. 227 area 0.018 hectare, notice to Nisar was in respect of possession over plot no. 224, area 0.003 Hectare and notice to Iqbal was with regard to plot no. 223, area 0.012 Hectare of village Sarthedi Shahjahanpur, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar. 223 area 0.015 hectare, notice to Fateh Din was in respect of plot no. 227 area 0.018 hectare, notice to Nisar was in respect of possession over plot no. 224, area 0.003 Hectare and notice to Iqbal was with regard to plot no. 223, area 0.012 Hectare of village Sarthedi Shahjahanpur, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar. The petitioners filed their objections and asserted that they are Khetihar Mazdoor, that notice has been given on wrong facts; that the land was allotted to the petitioners as per resolution passed by the respondent No. 3 Gaon Sabha and that the petitioners were issued rental receipt duly signed by the Pradhan of the Gram Sabha. It was asserted that the petitioners have no other residential land in the village and that the notice issued to them is not legal and valid. 4. From the side of the Gaon Sabha, Lekhpal of the area examined himself. He proved the report submitted by him, copy of Khasra, extract of Khatauni and site plan. The petitioners examined the then Gram Pradhan of the village who stated that the land was allotted to the petitioners through resolution passed by the Gaon Sabha and the petitioners were given receipts regarding rental of Patta and the petitioners are living there after constructing their houses. The trial court after hearing both the parties decided the matter on 3.7.96. The opposite parties-petitioners preferred revisions before the Collector Haridwar. The Revisional Court set aside the order of the trial court and remanded the matter with the direction that both the parties be afforded reasonable opportunity to lead evidence and the case be decided on merit. 5. After remand of the case, the both the parties were given opportunity to lead evidence. Again, the trial court observed that the petitioners could not show any approval of Sub Divisional Officer in their favour, therefore, they were liable to be evicted from the disputed land and accordingly passed the impugned orders of eviction against the petitioners. 6. Aggrieved by the order passed by Tehsildar/Assistant Collector, the petitioners went up in Revisions before the Additional Collector, Haridwar and assailed the impugned order on the ground that the order passed by the trial court is against evidence on record and the notice issued to the petitioners is defective and illegal. 7. 6. Aggrieved by the order passed by Tehsildar/Assistant Collector, the petitioners went up in Revisions before the Additional Collector, Haridwar and assailed the impugned order on the ground that the order passed by the trial court is against evidence on record and the notice issued to the petitioners is defective and illegal. 7. The Revisional court heard learned counsel for both the parties and ultimately came to the conclusion that the possession of the revisionist-petitioners upon the disputed land is illegal because there is no approval of resolution passed by Gaon Sabha of the competent authority, hence the eviction order passed by the trial court is justified. Accordingly, the revisions have been dismissed. 8. Aggrieved by the orders passed by the Additional Collector, the present writ petitions have been filed. 9. In the writ petitions, the impugned orders have been assailed mainly on the ground that it was not incumbent upon the petitioners to obtain approval from the Sub Divisional Officer, and the respondent no. 3 was to see whether the same has been granted or not; that the proceeding under Section 122-B of the said Act were drawn after more than ten years and that the impugned orders have been passed in arbitrary manner without assigning any reasons in not believing the report of the revenue inspector. 10. I have heard learned counsel for the parties and perused the material on record including the impugned orders. 11. Counter Affidavit has been filed on behalf of the respondent no. 3 Gaon Sabha concerned on 5.7.2000 wherein it was stated that the disputed land has never been allotted to the petitioners and the alleged resolution dated 12.1.1986 was not approved by the Sub-Divisional Officer, therefore, without the approval the alleged resolution is void abinitio and ineffective in law. It was also not in accordance with law. It was also stated that the alleged receipt of rent issued in favour of the petitioners is also not in accordance with law. It was stated in paragraph no. It was also not in accordance with law. It was also stated that the alleged receipt of rent issued in favour of the petitioners is also not in accordance with law. It was stated in paragraph no. 6 of the counter affidavit, in reply of averments made in para 4 of the writ petition, that the construction made by the petitioners on the land in dispute is illegal because the disputed land has never been allotted in favour of the petitioners and he has illegally encroached the disputed land and the status of the petitioners over the same is as that of a trespasser. It is pertinent to note that the petitioners have not filed any rejoinder affidavit to controvert the assertions made in the counter affidavit. 12. Learned counsel for the petitioners has vehemently submitted that the petitioner is in occupation of the disputed land on the basis of resolution of Land Management Committee dated 12.1.1986 and they used to pay the rent to the L.M.C. concerned, therefore, the possession of the petitioners over the disputed land is not illegal and unlawful. In support of his contention, the learned counsel has placed reliance upon the judgment of the Allahabad High Court in the case of Om Prakash and others Vs. Board of Revenue [1987, R.D. Page 150]. In that case the petitioners were allotted the disputed land for the purposes of making constructions in the year 1964. On an application by Manbir Singh, notice was issued to the petitioners on November 9, 1965 for their ejectment and damages on the allegations that they had illegally encroached upon the land of Gaon Sbha. Manbir Singh also moved an application for cancellation of the allotment of the disputed land to the petitioners on the ground that the allotment was illegal. On June 5, 1969, the allotment was cancelled by the Sub-Divisional Officer. On November 12, 1969, the petitioners were ordered to be evicted and damages of Rs. 500/- were awarded against them. It was held in that case that the notice under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act was not valid as petitioners’ possession was not illegal or unlawful and the allotment of lease was cancelled much after issue of the said notice. 500/- were awarded against them. It was held in that case that the notice under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act was not valid as petitioners’ possession was not illegal or unlawful and the allotment of lease was cancelled much after issue of the said notice. The Allahabad High Court while allowing the writ petition has held that the demolition of constructions cannot be ordered by Revenue Courts in summary proceedings. The facts of the present case are entirely distinct from the reported case. In the case at hand, there was no allotment in favour of petitioners and it is not established that the resolution passed by the Land Management Committee was ever approved by the Sub Divisional Officer. The petitioners could not substantiate their contention that their possession over the disputed land is legal and lawful. The case-law does not help the petitioners. 13. Learned counsel for the petitioners further contended that the petitioners are in continuous occupation of the Gaon Sabha land on the basis of resolution passed by the Gaon Sabha and the allotment made by the land management committee has not been cancelled by Sub Divisional Officer, therefore, their possession being legal, the petitioners cannot be evicted through proceedings under Section 122-B of the Zamindari Abolition and Land Reforms Act. Learned counsel has further placed reliance upon the judgment of the Board of Revenue in the case of Kummi Vs. Gaon Sabha [1980, R.D., Page 201]. In that case, the Abadi plot in question was auctioned and by unanimous resolution it was allotted to the highest bidder, Kummi. It has been observed that “where a person occupies Gram Sabha property in a lawful manner on the basis of the allotment made to him by a unanimous resolution of the Land Management Committee, it cannot be said that he had occupied the land unlawfully. The question may be asked what would happen if the allotment made by the Land Management Committee is cancelled by the Collector or the Sub Divisional Officer. The answer is obvious that at the time of setting aside the allotment the Collector or Sub-Divisional Officer should also take steps to dispossess the allottee and put the Land Management Committee into possession. The answer is obvious that at the time of setting aside the allotment the Collector or Sub-Divisional Officer should also take steps to dispossess the allottee and put the Land Management Committee into possession. If the person allotted again occupies the land at a subsequent date in an unlawful manner then only proceedings under Section 122-B, U.P.Z.A. and L.R. Act can be taken, but these proceedings cannot be taken where a person has continued to be in possession on the basis of a lawful allotment made by the Land Management Committee and has also built a house on the basis of such an allotment.” In the cited case, the Abadi plot in question was auctioned and by unanimous resolution it was allotted to the highest bidder, Kummi. In the case at hand, only the resolution was passed by the Land Management Committee, but the resolution was never approved by the Sub-Divisional Officer concerned. In the absence of approval, the resolution of the Land Management Committee cannot take place of allotment. The said case law does not help the petitioners. 14. In the case at hand, the main contention of the petitioners is that the notice issued to them under Section 122-B of the said Act is based on wrong facts inasmuch as the disputed land was allotted to them by the resolution dated 12.1.1986 passed by the Land Management Committee and they had deposited rental of Rs. 150/-. Before the trial court, Land Management Committee examined Lekhpal of the area, who has proved the report under Section 122B of the Act, extract of Khasara and Khatauni, site plan etc. On the other hand, the petitioners have examined the then Pradhan of the village, who deposed that the petitioners were allotted the plot in question by resolution of the L.M.C.dated 12.1.1986. The petitioners also examined themselves and stated that Patta was granted in their favour. The Assistant Collector after considering the evidence on record came to the conclusion that the petitioners could not lead any evidence to show that the resolution was ever approved. Accordingly, it was concluded that in the absence of approval, the possession of the petitioners over the disputed land was illegal and they were liable to the evicted. The Assistant Collector after considering the evidence on record came to the conclusion that the petitioners could not lead any evidence to show that the resolution was ever approved. Accordingly, it was concluded that in the absence of approval, the possession of the petitioners over the disputed land was illegal and they were liable to the evicted. The revisional court in its order dated 29.10.1999 has clearly mentioned that petitioner Nisar has admitted Plot No. 223 to be Gaon Sabha property but his possession over Plot No. 224. It is not disputed that Plot No. 224 has been recorded as manure pits in the revenue records. Thus, Plot No. 224 is a public utility land. The revisional court in its order dated 16.7.99 passed in Revision No. 14/96-97 Fatehdin Vs. Gaon Sabha has held that the land of Plot Nos. 226 and 227 is recorded play ground, therefore, I am of the view that the disputed land being a public utility land could not have been allotted to any one in view of the provisions of Section 132 of the U.P.Z.A. and L.R. Act. 15. As far as plot no. 223 is concerned, the petitioners Zahir and Iqbal have failed to prove the fact that the allotment made in their favour was as per procedure laid down in Uttar Pradesh Z.A. Rules 115 L, 115 M and 115 N. It has been specifically held by the revisional court that after the year 1975, approval of the resolution of allotment by Land Management Committee is mandatory and the petitioners failed to prove that the said resolution in their favour had been approved by the Sub Divisional Officer concerned. 16. Similar controversy had been dealt with by the Allahabad High Court in the case of Mohd. Shafi Versus Collector, Muzaffarnagar and others [1998, R.D., Page 330]. In that case, the petitioner failed to produce any evidence to indicate that the Land Management Committee had passed the resolution to allot the land in favour of the petitioner and further the said resolution was approved by the Sub Divisional Officer concerned. He had also not filed the original patta. Respondent no. 1 has further recorded a finding that the plot in dispute is recorded for manuring purpose. He had also not filed the original patta. Respondent no. 1 has further recorded a finding that the plot in dispute is recorded for manuring purpose. This is a public utility land and this land could not allotted to any person in view of the provisions of Section 132 of the U.P. Zamindari Abolition and Land Reforms Act. It was held by the Allahabad High Court that the finding of the Assistant Collector did not suffer from any manifest error of law. In the case at hand, the petitioners filed Photostat copy of the resolution and a receipt towards payment of Rs. 150/- issued by the Land Management Committee. Admittedly, no approval was ever given by the Sub Divisional Officer and no Patta was granted to the petitioners. In the absence of approval, the alleged transfer of land cannot take the seat of legal transfer. The revisional court also did not find any illegality in the order passed by the Assistant Collector vide order dated 29.10.1999. The judgment in the case of Mohd. Shafi (supra) is fully applicable to the facts of the present case. Accordingly, I hold that the impugned orders passed by the Assistant Collector and the orders dated 29.10.1999 and 29.3.1997 passed by the Additional Collector, Haridwar do not suffer from any manifest error of law. 17. In view of the discussion in foregoing paragraphs, I find no perversity or infirmity in the impugned orders. The writ petitions are devoid of merit and are liable to be dismissed. 18. All the four Writ Petition Nos. 1167 of 2001, 1164 of 2001, 1166 of 2001 and 1168 of 2001 are hereby dismissed with no order as to costs. 19. Interim orders dated 10.1.2000, 6.1.2000, 10.1.2000 and 10.1.2000 respectively passed in these writ petitions are vacated.