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2008 DIGILAW 1321 (ALL)

Raghubar Dayal v. Addl. District Collector

2008-07-11

RAKESH TIWARI

body2008
JUDGMENT : Rakesh Tiwari, J. Heard learned Counsel for the parties and perused the record. 2. This writ petition has been filed for quashing the impugned orders dated 31.3.1993 and 30.6.1992 passed by respondent Nos. 1 and 2 respectively. The case of the petitioner is that the petitioner's house is situate in plot No. 654/2 since before the U.P. Zamindari Abolition and Land Reforms Act. The disputed land is the site land attached to the house and is part and parcel of the house. Consequently it does not come under the category of the land as defined under the U.P. Zamindari Abolition and Land Reforms Act and the house along with the site land attached to the house vested with the petitioner. 3. Case No. 34/90-91, Gram Sabha Bamrauli Katara v. Raghuwar Dayal was initiated in pursuance of the report of Lekhpal dated 10.5.1990 in which it was reported that the petitioner has illegally constructed a chabutra in front of his house which is the land of Gaon Sabha, hence he be dispossessed from the said land and the possession of the aforesaid land be given to the Gaon Sabha. Consequently a notice was issued to the petitioner. 4. On receipt of notice the petitioner filed an objection thereto denying the allegations made in the report of the Lekhpal inter alia that he has not possessed any land of the Gaon Sabha; he has constructed his house on plot No. 654 since the time of his ancestors and before the U.P. Zamindari Abolition and Land Reforms Act: that the land of old abadl is never vested with the Gaon Sabha and the chabutra constructed in front of his house is on the land of old abadi which is his land; that an old neem tree is situated on the aforesaid plot around which the chabutra exists for the last 50 years, hence the disputed land is not the land of the Gaon Sabha; and on account of enmity with Jagjit and Kailash Chand etc. notice was issued to the petitioner and this has been filed against the petitioner on the basis of the aforesaid notice, hence the notice is liable to be rejected. 5. Upon hearing the parties the Court below vide order dated 30.6.1992 directed that petitioner be dispossessed from the land in suit and awarded damages to the tune of Rs. 250 per annum. 5. Upon hearing the parties the Court below vide order dated 30.6.1992 directed that petitioner be dispossessed from the land in suit and awarded damages to the tune of Rs. 250 per annum. It further directed that in case the petitioner has not delivered the possession of the suit land to the Gaon Sabha within a period of one month from the date of the order, he will pay 1/8th amount of Rs. 250, i.e., Rs. 31.25 paise per month as damages to the Gaon Sabha. 6. Aggrieved by the aforesaid order the petitioner filed a revision before the revisional court which was also rejected vide order dated 31.3.1993 giving rise to the instant writ petition. Learned Counsel for the petitioner submits that the petitioner's house exists on plot No. 654/2 since before the U.P. Zamindari Abolition and Land Reforms Act; that the disputed land is the site land attached to the house and consequently the house along with the land settled with the petitioner u/s 9 of the Act, hence no question of proceedings u/s 122B of the Act arise. 7. He also submits that the disputed land being abadi does not come under the definition of the land as defined under the Act and in the present proceedings the house as well as site land attached to the house cannot be ordered to be demolished if the respondent may file a regular suit and both the Courts below have not taken into consideration the oral evidence adduced on behalf of the petitioner. 8. Learned Counsel for the respondents submits that the petitioner has illegally constructed chabutra on the land of the Gaon Sabha and there is ho illegality or infirmity in the impugned orders of the courts below, hence no interference is required by this Court under Article 226 of the Constitution. The statement of the Lekhpal was recorded on behalf of the Gaon Sabha who after going through his report, site plan and photostat copies of the khasra, khataiini stated that the petitioner was in illegal possession of the aforesaid land since 1389 fasli. 9. In support of his case the petitioner has examined himself besides witnesses, Sri Krishna and Sri Ram Babu who stated that the aforesaid chabutra is the old chabutra of the petitioner. 9. In support of his case the petitioner has examined himself besides witnesses, Sri Krishna and Sri Ram Babu who stated that the aforesaid chabutra is the old chabutra of the petitioner. The Court below has noted in its order that the Naib Tehsildar has inspected the spot and prepared the site plan of the spot. After hearing the parties the court below came to the conclusion that the petitioner has constructed the chabutra on the vacant land of Gaon Sabha. A neem tree was standing on the vacant land. 10. The age of the neem tree cannot be compared with the age of the chabutra as the neem tree is situate on the aforesaid land for the last 50 years and around the neem tree the petitioner has constructed the chabutra not an old abadi of plot No. 654/2 which is on the land of Gaon Sabha. The matter is concluded by concurrent findings of facts of both the Courts below. 11. The courts below have rightly come to the conclusion that the age of the chabutra which has been constructed by the petitioner cannot be determined on the basis of age of the neem tree which is said to be standing on the land for the last 50 years. Plot No. 654/2 is the property of the Gaon Sabha and the petitioner has constructed a chabutra on 15 kadi' land of the aforesaid plot of Gaon Sabha. 12. By the impugned order the petitioner was directed to pay damages Rs. 250 per annum. It was also made clear that in case the petitioner has not delivered the possession of the disputed land to the Gaon Sabha within one month from the date of the order, he will pay 1/8th amount of Rs. 250 as damages to the Gaon Sabha per month. 13. In the circumstances, I am not inclined to interfere in the matter under Article 226 of the Constitution of India. 14. For the reasons stated above, the writ petition is dismissed. No order as to costs. The interim order dated 13.8.1993 is hereby vacated. The petitioner is directed to deposit the entire amount of arrears within two months from today.