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Allahabad High Court · body

2011 DIGILAW 244 (ALL)

Chhidda v. State of U. P. and Others

2011-01-31

S.U.KHAN

body2011
Hon’ble S.U. Khan, J.—Orders dated 05.10.2010 and 19.10.2010 passed in this writ petition are quoted below: 05.10.2010 “List for disposal on 19.5.2010. On the next date, learned counsel for the petitioner shall intimate the court as to whether after alleged allotment of 1971 and before initiation of proceedings under Section 122-B of U.P.Z.A.&L.R. Act name of the petitioner was mutated in the revenue record or not.” 19.10.2010 “Heard learned counsel for the petitioner as well as learned standing counsel for the respondents. Learned counsel for the petitioner has placed on record two copies of khasras of 1382 fasli and two copies of khataunies one of 1394 and the other of 1401 fasli after providing photostat copies of the same to learned standing counsel. Judgment reserved.” 2. This writ petition is directed against orders dated 30.06.1998 and 05.08.1998 Annexure 7 and 8 to this writ petition. First order was passed by Tehsildar/Assistant Collector Ist Class Mant, district Mathura in case no. 51 of 1997-98 Gram Samaj v. Chidda. The allegation against the petitioner was that he had encroached upon Gaon Sabha plot no.281 area 0.43 acres, plot no.294 area 1.60 acres and plot no. 304 area 1.2 acres total area 3.31 acres. Petitioner filed objections to the notice which was issued to him in proforma 49 ka and contended that his possession was about 10 years old, since the time of consolidation. Earlier also order of eviction was passed against the petitioner by the Tehsildar against which revision was filed which was decided by Assistant Commissioner on 24.03.1976. Thereafter matter was brought to Board of Revenue, Allahabad which decided the revision on 14.11.1977 and remanded the matter for fresh trial. Thereafter, fresh notice in proforma 49 ka was issued on the basis of which the case in question i.e. case no.51 of 1997-98 was registered and decided on 30.06.1998. It is not understandable that why there was a delay of 20 years i.e. between 1977 when Board of Revenue remanded the matter and 1997 when fresh case was registered. 3. The crop sown by the petitioner was also attached. Petitioner also pleaded that patta of the land in dispute had been allotted in his favour by gram sabha as he was an ex-Army man. To substantiate the plea of grant of patta petitioner filed some receipts. The Tehsildar held that petitioner had not produced proceedings register, resolution, agenda etc. 3. The crop sown by the petitioner was also attached. Petitioner also pleaded that patta of the land in dispute had been allotted in his favour by gram sabha as he was an ex-Army man. To substantiate the plea of grant of patta petitioner filed some receipts. The Tehsildar held that petitioner had not produced proceedings register, resolution, agenda etc. to prove valid allotment. Ultimately, it was held that petitioner was in unauthorised occupation since 29.12.1973, he should be evicted and should also pay damages of Rs.20,000/-. The said order was passed by the Tehsildar on 30.06.1998. Against the said order petitioner filed revision no.74 of 1997-98. Collector Mathura dismissed the revision on 05.08.1998 hence this writ petition. 4. In the 4th paragraph of judgment by the Collector, Mathura it is mentioned that respondent in the revision i.e. Gaon Sabha had contended that if in fact some patta had been granted in favour of the petitioner then the file of the same must be available in Tehsil and its entry must have been made in Khatauni and other revenue record but in fact no such entry was made. 5. Typed copy of alleged patta in proforma 58 is Annexure-I to the writ petition in which the date of grant of patta is mentioned as 28.06.1971. 6. Annexure 4 is copy of notice in proforma 49 Ka which is dated 12.07.1984. 7. Copies of objections filed by the petitioner before the Tehsildar have not been annexed along with the writ petition. 8. In the counter affidavit filed on behalf of gaon sabha by Lekhpal it has been stated that the patta is forged and in fact no patta was ever granted. In the entire writ petition nothing has been stated regarding prior approval of S.D.O. before grant of patta. 9. In Annexure 7 copy of order by Tehsildar it is mentioned that initially the defence of the petitioner was that his possession was about 10 years old since the time of consolidation. It is not clear as to whether the plea of allotment was taken at the first instance by the petitioner or not. This is a very relevant circumstances to decide genuineness of the patta. 10. It is not clear as to whether the plea of allotment was taken at the first instance by the petitioner or not. This is a very relevant circumstances to decide genuineness of the patta. 10. Pursuant to the order dated 05.10.2010 quoted above, learned counsel for the petitioner filed true copies of Khasra 1382 fasli issued by lekhpal on 27.01.1975 and 25.07.1975 and true copy of Khatauni from 1389 to 1394 fasli and 1396 fasli to 1401 fasli. These copies have also been issued by lekhpal. 11. The observation of the Tehsildar that it was not proved by the petitioner that agenda was issued and munadi was done does not appear to be correct. After a lapse of very long time it is not possible to prove as to whether these procedural requirements were strictly followed or not. However, petitioner has to prove genuineness of the patta. Moreover it has also to be seen as to whether petitioner at the earliest opportunity took the plea of allotment or subsequently tried to improve his defence by including the said plea. 12. The revisional court/Collector Mathura has not given detailed reasons for his findings. 13. Accordingly, writ petition is allowed impugned order passed by the Collector is set aside matter is remanded to the Collector Mathura to decide the revision (Revision no.74 of 1997-98) in the light of the observation made above. Petitioner shall file copies of earliest khasra and khatauni when his name over the land in dispute was recorded which must be obtained from the record room. The Collector if he considers necessary may also summon the original record from the record room to ascertain as to whether name of the petitioner was recorded in the revenue record or not and in case there is any such entry then whether it is genuine or not and when it was made. Petitioner is directed to appear before the Collector Mathura along with certified copy in this judgment and all the evidence which he wants to file in support of his case on 09.03.2011 failing which this writ petition shall be deemed to have been dismissed. 14. Collector shall decide the matter very expeditiously and shall not grant any adjournment to he petitioner unless it is very essential and if any adjournment is granted then it must be on a very heavy cost which shall not be less than Rs.200/- per adjournment. 14. Collector shall decide the matter very expeditiously and shall not grant any adjournment to he petitioner unless it is very essential and if any adjournment is granted then it must be on a very heavy cost which shall not be less than Rs.200/- per adjournment. During the pendency of the revision before the Collector petitioner shall not be evicted from the land in dispute provided that he deposits Rs.4,000/- every year. The first deposit shall be made on 09.03.2011. If due to any reason revision is not decided in a year then by 31st March of every subsequent year until its decision amount of Rs.4,000/- shall be deposited. If revision is allowed the amount shall be returned to the petitioner otherwise it shall be kept in consolidated gaon fund constituted under Section 125-A of U.P.Z.A.L.R. Act. (Petition allowed) _____________