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2013 DIGILAW 1568 (ALL)

AMAR PAL v. STATE OF U. P.

2013-05-27

RAN VIJAI SINGH

body2013
Ran Vijai Singh, J. Hears Sri Faneesh Mishra, learned counsel for the petitioners, learned Standing Counsel and Sri D.D.Chauhan, learned counsel for the Gaon Sabha. This writ petition has been filed with the following prayer. ( i) Issue a writ order or direction in the nature of mandamus commanding the respondent no. 2 and 3 to ensure the possession of the petitioners over the land in dispute ( i.e. land allotted to the petitioners on lease) under the Provisions of 198-A ( 2) ( Ka) of U.P.Z.A.and L.R.Act, 1950 and eject the unauthorized occupants over the land in dispute, otherwise the applicants/petitioners shall suffer irreparable loss. ( ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice. ( iii) To award the cost of writ petition in favour of the petitioners. The submission of Sri Mishra, learned counsel for the petitioenrs is that the petitioners were granted lease over Plots No.264 measuirng about 0.100, 377 measuirng about.162, 461 measuring about 0.321 and 358 measuring about 0.243 and the lease was also executed in favour of the petitioners on 30.5.2010. It appears after the petitioners were put in possession, the petitioners' name were also mutated in the revenue record. In due course, it appears some private persons encroached upon the lease land. Aggrieved by that, the petitioners have filed an application on 23.7.2012 before the District Magistrate, Firozabad for initiating the proceeding for eviction of the unauthorized occupants under Section 198-A of U.P.Zamindari Abolition and Land Reforms Act, 1950 ( in short the Act). The submission is that since the date of filing, application is pending and no order has yet been passed. Hence this writ petition. On being confronted as to whether after the allotment of the land, the petitioners were put in possession peacefully or land was occupied by encroachers and after evicting them possession was given. Learned counsel for the petitioners has fairly submitted that the petitioners were put in possession peacefully and at that time, no hindrance was caused by any person. On being confronted as to whether after the allotment of the land, the petitioners were put in possession peacefully or land was occupied by encroachers and after evicting them possession was given. Learned counsel for the petitioners has fairly submitted that the petitioners were put in possession peacefully and at that time, no hindrance was caused by any person. For appreciating the controversy as to whether writ of mandamus can be issued to the respondents to decide the petitioners' application filed under Section 198-A of the Act, it would be useful to go through the provisions contained under Section 198-A 198-A. Restoration of possession to the allottees of Gaon Sabha or the Government lessee ( 1) Where any person is admitted as a bhumidhar with non-transferable rights of any land, under Section 195 or as asami of any land, under Section 197, ( such person hereinafter referred to in this section as the allotee) or where any land is let out to any person by the State Government ( such person herein after referred to in this section as the lessee) and nay person other than the allottee or lessee is in occupation of such land in contravention of the provisions of this Act, the Assistant Collector may of his own motion and shall on the application of the allottee, as the case may be, put him in possession of such lands lessee, and may, for that purpose, use or cause to be used such force as he considers necessary. ( 1-A) Where any person, after being evicted under sub-section ( 1), reoccupies the land or any part thereof without lawful authority, the Assistant Collector shall, without prejudice to the proceeding under sub-section ( 2), direct such person to pay such damages to the allottee as he thinks fit considering the location and potentiality of the land and such other factors as may have bearing on the subject: Provided that the amount of the damages shall not be less than five thousand rupees ( and more than) fifteen thousand rupees per hectare per year. ( 1-B) A person aggrieved by an order of the Assistant Collector under sub-section ( 1-A) may, within thirty days of such order, prefer an appeal before the Collector in such manner as may be prescribed and the order of the Collector shall be final. ( 1-B) A person aggrieved by an order of the Assistant Collector under sub-section ( 1-A) may, within thirty days of such order, prefer an appeal before the Collector in such manner as may be prescribed and the order of the Collector shall be final. ( 1-C) If the person directed to pay damages by the Assistant Collector under sub-section ( 1-A) or, by the Collector if an appeal is preferred under sub-section ( 1-B), fails to pay the same within the time fixed by the Assistant Collector or the Collector, as the case may be, it shall be recovered as arrears of land revenue and paid to the allottee. ( 2) Where any person, after being evicted under this section, re-occupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees : provided that the Court convicting the accused may, while passing the sentence direct that the whole or such portion of the fine that may be recovered as the Court considers proper be paid to the allottee or lessee, as the case may be, as damages for use and occupation. ( 3) Where in any proceeding under sub-section ( 2), the Court, at any stage after cognizance of the case, has been taken, is satisfied by affidavit or otherwise that- ( a) the accused is in occupation of the land to which such proceeding relates, in contravention of the provisions of this Act ; and ( b) the allottee or lessee, as the case may be, is entitled to the possession of such land, the Court may summarily evict the accused from such land pending the final determination of the case and may put the allottee or lessee, as the case may be, in possession of such land. ( 4) Where in any proceeding under sub-section ( 2), the accused is convicted, the interim order passed under sub-section ( 3) shall be confirmed by the Court. ( 4) Where in any proceeding under sub-section ( 2), the accused is convicted, the interim order passed under sub-section ( 3) shall be confirmed by the Court. ( 5) Where in any proceeding under sub-section ( 2), the accused is acquitted or discharged and the Court is satisfied that the person so acquitted or discharged is entitled to be put back in possession over such land, the Court shall, on the application of such person, direct that delivery of possession be made to him. ( 6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, offence under sub-section ( 2) may be tried summarily. ( 7) For the purpose of speedy trial of offence under this section, the State Government may, in consultation with the High Court, by notification constitute special Courts consisting of an officer not below the rank of Sub-Divisaoonal Magistrate, which shall subject to the provisions of the Code of Criminal Prpcedure,1973, exercise in relation to such offences the powers of a Judicial Magistrate of the First Class. ( 8) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sub-section ( 2) shall be cognizable and non-bailable. From the perusal of Sub-section 1 of Section 198-A of the Act, it transpires that if a person is admitted as a bhumidhar with non-transferable rights of any land under Section 195 or as asami of any land under Section 197 and any person other than the allottee or lessee is in occupation of such land in contravention of the provisions of this Act, the Assistant Collector, of his own motion or on the application of allottee, may evict such encroacher and put the lessee in possession over the lease land. In this process, he can use force also. Sub-section ( 1-A) of the aforesaid section provides that if after eviction, the encroacher reoccupies the land, the Assistant Collector shall without prejudice to the proceeding under sub-section ( 2) direct such person to pay such damages to the allottee as he thinks fit considering the location and potentiality of the land as the order passed is also appealable under Section 198 ( 1-B) and damages so imposed can be recovered as arrears of land revenue. Sub-section 2 of Section 198-A provides that after eviction, reoccupation of the land without lawful authority shall also be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees. Here, in the present case, it is not the case of the petitioners that somebody has earlier encroached upon the land and after evicting them, the petitioners have been put in possession by the Sub-Divisional Officer/Assistant Collector. Here the peaceful possession was handed over to the petitioners and after peaceful possession if somebody occupies land or take peaceful possession, in my considered opinion that will not fall in the ambit of Section 198-A of the Act. While interpreting almost the identical provisions with respect to the allotment of housing side under Section 122-D of the Act, this Court has taken similar view where a person who was not encroacher prior to the allotment has forcefully taken possession and an application was filed under Section 122-D of the Act for eviction of unauthorized occupant. This Court has held that no application under Section 122-D of the Act can be entertained for eviction of such unauthorized occupant who take away the possession of the lease land after putting the lessee in possession. Reference may be given to the judgment of this Court in Phoolpati Vs. State Of U.P. And Others ( Writ Petition No.21705 of 2012, decided on 9.5.2012). In this case also, I am of the view that forceful dispossession of the petitioners from a land which was not previously occupied by the encroacher will not fall in the ambit of Section 198- A of the Act and will be governed under the other provisions contained in the Act where bhumidhar with transferable right or non-transferable right is forcefully evicted by third person. The petitioners have prayed for issuing a writ of mandamus which cannot be allowed as for issuing a writ of mandamus there must be legally enforceable right and the otherside must have the corresponding duty under the statue to enforce the same. Reference may be given to the judgment of the Apex Court in State of M.P. Vs. G.C.Mandawar, AIR 1954 SC 493 and Lekhraj Sathramdas Lalvani Vs. N.M.Shah, Deputy Custodian Cum Managing Officer, Bombay & Ors. AIR 1966 SC 333, Union of India and another Vs. Reference may be given to the judgment of the Apex Court in State of M.P. Vs. G.C.Mandawar, AIR 1954 SC 493 and Lekhraj Sathramdas Lalvani Vs. N.M.Shah, Deputy Custodian Cum Managing Officer, Bombay & Ors. AIR 1966 SC 333, Union of India and another Vs. S.B.Vohra and others ( 2004) 2 SCC 150and Oriental Bank of Commerce Vs. Sunder Lal Jain and another ( 2008) 2 SCC 280 . Otherwise also in case direction is issued to the Sub Divisional Officer to decide the petitioner's application it would mean the conferring of jurisdiction which is not vested in the court/authority. It is well settled that any order passed in absence of jurisdiction is a nullity as the jurisdiction can neither be assumed nor presumed nor conferred nor acquired by acquiescence of the parties. Reference may be given to the judgment of the Apex Court in Managing Director, Army Welfare Housing Organization Vs. Sumangal Services Pvt. Ltd. 2004 ( 9) SCC 619 , Sarup Singh and Another Vs. Union of India and Another 2011 ( 11) SCC 198and in Special Appeal No. 164 of 2012 Division Bench of this Court in the case of Committee of Management Shri Jawahar Inter College and Another Vs. State of U.P. and Others decided on 25.1.2012. In view of foregoing discussions, no relief as prayed for by the petitioners can be granted to the petitioners. The writ petition is dismissed. However, dismissal of the writ petition will not preclude the petitioners to avail such other remedies whichever are available to them under law.