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2014 DIGILAW 1517 (ALL)

Rajesh v. State of U. P.

2014-05-09

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya), J.: - Heard Sri Krishna Bihari for the petitioners and Ms. Ranjana Tripathi, holding brief of Sri Manish and Standing Counsel, for the contesting respondents. 2. This writ petition has been filed against the orders of Sub-Divisional Officer dated 02.05.2012, recalling the order dated 25.05.2011 and restoring Case No. 5 of 2011, under Section 122-B(4-F) of U.P. Act No. 1 of 1951 to it's original number and Additional Commissioner dated 12.12.2012 dismissing the revision of the petitioner from the aforesaid order. 3. The dispute between the parties is in respect of plot No. 566 (area 0.063 hectare) of village Bhaipur, tahsil Khurja, district Bulandshahar. The petitioners filed an application (registered as Case No. 5/2011) u/s 122-B (4-F) of U.P. Act No. 1 of 1951, for declaring him as bhumidhar of the land in dispute. On this application, a report has been called for. The Tahsildar submitted his report dated 30.04.2011, showing that the petitioners were in possession of the land in dispute and the petitioners have 0.678 hectare of total land in their possession, as such, they were entitled for declaration as bhumidhar of the land in dispute, under Section 122-B(4-F) of the Act. Sub-Divisional Officer, by order dated 25.05.2011, declared the petitioners as bhumidhars with non-transferable rights of the land in dispute. Mahendra (respondent-5) filed an application for setting aside the aforesaid order. In the application, Mahendra stated that he was in possession over the land in dispute, however, Tahsildar has submitted a false report regarding possession of the petitioners over the land in dispute and without issuing any notice to Gaon Sabha or to the persons in possession over the land in dispute, the impugned order has been passed ex parte. On the application of Mahendra, a fresh report was again called for and Naib Tahsildar after conducing an inquiry, submitted a fresh report dated 21.11.2011, in which, he has shown that Mahendra had cultivated the land in dispute and sown barseem in it and the possession of the petitioner was not proved on the spot. On the application of Mahendra, a fresh report was again called for and Naib Tahsildar after conducing an inquiry, submitted a fresh report dated 21.11.2011, in which, he has shown that Mahendra had cultivated the land in dispute and sown barseem in it and the possession of the petitioner was not proved on the spot. Thereafter, the recall application was heard by Sub-Divisional Officer, who by order dated 02.05.2012, held that in view of subsequent report of Naib-Tahsildar showing that the land in dispute was in possession of Mahendra, the previous report dated 30.04.2011 was incorrect and accordingly, the order dated 25.05.2011 was recalled and the case was restored to it's original number. The petitioner filed a revision against the aforesaid order, which has been dismissed by Additional Collector by the order dated 12.12.2012. Hence, this writ petition has been filed. 4. The counsel for the petitioner submits that Tahsildar had conducted an inquiry in respect of the possession and submitted his report dated 30.04.2011, showing the petitioner in possession on the spot. However, Naib Tahsildar submitted a contradictory report showing that the land in dispute was in possession of respondent-5. He submits that once the petitioner has been declared as bhumidhar with non-transferable right of the land in dispute, the subsequent application for recall of the order was not maintainable and the report of Naib Tahsildar dated 21.11.2011 was not liable to be accepted. The recall application was illegally allowed, ignoring the report of the Tahsildar dated 30.04.2011. The revision filed by the petitioner has also been dismissed by the Additional Commissioner. In support of his contentions, the counsel for the petitioner has placed reliance upon judgment of this Court in Rajkumar vs. Sub Divisional Magistrate, 2013 (7) ADJ 424 , in which it has been held that as the land in dispute was property of Gaon Sabha as such order of Sub-Divisional Officer cannot be recalled without there being any application for recall of the order by Gaon Sabha. 5. I have considered the arguments of the counsel for the parties and examined the record. A perusal of the order dated 25.05.2011 shows that the order of Sub-Divisional Officer was based upon the report of Tahsildar dated 30.04.2011 alone. 5. I have considered the arguments of the counsel for the parties and examined the record. A perusal of the order dated 25.05.2011 shows that the order of Sub-Divisional Officer was based upon the report of Tahsildar dated 30.04.2011 alone. Apart from this report, the petitioner has not filed copy of khasra of any year showing that his possession has been mentioned in any year over the land in dispute. The notice of the proceeding has not been issued to Gaon Sabha also. In such circumstances, since respondent-5 is also claiming possession over the land in dispute, as such, the possession of the petitioner is disputed and the case has to be decided after contest of the parties and giving them opportunity of hearing. The impugned order recalling the order dated 2.5.2011 does not suffer from any illegality. 6. This Court in Sanjai Kumar vs The Collector and others, 2005 (3) AWC 2622 has strongly deprecated the practice of conferring bhumidhari right under Section 122-B (4-F) of the Act, only on the basis of report. In this case it has been held that this is utter misuse can sufficiently be checked if benefit of the said sub Section (4-F) is given only and only to those members of scheduled caste whose possession is entered in the revenue records prior to cut off date or eviction proceedings are pending against them since before the said date. It appears that after May, 2002 huge tracts of land of Gaon Sabha have been settled in favour of those scheduled caste persons who were not really in occupation before May, 2002 but somehow managed to get favourable reports of their prior possession either by Pradhan, Lekhpal or other revenue officials. Collectors of all the Districts of Uttar Pradesh shall call the reports of all such cases in which benefit of the aforesaid Sub-section (4-F) has been conferred without there being any entry of possession of the claimant in the revenue record prior to 1.5.2002 or pendency of eviction proceedings prior to that date. All such entries must be reversed but only after issuing notice and hearing the persons whose names have been so entered. Gaon Sabha is also entitled to apply for such correction of entry either before Deputy Collector or Collector. These cases must also be decided on top priority basis but only after issuing notice and hearing affected persons. All such entries must be reversed but only after issuing notice and hearing the persons whose names have been so entered. Gaon Sabha is also entitled to apply for such correction of entry either before Deputy Collector or Collector. These cases must also be decided on top priority basis but only after issuing notice and hearing affected persons. The court may in some future case require the Collectors to submit compliance report in pursuance of this order. 7. In view of the aforesaid discussion that the order dated 25.05.2011 was passed only relying upon the report of Tahsildar, without examining the khasra entries and without issuing notice to the Gaon Sabha, the order has been rightly recall. The petitioners have remedy to prove their possession over the land in dispute. The writ petition has no merit and is dismissed.