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2015 DIGILAW 1786 (ALL)

Prem Chandra v. Collector, Chitrakoot

2015-07-07

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri H.O.K. Srivastava v learned Counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Anuj Kumar who has accepted notice on behalf of the respondents No. 3 and 4 Gaon Sabha and Land Management Committee respectively. The petition arises out of proceedings under section 122-B of the U.P. Zamindari Abolition & Land Reforms Act and is directed against the order dated 27.1.2015 passed by the respondent No. 1, Collector, Chitrakoot. 2. The dispute in the writ petition pertains to a portion of Plot No. 810 having an area of 359 sq. feet situated in Village Khohi, Tehsil Karvi, District Chitrakoot. 3. It appears that a notice in Form 49-A was issued to the petitioner on 8.11.1988 alleging the he had encroached upon the land in question which was Gaon Sabha property and had constructed a house thereon. The notice assessed the damage caused to the Gaon Sabha property to the tune of Rs. 7,140/-. 4. It appears that an objection was filed by the petitioner alleging therein that the house had been constructed over the land in question, much before the abolition of Zamindari which also consists of a shop. It was further alleged that a shop of one Jagdish Prasad existed north of the land in question. Notice under Form 49-A had been issued to Jagdish Prasad too, but the said notice was withdrawn vide an order passed in the year 1983. 5. The Tehsildar by his order dated 29.1.1990 held that the construction in question were very old according to the witness of the petitioner. He therefore, discharged the notice directing the Gaon Sabha to seek eviction of the petitioner by means of a suit before the civil Court. 6. It is the case of the petitioner that the Gaon Sabha never preferred any suit as directed by the Tehsildar vide order dated 29.1.1990. On the contrary the petitioner himself was forced to file a civil suit as certain parties started interfering in his possession. This suit was decreed on 15.1.2002 and the civil Court held the petitioner to be owner in possession of the land in question. This judgment was affirmed by the lower Court by judgment and decree dated 9.3.2005. The consequential second appeal was dismissed by the High Court on 3.4.2006. Even the review application was dismissed on 6.4.2007. This suit was decreed on 15.1.2002 and the civil Court held the petitioner to be owner in possession of the land in question. This judgment was affirmed by the lower Court by judgment and decree dated 9.3.2005. The consequential second appeal was dismissed by the High Court on 3.4.2006. Even the review application was dismissed on 6.4.2007. It is stated that the defendant No. 2 in the said civil suit became Pradhan of the village. Thereafter, on account of enmity he filed a revision on 16.8.2014 against the order of the Tehsildar dated 29.1.1990. This revision was accompanied by an application under section 5 of the Limitation Act for condonation of delay. 7. Despite the petitioner having filed a detailed objection to the application for condonation of delay, the revisional Court, by the impugned order not only condoned the delay but also allowed the revision and set aside the order passed by the Tehsildar and directed the ejectment of the petitioner as also recovery of damages as specified in the notice. 8. The submission of learned Counsel for the petitioner is that the Court below has allowed the revision and condoned the delay without recording any finding as to sufficiency of the cause shown for the delay. He has further submitted that there was total non-compliance of para 28 of the Gaon Sabha Manual. It is next submitted that the objection of the petitioner that the Pradhan who has filed the revision was in fact the defendant in the civil suit filed by the petitioner was also stated in the objection but this aspect of the matter has not been considered. Lastly, it has been submitted that on 17.8.2007 the erst while Pradhan had given an application as regards the unauthorised possession of the petitioner on the occasion of Tehsil Divas. On this application, a report was called for from the Naib Tehsildar, which was duly submitted. This report was to the effect that since there was a judgment of the civil Court in favour of the petitioner any action against him would amount to contempt to the order passed by the High Court in the civil suit. 9. Learned Counsel appearing for the respondents have on the other hand supported the impugned order. 10. I have considered the submissions made by learned Counsel for the parties and have perused the record. 11. 9. Learned Counsel appearing for the respondents have on the other hand supported the impugned order. 10. I have considered the submissions made by learned Counsel for the parties and have perused the record. 11. At the very outset it would be very relevant to note that the main thrust of the arguments on behalf of the petitioner, is on the question of condonation of delay in filing the revision. It has also been argued that there was no resolution of the Land Management Committee for filing the revision itself. Both the pleas that are being raised are purely technical in nature. Neither from the arguments that have been advanced nor from the grounds that have been taken in the writ petition itself, there exists any challenge to the order impugned on its merits. 12. In such view of the matter there appears to be no dispute that the land in question is property belonging to the Gaon Sabha. A categorical finding in this regard has also being returned in the impugned order which finding is not under challenge. Even the order in favour of the petitioner, passed by the Tehsildar in the year 1990, did not record any finding to the contrary. The impugned order categorically states that not only the land in question belongs to the Gaon Sabha and is recorded as Ban-jar, it is also situated on the parikrama of the temple of Bhagwan Kamtanath and is therefore, land of public utility. This factual aspect that the land in question is situated on the parikrama, is also not in dispute. 13. The only other contention that requires consideration is whether the revision was filed mala fide. Merely because a person who was defendant in the suit filed by the petitioner, and he was subsequently elected as Pradhan of the village in question, it would not be right to hold that the revision was mala fide. It is not in dispute that at the time the suit was filed and the matter contested up to the High Court, the respondent No. 5 in the writ petition was not the Pradhan. He had contested the suit in his private capacity setting up his individual rights in the land in question. 14. It is not in dispute that at the time the suit was filed and the matter contested up to the High Court, the respondent No. 5 in the writ petition was not the Pradhan. He had contested the suit in his private capacity setting up his individual rights in the land in question. 14. It could also be relevant to note from the array of the parties of the second appeal arising out of the civil suit filed by the petitioner, that neither the Gaon Sabha nor the Land Management Committee was a party in the said suit. The dispute therefore, in the civil suit, was merely a private dispute and any finding returned therein would not bind the Gaon Sabha which was not party thereto. 15. Under the circumstances, I am not impressed by the submissions made by learned Counsel for the petitioner that the revision was filed mala fide. This aspect along with the fact that in the Writ petition it is not contended that the land in question does not belong to the Gaon Sabha, I find no me* it in the submissions made by learned Counsel for the petitioner. The land in question is admittedly Gaon Sabha land, whereupon, constructions have been raised by the petitioner, unauthorizedly. 16. In such view of the matter, I find no illegality in the order impugned. It is settled law that no one can acquire title by adverse possession over Gaon Sabha property. The provisions of U.P.Z.A. & L.R. Act no doubt protect the unauthorised possession of a person belonging to the scheduled caste. In the case at hand, the petitioner does not claim to be a member of the scheduled caste and he is therefore, not entitled to the benefit provided by the Act, to such persons. He is therefore, a rank trespasser and has rightly been ordered to be evicted. 17. Insofar as the order passed by the Tehsildar in favour of the petitioner is concerned, it is prima facie, patently illegal. There was no justification for directing the Gaon Sabha to approach the civil Court for the dispossession of the petitioner who was an unauthorised occupant of Gaon Sabha land. Accordingly and for the reasons given above I find no substance in the writ petition. It is therefore dismissed. ………………