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2015 DIGILAW 615 (ALL)

Jaipal v. State of U. P.

2015-03-27

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Rajesh Mishra, learned Counsel for the petitioner, Sri Mahesh Narain Singh for the respondent No. 4, Gaon Sabha, and learned Standing Counsel for the State-respondents. Both these writ petitions arise out of proceedings under section 122-B of the U.P. Zamindari Abolition and Land Reforms Act and pertain to the same plot being plot No. 1314, which in the revenue records is recorded as a pond. The petitioners in both the writ petitions are brothers and identical pleas have been raised by them and, therefore, it appears fit and proper that the cases be decided together, as they involve identical questions. 2. Notices were issued to both the petitioners in Form-49-A, wherein Jaipal, the petitioner in Writ Petition No. 3333 of 2015 was alleged to be in an authorized occupation of 290 square meters of plot No. 1314 while Shyam Lal, petitioner in Writ Petition No. 3336 of 2015 was alleged to be in a authorized occupation of 0.02012 hectares of the same plot. 3. In their objections, both the petitioners took a plea that the land in question had been given to their ancestors by the Zamindar for constructing houses. These houses were duly constructed and were in existence, prior to abolition of Zamindari. Subsequently, the old Kachcha house were replaced by new Pakka houses. It is clear from the report of the Lekhpal that several houses exist on the plot in question, which is in the shape of an Abadi and that it is wrongly recorded as pond. It was lastly pleaded that since the quality of land was recorded as 'Sweta Awwal', hence the plot in dispute could not be a pond. 4. The Tehsildar, respondent No. 3, after hearing the parties and after making a spot inspection, found the constructions to be new, ordered eviction of the petitioners and also imposed damages to the tune of  Rs. 5100/- a piece. He recorded that contrary to the case of the petitioners, they had not been able to adduce any proof of any lease in their favour Or the existence of any old houses on the land in question. Moreover, since the land was always recorded as pond, therefore, in accordance with the decision of the Apex Court in the case of Hinchlal Tiwary, eviction was ordered. These orders have been affirmed in revisions filed by the petitioners respectively. 5. Moreover, since the land was always recorded as pond, therefore, in accordance with the decision of the Apex Court in the case of Hinchlal Tiwary, eviction was ordered. These orders have been affirmed in revisions filed by the petitioners respectively. 5. Even before this Court, the primary contention of learned Counsel for the petitioners in both the writ petitions is that the land was given to their ancestors by the Zamindar and thereafter Kachcha houses were constructed thereon. When these houses fell down, new Pakka houses have been raised on the same spot. The plot in question is Abadi and the same is not a pond. Several other houses also exist on this plot. 6. This plea raised by the petitioners before this Court, as already noticed hereinabove, was also made before the Courts below and was duly considered and rejected. Both the Courts below have rejected the argument on the ground that there is no evidence of any settlement of the land in question in favour of the petitioners' ancestors nor there exists any evidence to show that earlier houses existing on the land in question, had been replaced by new and Pakka houses. The constructions existing on the spot were found to be new constructions. 7. I find no illegality in the reasoning given by the two Courts below and, therefore, the orders impugned suffer from no illegality or manifest error and the writ petitions, therefore, are liable to be dismissed. Besides the finding that the constructions are new is a finding of fact arrived at after a spot inspection and such finding of fact cannot be interfered with in writ jurisdiction. 8. At this stage, learned Counsel for the petitioners has submitted that since the question of maintainability of writ petitions directed against the order passed in proceedings under section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, has been referred to a larger Bench by the order passed in Civil Misc. Writ Petition No. 3849 of 2009, Shiv Ram v. State of U.P. and others, and Civil Misc. Writ Petition No. 690 of 2009, Riyasat v. State of U.P. and others, the instant writ petitions may be listed after the decision of the larger Bench. 9. Writ Petition No. 3849 of 2009, Shiv Ram v. State of U.P. and others, and Civil Misc. Writ Petition No. 690 of 2009, Riyasat v. State of U.P. and others, the instant writ petitions may be listed after the decision of the larger Bench. 9. Since no question of maintainability of these writ petitions has been raised by any of the parties, especially the respondents therein, there appears no justification for deferring the decision of these petitioner, till such time the reference made to the larger Bench in the cases noticed above, is answered and, therefore, this prayer of learned Counsel for the petitioners is refused. Accordingly and for the reasons given above, I find that the writ petitions are devoid of merits and are accordingly dismissed.