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2016 DIGILAW 1677 (ALL)

JEET SINGH v. STATE OF U. P.

2016-05-03

ANJANI KUMAR MISHRA

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JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard learned counsel for the petitioners, Shri S.K. Upadhyay, who has accepted notice on behalf of the respondent No. 4, Nagar Panchayat, Shri Rajesh Yadav, counsel for the Gaon Sabha and learned Standing Counsel for the State-respondents. 2. The writ petition has been filed seeking a writ of certiorari for quashing the order dated 17.6.2015 passed by the respondent No. 2 and the order dated 28.1.2016 passed by the respondent No. 3 in the revision. 3. Suit No. 15 of 2011-12 under Section 122-B (4-F) of the U.P. Zamindari Abolition and Land Reforms Act (henceforth referred as ‘Act’) appears to have been registered upon reports of the subordinate revenue staff. 4. The petitioners were reported to be entitled to the benefit of Section 122-B (4-F) of the Act on the ground that they belong to the scheduled caste and are in possession over the plot No. 3207-M, area 0.507 ht. from prior to 30.6.1975. 5. The suit was contested by the defendant, Nagar Panchayat on the ground that the petitioners had been allotted an asami lease of the land in question, period whereof had expired and, therefore, the petitioners could not be granted the benefit of sub-section (4-F) of Section 122-B of the Act. 6. The Sub-Divisional Magistrate (henceforth referred as ‘SDM’), Shamli, refused the benefit of sub-section (4-F) of Section 122-B of the Act to the petitioners on the finding that this benefit could be afforded only as against the Gaon Sabha. The land in question vested in the Nagar Panchayat. It was also recorded that the petitioners were not landless agricultural labourers as they possessed 0.993 ht. of land in the village. 7. The consequential revision filed by the petitioners has been dismissed. The revisional Court has recorded a categorical finding, after examining the record that the land in question vested in the Nagar Panchayat, Banat and provisions of Section 122-B (4-F) were not applicable to land of the Gram Panchayat, which benefit can be provided only regarding land recorded in the name of the Gaon Sabha. It, therefore, found no illegality in the order of the SDM and dismissed the revision. 8. Upon hearing the learned counsel for the parties and upon a perusal of the record, I do not find any illegality in the orders impugned. 9. It, therefore, found no illegality in the order of the SDM and dismissed the revision. 8. Upon hearing the learned counsel for the parties and upon a perusal of the record, I do not find any illegality in the orders impugned. 9. Additionally, it would be relevant to observe that the entire case of the petitioners is based upon the reports of the subordinate revenue staff and oral testimony. 10. It is also clear from the perusal of the impugned order that only documentary evidence of possession of the petitioners is the khasra of 1419 fasli, which corresponds to 2007. On that date, the land vested in the Nagar Panchayat, as is finding recorded by the Courts below, especially the revisional Court. 11. It is admitted in paragraph 10 of the writ petition that the village Banat had been declared a Nagar Panchayat vide notification dated 20.5.1983. There is absolutely no evidence on record apart from the oral testimony and the reports of the subordinate revenue staff that the petitioners were in possession over the land from before June, 1975. 12. This Court in the case of Ghanshyam Singh v. State of U.P. and others, 2010(7) ADJ 641 , has held that the benefit of sub-section (4-F) of Section 122-B should be extended only to persons who are recorded over the land in dispute from the prior to the cut-off date or against whom proceedings under Section 122-B are pending on the cut-off date. This judgement has further observed that the benefit of sub-section (4) should not be extended on the basis of reports of the subordinate revenue authorities or on the basis of oral testimony alone, because it was found that this provision was being misused by unscrupulous persons, to grab the property of the Gaon Sabha. 13. In such view of the matter and in view of the case law referred to above, the petitioners having failed to adduce any documentary evidence to show that they were in an unauthorized occupation of land in question from prior to 30.6.1975, they are not entitled to the benefit of Section 122-B (4-F) of the Act. 14. There is yet another aspect of the matter. It is come on record that the petitioners were allottees of the Gaon Sabha, which had granted an asami lease in their favour. The petitioners were, therefore, in permissive possession over of the land in question. 14. There is yet another aspect of the matter. It is come on record that the petitioners were allottees of the Gaon Sabha, which had granted an asami lease in their favour. The petitioners were, therefore, in permissive possession over of the land in question. In my considered opinion, the benefit of the provisions contained in Section 122-B and especially sub-section (4-F), are liable to be extended to persons who are unauthorized occupants of Gaon Sabha property relevant the words used in Section 122-B (1) “....and such land is occupied otherwise than in accordance with the provisions of this Act,....” 15. It is, therefore, clear that neither their exists any documentary evidence to establish the possession of the petitioners over the land in question prior to 30.6.1975, nor can they be persons in occupation otherwise than in accordance with the provisions of the Act, being asami lease holders of the land in question. 16. The contention, therefore, that the petitioners had prefected their rights under sub-section (4) of Section 122-B of the Act, prior to land having vested in the Nagar Panchayat, also cannot be accepted. 17. In my considered opinion, the benefit of sub-section (4) of Section 122-B is liable to be extended to an unauthorized occupant only when proceedings for the eviction from the Gaon Sabha land are drawn under Section 122-B sub-section (4) thereof is primarily a defence in such proceedings. The proceedings cannot be initiated on the report of the Lekhpal etc. recommending grant of the said benefit. 18. Accordingly and for the reasons given above, the writ petition is devoid of merits and is accordingly dismissed. ——————