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2016 DIGILAW 3304 (ALL)

Radhey Shyam Vishwakarma v. State of U. P.

2016-09-27

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra,J. Heard learned counsel for the petitioner, Shri Adeel Ahmad for the respondent no. 6, Shri Tariq Maqbool Khan for the respondent no. 5, the Gaon Sabha and learned Standing Counsel for the Gaon Sabha. 2. The writ petition arises out of proceedings under Section 122B of the U.P. Zamindari Abolition and Land Reforms Act initiated against the petitioner for his eviction from plot no. 254 total area of 0.146 hectares recorded as pokhri in the revenue records. 3. By the order dated 24.02.2015, the petitioner has been ordered to be evicted from area of 0.014 hectares of the plot in question. The petitioner filed a recall application, which has been rejected by the order dated 21.11.2015. Both the aforesaid orders have been affirmed by the revisional Court, while dismissing the revision filed by the petitioner vide order dated 22.07.2016. 4. On the receipt of notice in Form 49A, the petitioner filed an objection stating therein that the land in question is abadi on the spot and has been so since prior to the abolition of zamindari. The land in question was therefore settled with the occupiers and did not vest in the Gaon Sabha upon abolition of zamindari. The abadi of the petitioner is ancestral having existed for 70 to 80 years. 5. Another objection taken was that proceedings under Section 28 of the U.P. Land Revenue Act for correction of map had been initiated by one Hari Vansh, which were allowed ex parte and the map was ordered to be corrected. As a result of this ex parte correction in the map, the petitioner's abadi is now shown to be upon the land of plot no. 254. A recall application filed by the petitioner is pending consideration. 6. It appears that on the date fixed, the petitioner did not appear and, therefore, an ex parte order has been passed by the Tehsildar, ordering his eviction. The petitioner thereafter filed a recall application, which was rejected. Both the orders namely the order of eviction and the order of rejecting the recall application were challenged by means of a revision, which has been rejected as noticed above. 7. The contention of learned counsel for the petitioner is that earlier also proceedings had been initiated under Section 122B regarding plot no. 454. These proceedings were dropped by the order dated 06.09.1999. 7. The contention of learned counsel for the petitioner is that earlier also proceedings had been initiated under Section 122B regarding plot no. 454. These proceedings were dropped by the order dated 06.09.1999. This order dropping the proceedings and withdrawing the notice in Form 49A was never challenged and has attained finality. The subsequent proceedings where under the impugned orders have been passed, were therefore barred, and could not have been initiated. 8. In support of this contention, reliance has been placed upon a decision of this Court in the case of Shankar Saran and others Vs. State of U.P., 1987, Revenue Reporter 145. 9. It is further submitted that once the order of 9.6.1999 has attained finality, the petitioner could have been evicted only through a regular suit and not by summary proceedings under Section 122B of the Act. 10. It has additionally been submitted that even before the Courts below, a plea had been raised by the petitioner that he was prepared to give some of his land for digging a pond in lieu of the land, which is in his alleged authorized occupation. 11. It has further been reiterated that the land in question was never a pokhri on the spot is in the form of abadi, which has been existing for well over 70 years and, therefore, the proceedings under Section 122B were not maintainable. 12. Counsel appearing for the respondents have supported the impugned orders. It has also been submitted that upon initiation of proceedings under Section 122B of the Act, the petitioner had removed his encroachment. Subsequently, he encroached upon the land and, therefore, fresh proceedings were drawn. Therefore, it is not a case of repeated proceedings under Section 122B of the Act, regarding the same land. 13. I have considered the submissions made by learned counsel for the parties and have perused the record. 14. The order dated 06.09.1999 passed in case no. 199 under Section 122B of the Act, drawn against the petitioner, on the earlier occasion, is available on record and I have perused the same, which reveals that these proceedings were for eviction of the petitioner from an area of 0.02 hectares of plot no. 254. The instant proceedings are for a much larger area namely 0.014 hectares. 199 under Section 122B of the Act, drawn against the petitioner, on the earlier occasion, is available on record and I have perused the same, which reveals that these proceedings were for eviction of the petitioner from an area of 0.02 hectares of plot no. 254. The instant proceedings are for a much larger area namely 0.014 hectares. For this reason alone, it cannot be held that both the proceedings were identical and the subsequent proceedings could not have been initiated in view of the order dated 06.09.1999. 15. In this connection, it would further be relevant to note that the instant proceedings appear to have been initiated on the basis of instructions issued by the Apex Court in the case of Hinch Lal Tiwari. This aspect has already been taken note of by the revisional Court. 16. Accordingly, the contention of learned counsel for the petitioner that repeated proceedings under Section 122B have been initiated against him, is not liable to be accepted and therefore, petitioner is not entitled to the benefit of the law laid down in the case Shankar Saran (supra). 17. As regards the contention that the map regarding plot no. 254 had been corrected ex parte, it would be relevant to note that this point was raised in the objection filed by the petitioner in response to the notice in Form 49A. This ground has not been raised before the revisional Court in the memo of revision. It is therefore clear that this point has been given up by the petitioner before the revisional court and he cannot be permitted to raise this issue afresh, in the writ petition. 18. The fact that the petitioner has offered to exchange some land, in lieu of the area alleged to be in his unauthorized occupation, is an additional circumstance, which goes against the petitioner. This plea has rightly been rejected by the revisional court on a finding that a pokhri is the land governed by the provision of Section 132 of the Act, whereon no right can accrue in favour of any person nor can such land if exchanged. This reasoning and finding given by the revisional court is in accordance with law and cannot be interfered with. 19. In view of the forgoing discussion, the grounds raised by the petitioner are found to be without substance. 20. The writ petition therefore fails and is dismissed.