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2016 DIGILAW 3876 (ALL)

Zaituna v. Collector Bahraich

2016-12-01

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Attau Rahman Masoodi,J. Heard learned Counsel for the petitioner and Sri Manish Mishra, learned Standing Counsel who has put in appearance on behalf of State respondents. Sri Jai Kumar, learned Counsel has accepted notice on behalf of Gram Sabha - respondent no. 3. 2. Proceedings under Section 122-B read with 115 (C) of the U.P. Z.A. & L.R. Act / Rules were decided in case no. 52/12/12/6 between petitioner and Gram Sabha vide order dated 17.10.2013. The Tehsildar while passing the order has though imposed a cost of Rs. 960/- towards damages for occupying the Gram Sabha land for which recovery notice was directed to be issued in Form 49 (C), however, for removal of encroachment, no direction or order was passed against the petitioner on the ground of her long standing possession and regard being had to the decisions cited in the order itself. The order passed by the Tehisldar (Judicial) on 17.10.2013 was assailed by one Bechelal i.e. respondent no. 4 who was not a party in the said proceedings but had raised an objection on the strength of Section 132 of U.P. Z.A. & L.R. Act to the effect that such a land belonging to Gram Sabha can not be settled in favour of the petitioner. Though the respondent no. 4 was not a party to the proceedings previously decided on 17.10.2013 yet an order was passed by the Tehsildar on 17.01.2014 whereby operation of order dated 17.10.2013 was stayed. The order passed by Tehsildar on 17.01.2014 at the instance of a non-party and staying recovery of a sum of Rs. 960/- imposed on the petitioner was unwarranted but the same has come to be passed. 3. The petitioner feeling aggrieved against the order dated 17.01.2014 filed a revision before the District Magistrate under Section 122-B (4) (A) of the U.P. Z.A. & L.R. Act but the revision so filed has been rejected by the means of the impugned order contained annexure no. 1 to the writ petition. 4. Learned Counsel for the petitioner has urged that the order dated 17.01.2014 has been passed without putting him to notice and at the instance of non-party having no right, therefore, the revision filed by him was liable to be entertained. 5. Learned Standing Counsel on the other hand contends that it was open to the petitioner to contest the application filed by respondent no. 5. Learned Standing Counsel on the other hand contends that it was open to the petitioner to contest the application filed by respondent no. 4 and the revision filed by the petitioner has rightly been rejected by the District Magistrate / Collector. 6. From a plain reading of Section 122-B (4)(A) of the U.P. Z.A. & L.R. Act, it is evident that a revision would lie against the order of Assistant Collector but an interlocutory order is not contained to be a subject matter of revision under the aforesaid provision. 7. The submission made by learned Standing Counsel has force, therefore, rejection of revision filed by the petitioner by means of the impugned order does not suffer from any illegality. 8. It is open to the petitioner to participate in the proceedings before the competent authority and all objections open to the petitioner and permissible under law may be raised before the authority concerned who shall decide the matter finally in accordance with law. 9. At this stage, learned Counsel for the petitioner has argued that he is faced with a threat of being dispossessed from the disputed property on the strength of order dated 17.01.2014. Firstly the order dated 17.01.2014 does not authorize any dispossession and secondly, once the objections are raised by the petitioner, the same are bound to be decided by the competent authority in accordance with law and an adverse action cannot be resorted to prematurely. 10. During pendency of the objections so raised, the petitioner shall not be dispossessed from the property in question. 11. It is however made clear that the petitioner shall cooperate with the proceedings so that the matter is decided finally, in accordance with law. 12. With the aforesaid observations, the writ petition is finally disposed of.