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2019 DIGILAW 1249 (ALL)

Satendra Singh v. State of U. P.

2019-05-08

SARAL SRIVASTAVA

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JUDGMENT : Saral Srivastava, J. 1. Heard Sri Rateesh Singh, learned Counsel for the petitioner and Sri Rajesh Kumar, learned Standing Counsel for the State. The facts as borne out from the record are that the proceeding under section 122-B of UPZA & LR Act was initiated against the petitioner by issuing notice 49-Ka on the ground that he has encroached upon plot No. 261 having an area 0.010 hectare, situated in Mauja Bhaiya, Pargana Hasangarh, Tehsil Iglas, District Aligarh numbered as case No. 2 of 1989 (Gaon Sabha v. Satendra Singh). In the aforesaid case, the petitioner appeared and contested the claim. 2. The Tehsildar/Assistant Collector, Iglas, respondent No. 3 passed an order dated 17.2.1997 recording a finding that the petitioner is not in possession over the plot in question and in fact, land is vacant but since the aforesaid plot is contiguous to a pond, therefore, it could not be demarcated. By recording the aforesaid finding, the respondent No. 3 discharged the notice 49 Ka. 3. Feeling aggrieved, the Gaon Sabha preferred revision No. 88 of 1997 (Gaon Sabha v. Satendra Singh) under section 122-B (4-A) of UPZA & LR Act before the Additional Collector (Administration), Aligarh which was dismissed by the Additional Collector (Administration), Aligarh by order dated 6.9.1997. 4. It appears that a fresh proceeding numbered as case No. 85 (Gaon Sabha v. Satendra) under section 122-B of UPZA & LR Act was initiated in the year 2011 in which notice was issued to the petitioner and the petitioner appeared through his Counsel. However, case was adjourned on number of dates due to non-presence of the petitioner and consequently, the respondent No. 3 by order dated 10.5.2011 affirmed the notice 49 Ka and directed for eviction of the petitioner from plot No. 161 which is chakmarg. 5. Against the order dated 10.5.2011 of the respondent No. 3, the petitioner preferred recall application dated 17.6.2011 which was also dismissed by the respondent No. 3 by order dated 12.4.2012. 6. Against the order dated 12.4.2012 of the respondent No. 3, the petitioner preferred revision No. 8 of 2012 (Satendra Singh v. Gaon Sabha), which was dismissed in default on 17.4.2013. A recall application for recalling the order dated 17.4.2013 was filed by the petitioner, which was also dismissed in default on 18.3.2015. 6. Against the order dated 12.4.2012 of the respondent No. 3, the petitioner preferred revision No. 8 of 2012 (Satendra Singh v. Gaon Sabha), which was dismissed in default on 17.4.2013. A recall application for recalling the order dated 17.4.2013 was filed by the petitioner, which was also dismissed in default on 18.3.2015. Another recall application for recalling the order dated 18.3.2015 was filed by the petitioner, which was dismissed on 18.8.2018. 7. The orders dated 10.5.2011 and 18.8.2018 passed by the respondent No. 3 are impugned in the present writ petition. 8. Challenging the aforesaid orders, learned Counsel for petitioner has contended that earlier proceedings initiated against the petitioner under section 122-B were dropped by a reasoned and speaking order by the respondent No. 3 wherein he has categorically recorded a finding that the petitioner was not in possession over the plot No. 261 and further, a finding has also been recorded that since the plot is contiguous to a pond, therefore, it could not be demarcated. The revision preferred against the said order was dismissed. Thus, he submits that the present proceeding initiated by the respondent No. 3 under section 122-B with respect to same plot is nothing but abuse of process of law and as such, the orders impugned in the writ petition are not sustainable. He further contends that the Tehsildar while affirming the notice 49 Ka by an order dated 10.5.2011 has not given any reason as to how he reached a conclusion that the petitioner is in occupation of plot No. 261 particularly in view of the fact that in the earlier order passed by the respondent No. 3 dated 17.2.1997 a clear cut finding is recorded that said plot could not be demarcated being contiguous to a pond, and thus, without demarcation of the plot, a finding recorded by the Tehsildar in his order dated 10.0.2011 is illegal and eviction of the petitioner on the basis of said finding is not sustainable. He submits that this, illegality was not considered by the Revisional Court while dismissing the revision. He submits that since the petitioner could not appear for the reasons beyond his control and further submission is that since the original order itself is not sustainable in law, subsequent order, affirming the said order cannot be sustained. 9. He submits that this, illegality was not considered by the Revisional Court while dismissing the revision. He submits that since the petitioner could not appear for the reasons beyond his control and further submission is that since the original order itself is not sustainable in law, subsequent order, affirming the said order cannot be sustained. 9. Per contra, learned Standing Counsel submits that in the facts of the present case it would be appropriate that the matter may be remanded back to the Tehsildar, respondent No. 3 to decide afresh after considering the order dated 17.2.1997 passed by the respondent No. 3 in case No. 2 of 1989 and after identifying and demarcating the plot No. 261. 10. I have considered the submissions of the parties and perused the record. 11. Since the order passed by the respondent No. 3 dated 10.5.2011 is cryptic and has not considered relevant issues and particularly the order dated 17.2.1997 passed by the respondent No. 3 in case No. 2 of 1989, the said order is not sustainable, and consequently, the order passed by the Tehsildar dismissing the recall application of the petitioner and also the order passed by the Revisional Court dismissing the revision of the petitioner are not sustainable and hence, the orders dated 10.5.2011, 12.4.2012 and 18.8.2018 passed by the respondent No. 3 are quashed. 12. The respondent No. 3 is directed to decide case No. 85 (Gaon Sabha v. Satendra) under section 122-B of UPZA & LR Act afresh within a period of three months from the date of production of certified copy of this order after considering the effect of order dated 17.2.1997 passed in case No. 2 of 1989 (Gaon Sabha v. Satendra Singh), affirmed in revision No. 88 of 1997 (Gaon Sabha v. Satendra Singh) and after demarcating the plot in dispute. 13. With the aforesaid observation, the writ petition is allowed.