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2019 DIGILAW 1366 (ALL)

Mohd. Sultan Siddiqui v. State of U. P.

2019-05-17

IRSHAD ALI

body2019
JUDGMENT : IRSHAD ALI, J. 1. Heard Sri S.P. Singh, learned counsel for the petitioner and to the learned Standing Counsel on behalf of respondent Nos.1 and 2, Sri Surya Prakash Singh, learned counsel for respondent No.3-Gaon Sabha. 2. Learned counsel for the petitioner is permitted to implead the Tehsildar, Gauriganj, District Amethi in the array of parties of respondents as respondent No.5 during course of the day. 3. By means of the present writ petition, the petitioner is challenging the order dated 06.01.1992 passed in Revision No.106 by exercise of power under Section 122-B of U.P.Z.A. & L.R. Act. 4. Brief fact of the case is that on a complaint, a proceeding under Section 122-B of U.P.Z.A. & L.R. Act was initiated against the petitioner in regard to Gata No.379 ¼£½ ¼uoohu ijroh½ and a notice was issued to the petitioner on 13.12.1988 to show cause within fifteen days for illegal occupation and ejectment of the possession from the aforesaid gata number along with deposit of Rs.2,000/- as damages. 5. On the report of the Lekhpal, a notice was issued to the petitioner on 04.10.1988, reply to which was submitted by the petitioner stating therein that he is the original resident of Katra Lalganj, Pargana Amethi and has obtained patta from the Land Management Committee of the Gaon Sabha concerned and requested for withdrawal of the notice issued under Section 122-B of U.P.Z.A. & L.R. Act. 6. The Lekhpal was cross examined and his submission was recorded and thereafter, vide order dated 19.09.1989 the notice issued against the petitioner was discharged by recording a finding that on the basis of patta granted in favour of the petitioner, he is under possession over the land in dispute since long. 7. It has further been recorded that the possession on the land of the petitioner is well established and, therefore, the notice issued against him was discharged. The State preferred Revision No.106 under Section 122-B of U.P.Z.A. & L.R. Act against the petitioner, which was allowed by recording finding on re-appraisal of evidence that the Tehsildar has committed gross illegality in discharging the notice issued against the petitioner. 8. In fact, the petitioner has illegally encroached the land of the Gaon Sabha without any rational basis, therefore, direction was issued to dispossess the petitioner from the land in dispute vide order dated 06.01.1992. 9. 8. In fact, the petitioner has illegally encroached the land of the Gaon Sabha without any rational basis, therefore, direction was issued to dispossess the petitioner from the land in dispute vide order dated 06.01.1992. 9. Assailing the aforesaid order, the petitioner has filed the present writ petition before this Court. 10. First submission of learned counsel for the petitioner is that the finding recorded by the Tehsildar under the proceeding of 122-B of U.P.Z.A. & L.R. Act cannot be disturbed by the revisional Court on the basis of reappraisal of the facts and the possession of the petitioner cannot be held to be illegal. If there was any adverse material against the petitioner, at best, the revisional Court would have remanded the matter back for reconsideration before the Tehsildar. 11. Second submission of learned counsel for the petitioner is that in regard to recording of Abadi on the basis of possession, a circular was issued on 28.11.1973 that in case the name of the possession holder has not been recorded in the revenue record or it is left out, the same be recorded in the revenue recorded. Therefore, the revisional Court being responsible officer of the State would have taken care of the above referred circular and in the light of the said circular, the case would have been decided. 12. His third submission is that the petitioner is under possession of a small piece of land, which is about 8 Dhur and on that basis the possession would have been decided in favour of the petitioner. Thus, his submission is that the revisional Court has committed manifest error of law in not considering all those aspects of the matter. 13. His last submission is that the report and statement of the Lekhpal has been miscontrued by the revisional Court on the basis of the statement recorded by the Tehsildar in the proceeding initiated under Section 122-B of U.P.Z.A. & L.R. Act and the notice issued against the petitioner was discharged. This facet of the matter has been ignored by the revisional Court. 14. On the other hand, learned Standing Counsel submitted that the revisional Court has not committed any error in passing the impugned order. The impugned order is just and valid and it does not suffer from any infirmity or illegality. 15. This facet of the matter has been ignored by the revisional Court. 14. On the other hand, learned Standing Counsel submitted that the revisional Court has not committed any error in passing the impugned order. The impugned order is just and valid and it does not suffer from any infirmity or illegality. 15. Sri Surya Prakash Singh, learned counsel for the respondent No.3-Gaon Sabha admitted that the revisional Court has committed gross illegality in passing the impugned order. He further submitted that the revisional Court has no authority in law to pass the order on the ground of re-appraisal of evidence for dispossession of the person, who is having possession over the land since long. In case the revisional Court is of the view that the Tehsildar in discharge of notice has committed illegality, he would have remanded the matter back for re-consideration. 16. Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the impugned order challenged in the present writ petition. 17. I also perused the order of the Tehsildar, whereby the proceeding under Section 122-B of U.P.Z.A. & L.R. Act initiated against the petitioner was discharged. 18. On its perusal, it is well established that the Tehsildar on perusal of report of the Lekhpal and taking his statement has recorded finding of fact that the petitioner is under possession over the land since long i.e. for almost 30-40 years back and on the said basis by recording cogent reasons he has discharged the notice against the petitioner. 19. The revisional Court while deciding the issue in regard to dispossession of the petitioner and to impose penalty as per the provisions, has proceeded to mis-interpret the statement recorded by the Tehsildar of the concerned Tehsil and has proceeded to hold that the petitioner is un-authorized occupant of the land in the light of the suit and therefore, has passed the impugned order. 20. 20. On perusal of the impugned order, this Court is of the opinion that in case the revisional Court was of the view that the Tehsildar in initiation of proceeding under Section 122-B of U.P.Z.A. & L.R. Act has committed some error in law in passing the order, the revisional Court upon consideration of the entire material by recording observation would have remanded the matter back for reconsideration in spite of passing the order of dispossession at his own level. In case the petitioner is under possession on the land since long and the land is very small in piece, this aspect of the matter would have also been considered by the revisional Court. 21. Due to non consideration of the aforesaid aspect of the matter, the impugned order vitiates in law and is not sustainable. 22. Accordingly, the order passed by the revisional Court dated 06.01.1992 is hereby set aside. 23. The writ petition succeeds and is allowed. 24. The newly impleaded respondent No.5-the Tehsildar, Gauriganj, District Amethi is directed to reconsider the matter permitting the petitioner to lead evidence in support of his claim and to pass appropriate reasoned and speaking order within a period of six months from the date of production of a certified copy of this order after affording opportunity of hearing to the concerned parties.