Akbar Ali and Others vs Collector and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties.

This writ petition is directed against order dated 23.09.1997 passed by Collector, Bijnor in Case No. 42, under Rule 115-P of U.P.Z.A. & L.R. Rules, Chhotey Singh and Ors. v. Mohd. Hanif and Ors. Copy of the said judgment is contained in Annexure-VI to the writ petition. Through the said case, Chhotey Singh and Balbir Singh, Respondents No. 3 & 4 in this writ petition had challenged the allotment of land in favour of several persons including the three Petitioners made by Land Management Committee/Gaon Sabha in 1986. The allotment was made in favour of 18 persons. The land which was allotted was comprised in Plot No. 441, area 11 biswas and Plot No. 442, area 8 biswas. The main ground taken in the application for cancellation was that one Bhole was tenure-holder in possession of the land in dispute and after his death his adopted son Ram Prasad became its tenure-holder/bhoomidharand the land in dispute did not vest in Gaon Sabha. In the alternative it was asserted that none of the 18 allottees deserved allotment as they were having their own houses and some of the houses were double storied also. It was also stated that allottees were doing business and they were not in the preferential category of the allottees. It was also stated that formalities like agenda, resolution etc. were not observed and the 18 allottees were relations of Pradhan.

The allottees filed objections on 25.09.1990 denying each and every allegation of the complainants Respondents No. 3 & 4. It was further stated that earlier the matter in respect of land in dispute was litigated before the civil court also by some other person and he had lost the said case. Copy of the judgment of the Civil Suit No. 456 was filed before the Collector along with other documents. Orders passed u/s 122-B of U.P.Z.A. & L.R. Act on 30.03.1988 were also filed. There were several orders of the said date passed in different cases, i.e. Cases No. 7 and 10 to 14, all of 1987. Reports from Lekhpal and Tehsildar were also called for, which were to the effect that in respect of Plots No. 441 & 442 neither any resolution was passed nor any allotment was made.

In the impugned order the Collector categorically found that it had been proved that through resolutions dated 10.05.1986 and 23.06.1986, Gaon Sabha had allotted the land to the opposite parties in the case before him, however it was not approved by S.D.O. Bijnor and No. file was prepared and the allotment was void for want of approval. It was also found that complainants could not prove that they were owners of the land in dispute and it was also held that they had No. right to file the case. It was also mentioned by the Collector that at the time of allotment property was not of Gaon Sabha, hence Gaon Sabha and Land Management Committee had No. right to allot the land and the land was entered in the name of Bhole and No. proceedings u/s 194 of U.P.Z.A. & L.R. Act had been taken. Accordingly, the cancellation application filed on 22.03.1990 was allowed.

The basic defect in the complaint was that complainants had stated that land belonged to another person. They did not claim that the land belonged to them. No. one came forward to assert that he was the rightful owner/bhoomidharof the land in dispute. Accordingly, complaint on this score was not at all maintainable.

If a person dies without leaving any heir then by virtue of Sections 190 and 194, U.P.Z.A. & L.R. Act, Land Management Committee is entitled to take possession. u/s 190 right of a bhoomidharin a holding is extinguished when he dies without leaving any heir entitled to inherit. u/s 194(a), Land Management Committee is entitled to take possession of such land. Firstly No. formal order u/s 194 of U.P.Z.A. and L.R. Act is required. Secondly, just after extinguishment of the right due to heir-less death, Gaon Sabha/Land Management Committee is entitled to take possession. Even if some formal order is required taking of possession cannot be deferred. In any case a person who does not claim right through a person who was recorded till his death has got No. right to raise any objection in this regard. Complainants were only busybodies.

Earlier civil suit had also been filed. The suit (O.S. No. 432 of 1987) was dismissed on 04.10.1988 by IV Additional Munsif, Bijnor. The suit had been filed by one Khema. Against the dismissal of the suit, Khema filed Civil Appeal No. 164 of 1988. District Judge, Bijnor dismissed the said appeal. Akbar and Ors. (allottees) had also filed Civil Appeal No. 168 of 1988. The said appeal was allowed. Copy of the judgment of District Judge, Bijnor dated 16.09.1990 is Annexure-V to the writ petition. The trial court even though dismissed the suit but holding that pattas in favour of some of the allottees were illegal had directed the S.D.O. to allot the land afresh. Appellate court also found that Khema utterly failed to prove his right over the land in dispute. The appellate court held that question of validity of allotment could not be decided in the said suit.

Accordingly, it is held that the Respondents No. 3 & 4 have No. right to challenge the allotment on the ground that the land did not belong to Gaon Sabha. They could challenge the allotment only on the ground that otherwise it was not in accordance with law.

The only substantial defect found in the allotment by the impugned order is that approval of S.D.O. was not there. However, it has been stated in Para-3 of the writ petition that each Petitioner was allotted 100 square meters of land. In Para-18 it has been stated that as required by Rule 115-Q of U.P.Z.A. & L.R. Rules, Petitioners constructed their houses within three years from the allotment.

I have held in Budhaee Vs. Collector, Assistant Collector/Tahsildar Khaga, Gram Sabha Sanwat and State of U.P., that if some one is in possession over a small piece of Gaon Sabha land since long and the land is not reserved for some important public purpose like pond, rastaetc. and the person in possession has constructed his house, then instead of demolition and eviction, award of reasonable damages is the proper relief. I have also held that if the possession is continuing since seventies or early eighties, measure of reasonable damages shall be Rs. 100/- per square yard, which was approximately the value of abadi land at that time in the villages of U.P.

Accordingly, writ petition is allowed. Impugned orders dated 23.09.1997 in respect of Petitioners is set aside on the condition that each Petitioner deposits Rs. 10,000/- within three months before the Collector, Bijnor which shall be kept in consolidated gaon fund constituted u/s 125-A of U.P.Z.A.&L.R. Act. If the aforesaid amount is not deposited by any or some of the Petitioners within three months from today, then this writ petition on behalf of the defaulter Petitioner(s) shall be deemed to have been dismissed and impugned order shall be given effect to forthwith in respect of those Petitioners and in that contingency for the period for which this writ petition remained pending an amount of Rs. 500/- per year shall also be recovered from each defaulter Petitioner as additional damages. If the aforesaid amount is deposited within the aforesaid period by the Petitioners or some of them, then the impugned order in respect of those Petitioners shall stand set aside and the land in dispute shall stand settled in favour of those Petitioners, however for a period of five years they shall not sell the same to anyone.