Amar Pal vs Collector and Others

V.K. Bist, J.—By means of this writ petition, the petitioner has challenged the order dated 26.02.2009 passed by Collector, District-Haridwar in Revenue Revision No. 147 of 2007-08 Gram Sabha v. Amar Pal u/s 122-B(4-A) of The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act).

Brief facts of the case as narrated in the writ petition are that the petitioner is resident of village Udalhedi, Pargana-Manglaur, Tehsil-Roorkee District-Haridwar and is residing in his ancestral house. On 05.05.1957 a resolution was passed by the Gram Sabha Udalhedi, Tehsil Roorkee whereby a plot measuring 8 Bishwa in Gata No. 876 (New Gata No. 98) in village Udalhedi Pargana-Manglaur, Tehsil Roorkee, District Haridwar was allotted in favour of late Ram Singh, father of the petitioner on southern side of Johar (pond) recorded in revenue record for abadi purposes. Late Ram Singh was permitted by the Gram Sabha to construct his house by levelling the land. The father of the petitioner was in continuous physical possession over the allotted land much before the aforesaid allotment. The Lekhpal submitted a report to the Tehsildar, Roorkee on 25.03.1991 on which basis the said Tehsildar, Roorkee initiated proceedings u/s 122-B of the ''Act'' against the brother of the petitioner Om Pal for unauthorised and illegal possession over Gata No. 98m measuring 0.054 hect. which is recorded Johar (pond) since 1398 fasli and notice 49-A was also issued to Ompal. The same was registered as case No. 61 of 1991. Thereafter on 27.07.1992 the Tehsildar, Roorkee passed judgment & order in Case No. 61 of 1991 Gram Sabha v. Om Pal by which notice issued to Ompal was withdrawn. The said judgment & order was never challenged by the Gram Sabha and same became final.

Again on 17.07.2003 the Lekhpal of village Udalhedi submitted a report to the Tehsildar, Roorkee against the petitioner on which basis notice was issued to the petitioner in which it was mentioned that petitioner has taken illegal and unauthorized possession over 0.008 hectare of Gata No. 98 situated in village Udalhedi, Pargana-Manglaur, Tehsildar, Roorkee District-Haridwar which was recorded as Johar since 1410 fasli. The petitioner filed his objection to the said notice. During the pendency of the proceedings, the petitioner also moved an application before Tehsildar, Roorkee for re-measurement of the land in his presence. But his application was rejected vide order dated 08.10.2004. The petitioner examined himself and one Randhir Singh as his witness whereas Ram Manohar, Lekhpal was examined by the Gram Sabha as witness. Thereafter the Tehsildar, Roorkee passed an order on 27.05.2008 and notice issued to the petitioner was withdrawn. Against the Judgment and order passed by the Tehsildar, Roorkee, the Gram Sabha village Udalhedi filed Revenue Revision No. 147 of 2007-08 before the Collector, District-Haridwar. The Collector, District-Haridwar vide order dated 26.02.2009 allowed the Revision of Gram Sabha and order passed by the Tehsildar, Roorkee was set aside. By this order Tehsildar, Roorkee was directed to issue notice 49-C to the petitioner for the recovery of compensation as well as for eviction from the plot in question. Against the said order the present writ petition has been filed.

The contention of learned Counsel for the petitioner is that the Gata No. 876 (New Gata No. 98) is divided in three parts i.e. 98/1 measuring 0.072 hec. 98/2 measuring 0.225 hec. and 98/3 measuring 0.256 hec. and in revenue record same is recorded as Johar (pond) but, according to the learned Counsel for the petitioner, in fact at Gata No. 98/01 is Pukhta Road which is present on the spot and on Gata No. 98/2 there is Johar on the spot whereas at Gata No. 98/3 the abadi of villagers is situated but due to enmity the Lekhpal submitted a false report against the petitioner without making spot inspection. In this regard the petitioner already made complaint against the said Lekhpal on 02.09.2003. He submitted that the finding recorded by the Collector, District-Haridwar regarding Johar land is far from truth and, therefore, is perverse and illegal. Learned Counsel for the petitioner submitted that late Ram singh was in possession over old Gata No. 876 (New Gata No. 98) measuring 8 Bishwa (0-8-0) even prior to 1957 when land was allotted to him and he was also permitted to construct house on the southern side of Gata No. 876. He further submitted that in view of the fact that the said land was allotted to the father of the petitioner about 60 years ago, the proceedings u/s 122-B of the ''Act'' are illegal. Learned Counsel for the petitioner also submitted that he has not encroached over the Johar land on Gata No. 98 and petitioner cannot be evicted from land which is not Johar land.

Learned Counsel for respondent No. 3 submitted that no such resolution dated 05.05.1957 as said by the learned Counsel for the petitioner is in existence. In support of his submission learned Counsel for respondent No. 3 drew my attention to true copy of the resolution passed on 05.05.1957 by Gram Sabha village Udalhedi, Pargana-Manglaur, Tehsil-Roorkee District Haridwar in which there is no mention of the said resolution. Learned Brief Holder also submitted that land in question is Johar land and cannot be allotted to anyone in view of Section 132 of the ''Act''.

After hearing learned Counsel for the parties and after carefully examining the documents filed by learned Counsel for the parties, I find that there is clear cut finding of Collector, Haridwar that Khasra No. 98 (Old No. 876) measuring 0.553 hectare is recorded as Johar land in the revenue record. Therefore, in view of the provisions contained in Section 132 of the ''Act'', no bhumidhari rights shall accrue over the land which is recorded as Johar land. The order passed by the Collector, District-Haridwar does not suffer from any illegality. Consequently, the writ petition is dismissed.

The counsel for the petitioner repeatedly argued that land which is in petitioner''s possession and the house situated over the said land, is not the subject mater of fresh notice and petitioner has no concern with the land which is mentioned in the notice. Such plea has also been taken in paragraph 23 of the writ petition which has not been denied in the counter affidavit. In the interest of justice, I direct that in pursuance of order passed by the Collector, Haridwar in Revenue Revision No. 147/2007-08 the petitioner shall be evicted from his land if same is part of Khasra No. 98 (Old No. 876) which is recorded as Johar in revenue record. Before executing the order of Collector, Haridwar, the authorities shall verify this fact by re-measuring the land.

No order as to costs.