Antoo vs The Collector

Sibghat Ullah Khan, J.—Heard Shri S.K. Pundeer, learned Counsel for the Petitioner, learned standing counsel for Respondent Nos. 1 to 3 and Shri A.K. Sharma, learned Counsel for Rajendra whose impleadment application was allowed on 14.9.2009.

This writ petition arises out of proceedings u/s 122-B of U.P. Zamindari Abolition & Land Reforms Act. First order was passed by Tehsildar/Assistant Collector, Ist Class, Tehsil Deoband District Saharanpur in Case No. 289 of 1988-89 Land Management Committee/Gram Sabha v. Antoo on 28.6.1989, copy of the said order is Annexure-1 to the writ petition. The allegation against the Petitioner was that he had encroached upon an area of 1 bigha, 15 biswa, 15 biswancies of gram sabha plot No. 78 which was reserved for digging the earth (for kumhars), since 1393 fasli by cultivating the same. Petitioner filed objections on 10.12.1987 stating therein that he was landless agricultural labour and his possession was prior to 30.6.1985 hence land stood settled with him u/s 122B(4F) of U.P.Z.A.&L.R. Act, that in the entire village there was no kumhar who could require earth for making earthen plots. It was also pleaded that Petitioner''s wife had undergone the tubectomy operation hence Lekhpal with the consent of the Pradhan had given the land to him. The Petitioner further claimed that Lekhpal and Pradhan had passed resolution in his favour and his possession was since 1983 with the consent of the Gram Samaj. Tehsildar held that since 1395 fasli unauthorised possession of the Petitioner was shown over the land in dispute (1.7.1987 - 30.6.1988). Petitioner filed copy of some resolution dated 3.8.1985 showing that 2 bigha land of plot Nos. 149 and 78 was allotted to the Petitioner. However, Petitioner could not file any patta. It is mentioned in Annexure-1 that it is not clear as to whether the resolution was for allotment as bhoomidhar or as asami and area of both the plots was not separately mentioned. It was also mentioned in the said order that as Petitioner as well as the previous Pradhan - Gyan Singh had stated that no copy was given to the Petitioner hence it was strange that Petitioner had produced copy of the resolution. It was further mentioned that in the first objections filed by the Petitioner on 10.12.1987 he had not mentioned about the allotment. Accordingly, it was held that no allotment was made. It was also held that Petitioner had some land of his own hence he was not landless. Accordingly, Tehsildar passed order of eviction and directed payment of damages to the tune of Rs. 2,276/- for four years from 1393 to 1397 fasli at the rate of Rs. 569/- per year. Against the said order revision No. 114 of 1988-89 was filed. Collector, Saharanpur dismissed the revision on 10.5.1990 hence this writ petition.

Both the courts below held that the Petitioner could not prove that his possession was prior to 30.6.1985.

In paragraph-1 of the writ petition, Petitioner stated that he was a member of scheduled caste. However, in the counter affidavit filed on behalf of Rajendra it was stated that Petitioner was not a member of scheduled caste but he was kashyap rajpoot. In the rejoinder affidavit Petitioner admitted that he was not member of scheduled caste. During argument, learned Counsel for the Petitioner admitted that Petitioner was not scheduled caste but member of backward class. In the counter affidavit filed by Shri Naresh Chandra Gupta, Tehsildar on behalf of the State, it has been stated that no resolution was passed by Land Management Committee in favour of the Petitioner.

In para-7 of the counter affidavit it has been stated that the land in dispute is reserved for public purposes. In paragraphs-20 and 21 it has been stated that on 24.12.1990 through police force possession was delivered to the Pradhan. In this writ petition stay order was passed on 25.1.1991. However, Rajendra who was impleaded on his own application has stated in his affidavit filed in support of impleadment application in para-4 that that Gaon sabha through its resolution dated 5.1.1991 allotted the land in dispute in his favour, Sub Divisional Officer accorded the approval on 28.1.1991 and immediately thereafter Applicant Rajendra was put in possession.

I do not find least error in the impugned orders. Petitioner could not show that allotment was made in his favour. In the initial reply to notice no plea of allotment was taken, Petitioner falsely asserted in the writ petition that he was member of scheduled caste. Accordingly, there is no error in the impugned orders.

However, as held by the Tehsildar and the Collector in the orders challenged in this writ petition that land in dispute was reserved for public purpose. Accordingly, it could not be allotted to Rajendra also who has been impleaded.

It is therefore directed that whoever is in possession, whether Petitioner or Rajendra, must forthwith be evicted and land must be reverted back to its original use i.e. reserved for digging earth. As Respondent No. 4 claims that he is in possession, hence the damages at double the rate of Rs. 5,69/- per year (i.e. Rs. 11,38/- per year) mentioned in the impugned orders shall be recovered from Rajendra from 1991 till actual eviction like arrears of land revenue. Four years arrears of Rs. 2276/- shall be recovered from the Petitioner as directed by the impugned orders.

Writ petition is accordingly disposed of.

Office is directed to supply a copy of this order free of cost to Shri S.P. Mishra learned Standing Counsel within a week for sending the same immediately to S.D.O., Deoband. It is further directed that all proceedings for cancellation of allotment in favour of Respondent No. 4 shall stand abated as through this judgment the said allotment has been held to be illegal.