Bhikhari vs Upper Collector,Deoria and Others

Sudhir Narain, J.—I have heard Shri R. N. Upadhyay, learned Counsel for the petitioner, learned Standing Counsel and the learned Counsel appearing on behalf of Gaon Sabha.

The proceedings were taken for ejectment against the petitioner in respect of Plot No. 511 area 3 decimal situated in village Hata Tappa Surauli, Pargana Salempur, Tahsil and Direct Deoria. The Assistant Collector vide his order dated 2081996 dropped the proceedings. Against said order, the Gaon Sabha filed two revisions. Respondent No. 1 allowed both the revisions and directed for ejectment of the petitioner from the land in dispute.

The learned Counsel for the petitioner contended that earlier proceedings were taken against the petitioner under Section 122B of U.P. Zamindari and Land Reforms Act and they were dropped. The subsequent proceedings could not have been taken. This contention of the petitioner cannot be accepted. If there was material evidence which established that petitioner was in unauthorised occupation, after giving fresh notice the proceedings for ejectment could be taken against the petitioner or such other person who are in unauthorised occupation.

Second submission of the learned Counsel for the petitioner is that respondent No. 1 has observed that the question as to whether the petitioner was landless agricultural labourer was to be considered by the Assistant Collector but instead of remanding the matter respondent No. 1 himself passed order of ejectment. On perusal of the impugned order it is clear that Respondent No. 1 has observed that Assistant Collector was to consider the evidence on record in respect of fact that whether the petitioner was landless agricultural labourer and was entitled to the benefit under Section 122B (4F) of the aforesaid Act. After having come to his conclusion, respondent No. 1 should have remanded the matter.

Considering the facts and circumstances of the present case, the impugned order dated 17111997 is hereby quashed. Accordingly, the writ petition is allowed. The matter shall be again decided by the Assistant Collector keeping in view the observations made by Respondent No. 1 in the order dated 171 11997. The Assistant Collector will record his finding in the matter after affording opportunity of hearing to the parties concerned.