Deo Narain vs Additional Collector, Tehsildar/Assistant Collector and Gaon Sabha Benipur

V.C. Misra, J.

Heard Shri Ashok Kumar learned counsel for the petitioners, Shri V.K. Singh learned counsel for respondent No. 3 and learned standing counsel, on behalf of respondent Nos. 1 & 2 at length. No counter affidavit has been filed on behalf of the respondents till date.

The present writ petition arises out of the proceedings started against the petitioner u/s 122-B of the UP. Zamindari Abolition and Land Reforms Act and Rule 115 of the Rules framed thereunder with the allegation that the petitioner was at one time in unauthorized occupation of the land in question plot No. 224 admeasuring 1.10 Biswas and plot No. 225 admeasuring 10.1 Biswas of Gaon Sabha-respondent No. 3 as per the report of the Lekhpal dated 25.1.1983. A show cause notice under Form 49-Ka was issued as to why the petitioner be not evicted from the plots in question and damages be not imposed against him. A reply was filed by the petitioner stating therein that he had never occupied or possessed the land in question, nor as alleged was at the time of issuance of the notice in possession of the same, the report of the Lekhpal was false and baseless and no damages should be imposed on it. The Lekhpal was produced on behalf of the Gaon Sabha who in his statement admitted that the petitoner was not in possession of the land in dispute and especially during his posting as Lekhpal for the last 4 & half years and prior to his posting he could not say as to who was in possession of the and in question. However, he had come to know from other persons that the petitioner was in possession of the land in question and no one has been so named after chakbandi. However, during his tenure a road had been carved out from the land in question and the remaining portion of die land had been allotted to other persons. It is further stated that, it was wrong to allege that the petitioner was not in possession of the land in question. The petitioner examined himself and denied his possession over thse land in dispute. On the basis of the statement of the Lekhpal, the Assistant Collector vide its order dated 27.5.1985 came to the conclusion that the petitioner was in unauthorized and illegal occupation of the land in question earlier in period and after the allotment of plots and the construction of the road, his possession and occupation had come to an end and, therefore, the petitioner was liable to pay the damages to the tone of Rs. 4,740/- and in case he is still in possession of any portion of the land in question he may be evicted.

Being aggrieved, the petitioner filed a revision before the respondent No. 1 which was admitted. Respondent No. 1 held that the Lekhpal in his statement had submitted that at the time when the land in question was measured, the petitioner was not found to be in possession of the land in question. However, the revision was dismissed holding that there was no illegality committed by the Court below in passing the order-dated 27.5.1985 under revision.

The, respondents till date have not filed their counter affidavit in rebuttal to the averments made in the writ petition, in spite of time being granted to them on earlier dates on the request of their teamed counsel. It is settled law that, if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct and the presumption is in favour of the petitioner in terms of Section 114 Illustration (g) of the Indian Evidence Act, 1872, as is laid down in catena of decisions including Bux Singh Vs. Joint Director of Consolidation and Others, , Juggi Lal Kamla Pat Vs. Ram Janki Gupta and Another, , State of Gujarat Vs. S. Tripathy and Others, . In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the writ petition to be correct and true.

I have looked into the record of the case and I find that, both the Courts below have grossly erred in holding that the petitioner was in unauthorized and illegal occupation of the land in question merely on the basis of sun rises and conjectures and also committed error apparent to the face of the record by arriving at a conclusion on the statement of the Lekhpal that the petitioner was in unauthorized occupation whereas as per record the Lekhpal himself had stated that he had no knowledge of any such unauthorized occupation.

Under the facts and circumstances of the case, the impugned order dated 27.5.1988 passed by respondent No. 2 (annexure-3 to writ petition) and the order-dated 25.1.1988 (annexure-4 to the writ petition) passed by respondent No. 1 being wrong, bad and Illegal are hereby quashed. The writ petition is allowed with costs of Rs. 1000/- be paid to the petitioner from the consolidated fund of Gram Sabha within a period of one month from the date an application is moved by the petitioner.