Gaon Sabha Shivrampur vs Additional District Magistrate, Gyanpur District Bhadohi and Others

D.P. Singh, J.

Heard learned Counsel for the parties.

This writ petition arises out of proceedings under section 122B of the U.P.Z.A. and L.R. Act whereby show cause notice for eviction and damages against the contesting respondent No.3 was issued with respect to plot No.66 recorded in the name of the respondent No.3. After the contesting respondent No.3 had submitted a detailed reply, the Tehsildar vide order dated 30.3.1991 confirmed the notice and directed for eviction of the respondent No.3 from the disputed land and also awarded Rs.120 as damages. Aggrieved, the contesting respondent No.3 preferred a revision before Additional Collector, who by an order dated 13.6.1994 allowed the revision and set aside the order passed by the trial Court.

Sri A.S. Rai learned Counsel for the contesting respondent No.3 raised a preliminary objection that the petition was not maintainable since it was filed by a private counsel without the relevant authority as required under law. He has relied on a division bench judgment of this Court rendered in the case of Babu Ram v. SDO and others. 1996 (3) UPLBEC 2028. Sri L.P. Singh, learned Counsel appearing for the petitioner, however, stated that subsequent to the filing of the writ petition the then counsel for the Gaon Sabha Sri K.B. Garg had filed his vakalatnama on behalf of the petitioner and, thus, the petition was maintainable. In support of his contention, he has relied upon a decision of another division bench of this Court rendered in the case of Gram Panchayat Kanta Gulzarpur v. Collector Unnao and others, 1997 (3) AWC 1665. In my opinion the writ petition filed by the petitioner is maintainable.

The only contention of the learned Counsel for the petitioner is that the revisional court has ignored the fact that the trial judge himself visited the site in dispute and had taken measurements, thus, the revision could not have been allowed on the ground that exact situation of the disputed land was not fixed by the lekhpal in his report which forms basis of the proceedings. A perusal of the order of the Tehsildar dated 30.3,1991 shows that he did visit disputed land on 28.3.1991.

However, neither in the writ petition nor in the rejoinder affidavit there is any averment that any such report was prepared by the Tehsildar. The learned Counsel for the respondent has and correctly so, contended that had the Tehsildar prepared a report of his visit, he would have had an opportunity to file objections to the report. Since no such report was prepared mere mention in the order would not mean that it was correct. Such a piece of evidence could not be admissible unless an opportunity was granted to challenge it. Therefore, he contends, it could not have been relied upon by the trial court, and the revisional court was right in ignoring such inadmissible comments. In my opinion, the contention of the learned Counsel for the respondent has considerable force.

The learned Counsel for the petitioner further contended that the proceedings have been set aside on technicalities and, thus, the Gaon Sabha would be unable to take fresh action. Be it may so, if under law the Gaon Sabha is entitled to initiate proceedings, there will be no impediment on the basis of the order which has been passed in the writ petition.

In view of the discussions hereinabove, the writ petition fails and is dismissed. No order as to costs.

(Petition dismissed)