Mahadev vs State

S.U. Khan, J.—Heard learned Counsel for the Petitioner and learned standing counsel for the Respondents. This writ petition arises out of proceedings u/s 122-B of U.P. Zamindari Abolition and Land Reforms Act. The first order was passed on 30.01.1990 by Tehsildar Gyanpur, District Varansi in case No. 220 of 1986 copy of which is Annexure 2 to the writ petition. The allegation against the Petitioner was that he was in unauthorised occupation of Gaon Sabha land comprised in following plots:

Plot No. 94 area 15 biswa 17 dhur (biswancies)

Plot No. 105 area 1 bigha 5 biswa

Plot No. 104 area 4 biswa 4 dhur (biswancies) total area 2 bigha 5 biswa 1 dhur.

The Petitioner pleaded before the Tehsildar that the property in dispute was in his possession since the time of his ancestors, that question of title was involved and that earlier on 23.08.1982 similarl proceedings had been dropped against him. However, in para 3 of the writ petition it has been stated that earlier proceedings were initiated in respect of plot No. 105 only. In para 3 it has also been stated that lekhpal admitted that entire plot No. 94 was covered by abadi and Petitioner''s possession over the plot was only over 4 biswa area and it was recorded as abadi in the revenue record, and that it was also stated by the lekhpal that plot No. 104 was not in possession of the Petitioner. Statement of lekhpal has been annexed as Annexure 1 to the writ petition. The tehsildar summoned the file of the earlier case also which had been decided on 23.08.1982 No. of which was case No. 302 of 1980. It is mentioned in the order passed by Tehsildar on 30.1.1990 that over plot Nos. 94 and 105 name of Petitioner was entered in the revenue record under Shreni -IV and plot No. 104 was recorded as Navin Parti and that in Khasra of 1393 fsli lekhpal had mentioned that in an area of 4 biswa 4 dhur of plot No. 104 wheat crop was sown and over plot No. 105 area 1 bigha 5 biswa crop of paddy and wheat was sown and over plot No. 94 area 15 biswa 17 dhur paddy and wheat was sown. 1393 fasli correspond to 1985-86 A.D. Tehsildar in his order further mentioned that in the earlier order passed by the Tehsildar in the year 1982 it had been mentioned that in plot No. 105 trees were standing and question of Petitioner''s title was involved therein still Petitioner did not file any regular suit for declaration of his title. Unfortunately copy of earlier order dated 23.08.1982 has not been annexed along with the writ petition. Section 122 B was amended by U.P. Act No. 20 of 1982 w.e.f. 03.06.1981. It appears that the earlier order of Tehsildar dated 23.8.1982 was passed without taking into consideration the amendment of the section.

Ultimately, Tehsildar through order dated 30.01.1990 directed eviction of the Petitioner and imposed damages of Rs. 10734/-. Against the said order Petitioner filed revision which was registered as case No. 193 of 1990 on the file of Additional collector Gyanpur, Varanasi. Revision was dismissed on 11.03.991, hence, this writ petition.

I do not find any error in the impugned orders. Earlier order of Tehsildar being passed in ignorance of amendment in Section 122-B of the Act is of no value.

However, Petitioner has contended that over an area of 4 biswa of plot No. 94 he has got his house.

I have held in Budhaee Vs. Collector, Assistant Collector/Tahsildar Khaga, Gram Sabha Sanwat and State of U.P., that if some one is in possession over a small piece of Gaon Sabha land since long and the land is not reserved for some important public purpose like pond, rasta etc. and the person in possession has constructed his house, then instead of demolition and eviction, award of reasonable damages is the proper relief. I have also held that if the possession is continuing since seventies or early eighties, measure of reasonable damages shall be Rs. 100/-per square yard, which was approximately the value of abadi land at that time in the villages of U.P. Accordingly, orders of eviction in respect of entire land in dispute except 4 biswa of plot No. 94 are confirmed. As far as 4 biswa land of plot No. 94 is concerned, the matter is remanded to Tehsildar, Gyanpur, District Varanasi who shall decide after making local inspection by himself as to whether Petitioner has got his house over the said area of the said plot since before 1986 when proceedings were initiated? If it is found that Petitioner''s house existed since before 1986 then the area actually occupied by the house or 4 biswa of plot No. 94 whichever is lesser shall be settled with the Petitioner on payment of damages/compensation at the rate of Rs. 100/-per sq. yard to be paid by the Petitioner for being kept in consolidated gaon fund constituted u/s 125-A of the Act. However, prior to that Petitioner shall surrender the entire remaining area and deposit awarded damages of Rs. 10,734/-otherwise no proceedings for settlement shall take place. Petitioner is directed to appear before the Tehsildar on 31.5.2011 alongwith certified copy of this judgment and detailed objections. However, prior to that he must surrender the remaining land and deposit the awarded amount. If before 31.5.2011 the remaining land is not surrendered and the damages of Rs. 10,734/-are not deposited then this writ petition shall be deemed to have been dismissed completely. The Tehsildar shall also determine the damages since the date of his order dated 30.1.1990 till the date on which Petitioner surrenders the possession of the remaining land and the same shall also be paid by the Petitioner failing which settlement shall not take place, even if it is found that Petitioner has got his house over 4 biswa of land of plot No. 94 prior to 1986.

Writ petition is accordingly disposed of.