Nisar Ahmad vs Collector and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the Petitioner and learned standing counsel for the Respondents.

This writ petition is directed against orders passed u/s 122 B of U.P.Z.A.L.R. Act against the Petitioner. The first order was passed on 30.03.1996 by Tehsildar Fatehpur in case No. 48 of 1995. The land in dispute is situate in Mauza Lalula Pargana Mustar Tehsil and District Fatehpur and is abadi land (as mentioned in the report of Lekhpal dated 01.08.1995 Annexure VI to the writ petition). The allegation against the Petitioner was that he had encroached upon an area of 450 sq. feet (50 sq. yard) of gaon sabha plot No. 845. The Tehsildar directed eviction and also imposed damages of Rs. 50,000/-. The damages on the fact of it are extremely exorbitant and without any basis. Against this order Petitioner filed revision. The revision was registered as case No. 53 of 1996 and was dismissed by Collector Fatehpur on 14.11.1996 hence this writ petition.

The main argument of learned Counsel for the Petitioner is that the judgment in an earlier suit filed by gaon sabha for eviction against the Petitioner''s father (O.S. No. 76 of 1969) decided on 29.11.1971 by Munsif Fatehpur, copy of which is Annexure 1 to the writ petition operates as res judicata and the proceedings in question were barred. In the judgment of the suit it was held that even though the land beneath the shop in dispute belonged to the gaon sabha however Rs. 5000/-had been spent by the Petitioner''s father in the year 1967 for constructing the pucca shop. It was further mentioned in the said judgment that P.W. 1 and D.W. 1 had agreed that Defendant i.e. father of the Petitioner would pay Rs. 3/-per month rent to the gaon sabha w.e.f. 01.12.1971. Accordingly, the suit for eviction was dismissed and Petitioner''s father was treated to be tenant and directed to pay Rs. 3/- per month as rent. In respect of said judgment Tehsildar held that firstly that payment of rent in accordance with the said judgment was not proved and secondly there was no resolution of gaon sabha for letting out the shop to the Petitioner. If the rent was not paid then suit for eviction on the ground of default could be filed but the Tehsildar could not question the correctness of the judgment of Munsif dated 29.11.1971. However, the fact is that Petitioner''s shop is in existence since before 1969.

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.

Learned Counsel for the Petitioner on the suggestion of the Court categorically states that Petitioner is ready to pay Rs. 25000/-(half of the awarded damages) in lieu of settlement of the land in dispute with him.

Accordingly, both the impugned orders are set aside and substituted by a direction to the Petitioner to deposit Rs. 25000/-within six months before the Collector to be kept in consolidated Gaon Sabha fund constituted u/s 125A of U.P.Z.A.L.R. Act. On the deposit of the aforesaid amount during the aforesaid period land in dispute shall stand permanently settled with the Petitioner. However Petitioner shall not sell the same for five years. In case the aforesaid amount is not deposited within the aforesaid period then this writ petition shall be deemed to have been dismissed.

Writ petition is accordingly disposed of.