Puran and Another vs Collector and Others

S.P. Srivastava, J.—List has been revised. No body has appeared on behalf of the Gaon Sabha. A counter-affidavit has been filed by the Gaon Sabha. Heard learned Counsel for the Petitioner.

The Petitioner has filed the present writ petition under Article 226 of the Constitution of India for quashing the order dated 29.10.83 passed by the Assistant Collector and the order dated 22.11.83 passed by the Collector, Muzaffarnagar.

The brief facts are that on a report of the Lekhpal, proceedings were initiated against the Petitioners u/s 122B of the U.P. Imposition of Ceiling on Land Holdings Act in respect of plot No. 445 measuring 5 biswas 1 biswansi and plot No. 451M measuring 1 biswa which was recorded in the paper as Khalihan and rasta. The Petitioners filed objection to, the effect that they have taken plot No. 724/1 measuring 35 yards East-West and 22 yards in North-South from Zamindar on 25.8.47 for construction of house after paying Rs. 25 as Nazrana and are in possession since then. His contention was that plot No. 724/1 was given to the Gaon Sabha under the consolidation proceeding but it was wrongly mentioned as plot No. 445 in the revenue record. Plot No. 451 is rasta but the Petitioners have neither made any encroachment on rasta nor on the land used for Khalihan. The Petitioners have also contended that besides other evidence they also applied before the Tahsildar that spot inspection may be made to verify this fact that the Petitioners have not encroached any rasta or Khalihan but neither the Tahsildar nor the revisional authority made any spot inspection or got the land surveyed and they decided the proceedings without making spot inspection. His contention is that the land on which the Petitioners have made construction is the land which they got from Zamindar and the same is not a land of public utility. Therefore, the entire proceeding is vitiated in law.

Counter-affidavit has been filed on behalf of the Gaon Sabha. In counter-affidavit it is stated that the Petitioners have illegally occupied the land which was reserved for Khalihan and rasta in a proceeding under Consolidation of Holding, Act.

From the judgment of the Tahsildar it is apparent that it has been held by Tahsildar that plot No. 724/1 was settled by Zamindar in favour of the Petitioners on 29.8.47 but the finding of the Tahsildar is that its old number was 450 and not 445 or 451. Since there is no proceeding for eviction of old plot No. 450, the contention or the Petitioners is not correct. He accordingly passed an order of eviction from 5 biswas 1 biswansi area in plot No. 445 and 1 biswas area in plot No. 451M, treating these plots as Khalihan and rasta and awarded damages of Rs. 220. Aggrieved by the order of Tahsildar a revision was filed. The revisional court also affirmed the same finding.

A bare perusal of the order of revisional authority would show that it has mentioned that application for spot inspection was filed and prayer for measurement was made, but the revisional authority placed reliance on the report of Lekhpal and did not permit to make spot inspection by the Tahsildar.

After hearing learned Counsel for the Petitioner and after going through the record and counter-affidavit I am of the view that if it was admitted that the Petitioners got some land from Zamindar in 1947 and raised construction and in the meantime consolidation intervened in which old plots were given new numbers then it was incumbent on the part of the Tahsildar to have ascertained as to whether the Petitioner has occupied the land which was allotted to him or he has made encroachment over some extra land other than the land allotted to him and a survey was to be made by the Tahsildar before the order for ejectment from the plots in question. As the Petitioners have specifically asserted that they have not occupied the land ear-marked for Khalihan or rasta. If for that purpose an application was also filed, the Tahsildar should have inspected and got the land measured from the fixed point so that a demarcation could have been made on the spot to fix the identity of the plot received by the Petitioners from Zamindar in 1947 and the land ear-marked for Khalihan and rasta. Since this has not been done and the Petitioners have been evicted on the basis of revenue entries, I find the order of the revisional authority as well as the order of the Tahsildar are liable to be quashed.

From the perusal of the judgment and the averment made in the writ petition it is apparent that the disputed question of title was involved in this case as the Petitioners have placed reliance on certain documents executed in 1947, therefore, in such a summary proceeding, their ejectment should not have been made without fixing identity of the plots in question. Therefore, I allow the writ petition and set aside the order dated 22.11.83 passed by the Collector and that of the order dated 29.10.83 passed by the Assistant Collector (Tahsildar) and remand the case to the Tahsildar with a direction to get the plots of the Petitioners which were allotted to them by Zamindar measured on scale with the help of Settlement map and then to proceed with the case after fixing the identification and if it is found after measurement that the Petitioners have not made any encroachment on land other than the land which was allotted to them, the proceeding initiated against them should be dropped.

With the aforesaid observations, the writ petition is disposed of finally.