Raja Ram & Another vs State Of U.P. And & 3 Others

Heard Sri Ram Kirti Singh for the petitioners, Standing Counsel for State of U.P. and Sri Manoj Kumar Yadav for Gram Panchayat.

This writ petition has been filed against the orders of Assistant Collector dated 4.9.2015 and 6.8.2016, passed in the proceeding u/s 122-B of U.P. Act No. 1 of 1951 and the order of Collector dated 23.3.2017, dismissing the revision of the petitioner against the aforesaid order.

On the report of Tahsildar that the petitioner had encroached over an area of 0.007 hectare of plot no. 213, which is land of chak road, proceeding u/s 122-B of the Act was initiated against the petitioner. The petitioner filed objection to the notice, in which, he has stated that plot no. 214 was his abadi land and was left as chak out during consolidation. His abadi as well as boundary in plot no. 214, is existing on the spot since before the consolidation operation in the village. Plot no. 215 is the land of pokhri, which is private pokhri of the petitioner. On the spot, area of plot nos. 214 and 215, both are less than their recorded area. Allegation that the petitioner has encroached upon plot no. 213, which is chak road land, is incorrect. However, without conducting any survey, initially an ex parte order for ejectment of the petitioner was passed on 4.9.2015. The petitioner filed a review application against the aforesaid order. Thereafter, the Assistant Collector by order dated 6.8.2016, rejected the review application of the petitioner. The petitioner challenged the aforesaid order in revision before the Collector, which was heard by Chief Revenue Officer, who by order dated 23.3.2017 dismissed the revision of the petitioner. Hence, this writ petition has been filed.

I have considered the arguments of counsel for the parties and examined the record. The petitioner has filed copy of CH Form 41 prepared during consolidation operation, a perusal of which, shows that plot no. 213, area 0.014 hectare was carved out from old plot no. 63, while, plot no. 214, area 0.130 hectare was carved out from old plot no. 69 and plot no. 215, area 0.016 hectare was carved out from old plot no. 62/1. According to the petitioner, at present, the area of plot no. 214 on the spot, is 0.125 hectare, while at present, area of plot no. 215 on the spot is 0.011 hectare. According to the petitioner, an area of 0.5 hectare is less in both the plots, i.e. plot nos. 214 and 215.

In the facts of the case, the writ petition is disposed of directing the Assistant Collector to conduct a survey, before taking possession on the spot over the land in dispute, in pursuance of his order dated 4.9.2015. In case in the survey report, the petitioner is found to be in possession over plot no. 213, then, the Assistant Collector shall give a notice to the petitioner and opportunity to file objection, as well as evidence against the survey report and after hearing him, he may pass a fresh order, in accordance with law. He can also modify his order relating to imposition of fine. The orders dated 4.9.2015 and 23.3.2017 shall be abided by the fresh order so passed by Assistant Collector.