Ram Bihari Dwivedi vs State of U.P.

Anjani Kumar Mishra, J.—Heard learned counsel for the parties.

Writ petition No. 39448 of 2016 was filed alleging that an order passed against the respondents 7 and 8, namely Uma Shanker and Lal Mani sons of Kunj Bihari, in proceedings under Section 122B of the U.P. Zamindari Abolition and Land Reforms Act, had not been implemented on the spot.

Learned Standing Counsel was directed to obtain instructions. The instructions received were to the effect that the order of eviction could not be implemented on the spot on account of pendency of writ petition No. 37953 of 2006 and the interim order granted therein.

Consequently, the record of writ petition No. 37953 of 2006 was also summoned and examined and the parties were heard.

The facts in writ petition No. 37953 of 2006, briefly stated are that proceedings under Section 122B of the Act were instituted against Uma Shanker and Lal Mani sons of Kunj Bihari, on the ground that they had encroached upon plot No. 675 recorded as Navin Parti and reserved for Harijan abadi.

The petitioners were found to be in unauthorized occupation and their ejectment was ordered.

The petitioners approached this Court by means of writ petition No. 34568 of 2003, which was disposed of, vide order dated 14.08.2003. This order records that the case of the petitioners was that their constructions exist on adjoining plot No. 677, which is their land and that the order of eviction has been passed without any proper measurement having been made on the spot.

The matter was therefore remanded back to the revisional Court to measure and demarcate plot No. 675 to ascertain as to whether the offending constructions raised by the petitioners exist in plot No. 675.

In pursuance of the directions contained in the order of the remand aforesaid, a report of an alleged demarcation was submitted by the Naib Tehsildar on 15.01.2004. Relying upon it, the revisional Court dismissed the revision and affirmed the order of eviction. The instant writ petition has been filed challenging this revisional order.

When the matter came up for admission, time was granted for filing counter affidavit and an order of status quo was passed. It would be relevant to note that no counter affidavit has been filed in the instant writ petition.

The allegation in the writ petition and the contention of learned counsel for the petitioner is that the demarcation report and the map annexed thereto, which have been brought on record by a supplementary affidavit, do not disclose the fixed points, on the basis of which, the demarcation was made.

It is contended that there can be no legal demarcation unless and until the same is made on the basis of two fixed points. Neither the report nor the map annexed thereto, refer to any fixed point. Even the map contains no measurements recorded therein.

On the basis of the above facts, it has been submitted that the report and the alleged demarcation was not in accordance with law and, therefore, could not be made the basis of the order directing eviction of the petitioners.

Although, counsel appearing for the respondents have tried to justify the order as also the report and map submitted by the Naib Tehsildar, this Court finds substance in the contention of learned counsel for the petitioner.

It is settled law that a valid survey must necessarily be made on the basis of fixed points. No fixed points are mentioned either in the report or in the map prepared after the alleged survey. Moreover, the map does not contain any measurements. The report therefore was not in accordance with law and could not be the basis of the impugned order.

Accordingly, I set aside the impugned order dated 02.06.2006 and remand the matter back to the revisional Court, the Chief Revenue Officer to ensure that a proper survey is conducted on the basis of fixed points and after recording the measurements made during the survey, in the map.

Once such a report is submitted, the revisional Court shall decide the revision afresh on its basis, after affording opportunity of hearing to all the parties.

It is further provided that this exercise may be completed within a period of three months from the date, a certified copy of this order is filed before the Chief Revenue Officer.

Since the revisional order has been set aside and the matter has been remanded back, no mandamus, as has been prayed for in writ petition No. 39448 of 2016, can be issued.

The writ petition No. 39448 of 2016 is therefore, dismissed.

Writ petition No. 37953 of 2006 is allowed and the matter is remanded to the Chief Revenue Officer to proceed in accordance with the directions contained in the body of the judgment.