Saidul Rehman Khan vs Additioinal Collector and Others

Sibghat Ullah Khan, J.—This writ petition is directed against order dated 29.06.1991 passed by Additional Tehsildar/Assistant Collector, First Class, Sambhal, District Moradabad in Case No. 160, Gram Sabha v. Saidul Rehman Khan Khan u/s 122B of U.P.Z.A. and L.R. Act. The allegation against the Petitioner in the said case was that he had encroached upon Plot No. 242/378, area 0.51 acres belonging to Gram Sabha Takht Gosain. The Petitioner appeared in the said case and contended that he was in possession of the property in dispute for 35-40 years (proceedings had been initiated on the basis of report dated 09.03.1990 in which it was stated that the possession was for one year.) It was further contended that earlier also Gram Sabha had initiated proceedings with respect to the same land against the Petitioner under Rule 115-D of U.P.Z.A. and L.R. Rules, in the form of case No. 158 of 1976 which were dismissed and that the Petitioner had acquired right of bhumidhari. Petitioner only filed copy of the statement of lekhpal dated 23.02.1976 in earlier Case No. 158. It is also mentioned in the impugned order that counsel of the Petitioner contended that the land in dispute was included within the limits of Nagarpalika, hence action could be initiated only by Nagarpalika. Teshildar directed eviction of the Petitioner and imposed Rs. 2048/- as damages, penalty and expenses for execution. Against the said order Petitioner filed Revision No. 99 of 1991, which was dismissed by A.D.M. Administration, Sambhal, Moradabad on 28.02.1992. Said order has also been challenged through the writ petition.

In the revision Petitioner contended that Nagarpalika had granted some patta in his favour. No such plea had been taken before the Tehsildar either in the written statement or oral statement or even in arguments. It was also argued before the revisional Court that through notification dated 11.08.1954, the land had been included within the limits of Nagarpalika, Sambhal. Reference to the earlier case u/s 122B/Rule 115D of Z.A. and L.R. Act/Rules was also made before the revisional Court. The first point which revisional Court decided was in respect of inclusion of the land in dispute within the limits of Nagarpalika, Sambhal. The Collector found that in the certified copy of khasra of the village from 1381 to 1391 Fasli, there was overwriting in the entry against 1391 Fasli and in 1383 Fasli and 1384 Fasli khasras land in dispute was shown as parti and thereafter there was no entry. Revisional Court further held that from perusal of the copy of khasra filed by lekhpal, it was quite clear that land in dispute was included in the area of the Gram Sabha of the village concerned and Petitioner''s adverse possession was recorded therein. The Collector further held that from the notification dated 11.08.1954, it was clear that only part of land of village Takht Gosain was included in the Nagarpalika. Revisional Court also referred to the notification dated 15.07.1986 obtained from the Nagarpalika, Sambhal and mentioned that from the said notification it was clear that only following plot numbers of the village Takht Gosain were included in the territory of Nagarpalika, Sambhal:

235, 236, 237, 292 to 308 and 311 to 375

Revisional Court further held that in the written statement Petitioner nowhere alleged that Nagarpalika had executed patta in his favour and that copy of the alleged patta was never filed. With respect to the earlier case No. 158, the revisional Court held that copy of the judgment in the said case was not filed and only copy of statement of lekhpal given therein had been filed and it appeared that the said case related to some other land. The revisional Court opined that it appeared that earlier case had wrongly been filed by the Nagarpalika as the land in dispute did not belong to Nagarpalika and thereafter Nagarpalika withdrew the matter. In any case as copy of the earlier case was not filed, hence absolutely no benefit could be given to the Petitioner.

Writ Petition No. 17740 of 1992:

This writ petition also arises out of proceedings u/s 122B of U.P.Z.A. and L.R. Act. After serving notice in proforma 49 Ka, the case was registered against the Petitioner in the form of case No. 172 Gram Sabha v. Saidul Rehman Khan Village Takht Gusai. The said case was decided against the Petitioner on 23.06.1991 by Additional Assistant Collector Ist Class Sambhal District Moradabad, copy of the said judgment is Annexure 2 to the writ petition. Against the said order Petitioner filed revision No. 100 of 1991 which was dismissed by A.D.M. (Administration) Sambhal, Mooradabad on 28.02.1992, copy of the said judgment is Annexure 1 to the writ petition. Both these orders have been challenged through this writ petition.

The allegation against the Petitioner was that he had encroached upon following four gaon sabha plots total area of which was 4.53 acres [206(0.34), 207(1.91), 238(1.78), 279(0.50)]. The possession was alleged to be since 1375 fasli (1967-68). The proceedings were initiated on the report of lekhpal dated 05.05.1990. The case of the Petitioner was that Nagar Palika Sambhal had allotted the land in dispute to him through patta executed in 1968 and he was in possession over the same since then and that earlier also proceedings for eviction were taken against him under same section but they were dismissed. It was also stated that Petitioner had filed a suit u/s 229B of U.P.Z.A.L.R. (for declaration of right) against gaon sabha in the form of suit No. 79 of 1972. However, there was some technical defect in the said suit, hence, it was withdrawn from the Court of the Commissioner on 04.12.1973. It was further pleaded that earlier proceedings under Rule 115D of U.P.Z.A. and L.R. Rules in the form of case No. 158 of 1976 were initiated against the Petitioner in which lekhpal stated that Petitioner was in possession since much before and had acquired right. The name of the Petitioner was entered in Shreni-4 (unauthorised occupant) in the revenue record. Petitioner filed copy of statement of lekhpal dated 23.02.1976. The Courts below directed the eviction by rejecting the contention of Petitioner''s counsel that question of title was involved and further directed for payment of damages for two years amounting to Rs. 10246/-.

The main point argued before the revisional Court and decided by it was regarding the authority in which land in dispute vested or under whose control it was i.e. whether gram sabha or Nagar Palika. In this regard Petitioner had placed reliance upon a G.O. dated 11.08.1954 through which some land of village Takth gusain was included in the Sambhal Municipality. The revisional Court held that from perusal of the notification dated 15.07.1986 which was optained from the Nagar Palika Sambhal it was evident that only the following plots of Takth Gusai village were included in the Nagar Palika:

235 to 237, 292 to 308, 311 to 375.

In respect of earlier case under Rule 115 D, the revisional Court held that copy of the order was not filed. It is also mentioned that in a copy of Khatauni 1392-1397 fasli khatauni plot in dispute was shown to be beyond municipal limits and name of Saidul Rehman Khan was entered under Shreni 4 and according to Khasra of 1397 fasli crops had been grown therein. It is also mentioned in the order of revisional Court that Petitioner raised the plea that he had filed some suit for declaration before S.D.O. However, the prayer for staying the proceedings on the ground of pendency of suit was rejected. Annexure 4 to the writ petition is copy of objection filed by the Petitioner before the Tehsildar in para 2 of which it was stated that patta was executed by Nagar Palika in 1968.

The further case of the Petitioner is that Petitioner filed suit u/s 229B of U.P. Z.A. and L.R. Act on 05.02.1992 which abated due to start of consolidation in the area in question and thereafter Petitioner filed objection before the Consolidation Officer which were rejected on 15.10.2005. On appeal Settlement Officer of Consolidation remanded the matter. Against that order revision was filed which was allowed on 18.02.2008 and Petitioner was declared to be bhumidhar of the plots in dispute in both these writ petitions. Against the order dated 18.02.2008 passed by Deputy Director of Consolidation, Moradabad in revision No. 325 Nagar Palika, Shambhal has filed writ petition No. 20341 of 2008 which is pending.

Orders passed u/s 122B of U.P. Z.A. and L.R. Act are subject to the result of the regular suit which term includes objections before Consolidation Officer. The matter has been decided in favour of the Petitioner by the D.D.C. which is subjudice in this Court.

Accordingly, both these writ petitions are disposed of with the direction that the judgment and order passed in writ petition No. 20341 of 2008 shall have overriding effect over the judgments challenged through these writ petitions. As at present the judgment and order passed by the D.D.C. is in favour of the Petitioner, hence impugned orders shall not be given effect. However, in case, in the writ petition the matter is decided against the Petitioner then he shall be evicted.