Uma Shanker Parashar vs State of U.P.and Others

M. C. Agarwal, J.—By this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated 7th October, 1985, passed by the Additional Collector (Admn.) Aligarh, in a revision petition whereby he purports to have allowed a revision petition preferred by the Gaon Sabha of (village Lampur under Section 122B (4A) of the U.P. Zamindari Abolition and Land Reforms Act and setting aside the order passed by the SubDivisional Magistrate, has remitted the matter back to him for fresh disposal.

Counter and rejoinder affidavits have been exchanged.

I have heard Miss Madhu Tandon, Advocate, holding the brief from Sri G. N. Verma, Advocate, Counsel for the petitioner, and Sri P. N. Saxena, learned Counsel for the Gaon Sabha, respondent No. 2 and the learned Standing Counsel for the respondent Nos. 1,3 and 4.

On behalf of the Gaon Sabha, the village Lekhpal who is the Secretary of the Land Management Committee, made a report dated 29th February, 1980, claiming that the present petitioner had illegally occupied Gaon Sabha land consisting of Plot Nos. 258/1 (measuring 14 biswas), 259/1 (measuring 1 bigha 10 biswas), 267/1 (measuring 10 biswas), 287/1 (measuring 10 biswas), 290 (measuring 6 biswas), 292 (measuring 1 bigha 7 biswas), 297 (measuring 1 biswa), 298/1 (measuring 1 biswa) and 302/2 (measuring 2 biswas). Thereupon, a notice in Form 49K prescribed under the U.P. Zamindari Abolition and Land Reforms Rules was issued to the petitioner who contested the proceedings alleging that the land in question was not Gaon Sabha property and was owned by him. He gave details how he had acquired the said land and was in possession thereof for a long time. It was claimed that the disputed land was acquired by his father and wife from one Swadeshi Bima Company and others by various saledeeds and he is in possession thereof since the date of purchase. According to him, 60 bighas of land was purchased by the said Swadeshi Bima Company in 1941 for establishing a residential colony and it had sold residential plots to various persons. It was stated that some 23 years ago, there were consolidation operations in the village and by an order dated 20th April, 1978, the consolidation authorities treated the disputed land as abadi land and the ownership of the Gaon Sabha thereon was not accepted. It was also alleged that previously several proceedings under Rule 115C and Section 209 of the U.P. Zamindari Abolition and Land Reforms Act were initiated by the Gaon Sabha and the Nagar Palika which all terminated in favour of the petitioner.

The learned SubDivisional Magistrate discharged the notice issued to the petitioner by order dated 29th April, 1985, holding that the disputed land was situate within the territorial limits of the Municipal Board, Aligarh, and was abadi land over which the Gaon Sabha had no right. He also held that proceedings under Section 122B of the U.P. Zamindari Abolition and Land Reforms Act are of a summary nature and a disputed question of title cannot be decided and the Gaon Sabha can seek its remedy in a competent Court.

Aggrieved by the said order, the Gaon Sabha preferred a revision petition before the Collector which came to be decided by the Additional Collector (Admn.). The Additional Collector observed that an important question of title was involved in the case and the respondent (now petitioner) was asserting a title. According to him both the parties have been litigating about the land in various courts, but they not taken the matter seriously. He also observed that both the parties are cantankerous and litigious and have no interest in getting the question of title determined. The Additional Collector stated that Uma Shanker, the present petitioner, was neither getting the entries made in the revenue records corrected nor was he approaching the civil court for a conclusive order. He went on to observe that where there was a bona fide question of title involved in the case then proceedings under Section 122B of the Act should not be undertaken. He referred to some judgment in Civil Misc.

Writ No. 8016 of 1983, Dineshwar Singh v. Gaon Sabha, in which this Court is stated to have ordered that in such a situation the appropriate relief should be obtained from a civil court. Having observed as aforesaid, the learned Additional Collector setaside the order passed by the SubDivisional Magistrate and directed him to redecide the matter afresh in accordance with law. It is against this order passed by the Additional Collector that the petitioner is aggrieved and has filed this petition.

Miss Madhu Tandon, learned Counsel for the petitioner, contended that this was the fifth time that proceedings for eviction of the petitioner had been initiated and on all the four earlier occasions, the proceedings ended in favour of the petitioner Uma Shankar Parashar and that the present proceedings under Section 122B of the U.P. Zamindari Abolition and Land Reforms Act were a misuse of the legal process and there was no justification for the Additional Collector to have remanded the matter back to the SubDivisional Magistrate who had recorded a categorical finding that the land was situated within the municipal limits and did not vest in the Gaon Sabha.

The history of litigation has been stated in the writ petition in paragraphs 7 to 22 relating to all proceedings including suit No. 18 of 197172 filed under Section 209 of the Act and another suit No. 201 of 1978 filed by the Gaon Sabha.

In its counteraffidavit, the Gaon Sabha has made a vague denial by stating that the cases related to some other land and that the suits were not filed by competent persons on behalf of the Gaon Sabha. No document whatsoever has been annexed to the counteraffidavit to show that the proceedings related to different land. The change of the plot numbers in the present proceedings was explained by the petitioner by alleging that the numbers changed during the recent consolidation proceedings.

The fact remains that the learned SubDivisional Magistrate as well as the Additional Collector have held that the previous litigations were about the same land. That finding has not been challenged by any one in the present proceedings. The learned SubDivisional Magistrate had also held that the land in suit was situate within the territorial limits of the Nagar Palika, Aligarh, and had not vested in the Gaon Sabha. The learned Additional Collector has not reversed this finding nor has he held that prima facie there was any material to show that the land belonged to the Gaon Sabha. He has himself referred to the legal position that a bona fide dispute of title cannot be decided in proceedings under Section 122B of the U.P. Zamindari Abolition and Land Reforms Act. He has also referred to a judgment of this Court in which this Court directed the losing party to approach the Civil Court for appropriate relief. In the present case, the Gaon Sabha had lost before the SubDivisional Magistrate and, therefore, it is the Gaon Sabha which should have taken appropriate proceedings for establishment of its title and eviction of the alleged trespasser in a competent Civil Court. Uma Shanker, the petitioner, having been able to establish his possession and having been able to show that the land did not vest in the Gaon Sabha could not be reasonably expected to knock the doors of a civil court for establishing his title. Therefore, the action of the learned Additional Collector in setting aside the order passed by the SubDivisional Magistrate and directing him to decide the matter afresh is legally erroneous and is against the Additional Collector''s own observations that in such cases, the aggrieved party should approach a regular court of competent jurisdiction.

For the above reasons writ petition is allowed and impugned order dated 7th October, 1985, cannot be sustained and is hereby quashed. The revision petition of the Gaon Sabha shall stand dismissed. The parties will, however, bear their own costs.

Revision dismissed.