Uttarakhand High Court
Naim vs Collector Haridwar And Another on 21 August, 2017
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 2497 of 2007
Naim .............Petitioner
Versus
Collector and Another .......... Respondents
Present: Mr. Mahavir S. Tyagi, Advocate for the petitioner.
Mr. J.S. Bisht, Brief Holder for the State.
Hon'ble Sharad Kumar Sharma, J. (Oral)
The petitioner has questioned the Order dated 30.09.2003, as well as, the judgment dated 27.10.2007 passed by the Collector while exercising his powers under Section 122-B(4)A of U.P.Z.A. & L.R. Act, 1950.
2. Brief facts leading to filing the writ petition are that the petitioner was issued with the notices 49 Ka under Rule 114D alleging thereof that he has encroached upon a land which has been vested in the Gaon Sabha and recorded as johar in shreni no. 6(1) lying in khasra No. 493 having a total area of 100 sq. meter.
3. The length of his occupancy and chauhheti has also been depicted in the notice issued 49 Ka. The petitioner filed his reply on 07.10.2002 and the Court of Assistant Collector/ Tehsildar while adjudicating case No. 97 of 2001-2002 rejected the objection and affirmed the notice directing eviction of the petitioner from the land in question and imposing the damages of Rs. 5,000/- along with minor expenses.
24. Against this order, a revision was preferred which was numbered as Revision No. 72 of 2003-04 which has been dismissed by the judgment dated 27.10.2007. Under Section 122-B for the purposes of initiation of the proceedings which are summary in nature a report is called upon and based on the report once it is determined by the Committee that a person occupying the land which is vested in Gaon Sabha is an unauthorized occupation the proceedings under Section 122-B for eviction are initiated.
5. The basic ingredients required for initiating the proceedings is that it has to be the land vested. Vesting of land under U.P.Z.A. & L.R. Act is provided under Section 117 where under sub Clause (vi) of sub Section (1) of Section 117 tanks, ponds, private ferries, water channels, pathways and abadi site are deemed to be the properties which are vested in the Gaon Sabha so far as from that point of view is concerned, there is no anomaly in the notice 49 ka as issued against the petitioner.
6. The contention of the learned counsel for the petitioner before the Assistant Collector in his objection was that the notice was defective because no chauhheti was defined though on reading the notice the specific prescient of khasra no. 493 which he is alleged to have been occupying since 1409 fasli has been deciphered. The Court of Assistant Collector considered the stand taken by the petitioner that he is in possession right from the time of its ancestors and he claimed 3 that with the enforcement of the U.P.Z.A. & L.R. Act, he has acquired his right over the property in question as "bhumidar".
7. Another argument which has been extended by the learned counsel for the petitioner is that in response to the argument given by the respondent's counsel that according to the khatauni which is annexed as annexure no. 2 to the counter affidavit, khasra no. 493 is shown to having an area of 1.5880 hectare and recorded as shreni 1-ka land though in column para no. 7 to 12 partially it record as "abadi".
8. Mr. M.S. Tyagi, learned counsel for the petitioner has placed reliance on khatauni which is annexed as annexure 4 to the writ petition and as per his argument, he submitted that total khasra no. 493 is not "abadi". Some minor portion of it of 0.102 hectare is recorded as "abadi" and the remaining 1.486 hectare is recorded as johar as the finding pertaining to his possession over the land recorded as johar has been concurrently decided by both the courts below.
9. This Court cannot ignore the fact that legally the proceedings under Section 122-B, they are summary in nature because that stage of proceedings under Section 122-B, there is no detailed scrutiny of rights, determination of evidence and the impact of the evidence on the rights claimed by the parties. Thus, the legislature in its wisdom of Section 122-B (4-D) has provided that once against order passed under Section 122B revision has been preferred under Section 122B (4-A), then the person aggrieved against the order of Collector or the Assistant 4 Collector may file a suit in the court of competent jurisdiction to establish his "rights claimed by him in the property", this Court feels that since the proceedings which has culminated by way of revision being summary in nature, where the person against whom the notice under Rule 49 ka is issued, claims right over property, claims a title, may it be by whatsoever reasons he has to establish the same before the regular proceedings by filing a regular Suit because any of the findings recorded under Section 122B will not be a finding of title. It will only be a finding of possession of the person to whom the notice has been issued.
10. In that view of the matter, reserving the right of the petitioner to invoke an appropriate proceedings by way of filing of a suit for declaration, this Court feels that the writ petition against the concurrent finding of facts pertaining to the possession and that too arising from the summary proceedings do not require any interference and the same is dismissed.
11. This Court feels that though the impugned orders are upheld, but since both the orders are silent with regards to the manner of calculation of the damages in relation to the length of occupation since 1409 fasli, this Court taking a lenient view waives off the damages imposed against the petitioner.
(Sharad Kumar Sharma, J.) 21.08.2017 Mahinder/