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Uttarakhand High Court

Vijay Pal Singh And Others ... vs Gram Sabha Rahamatpur Pargana & Tehsil ... on 4 March, 2020

Author: Sharad Kumar Sharma

Bench: Sharad Kumar Sharma

        HIGH COURT OF UTTARAKHAND AT NAINITAL
                  Writ Petition No. 1243 of 2012 (M/S)

Vijay Pal Singh and others                                 ....Petitioners.
                                    Versus
Gram Sabha Rahamatpur Pargana & Tehsil Roorkee
District Hridwar                             .... Respondent.
Present :
Mr. M.S. Tyagi, Senior Advocate assisted by Mr. Rajneesh Chauhan, Advocate for the
petitioners.
Mrs. Anjali Bhargava, Advocate for the respondent.

                                                 Dated: 4th March, 2020
                                JUDGMENT

Hon'ble Sharad Kumar Sharma, J.

The inception of the proceeding, which is subject matter of consideration in the present Writ Petition, it was drawn as a consequence of the issuance of the notices Form ZA 49-Ka, as issued by Tehsildar / Assistant Collector under Rule 115-Gha, under the Rules as framed under Section 344 of the Z.A. & L.R. Act, as a consequence thereto, by the notice issued by the Tehsildar /Assistant Collector, the petitioners, herein, were held out to have un-authorisedly occupied the land lying in Khasra No. 175, having an area of 0.201 hectares, situated in Village Rahamatpur Pargana and Tehsil Roorkee, District Haridwar, which is a land, which is shown to have been vested with the Gaon Sabha under Section 117 of ZA & LR Act.

2. On receipt of the notices Form 2A 49 Ka, the petitioners had filed their objections on 10th August, 2004, contending thereof that as far as the land, in question, lying in Gata No.79 is concerned, the Gaon Sabha has got no concern at all because under Section 9 of the Z.A. & L.R. Act, the land lying in Gata No. 79, in question, and the property have been vested with the predecessors of the petitioners, i.e. their late father.

3. He further submitted in his objection, that over the land, in question, there exists Dev Esthal of the family of the petitioners. Apart from it, there are various other constructions, which have been raised. Besides this, there are various trees for example Jack Fruit, Bamboo, Lemon, Mulberry, Jamun, Guava, etc. which has been planted on it by them, hence, contended that the proceedings initiated by the issuance of the notice under Form 2A; 49-Ka under Rule 115 Gha was vitiated. Another ground, which was taken by the petitioners was to the effect that earlier too, there was an earlier proceeding initiated against them under Section 122-B of the Z.A & L.R. Act, by way of Case No. 5 of 1984, Gaon Sabha Vs. Bishan Lal, which was decided in favour of the petitioners and the notices issued in 2A Form No. 49-Ka, was withdrawn by an order dated 10th July, 1985, passed by Tehsildar and hence, it was contended that issuance of the subsequent notice 2A Form 49-Ka dated 19th June, 2004 would be vitiated, which is the foundation of proceedings held against them concurrently under Section 122-B of Z.A. & L.R. Act.

4. Based on the aforesaid objection and during the proceedings, which was held under Section 122-B of the Z.A. & L.R., the petitioners have also placed reliance on the statement, which has been recorded of the petitioners in the proceedings, which was held under Sections 34 and 35 of Land Revenue Act, 1901 to support their contention of their matured right to occupy the disputed land, which was vested with Gaon Sabha, which is a fact not denied by the petitioners.

5. The Court of Additional Tehsildar by the judgment dated 13th August, 2007, had affirmed the notice and as a consequence thereto, the petitioner was held to be an unauthorized occupant of the land, belonging to and vested with the Gaon Sabha under Section 117 of U.P. Z.A. & L.R. Act and the damages for wrongful user of Rs.20,000/- was imposed upon him and he was directed to be evicted from Khasra No.175, having an area of 0.201 hectares. It was further 3 held that the land, in question, over which, the proceedings under Section 122-B were held, it was recorded in Shreni 6 (2) of Land Record Manual.

6. The finding has been recorded that the proceedings under Section 122 B of U.P. Z.A. & L.R. Act was initiated was based on partali report dated 16.06.2004, which was submitted by Halka Lekhpal, affirming the unauthorized occupation of land belonging to Gaon Sabha. The Lekpal appeared and supported his report dated 16.06.2004, i.e. paper No. 12B. He further submitted that prior to submission of his report dated 16.06.2004, he had also considered the revenue records of the land, in question, i.e. khasra and khatauni and after paimaish has submitted the map, showing the land unauthorisedly occupied by petitioner by red colour ink. All these documents were made part of the report as exhibit. Further the Lekhpal was also cross examined by the petitioner in the proceedings held before Tehsildar.

7. Being aggrieved against the said judgment dated 13.08.2007, the petitioners had preferred a Revision as provided under Section 122-B (4E). The Revision, thus preferred by the petitioners, which was numbered as Revision No. 109 of 2006/07, Bishen Singh (deceased) and others Vs. Gaon Sabha, was decided by the Revisional Court of Collector on merits and he same has been dismissed by the Collector on 16.12.2010, affirming the finding with regard to the nature of the land and holding the petitioners as to be unauthorized occupant of the Gaon Sabha land. The Court of Collector in the impugned judgment dated 22nd May, 2012, has also taken into consideration the impact of the earlier proceedings, which was held under Section 122-B of the ZA & LR Act by way of Case No. 5 of 1984, against the predecessors of the petitioner.

8. In view of the aforesaid narration of facts, it reveals that twice the proceedings under Section 122-B of Z.A. & L.R., which is 4 summary in nature was held against the petitioners or their predecessors and any determination made therein will not confer any right or title to the petitioners over the disputed land, it is hereby provided that from the provisions contained under Section 122-B (4- D) of ZA & LR Act, it has laid down on the culmination of the proceedings under Section 122-B by the Revisional Court, which has been decided by way of Revision under Section 122-B (4-A), the remedy, which is available to the person concerned against whom the proceedings under Section 122 B has been decided is by way of filing of a regular suit for declaration of rights before the competent court of jurisdiction in order to establish their rights. The provision of Section 122-B (4-A) and (4-D) are quoted hereunder :-

"(4-A) Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the grounds mentioned in clauses (a) to (e) of Section 333.

......

(4-D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a court of competent jurisdiction to establish the right claimed by him in such property."

9. In view of the aforesaid statutory remedy available to the petitioners of preferring a regular suit for declaration, after the decision made under Section 122-B by Tehsildar as well as the Revisional Court's decision under Section 122-B (4-A), the petitioner has remedy of filing of a regular suit for declaration of his right as provided under Section 122B (4D) of U.P. Z.A. & L.R. Act.

10. In view of the aforesaid, the present Writ Petition lacks merit and the same is dismissed with liberty open to the petitioner to file his regular Suit before the competent Court, and if he does so 5 within a period of four weeks from today, the same would be determined on its own merits.

(Sharad Kumar Sharma, J.) 04.03.2020 Shiv