Allahabad High Court
Ram Vilash vs Gaon Sabha Tilshri Bujurg Through ... on 16 July, 2019
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 54 Case :- WRIT - C No. - 20134 of 2015 Petitioner :- Ram Vilash Respondent :- Gaon Sabha Tilshri Bujurg Through Pradhan Bujurg And 2 Ors Counsel for Petitioner :- Abhinava Krishna Counsel for Respondent :- C.S.C.,Brij Kuamr Yadav Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. By means of present writ petition, the petitioner has questioned the order dated 30th March, 2013 passed by the Tehsildar exercising power 122B U.P. Zamindari Abolition and Land Reforms Act, 1950 whereby the petitioners prayer for settlement over the land in question under section 122B (4F)of has been rejected. The petitioner preferred revision and the revision has also been dismissed by the Collecotr/District Judge, Kanpur Nagar vide order dated 26th March, 2015.
3. The argument advanced by the learned counsel for the petitioner is that findings returned by the Tehsildar in declining the benefit of the petitioner under section 122B (4F) of the U.P. is perverse and in support of this, learned counsel for the petitioner has drawn the attention of this Court towards notice dated 49-A whereby petitioner vide clause 8 was found to be in an unauthorized possession in the year 1409 fasli i.e. 2002. Thus, it is argued that findings returned by the Tehsildar that petitioner has not been able to place any evidence to show his possession over the land in question on the cut off date is liable to be held as perverse.
4. Per contra, learned Standing Counsel submits that petitioner having been found to be in an unauthorized possession over Gaon Sabha land, the proceedings were rightly initiated under section 122 B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and justifies the order passed by the authority concerned for the reasons assigned therein.
5. Having heard learned counsel for the petitioner and their arguments across the bar and having perused the record, I find that not only notice contains unauthorized possession of the petitioner in respect of the land in question in 1409 fasli but the very recitals in the notice issued by the Tehsildar is that he is satisfied that petitioner was in an unauthorized possession of Gaon Sabha land. The contention therefore, advanced by learned counsel for the petitioner is worth considering that once proceedings have been initiated under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 , it was out of question for the competent authority to hold otherwise that petitioner failed to prove his possession I find further that there is admission in the argument of learned standing Counsel that proceedings have been instituted on the basis of unauthorized possession under Section 122B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and therefore I am of the considered opinion that Tehsildar was certainly not justified in holding that petitioner had failed to show any evidence in support of his possession over the land in question.
6. Besides above, I find further that Collector/District Magistrate has simply concurred with findings of Tehsildar and has proceeded to record a finding that petitioner was having already land to the extent of 9 biswa as bhumidhar and so he could not be given benefit of settlement under Section 122B (4F) of U.P. Zamindari Abolition and Land Reforms Act, 1950. This Court fails to understand as to how two different findings can be recorded by the two authorities but surprisingly it has been done. While Tehsildar held that petitioner has never been found in any possession and yet he initiated proceedings under Section 122B of U.P. Zamindari Abolition and Land Reforms Act, 1950 and, the Collector on the other hand held that petitioner cannot be held settled with land on account of having land as bhumidhar, so virtually he has held the petitoner in an unauthroized possession.
7. In view of the fact that petitioner was not found in possession by the Tehsildar the question, therefore, is whether proceedings could have been initiated under section 122 B of U.P. Zamindari Abolition and Land Reforms Act, 1950 at all . The question of settlement of land and benefit under Section 122B of (4F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 will arise only later .
8. In view of above orders passed by the Tehsildar dated 30th March, 2013 and that of the Collector dated 26th march, 2015 are quashed. It is left open for the respondent to initiate proceedings in accordance with law and further the petitioner is also at liberty to move appropriate application showing its eligibility and settlement over land with him under Section 122B (4F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 if he wants to set up such claim.
9. The writ petition is allowed with the aforesaid observations and directions.
Order Date :- 16.7.2019 Sanjeev