Court No. - 54
Case :- WRIT - C No. - 21918 of 2015 Petitioner :- Bhagwan Singh Respondent :- Collector D.M. Kanpur Nagar And 2 Ors.
Counsel for Petitioner :- S.S. Sengar Counsel for Respondent :- C.S.C.,Brij Kumar Yadav
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the petitioner and Sri Abhishek Srivastava, learned Additional Chief Standing Counsel for the respondents.
2. The matter arises out of proceedings under Section 122B of U.P. Zamidari Abolition and Land Reforms Act.
3. The petitioner claims that original lease was given to his father by the Goan Sabha on 26th January, 1973 and a copy whereof was filed by the petitioner along with objection to the notice issued under Section 122-B of the U.P. Zamidari Abolition and Land Reforms Act. However, from the perusal of the order dated 14.2.2014 passed by the Tehsildar, I find that there is no consideration of the objection of the petitioner which was accompanied by a copy of the lease. If the lease was forged and fraudulent one or was not admissible in law, the petitioner should have been granted time to furnish original receipt of the premium paid against the lease and it has come on record after inspection that the petitioner has already constructed his house. Nowhere it is pointed out in the report that how old is the house and, therefore, the presumption would be if the petitioner's father had been granted lease and so he rightly raised his constructions.
4. In the counter affidavit it has been stated in para-4 that there was an admission that the petitioner's father was granted lease and in paragraph-7 it has come to be averred that if petitioner's father was granted lease, the petitioner could not have been in possession since 1973.
5. In the first spot memo which was prepared by revenue official wherein it has come that the applicant-petitioner has failed to produce the lease. It has also come in spot memo that there is constructed house by Bhagwan Singh whereas in another report submitted by the Tehsildar dated 26.11.2014, it has come that there is constructed house by Bhagwan Singh over portion of plot no. 477 which is recorded as Naveen Parti and the rest of the area is being utilized by the present petitioner virtually as a part of his house but the land according to the report is of Goan Sabha.
6. It appears that the proceedings have come to be instituted against the petitioner for his eviction from unauthorized possession on the ground that the land continued to be recorded as Naveen Parti but the issue remains to be answered that the petitioner's father was given residential lease and house has been constructed. Unless and until a cogent and convincing finding of fact is returned that there is fraud played by the petitioner in forging the document of lease or premium receipt, it cannot be said that the petitioner is in unauthorized possession. The lease granted to the petitioner's father for the construction of house shall automatically stood succeeded by his son or legal heir and in this case the petitioner. Further I find that in case if the land is continued to be recorded as Naveen Parti and the house, at the same time, continued to exist on the spot, it is necessary for the Goan Sabha to verify as to whether any residential lease was granted or not and if any residential lease was granted why the revenue record has not been corrected.
7. In such circumstances, therefore, I do not find the petitioner's possession over the land in question is an unauthorized one. Accordingly the orders dated 14.2.2014 passed by the Tehsildar and the order dated 29.11.2014 passed by the Collector, Kanpur Nagar cannot be sustained and are hereby quashed. However, it is left open for the Goan Sabha to verify from the records that in case the lease was granted in the year 1973 and if the premium receipt in possession of the petitioner was genuine one, it shall accordingly proceed to change the revenue record in accordance with law.
8. With the aforesaid observations and directions the writ petitioner stands disposed of.
Order Date :- 31.7.2019 Nadeem Ahmad