This petition questions the correctness of the order dated 7th July, 2011 passed by the respondent no.3 under the provisions of Section 122-B of the U.P. Z.A. & L.R. Act and the subsequent order dated 5.8.2011 passed in revision by the Collector holding that the petitioner-institution has encroached upon public utility land affirming the order of the respondent no.3.
The background in which the dispute arose is that the petitioner-institution claimed itself to be in existence prior to the abolition of Zamindari and enforcement of the U.P. Z.A. & L.R. Act, 1950. The land, over which encroachment is alleged, is a Bungalow standing thereon together with a connecting road which is in the shape of a passage for the school numbered as Plot nos. 612 and 625 respectively. The revenue records indicate that it is recorded as a Bungalow and pathway. The Sub Divisional Magistrate of the area concerned, namely, respondent no.3 passed an order on 25th February, 2011 calling upon the petitioner to remove its possession from the said plots within three days failing which the possession was to be removed and expenses to be recovered as arrears of land revenue.
The petitioner-institution which is being run in the said premises faced with this terse order rushed up to this court by filing Civil Misc. Writ Petition No. 14222 of 2011 in which the following judgment was delivered on 30.3.2011 allowing the writ petition:-
"Heard learned counsel for the petitioners and the learned Standing Counsel.
By this petition, petitioners have prayed for quashing the order dated 25/2/2011, passed by the Sub Divisional Officer, by which the Sub Divisional Officer has directed the petitioners to remove their possession from Plot Nos. 612 and 625 within three days failing which the possession shall be removed and expenses shall be recovered as arrears of land revenue.
Learned counsel for the petitioners submits that the petitioners' institution is running since long and in the year 1996 it was also given grant-in-aid. He submits that by the impugned order passed by the Sub Divisional Officer, a direction has been issued for removing the possession. He submits that the allegations made in the notice are not correct and the petitioners' institution is being run on the land belonging to the institution. He further submits that in any view of the matter the Sub Divisional Officer by an administrative order cannot direct for eviction, and if there was any allegation, it was open for him to draw appropriate proceedings so that the petitioners may have got an opportunity to refute the allegations.
After hearing learned counsel for the parties, we are of the view that the Sub Divisional Officer has passed only an administrative order. In case the case was against the petitioners that they have encroached certain public land, it was open for the competent authority to draw a proceeding in accordance with law. Without drawing appropriate proceedings for eviction of a person from public land, no direction on the administrative side can be issued.
In view of the aforesaid, the order dated 25/2/2011, passed by the Sub Divisional Officer cannot be sustained and is hereby set-aside. It shall however, be open for the competent authority to draw appropriate proceedings.
With the aforesaid observation writ petition stands disposed of. "
The Court however, left it open to the parties to draw appropriate proceedings in accordance with law only and to provide an opportunity to the petitioner.
After the delivery of the said judgment, the petitioner appears to have moved a transfer application on which the learned Additional Commissioner passed an order on 15th June, 2011 staying the proceedings before the Tehsildar, Sadar, Auraiya. The said order appears to have been withdrawn and the Assistant Collector (First Class) passed the impugned order on 7th July, 2011 holding that the petitioner is in illegal occupation of Plot nos. 612 and 625, to the extent of the area indicated therein, since 1948 (for the past 63 years) and accordingly ordered for eviction with an imposition of penalty to the tune of Rs. 1,05,588/-.
Against the same, the petitioner immediately preferred a revision before the learned Collector. During the pendency of the said revision, the petitioner was threatened with dispossession, and as such the petitioner again approached this Court by filing Civil Misc. Writ Petition No. 38818 of 2011, which was disposed of by the following order on 15.7.2011:-
"During the pendency of the revision, the petitioner contends that they are being dispossessed inspite of a clear finding recorded that the petitioner institution is in possession of the land in dispute since 1948. This obviously is prior to abolition of Zamindari i.e. the appointed date 1.7.1952.
The contention raised is that the provisions of Section 122-B on this finding cannot be invoked to dislodge the petitioner inasmuch as the Abadi which was existing prior to the abolition of Zamandari stood settled as land appurtenant to the constructions under Section 9 of the U.P.Z.A. & L.R.Act The District Magistrate/Collector before whom the revision has been preferred, is also seized the matter.
The petitioner is directed to file a certified copy of this order before the District Magistrate within 48 hours and the District Magistrate shall proceed to examine the said claim and pass an appropriate order on the said application within 15 days.
Till such application is disposed of, in the peculiar facts of the case and its back ground no further action shall be taken."
By the said order, the Collector was directed to proceed with the matter, who has now passed the impugned order dated 5th August, 2011 upholding the order dated 7th July, 2011 without referring to the indications given in the judgment dated 15.7.2011 and the provisions of Section-9 of the U.P. Z.A. & L.R. Act, 1950.
Aggrieved, the petitioner has approached this Court assailing the said order contending that the impugned order reflects non-application of mind to the relevant provisions of law.
This Court after entertaining the petition passed the following interim order on 19.8.2011:-
"The District Magistrate, Auraiya, Mr. G.S. Navin Kumar, has passed the impugned order dated 5.8.2011 with no reference to the issue indicated in the judgment of this Court dated 15.7.2011 in Writ Petition No. 38818 of 2011. He is called upon to file his personal Affidavit to explain as to why this be not taken to be a lapse on his part. The explanation shall be filed through an Affidavit forthwith within 15 days.
The contention of the petitioner raised is that the entries as admitted in the impugned order indicate the existence of a bungalow and a road connecting the bungalow. It also indicates that the said bungalow was the ownership of the then Zamindar Kalindra Narain. The Zamindar even prior to the abolition of Zamindari had installed an institution therein and it was obviously done for a good public cause. The institution started running and was connected by the road referred to in the impugned order, with some extension of buildings, and a Society to run the institution was also registered way back in the year 1952. The possession, therefore, of the institution appears to squarely reflected on record since 1948.
The petitioner had been earlier subjected to proceedings under an order passed by the Sub-Divisional Officer on 25.2.2011 which came to be challenged before a Division Bench of this Court in Writ Petition No.14222 of 2011. The writ petition was allowed holding that the Sub-Divisional Officer had passed an administrative order which could not have been done even if the petitioner was found to have been encroaching upon the land of public utility inasmuch as the provisions were available under the U.P. Zamindari Abolition & Land Reforms Act for eviction. The writ petition was allowed on 30.3.2011 and a copy of the judgment has been placed on record as Annexure-5.
It appears that after the writ petition was allowed, a formal proceeding under Section 122-B was drawn up and during the pendency of the proceedings, the petitioner had also approached the Commissioner for an order for transferring the proceedings before some other Sub-Divisional Magistrate on account of some mala fides alleged. The Commissioner passed an order staying further proceedings on 15.6.2011.
The proceedings, however, went on and it appears that the petitioner filed his objection yet the petitioner was sought to be forcibly evicted. He approached this Court by filing another writ petition at that stage being Writ Petition No.38818 of 2011 which was disposed of with a direction that the application filed by the petitioner shall be considered and the revision shall be decided and till such decision is taken, no further action shall be taken against the petitioner.
The impugned order dated 5.8.2011 has been passed without taking notice of the issue which had been raised by the petitioner and which had also been noticed by this Court in the order dated 15.7.2011 namely, if the building in question (bungalow) existed prior to the abolition of Zamindari and it was in occupation of the Zamindar, who established a School therein, then in view of the provisions of Section 9 of the U.P. Zamindari Abolition & Land Reforms Act, the said construction over the land shall be deemed to have been settled in favour of the institution.
The learned Collector for reasons best known to him has completely avoided to address himself on this issue.
Accordingly, until further orders of the Court, the operation of the order dated 5.8.2011 shall remain stayed and the respondent - Collector and his subordinate authorities are further restrained from interfering in the running of the institution in the said premises. In the event the Collector has got the premises locked, he shall forthwith open the same. No further action shall be taken against the petitioner pursuant to the order under Section 122-B dated 7.7.2011.
List on 8.9.2011. "
The learned Standing Counsel filed an affidavit sworn by Sri G.S. Navin Kumar, the District Magistrate, Auraiya, who after having noticed the provisions of Section 9 of the U.P. Z.A. & L.R. Act, 1950 has stated in para-7 that due to a bonafide mistake, he did not consider the provisions of Section-9 of the Act and, therefore, he may be permitted to recall the order dated 5.8.2011 impugned herein and then to decide the same after giving opportunity of hearing to the petitioners.
Accordingly, in view of the aforesaid affidavit filed on behalf of the respondent no.2, no further affidavits were required and the matter is being proceeded with for a final decision with the consent of the parties.
Sri Y.K. Saxena, learned counsel for the petitioners submits that remitting the matter back to the same authority would be inappropriate as the impugned orders have been passed with a malafide intention to somehow the other dislodge the petitioner-institution from the Bungalow and the utilization of the land apertenant thereto for the purpose of the institution. He further contends that as a matter of fact before the learned Collector all possible pleas on facts had been raised including the existence of the institution since 1948 in the Bungalow in question and a written document dated 3rd January, 1949 in favour of the institution executed by the then owner and Zamindar Sri Kalindi Narain. He further submits that the land in dispute is recorded in Category-6 as Abadi and the passage for the Bungalow standing thereon and the Bungalow is also recorded in the revenue records. He, therefore, contends that in spite of this evidence which remained unrebutted, the learned Collector has committed an error in allowing the proceedings under Section 122-B to stand.
The contention raised by Sri Saxena is that in view of the provisions of Section-9 of the U.P. Z.A. & L.R. Act, the Bungalow and the land apertinant thereto will be deemed to have settled with the petitioner-institution in whose favour the Bungalow had been surrendered by the then Zamindar and the school had also started running since 1948. Not only this, the society which manages the school came to be registered in 1953 and even recently, the Collector himself has allocated funds and four rooms for the institution have been constructed with the aid of such funds.
The Gaon Sabha being the authority for managing the land within the village through its village Pradhan has filed an affidavit before the Collector on 22nd July, 2011 stating therein that the land is not recorded in the register of the Gaon Sabha nor is the Bungalow recorded as a property of the Gaon Sabha. On the contrary, Plot No. 612 which is occupied by a passage was brick soled by the Kshetriya Panchayat.
Sri Saxena submits that in view of this categorical stand of the Gaon Sabha having admitted the entire claim of the petitioners, there was no occasion for the revenue authorities to have instituted proceedings under Section 122-B of the U.P. Z.A. & L.R. Act. He contends that the Collector has completely over looked these aspects and hence the impugned orders are vitiated. He further contends that the authorities are in hot haste to dislodge the petitioners and as such the impugned orders deserve to be quashed.
Learned Standing Counsel on the other hand contends that the petitioner-institution has been unable to lead any evidence or contradict the stand taken by the revenue authorities, as such, the impugned orders can be sustained. Nonetheless, the Collector/District Magistrate, Auriya shall pass a fresh order in the light of the affidavit filed before this Court.
Having heard learned counsel for the parties, the admission of the Collector in not having noticed the provisions of Section-9 and a prayer being made to recall the order dated 5.8.2011, there remains nothing more to be decided at this stage except quashing of the order dated 5.8.2011 passed by the Collector in the revision.
Accordingly, the order dated 5.8.2011 is set aside. The matter is remitted back to the Collector, who shall now proceed to decide the matter in accordance with law keeping in view the observations made hereinabove as also the revenue records and the affidavit filed on behalf of the Gram Pradhan indicated hereinabove.
During the pendency of the revision, all the respondent authorities shall not interfere with the possession of the petitioner institution either over the land in dispute or the Bungalow standing thereon or in the running of the institution in the premises in question. The revision shall be decided as expeditiously as possible preferably within a period of three months from the date of presentation of a certified copy of this order before the Collector after giving full opportunity to all the parties and taking into account all such possible pleas that are available to the petitioners and the observations made hereinabove.
With the aforesaid observations, the writ petition stands allowed.
Order Date :- 12.9.2011 Shiraz