RESERVED
Court No. - 17
Case :- WRIT - C No. - 33901 of 2014 Petitioner :- Firoz And Another Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- S.N. Singh, Jagdish Prasad Mishra Counsel for Respondent :- C.S.C., Rajesh Yadav
Hon'ble Pankaj Bhatia,J.
Heard Sri Jagdish Prasad Mishra, learned counsel for the petitioners and the learned Standing Counsel for the respondents.
The present petition has been filed challenging the order dated 22.5.2014, passed by respondent no. 2, whereby the revision filed by the petitioner, under Section 122-B (4A) of Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to 'U.P.Z.A & L.R. Act') was dismissed and the order dated 30.4.2013, passed by respondent no. 3, in Case No. 52 of 2011-12 (Gram Sabha vs. Firoz and others) has been affirmed.
The facts in brief are that the petitioners are the residents of House situated in Khata No. 1334, Village Sujadu Pargana-Tehsil and District Muzaffarnagar. It is stated that on 28.9.2012 a notice was issued under Section 49-A by the Lekhpal for initiating proceedings under Section 122- B of U.P. Z.A.&L.R. Act on the ground that the part of the house of the petitioners is situated upon the Khata No. 1355 which is in the nature of a pond and is under the control of Land Management Committee. The petitioners, in response to the said proceedings, filed their objections mainly on the ground that the construction of the petitioners stand on Plot No. 1334 and not on 1335 and the petitioners have nothing to do with the Plot No. 1335. It was also stated that the notice has been issued without carrying out the actual measurement which would have clarified the entire facts. The petitioners have brought on record a copy of khasra entry to demonstrate that Abadi has been mentioned on Plot No. 1334 whereas a pond is mentioned on Khasra No. 1335. The Lekhpal, vide his order dated 30.4.2013, (Annexure-4 to the writ petition), passed an ex parte order against the petitioners. The petitioners state that no opportunity was given to them to cross-examine the Lekhpal, on whose statement, the order dated 30.4.2013 was passed.
The petitioners, aggrieved against the said ex parte order dated 30.4.2013, preferred a revision under Section 122-B of U.P. Z.A. & L.R. Act. The said revision has been dismissed vide order dated 22.5.2014 without even considering the grounds raised in the revision. It is this order that is impugned in the present writ petition.
The petitioners have also drawn my attention to the earlier notice issued under Section 49-A of the U.P. Z.A. & L.R. Act in the name of the father of the petitioners with the same allegations that part of the property of the petitioners is situated on Plot No. 1335. It is stated that in the said proceedings initiated against the father of the petitioners vide Case No. 25, the Teshildar had passed specific order directing the Lekhpal to do the complete measurement of Plot No. 1334/1335 to ascertain that whether any part of the construction of the petitioners is in Khata No. 1335 and the Lekhpal was directed to present a fresh report after considering the said exercise. The said order by the Tehsildar were passed on 28.5.1990. The Gram Sabha preferred a revision against the order dated 28.5.1990 before the Collector vide Revision No. 34/90-91. The Collector dismissed the revision holding that no measurements have been carried out for the properties and in any case the Tehsildar had only directed for measurement of the boundary of Plot Nos. 1334 and 1335 and then proceed to take appropriate action if any construction was found by the petitioner on the Khata No. 1335.
In the background of these proceedings, the counsel for the petitioners proceeded to argue that in terms of the earlier orders dated 28.5.1990 and 28.10.1992 no steps were taken by the Lekhpal for measurement of the boundary as was directed in the said orders and the Lekhpal proceeded to initiate fresh action vide notice dated 28.9.2012 on the same grounds as was done in the year 1990 against the father of the petitioners.
Learned counsel for the petitioners further argued that the proceedings initiated vide notice dated 28.9.2012 are barred of principles of res judicata and thus the orders impugned are wholly arbitrary and illegal. It is further argued that in any event the orders impugned in the present writ petition are liable to be allowed because no opportunity of cross-examination of the Lekhpal was allowed to the petitioners nor was an opportunity of hearing given to the petitioners prior to the passing of the order dated 30.4.2013. It is mainly on these two grounds that the present writ petition has been filed. The petitioners have also relied upon the judgement of this Court in the case of Suresh vs. State of U.P., 2014 Law Suit (All) 2937.
The respondent no. 4 has filed a counter affidavit denying the allegations raised in the writ petition. In fact, a new case is carved out in the counter affidavit which states that Plot No. 1334 is recorded as public way and Khata No. 1335 is recorded as a pond. There is no averment in the counter affidavit to the effect as to why no demarcation proceedings were carried out in terms of the earlier order passed pertaining to the same land and in between the same parties. There is also no averment as to why cross examination was not allowed and why the petitioners were not heard by the Tehsildar.
From perusal of the averments made in the writ petition, the counter affidavit and on the basis of arguments advanced, the questions to be considered by this Court are
(i) Whether the subsequent proceedings which led to the passing of the impugned order are barred by principles of res judicata? and
(ii) Whether the orders impugned are liable to be quashed as having been passed in violation of principles of natural justice?
From the perusal of the order dated 28.5.1990, it is clear that the Tehsildar based upon the exchange of pleadings had specifically held that a redetermination of the boundary is necessary before it can be held that the petitioner is in illegal occupation of Khata No. 1335, which is a public pond, the said direction contained in the order passed inter se between the parties were also affirmed in the revisional order dated 20.10.1992. The said two orders were never challenged by either of the parties and thus attained the finality. The dispute/contention which led to the litigation and between the parties was rightly directed by the Tehsildar to be decided after fresh demarcation proceedings to ascertain the correct facts. It is strange that no such exercise was carried out by the Lekhpal for fresh demarcation of the boundary and he proceeded to initiate fresh proceedings which led to passing of the impugned order. The dispute pertaining to boundaries of Khata Nos. 1334 and 1335 continued and have not been clarified which could be done only if fresh demarcation proceedings were carried out.
The case of the petitioners is very clear that they have no concern with Khata No. 1335 and if any structure of the petitioners is found on the said Khata they are ready and willing to remove the same, however, they defend their right to continue in Khata No. 1334. The dispute, in essence, is regarding the constructions which the petitioners say exist on Khata No. 1334 and respondent no. 4 say exists on Khata No. 1335. A simple exercise of marking of the boundaries/survey would have solved the entire issue, which unfortunately was not done despite specific orders.
I am thus constrained to hold that the subsequent proceedings on the same ground and on the same material was clearly barred by the principles of res judicata. The impugned order is also violative of principles of natural justice as an opportunity to cross-examine should have been provided to the petitioners with regard to the evidence of the Lekhpal, which is the sole basis for passing of the impugned order. The petitioners were also entitled to right of hearing which is wholly against the principles of natural justice. As regards, the judgement relied upon by learned counsel for the petitioners in Suresh vs. State of U.P. (supra) this Court has held that statement of Lekhpal, without survey and measurement on the spot, is not sufficient to hold anything against a person in occupation. The said judgement squarely applies to the facts of the present case as no survey has been done, despite orders and the entire order is based upon statement of the Lekhpal that too without giving an opportunity of cross-examination.
In view of the findings recorded above, I am constrained to quash the order dated 22.5.2014, passed by the Collector, Muzaffarnagar (respondent no. 2) in Revision No. D2014095500434 (Firoz and others vs. Gaon Sabha) and the order dated 30.4.2013, passed by Tehsildar, Tehsil- Sadar, Muzaffarnagar (respondent no. 3). It will however be open to the respondent no. 4 to initiate fresh proceedings after survey and measurement in accordance with law.
The writ petition is disposed off in terms of the said order.
Order Date :- 26.4.2019 Puspendra