Heard Sri Hari Shanker Mishra, learned counsel for the petitioners and Sri T.N. Tiwari, learned counsel for the respondent 5 in each writ petition.
First Writ petition This writ petition is directed against orders dated 18.4.1991 and 18.11.2005. The first order was passed by Deputy Collector/S.D.O. Bhadohi, Varanasi in case no.115 Mal of 1991 under Section 122-B(4-F)U.P.Z.A. &L.R. Act Chhakkan Vs. Gaon Sabha. Through the said order an area of 1 bigha 10 biswa of plot no.242 Kha was changed from pond and the name of Chhakkan respondent no.5 was directed to be recorded in the revenue record as Bhoomidhar with non transferable right over the same (total area of plot no.242 is 6 bigha). It is situate in Village Puredvan. The applicant Chhakkan claimed that he was member of Scheduled caste and in possession of the pond in dispute since long. Against the said order Ram Sagar since deceased and survived by petitioners filed revision being revision no.488/113 1991. Additional commissioner Judicial Vindhachal Mandal Mirzapur dismissed the revision on 18.11.2005 as not maintainable.
Second Writ petition This writ petition is directed against order dated 18.4.1991 passed by Deputy Collector/ S.D.O. Varanasi in case no.114 Mal 1991 under Section 122-B (4-F) of U.P.Z.A.L.R. Act Satnayaran Vs. Gaon Sabha. This order was also exactly similar as was the first order challenged through the first writ petition. Through this order also an area of 1 bigha 10 biswa of plot no.24 Kha was directed to be changed from pond in the revenue record and settled with the applicant Satyanarayan respondent no.5 who also claimed that he was member of Schedule caste. Ram Sagar since deceased and survived by petitioners filed revision against the said order also being revision no.204/114 of 1991 which was dismissed on 18.11.2005 by Additional Commissioner (Judical) Vindhachal, Division Mirzapur. The said order has also been challenged through the second writ petition.
Findings:-
Under Section 122-B(4-F) no relief can be granted in respect of land mentioned in Section 132 of U.P.Z.A.L.R. Act which includes pond. Moreover by virtue of Supreme Court authority reported in Hinch Lal Tiwari v. Kamala Devi AIR 2001 SC 3215 the nature of pond can not be changed. Even otherwise nature of no land can be changed by deputy Collector in the manner in which it has been done through the impugned order.
The impugned orders are utterly erroneous in law hence they are quashed.
However, the second prayer made through these writ petitions that respondents including State of U.P. through Collector and Land Management Committee Kariyaon Taluka Chauthar P.O. Kariyaon Pargana Bhadohi Tehsil Bhadohi now District Sant Ravi Das Nagr may be restrained from interfering in the possession of the petitioner also can not be granted. Learned counsel for the petitioner has invited attention of the Court to a judgment given by Munsif Bhadohi Varanasi on 10.11.1981 in O.S. No.409 of 1977 filed by Ram Sagar Predecessor interest of the petitioners and others against State of U.P. The suit was decreed restraining defendant no. 1 and 2 from interfering in the possession of the plaintiffs except in accordance with law. In the said judgment also it is noted that land in dispute was pond. Even after that judgment the names of petitioners were never recorded over the land in dispute. In the suit itself it is mentioned that in the revenue record the land in dispute was recorded as pond. As the said entry continued as such even after consolidation accordingly the suit was clearly barred by Section 49 of U.P.C.H. Act. By virtue of Section 6 and 117 of U.P.Z.A. &L.R. Act ponds vest in state and thereafter in Gaon Sabha. Names of petitioners were never recorded in the revenue record. The aforesaid judgment of the Civil Court is, therefore, completely without jurisdiction and in any case it was never given effect to by entering the property in dispute as pond belonging to the plaintiffs in the revenue record. Moreover through this judgment it is being held that legally the petitioners are not entitled to occupy the pond. Accordingly, their eviction, or eviction of other plaintiffs of the suit if they are in possession, will be completely in accordance with law.
However, the revisions on behalf of petitioners were quite maintainable as in respect of public property of Gaon Sabha any one can initiate the proceedings or challenge the order settling such land with private persons.
Accordingly, both the writ petitions are allowed in part. Prayer no. (a) is allowed. Impugned orders are set aside. However, prayer (b) is rejected. Neither the contesting respondents nor the petitioners nor any one else shall be permitted to exercise any right over the pond in dispute. The collector and the Deputy Collector concerned are directed to immediately restore the pond evict anyone who is in possession and let out the pond for fisheries purposes after due advertisement and for not less than Rs.10000/- per hectare per year in accordance with the following authorities:
1.Raja Ram vs. Sonkali reported in 2009 (107) RD 796,
2.Babban Ram Vs. State of U.P. 2004 (97) RD 675 and
3.Ram Kumar Vs. State 2009 (107) R.D.557.
The exercise shall be completed within four months.
Office is directed to supply a copy of this order free of cost to Sri S.P. Mishra, learned standing counsel for sending the same to the Collector Sant Ravidas Nagar, Bhadohi and Deputy Collector, Tehsil and District Bhadohi, Sant Ravidas Nagar.
Order Date :- 17.10.2012 vkg Court No. - 58 Substitution application IN Case :- WRIT - C No. - 5494 of 2006 Petitioner :- Ram Jiyawan & Others Respondent :- Addl. Commissiner (Judicial) Vindhyachal Mandal, Mirzapur Petitioner Counsel :- Hari Shanker Mishra,R.P. Srivastava Respondent Counsel :- C.S.C.,Anuj Kumar,T.N. Tiwari Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties.
Cause shown is sufficient. Delay in filing substitution application is condoned. Substitution application is allowed.
Order Date :- 17.10.2012 vkg