Heard Shri Saushal Kishore, learned counsel for the petitioner, Shri Dileep Pandey, learned Additional Chief Standing Counsel for the State and Shri Azad Khan, learned counsel for the opposite party no. 4.
The petitioner herein claims to be bhoomidhar of Gata No. 3993. The adjacent Gata No. 3992 is Chak Marg in the revenue records and map. He says that in proceedings under Section 122-B he had filed objections taking the plea that his construction existed on his bhoomidhari Gata bearing No. 3993 and not on 3992 but no demarcation proceedings were held and cursorily orders of eviction were passed on 24.02.2018 against which the petitioner preferred a revision. The revisional Court has also only considered the fact as to whether notice was served upon the petitioner or not and has dismissed the revision.
The Court has perused the impugned orders and finds them to be cryptic in the sense that merits of the issue as to whether the constructions existed on the bhoomidhari Gata of the petitioner 3993 or on the Chak Marg bearing Gata No. 3992 has not been considered by either of the Courts. There is no mention in the impugned orders of any demarcation proceedings having taken place in the presence of the petitioner or otherwise. The Court has perused Rule 155(C) and 155(D) of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as 'the Rules, 1952') in this regard. As per Rule 115-D of the Rules, 1952 before issuing a notice under sub-rule 1 in Z.A. Form 49-A the Collector may make such inquiry as he deems proper and may obtain information on the following points, one of which is, full description of damage or misappropriation caused or the wrongful occupation made, with details of village, mohalla or ward, plot number, area, boundary, property damaged or misappropriated and market value thereof apart from the other information referred in Clause- (c) and (d) thereof. There is nothing mentioned in the impugned orders that any such exercise was undertaken.
Considering the fact that Gata No. 3993 is bhoomidhari land recorded in the name of the petitioner as is borne out from the extract of the Khatauni annexed at Page 28 to the writ petition the least that was required to be done was to undertake a demarcation proceedings pertaining to the boundaries of both the plots bearing no. 3993 and 3992 which would have resolved the matter. Not only this there should have been a reference in this regard in the impugned orders that any such exercise has been undertaken whether in the presence of the petitioner, if not, the circumstances under which it could not be undertaken in the presence of the petitioner. In the absence of such an exercise the impugned orders can not be sustained. They do not satisfy the principles of natural justice. They are accordingly quashed.
The proceedings against the petitioner under Section 122-B of the Act, 1950 shall stand restored before the Tehsildar/Assistant Collector, Tehsil Lambhua, District- Sultanpur who shall now proceed afresh in accordance with the observations made hereinabove and the provisions contained in the Act, 1950 and Rules, 1952.
The petitioner shall appear before the Tehsildar/Assistant Collector, Lambhua on 02.01.2020 along with a certified copy of this order so that further proceedings may be held.
The matter shall be posted before the Tehsildar on 03.01.2020 with further dates in the matter, if necessary.
The proceedings shall however be concluded within a period of two months w.e.f. 03.01.2020 in accordance with law.
No fresh notice would be issued to the petitioner and he will himself appear in the proceedings.
The writ petition is allowed.
Shri Dileep Pandey, learned Standing Counsel shall communicate this order to the aforesaid Officer.
Order Date :- 19.12.2019 R.K.P.