Heard Ms. Minakshi Singh, Advocate holding brief of Sri Namwar Singh, learned counsel for the petitioner, Sri Manish, learned counsel for the respondent no. 3 and learned Standing Counsel appearing on behalf of the respondents no. 1,2 and 5.
By the present petition, the petitioner prays for quashing of the orders dated 18.7.1996 and 16.12.2004 passed by the respondents no. 2 and 1; respectively .
By the order dated 18.7.1996, Up Ziladhikiari, Chandauli had settled the plot no. 64 area 4- 1/2 Decimal in favour of respondent no. 3 on the report of Tehsildar giving benefit of Section 123(2) of the U.P. Z.A.& L.R. Act, 1950(hereinafter referred to as the 'Act'). The petitioner filed revision challenging the order dated 18.7.1996 before the Additional Commissioner which was rejected by the order dated 16.12.2004 saying that the order dated 18.7.1996 passed by Up Ziladhikari requires no interference.
The facts of the case are that the petitioner was recorded Bhumidhar in possession of plot no. 64 area 0.08 Hectares situate in village Khandwari, Pargana Mahuari, Tehsil Sakaldiha, District Chandauli. The application was made by respondent no. 3 for recording area 4-1/2 Decimal as 'Abadi' on the ground that she is using the same by keeping her Mandahi, Charani (Cattle shed) and Chak etc. since before 3.6.1995. She is 'Kumhar' by caste and has got her house beside the land in dispute, therefore the area 4-1/2 Decimal of plot no. 64 which is being used by her for her cattle shed, chak etc. be recorded in her name as her 'Abadi' under Section 123(2) of the Act. The application of the respondent no. 3 has been brought on record. On the said application, the record was called for and Lekhpal, Revenue Inspector submitted reports dated 4.7.1996 that the disputed land was being used by respondent no. 3 as appurtenant land of her house and she is doing work of making earthen pots through Chak etc. in the Mandahi built over the disputed land which was not being used for housing purpose. However, the Tehsildar in his one line report dated 4.7.1996 stated that the respondent no. 3 could be given benefit of village artisan under Section 123(2) of the Act. On the report of the Tehsildar dated 4.7.1996, one word order 'Sweekrit' was passed by the Up Ziladhikari(Sub Divisional Magistrate).
Learned counsel for the petitioner submits that in the revision filed before the Commissioner, the grounds were taken that respondent no. 3 had no concern over the disputed land and her house exists at the southern side of the disputed land and not on the disputed land. In any case, the land could not be recorded as 'Abadi' at the instance of respondent no.3 as there was no construction over the same. It was further contended that there is no report so as to give benefit of Section 123(2) of the Act to the respondent no. 3 and the order had been passed without any information/intimation to the petitioner. The revisonal court did not consider the objections raised by the petitioner and dismissed the revision that as per the report of the Lekhpal, Revenue Inspector and Naib Tehsidar that respondent no. 3 was in possession of disputed land and therefore the order passed under Section 123(2) of the Act taking into consideration of the preferential category given under Section 122-C(3) of the Act required no interference. While concluding the argument learned counsel for the petitioner submitted that mere keeping Mandahi, cattle shed and chak on the disputed land of the petitioner do not confer any right upon the respondent no. 3. The benefit of Section 123(2) of the Act can be given only to a person referred to in sub-section (3) of Section 122-C of the Act who has built a house on the land of the tenure holder.
Admittedly, the house of the respondent no. 3 does not exist over the land of the petitioner and keeping of Mandahi etc. will not amount to building of the house. From the report of Lekhpal and Revenue Inspector dated 4.7.1996 it appears that respondent no. 3 at the best is using the land as appurtenant land for the purpose which are not covered under Section 123(2) of the Act. There is no question of adverse possession over the land of the petitioner and no right can be conferred to her. The order passed by the Up Ziladhikari is non-speaking order without giving any opportunity of hearing to the petitioner who is admittedly recorded Bhumidhar of the disputed plot.
Learned counsel for respondent no. 3, on the other hand, submitted that the area 4-1/2 Decimal of plot no. 64 is in possession of respondent no. 3 before the cut of date i.e. 3.6.1985 and there is finding to this effect in the report of Tehsildar. The Up Ziladhikari has rightly accepted the report and proceeded to settle the land in favour of respondent no.3 who comes within the preferential category of sub-section(3) of Section 122-C of the Act. The act of building her Mandahi, Charni and Chak and doing work of making pots by the respondent no. 3 come within the meaning of village artisan residing in the village as mentioned in the sub clause (ii) of Sub- Section (3) of Section 122-C of the Act . The respondent no. 3 was found in possession over the disputed land. The revision was rightly rejected.
Learned counsel for respondent no. 3 in the counter affidavit has brought on record the fact that respondent no. 3 has filed the Original Suit No. 477 of 1996 against the then petitioner and his heirs who have been brought on record after death of the petitioner Ramdhari.
The relief sought in the said suit is for declaration of respondent no. 3 as owner in possession over the disputed land and permanent injunction against the defendant. In the said suit, an interim injunction dated 23.7.1996 was passed by the Court of Civil Judge, Varanasi restraining the petitioner/defendant from evicting the respondent no. 3 from the disputed land. The interim order is in operation and the suit is still pending.
In the rejoinder affidavit, learned counsel for the petitioner submits that the suit filed by the respondent no. 3 is being contested by the heirs of petitioner and the temporary injunction was granted on incorrect facts given by the respondent no. 3.
Having heard learned counsel for the parties and perused the record, it is apparent that before passing the order dated 18.7.1996 no proper enquiry was conducted by the Up Ziladhikari. The report of the Tehsildar is only one line report recommending for benefit under Section 123(2) of the Act to the respondent no. 3 being the landless village artisan. Indisputably the house of respondent no.3 exists at the southern side of the disputed land. The report of the Lekhpal and Revenue Inspector dated 4.7.1996 further substantiate the fact that no house has been built by the respondent no. 3 over the disputed land i.e. plot no. 64 area 4-1/2 Decimal. The land was being used by the respondent no. 3 for the purposes other than that is provided under Section 123(2) of the Act. At this stage reference may be made to Section 123(2) of the Act which is quoted below:-
" 123(2)Where any person referred to in sub-section (3) of Section 122-C has built a house on any land held by a tenure-holder (not being Government lessee) and such house exists on (June 3, 1995), the site of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure-holder on such terms and conditions as may be prescribed. "
From perusal of Section 123(2) of the Act it is evident that the benefit of Section 123(2) of the Act can only be given to a person referred to in sub section (3) of Section 122-C of the Act who has built a house on any land held by a tenure holder and such house should exist on 3.6.1995.
From a perusal of the application moved by the respondent no. 3 dated 27.5.1996 annexed as Annexure 2 to the writ petition, it is clear that she has never pleaded that her house exists on the land held by the petitioner on 3.6.1995. Infact the contention was that she is in possession of the disputed land as 'Abadi' and therefore comes within the preferential category for the purpose over land under Section 122-C (3) of the Act. As held by this Court in 2008(1) AWC 35(Ram Narain & others vs. SDO, Kairana, District Muzaffarnagar and others) that the deeming provisions under Section 123(2) of the Act has been enacted with non-obstante clause and therefore the same has to be given effect by the Court despite any other provision contrary contained in the Act itself. In order to effectuate the deeming provision under the Statute the Court would assume all those facts on which the legal fiction created by the statute can operate, even if those facts do not exist in reality and the rights of the parties will have to be determined on such imaginary things to achieve the purpose for which such legal fiction has been created by the Statute. It has further been observed in the paragraph 26 of the judgment on the basis of facts on record that the house of respondents exist on 3.6.1995 therefore the land covered by their houses shall be deemed to be settled with them by the tenure holder of the land in question. It is immaterial whether they have built their houses with the consent/ permission of the tenure holder of the land in question or otherwise by taking forceful possession of the land or their such possession is unauthorized or as of tresspasser. It was concluded that no other view is possible, for the reason that it would completely distort and defeat the very purpose of deeming provisions which are coupled with non-obtante clause of Section 123(2) of the Act.
Taking into consideration of the said judgment, it may be noticed that in the present case, no opportunity of hearing was provided to the petitioner nor there is any report of any of the authorities that the respondent no. 3 has built her house and such house existed on 3.6.1995 on the land of the petitioner. The act of keeping Mandahi, charni and chak will not amount to building of a house as intended and required under Section 123(2) of the Act. This apart, the order dated 18.7.1996 passed by the Up Ziladhikari is a non-speaking order. The land of the petitioner could not have been settled by one word order (Sweekrit) by the Up Ziladhikari. No opportunity of filing any objection for contesting the matter was given to the petitioner by the Up Ziladhikari.
The revisional court also did not consider this aspect of the matter and not considered the objections raised by the petitioner. Moreover, the report of Lekhpal and Revenue Inspector dated 4.7.1996, if considered, would further substantiate the case of the petitioner that the benefit of Section 123(2) of the Act could not have been given to the respondent no. 3 However, as a suit No. 447 of 1996 was filed by respondent no. 3 against the petitioner and she has got temporary injunction thereunder, the suit is being contested by the petitioner. Both the parties can get their rights decided in the pending suit. Both the impugned orders dated 18.7.1996 and 16.12.2004 are quashed.
The writ petition is allowed.
Order Date :- 29.11.2012 P.P.