Court No. - 9
Case :- WRIT - C No. - 22903 of 2019 Petitioner :- Rizwan Respondent :- Additional Collector (Fandr) Saharanpur And 2 Others Counsel for Petitioner :- Ruduvant Pratap Singh Counsel for Respondent :- C.S.C.,Rajesh Yadav connect with Case :- WRIT - C No. - 22904 of 2019 Petitioner :- Nasir Respondent :- Additional Collector (F And R) 2 Others Counsel for Petitioner :- Ruduvant Pratap Singh Counsel for Respondent :- C.S.C.,Rajesh Yadav and Case :- WRIT - C No. - 23022 of 2019 Petitioner :- Guruvachan Singh Respondent :- Additional Collector (F And R) And 2 Others Counsel for Petitioner :- Ruduvant Pratap Singh Counsel for Respondent :- C.S.C.,Rajesh Yadav and Case :- WRIT - C No. - 23032 of 2019 Petitioner :- Buddhu Respondent :- Additional Collector (F And R) And 2 Others Counsel for Petitioner :- Ruduvant Pratap Singh Counsel for Respondent :- C.S.C.,Rajesh Yadav and Case :- WRIT - C No. - 23116 of 2019 Petitioner :- Sadakat Respondent :- Additional Collector (F And R) And 2 Others Counsel for Petitioner :- Ruduvant Pratap Singh Counsel for Respondent :- C.S.C.,Rajesh Yadav
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the parties.
These writ petitions challenge the orders passed by respondent nos.2 and 1, whereby the petitioners have been ordered to be evicted in proceedings under Section 67 of the U.P. Revenue Code, 2006 and the consequential appeals under Section 67(5) have been dismissed.
Initially, on the writ petitions being filed, an order was passed on 18.07.2019 directing Standing Counsel to obtain instructions and produce the original records of 1356 F and 1359 F pertaining to plot no.63 situated in village Ismailpur, Pargana, Tehsil & District Saharanpur, which is in issue in these petitions.
The original record were produced by learned Standing Counsel and its perusal reveals that in the Khatauni 1356 F and 1359 F, plot no.63 was recorded as a pond.
In fact, learned Standing Counsel has submitted that it was recorded as a pond even in 1284 F.
It appears that the pond was subsequently filled up and the proceedings appear to have been drawn against the occupiers, relying in accordance with the directions of the Apex Court in the case of Hinch Lal Tiwari.
Assailing the impugned orders, the contention of counsel for the petitioner is that since the pond had ceased to exist, the petitioners were allotted the land. The order of eviction has been passed against the petitioners without cancelling the allotment made in their favour. The impugned orders therefore, cannot be sustained.
He has additionally submitted that in any case, the imposition of damages upon the petitioners is clearly unjustified as they were not unauthorized occupants having occupied the land on the basis of the allotments, made in their favour.
It is lastly submitted referring to page 17 of the paper book of the writ petition no.22903 of 2019, which is the relevant khatauni that the allotment had been made in favour of 19 persons. No proceedings have been drawn against the other 14 persons. The impugned orders are therefore, discriminatory.
Learned Standing counsel has supported the impugned orders reiterating the fact that in 1356 F and 1359 F, the land in question was recorded as a pond. It was therefore, land of public utility, wherein no rights could accrue in favour of any person. The allotment of this land was therefore void ab-initio.He has also placed reliance upon a decision of the Apex Court in the case of Hinch Lal Tiwari to support the impugned orders.
I have considered the submissions made by learned counsel for the parties and perused the record.
In the facts and circumstances noticed above and since the land in question was a pond in 1356F and 1359F and even earlier, the initial of the petitioners is found in consonance with the directions issued by the Apex Court in Hinch Lal Tiwari.
For the same reason, this Court does not consider it expedient to interfere. An offer was made to counsel for the petitioner to approach the Apex Court as this Court has no jurisdiction to modify the directions issued by the Apex Court.
Learned counsel for the petitioners states that the petitioners are extremely poor persons and therefore incapable of approaching the Apex Court.
On the issue that no proceedings have been drawn for cancellation of allotments in favour of petitioners, it is relevant to note that the allotments were of land recorded as pond. A pond cannot be subject matter of allotment for housing purposes under Section 123 of the Act. Such allotment was therefore, void ab initio. Something which is void abinitio can be ignored, even in collateral proceedings. The submission of counsel for the petitioners is therefore, repelled.
However, this Court finds substance in the submission made that since the petitioners had been allotted the land in question and were in occupation thereof, pursuant to such allotment, there is no justification for imposing damages upon them.
Under the circumstances, this writ petition is liable to be allowed in part. In so far as, the eviction of the petitioners are concerned, the said order is needs to be affirmed being in consonance with the directions issued by the Apex Court in Hinch Lal Tiwari. However, the orders impugned are liable to be modified to the extent damages should not be recovered from the petitioners, in case, they vacate the land within a period of three weeks from today.
Leaving it open to the State-respondents to evict the petitioners forthwith, forcibly and also to recover the damages imposed upon them.
The matter be listed on 19.08.2019, on which date, learned Standing counsel shall intimate the Court as to whether, the petitioners have vacated the land in their possession.
Learned Standing Counsel shall also on that date obtain instructions and file an affidavit of a responsible officer indicating therein as to why, no action have been taken against the other 14 allottees, who are also stated to be in occupation of the land, recorded as a pond in 1356F and 1359 F, which land vested in the State and thereafter in the Gaon Sabha under Section 117(vi) of the U.P. Zamindari Abolition and Land Reforms Act.
Order Date :- 26.7.2019 RKM