PUSHKAR Vs. STATE OF U P

JUDGEMENT

(1.) Mr. S. R. Gupta, learned counsel for the petitioner submits that in the proceedings under Section 122B of the U. P. Zamindarl Abolition and Land Reforms Act, the decision of the Assistant Collector and the Collector is perserve and as such it is to be quashed. He has based his submission of perversity on the ground that the petitioner's house is situated in plot No. 518 and not in plot No. 514, which is alleged to be the land belonging to the Gaon Sabha. According to him, plot No. 518 does not belong to Gaon Sabha. Therefore, without a survey commission and inspection determining as to whether the petitioner's structure stood situated in plot No. 514 or plot No. 518, no decision could be arrived at. Secondly, he contends that there was no evidence that the petitioner had ever encroached plot No. 514. Therefore, the finding is wholly perverse. The third point urged by him is that despite interim order, no counter-affidavit having been filed, the factual aspect cannot be denied by the respondents in this Court. The fourth point urged by him is that the burden of proof that the petitioner has encroached plot No. 514 is on the respondent and the same having not been discharged, the finding cannot be sustained.

(2.) The learned standing counsel, on the other hand, contends that these questions arc questions with regard to the establishment of right which cannot be gone into in exercise of writ jurisdiction. According to him. the Gaon Sabha has alleged that the structure is situated in plot No. 514. It is the petitioner who had disputed the said fact and had contended that the house is situated in plot No. 518 and he had not encroached plot No. 514. Therefore, according to him, the burden of proof is on the petitioner that his house is situated in plot No. 518 and not in plot No. 514. In case he wants to establish his right with regard to disputed questions of fact. writ jurisdiction is not a proper forum where such right could be established. Whether there was no evidence or the question that the structure that is situated is on which plot are the questions which cannot be decided by this Court sitting in writ Jurisdiction in view of the disputed questions of fact, which can be decided only on the basis of evidence. Therefore, this Court cannot go into such questions. The remedy of the petitioner is in terms of sub-section (4-D) of Section 122B of U. P. Zamindari Abolition and Land Reforms Act.

(3.) I have heard learned counsel for both the parties at length.