RAMA SHANKAR Vs. DISTRICT MAGISTRATE KANPUR DEHAT

JUDGEMENT

(1.) THIS writ petition has been filed by Rama Shanker against an order of the District Magistrate Kanpur Dehat passed in revision against an order of ejectment passed by Tehsildar from a plot said to be belonging to the Gaon Sabha-Nadhiba Dhamu, Pargana-Billor, district-Kanpur Dehat. It appears that the proceedings under Section 122-B of the - U.P. ZA and LR Act were commenced on the report of Lekhpal whereupon notices were issued to the petitioner. On appearing before the Tebsildar the petitioner said that he was not in possession of the disputed plot. Ram Kishore, Lekhpal, was examined on 11-10-1988 and admitted that the petitioner was not in possession. His statement has been filed as Annexure 2 to the writ petition. Not only that, the petitioner examined one Shiv Kumar also as his witness who too admitted that the petitioner was not in possession. True copies of the statements of the petitioner and that of Shiv Kumar have also been filed along with the writ petition. However, the Tehsildar by his order dated 30-5-1989 directed ejectment of the petitioner from the disputed plot and also ordered the petitioner to pay damages to the tune of Rs. 400/-. Aggrieved, the petitioner preferred a revision before the Collector which has been dismissed. Hence, this writ petition.

(2.) SHRI Sbashi Kumar, learned counsel for the petitioner has argued that even if the order of ejectment may be sustainable on the ground that initially the statement of Lekhpal was that the petitioner had been in illegal possession of the land of Gaon Sabha, the damages could not be awarded because the Lekhpal himself had admitted in his statement that the petitioner was not in possession and that the petitioner himself had stated before the Tehsildar that he was not in possession.

(3.) ALL the provisions contained in Section 122-B of the aforesaid Act read together indicate that the intention of the Legislature beyond any doubt is that the section in terms will be attracted when at the time of passing an order a categorical finding is recorded that the person concerned is in unauthorised possession on the day of the judgment, and if such a man is directed to be ejected compensation may be realisable from him. This finding needless to say, will depend upon the evidence in the case. In the instant case there was unequivocal statement of the Lekhpal, the petitioner as well as the witness of the petitioner that the petitioner was not in possession of the disputed plot. The authorities below, i e., the Collector and the Assistant Collector have not adverted to this aspect of the matter from the aforesaid point of view. If there has been voluntary dis-association of such a person from the land allegedly illegally occupied by him, then it is difficult to interpret sub-section (3) and (4) as empowering the Asstt. Collector to impose damages or realise compensation. May be that in a given case as in the present one an order of ejectment could be passed because when the proceedings ensued there was enough* reason for the satisfaction that the person concerned (the petitioner in the instant case) was in illegal occupation of the Gaon Sabha property. Therefore, the fact that an order of ejectment may be passed, will not itself empower the Asstt. Collector to impose the damages and on realise compensation,