RAJENDRA TEWARI Vs. GAON SABHA VILLAGE ORIYARA

JUDGEMENT

(1.) SHORT question involved for determination in this writ petition is as to whether petitioner could be required to file a suit for declaration of his title in the court of competent jurisdiction within a period of three months' from the date of the order passed in proceedings under section 122-B of UP ZA and LR Act (here-in-after referred to as Act), which were initiated against the petitioner in the year 1972

(2.) THE undisputed facts giving, rise to this writ petition are that in the year 1972 Lekhpal of the village Oriyara made a report that the petitioner has illegally occupied plot no 93 area 1-12-0 of village Oriyara in the year 1378F. On this report a show-cause notice was served on petitioner in Z. A. Form 49-A as to why he may not be evicted from the land in dispute and the damages may not be recovered from him. In response to this notice petitioner filed an objection stating therein that his possession is old and continuing from before the abolition of Zamindari. THE land was taken from Zamindari and after taking possession he constructed his abadi and also established a Chakki (Flour mill). Even during consolidation no notice was served on him. After taking evidence of both the sides Assistant Collector 1st class, Kanpur by his order dated 23 rd August, 1973 asked the petitioner to vacate his possession from the plot in dispute and to pay Rs. 210. 60P. as damages. Aggrieved by this order, petitioner filed a revision before the Additional Commissioner, Allahabad Division, Allahabad who vide his order dated 24th June, 1975 made a recommendation to the Board of Revenue to setaside the order of Tahsildar and to drop the proceedings against the applicant, as on the basis of the evidence on record the bonafide question of title is involved. Board of Revenue vide its order dated 13th May, 1981 has accepted the recommendation in part only to the extent that the bonafide question of title is involved and thus has set aside the order dated 23rd August, 1973 passed by Tahsildar/ Assistant Collector 1st class, Kanpur. However the petitioner has been required to file a suit within three months in a competent court of jurisdiction for declaration of his title and the proceedings before the trial court have been stayed. Thus show cause notice which was served on petitioner in Z. A. Form 49-A and the proceedings initiated on the basis of the same are pending. This order passed by Board of Revenue has been challenged in the present writ petition as illegal and without jurisdiction.

(3.) SRI K B. Garg, on the other hand, has submitted that the provisions of section 122-Bare procedural in nature' and amended provisions have been correctly applied to the pending proceedings also as Board of Revenue has directed the petitioner to file a suit and has stayed the proceedings in view of the amended provisions of section 122-B, as they stood on the date of order passed by Board of Revenue. SRI K. B. Garg has further submitted that the order passed by Assistant Collector has become final as the order was final under section 122-B (4) and revision was not legally maintainable. SRI Garg has placed reliance on a case Nasiruddin v. Ch. Ram Swarup, 1978 RD, 298 (DB) and 1980 RJ 103 and 270.