RAMDEO Vs. ADDL DISTRICT MAGISTRATE ADMINISTRATION VARANASI

JUDGEMENT

(1.) IN this petition counter and rejoinder affidavits have been filed and the learned Counsel for the parties are agreed that the petition may be disposed of finally at this stage.

(2.) FOR appreciating the dispute, which is subject -matter of the writ petition, the facts are that a notice in Z A. Form 49 -A was served on Petitioner and proceedings under Section 122 -B of U.P. Zamindari Abolition and Land Reforms Act, hereinafter referred to as 'Act', were initiated. The allegation against the Petitioner was that he has occupied plot No. 23 area 0 -1 -16 and has thus caused damages to the property of Gaon Sabha. Petitioner contested this notice by filing an objection on number of grounds. The main contention of Petitioner was that his possession is on his own plot No. 22 which is situated at its original place according to the record of settlement and other papers and he has not occupied plot No. 23 which is a chak road. It was further said that in fact owner of plot No. 24 Shyama Nand who is Up -Pradhan of the village has occupied the chak road and a wrong report in collusion with the Lekhpal has been got made against the Petitioner. The validity of the notice was challenged by Petitioner saying that no measurement of the land allegedly occupied by the Petitioner have been mentioned and the area mentioned is wholly baseless. The amount of compensation claimed is also baseless and highly excessive. Tehsildar/Assistant Collector Ist Class, Respondent No. 2 by his order dated 14th December, 1990 rejected the objection of Petitioner and directed his ejectment from the land in dispute i.e. plot No. 23 area 0 -1 -2 and also directed him to pay compensation of Rs. 2885/ - and Rs. 5/ - for registration charges. At the end of the order, a direction has been issued to Lekhpal to initiate proceedings against Shyama Nand. This order of Tahsildar was challenged by Petitioner in revision before the Collector, Varanasi under Sub -section (4 -A) of Section 122 -B of the Act. The revision has been dismissed by Respondent No. 1 Additional Collector at the admission stage without summoning record of the case by his order dated 31st December, 1990. Aggrieved by this order, the present writ petition has been filed.

(3.) HAVING heard learned Counsel for the parties I am of the opinion that the Respondent No. 1 was not justified in dismissing the revision without perusing the record of the case. There are certain glaring facts which required examination and consideration by Respondent No. 1. Under law against the order of ejectment passed by Tahsildar, only remedy provided is by way of revision before Collector. As the order under Section 122 -B of the Act carries serious consequences affecting property rights the Collector, while exercising revisional power should adopt more cautious approach so that injustice may not occur to any party. After perusing the order passed by Tahsildar, statement of Lekhpal, map and the Khatauni, I feel that the justice will not be done unless the case is remanded to Respondent No. 1 for hearing the revision again after summoning the record. From perusal of the map filed as Annexure -4 to the writ petition, it is clear that there is a Well situated on the north east corner of plot No. 22 and just by it's side toward east a chak road runs which is said to have been encroached by Petitioner. As the Well and the chak road both have been mentioned in the map it is difficult to accept the finding of Tehsildar that the Well is situated on the chak road. It is not the case that the Well has been sunk by Petitioner after consolidation and after the chak road was provided at that place. From the map it appears that the Well existed during consolidation and the provision for chak road was made towards east of the Well. This was a serious question which required consideration of Respondent No. 1. Tahsildar has also found that Shyama Nand Up -Pradhan has occupied the chak road and a direction has been given to Lekhpal to initiate action against him. Petitioner's case is that the demarcation proceedings are already pending before the revenue authorities and the proceedings under Section 122 -B of the Act were pre -mature. The case of the Petitioner from very beginning was that the chak road has been illegally occupied by Up -Pradhan which has been found correct Further Lekhpal in his statement admitted that he has not given any measurements in his report. No breadth and length of the land allegedly occupied by the Petitioner has been mentioned. This was also an important aspect of the matter to be considered. The notice served on Petitioner should contain the necessary particulars and measurement of the land occupied. In ascertainment of the damages also the Tahsildar has not taken into account the fact that in notice under Z.A. Form 49 -A the area encroached was mentioned as 0 -1 -16 whereas the order of ejectment has been passed for a lesser area and thus the amount of compensation claimed should also have been reduced proportionately. There is no discussion in the order justifying the demand of compensation of Rs. 2885/ -. The Tahsildar thus committed an error of law and jurisdiction in passing order. The order of Respondent No. 1 dismissing revision at admission stage cannot be thus justified. In fact he failed to exercise jurisdiction vested in him.