ASHA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned standing counsel for the respondent. This Writ Petition is directed against order dated 02.04.2008 passed by Collector Bijnor in Case No.26 of 2008 under Section 198(4) of the U.P.Z.A. & L.R. Act. against petitioner and her husband Rajendra Singh. The case was initiated on the report of S.D.O. dated 15.09.2007. The report was that on plot No.300, area 0.683 hectare situate in village phone pargana Budhpur Tehsil Chandpur District Bijnor which was a pond according to C.H. Form No.45, the names of the petitioner and her husband were entered as bhoomidhar with transferable rights and in accordance with Supreme Court judgment reported in Hinch Lal Tiwari v. Kamala Devi AIR 2001 SC 3215 such persons are to be evicted and such names are to be expunged from the revenue records. Petitioner and her husband Rajendra appeared and filed objection. After considering the entire material on record Collector through order dated 02.04.2008 accepted the report of the S.D.O., cancelled the entry of petitioner and her husband as bhoomidhars over the land in dispute and further directed that the land in dispute should be entered as pond in the revenue records. Against the said order Revision No.165 of 2007-08 was filed which was dismissed by Board of Revenue, Allahabad on 20.06.2008. The said order has also been challenged through this writ petition. The Collector had further directed that in case opposite parties i.e. petitioner and her husband were deserving candidates then other land might be considered to be allotted to them. Mahaveer Singh father in law of the petitioner played a great fraud upon the State. Annexure SA-1 to the supplementary affidavit filed by the petitioner herself is copy of an Assami patta for fisheries purposes dated 16.10.1982 granted to Mahavir for 10 years. The wonderful argument of learned counsel for the petitioner is that after taking the land in dispute for fisheries purposes Mahaveer Singh came to know that there was no pond and it was plain land accordingly he filed some application/complaint. If what has been stated was correct then Mahaveer Singh should have simply applied for return of the amount. The plot number of the land/pond which was let out is 300; area is 2 bigha 14 biswa. It was given on yearly lagan of Rs. 36.80. If it was not pond Mahaveer Singh was by maximum entitled to return of Rs.36.80 which he might have paid.

(2.) ANNEXURE SA -2 is report of land inspector dated 18.8.1988 on the complaint/application of Mahaveer Singh for change of the nature of the land in the revenue record. The application was given after six years. It is therefore quite clear that during this period of six years Mahavir Singh had himself levelled the pond. Under no provision such an application by Mahaveer was maintainable. However, favourable report was given on 18.8.1988 which was approved on 19.8.1988 and 20.8.1988 by two officers whose signatures names and designations are not legible. In the report it is mentioned that Mahaveer was doing agriculture since 1390 fasli i.e. since allotment of 1982. How he could do agriculture is not at all understandable. It is mentioned in the report that gaon pradhan also stated that he had no objection if the name of Mahaveer Singh was entered as Seerdar of the land. Pradhan is not the owner of Gaon Sabha land. The land inspector and the other two officers who approved the report were equal partners in the fraud. If they are still in service they ought to be immediately suspended and disciplinary proceedings must be initiated against them. Category of the land can not be changed in this manner. In any case, if patta was to be granted for agriculture purposes then it could be granted under Section 195 of U.P.Z.A.L.R. Act following the preference and procedure prescribed by Section 198 of U.P.Z.A.L.R. Act and the relevant Rules framed there under. It is admitted that the said procedure was never followed. The only basis of right and title is fisheries patta of ten years granted on 16.10.1982 which itself expired on 15.10.1992. In active collusion with Tehsil authorities name of Mahaveer and after his death names of his sons Rajendra and Virendra were mutated in the Revenue records firstly as Bhumidhar with non transferable rights and thereafter as Bhumidhar with transferable rights under Section 131-B of the Act. Thereafter Virendra sold his share in the property to his bhabi i.e. petitioner w/o Rajendra on 20.11.1998. Writ petition is, therefore, dismissed. The direction given by the Collector to the Gaon Sabha to allot other land to petitioner and her husband was utterly unwarranted hence the same is set aside. Collector Bijnor is directed to take back the possession of the property in dispute immediately and convert the same into pond. For the said purpose MNERGA funds may be utilised. Petitioner is entitled to take back the sale consideration from Virendra. Rajendra and Virendra are liable to pay damages for use and occupation of the land in dispute from 1988 till actual eviction @ of Rs.5000.00 per year. However, petitioner shall not be liable to pay any damages.