RAJESH Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri Krishna Bihari for the petitioners and Ms. Ranjana Tripathi, holding brief of Sri Manish and Standing Counsel, for the contesting respondents. This writ petition has been filed against the orders of Sub -Divisional Officer dated 2.5.2012, recalling the order dated 25.05.2011 and restoring Case No. 5 of 2011, under section 122 -B(4 -F) of U.P., Act No. 1 of 1951 to it's original number and Additional Commissioner dated 12.12.2012 dismissing the revision of the petitioner from the aforesaid order.

(2.) THE dispute between the parties is in respect of plot No. 566 (area 0.063 hectare) of village Bhaipur, tahsil Khurja, district Bulandshahar. The petitioners filed an application (registered as Case No. 5/2011) under section 122 -B (4 -F) of U.P. Act No. 1 of 1951, for declaring him as bhumidhar of the land in dispute. On this application, a report has been called for. The Tahsildar submitted his report dated 30.4.2011, showing that the petitioners were in possession of the land in dispute and the petitioners have 0.678 hectare of total land in their possession, as such, they were entitled for declaration as bhumidhar of the land in dispute, under section 122 -B(4 -F) of the Act. Sub -Divisional Officer, by order dated 25.5.2011, declared the petitioners as bhumidhars with nontransferable rights of the land in dispute. Mahervdra (respondent -5) filed an application for setting aside the aforesaid order. In the application, Mahendra stated that he was in possession over the land in dispute, however, Tahsildar has submitted a false report regarding possession of the petitioners over the land in dispute and without issuing any notice to Gaon Sabha or to the persons in possession over the land in dispute, the impugned order has been passed ex parte. On the application of Mahendra, a fresh report was again called for and Naib Tahsildar after conducing an inquiry, submitted a fresh report dated 21.11.2011, in which, he has shown that Mahendra had cultivated the land in dispute and sown barseem in it and the possession of the petitioner was not proved on the spot. Thereafter, the recall application was heard by Sub -Divisional Officer, who by order dated 2.5.2012, held that in view of subsequent report of Naib -Tahsildar showing that the land in dispute was in possession of Mahendra, the previous report dated 30.4.2011 was incorrect and accordingly, the order dated 25.5.2011 was recalled and the case was restored to it's original number. The petitioner filed a revision against the aforesaid order, which has been dismissed by Additional Collector by the order dated 12.12.2012. Hence, this writ petition has been filed.

(3.) I have considered the arguments of the Counsel for the parties and examined the record. A perusal of the order dated 25.5.2011 shows that the order of Sub -Divisional Officer was based upon the report of Tahsildar dated 30.4.2011 alone. Apart from this report, the petitioner has not filed copy of khasra of any year showing that his possession has been mentioned in any year over the land in dispute. The notice of the proceeding has not been issued to Gaon Sabha also. In such circumstances, since respondent -5 is also claiming possession over the land in dispute, as such, the possession of the petitioner is disputed and the case has to be decided after contest of the parties and giving them opportunity of hearing. The impugned order recalling the order dated 2.5.2011 does not suffer from any illegality.