YASHWANT Vs. BHUMI PRABANDHAK SAMITI

JUDGEMENT

(1.) HEARD Sri Nagendra Kumar Srivastava, for the petitioner and Sri H.P. Tripathi, for the contesting respondents. This writ petition has been filed against the order of Board of Revenue, U.P. dated 12.8.2002, allowing the review application of Devi Prasad (now represented by respondents -3 to 6) and remanding the matter to Additional Commissioner for deciding the revision afresh after giving opportunity of evidence in rebuttal to the respondents, arising out of proceedings under Rule 115 -P of U.P. Zamindari Abolition and Land Reform Rules, 1952 (hereinafter referred to as the Rules).

(2.) THE dispute is in respect of the land of area 9 yard x 9 yard bounded as in North -Land of Gaon Sabha, South -Public passage. East -Pond of Gaon Sabha and West -Public passage, situated in village Dhakan Shiwali, pargana Akbarpur, district Kanpur Dehat. The petitioner claimed that the land in dispute was allotted to him by Land Management Committee of the village on 25.6.1968. Devi Prasad earlier filed a civil suit (registered as Suit No. 217 of 1977) for permanent injunction restraining the petitioner from interfering in his possession over the land in dispute. It was alleged in the plaint that the land in dispute was appurtenant land to the house of the plaintiff and his brother Prem Chand (respondent -2) and has been in their possession since before date of vesting. Land Management Committee had no jurisdiction to allot the land in dispute to the petitioner. The petitioner, on the basis of patta granted by Land Management Committee, was trying to raise a boundary wall over the land in dispute. The suit was contested by the petitioner. Additional Munsif, Kanpur by his judgment dated 30.7.1979 dismissed the suit. Prem Chand filed an appeal (registered as Civil Appeal No. 514 of 1979) which was dismissed by judgment dated 20.4.1983. Prem Chand filed a second appeal (registered as Second Appeal No. 1851 of 1983), which was dismissed at the admission stage by judgment dated 1.5.1984 by this Court.

(3.) ADDITIONAL Collector after hearing the parties, by order dated 7.10.1985 held that the petitioner had not filed copies of notice for meeting, agenda of the meeting, proclamation and the resolution of Land Management Committee regarding allotment of the land in dispute to him. The patta was not issued to the petitioner on the prescribed format. On the basis of patta issued by the Pradhan, the petitioner cannot claim any title over the land in dispute. Deposit of lease money without any resolution of Land Management Committee is irrelevant. The petitioner was not in preferential category of eligible persons. On these findings the patta of the petitioner dated 25.6.1968 was cancelled by order dated 7.10.1985. The petitioner filed a revision (registered as Revision No. 11 of 1985 -86) from the aforesaid order. The revision was heard by Additional Commissioner, who by order dated 30.6.1988 held that the village Dhakan Shiwali was included in Town Area in 1977. Neither Land Management Committee of the village nor the Town Area Committee were impleaded as parties in the application filed for cancellation of patta. The papers relating to notice, agenda, proclamation and resolution etc. were not in possession of the petitioner and it was not expected from him to file it. The copy of resolution was filed but it was illegally ignored by Additional Collector. On these findings, he, by order dated 30.6.1988, submitted a reference to Board of Revenue U.P. for allowing the revision. Thereafter the respondents filed an application dated 27.7.1988 for recall/review of the order dated 30.6.1988, on the ground that after admitting the papers filed by the petitioner, the respondents were not given opportunity of rebuttal. Additional Commissioner, by order dated 18.7.1989 rejected the recall/review application. The reference was heard by Board of Revenue U.P., who by order dated 17.7.1992 held that the main ground for cancellation of patta was taken by the respondents was that they were in possession of the land in dispute and it was not vacant on the date of allotment as such its allotment was illegal but in civil suit, the respondents could not prove their possession over the land in dispute, as such main basis of their application was not established. So far as resolution for allotment of the land in dispute to the petitioner is concerned, the copy of resolution was filed before Revisional Court as such it was proved that resolution was passed by Land Management Committee for allotment of the land in dispute. This paper was filed in the knowledge of the respondents but they have not raised any objection against it. On these findings the revision was allowed and order of Additional Collector was set aside. Devi Prasad filed an application for review on 18.1.1996 before Board of Revenue U.P. which was allowed by impugned order dated 12.8.2002 and the record was remitted to Additional Commissioner to decide the revision afresh after giving opportunity of rebuttal to the respondents. Hence this writ petition has been filed.