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Radhey Shyam & Another v. State Of U.P. & Others - WRIT - C No. 30346 of 2004 [2006] RD-AH 6955 (30 March 2006)


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Civil Misc. Writ Petition No. 30346 of 2004

Radhey Shyam and another Versus State of U.P and others.

Hon'ble S.U.Khan J

Proceedings under section 122-B of U.P.Z.A.L.R Act were initiated against the petitioners in the form of case No. 173 of 1996-97. The allegation against the petitioners was that they had encroached upon Khasra No. 1269 area .085 acres and were using the same as Aabadi. The land in dispute was recorded in the revenue records as Khel Ka Maidan (playground). The said land was earmarked for playground in consolidation. Petitioners stated that they had not encroached upon any Gaon Sabha land and that the house of the petitioners was constructed since before consolidation while playground was earmarked during consolidation. Lekhpal appeared as witness of Gaon Sabha. In his examination in chief he supported the case of Gaon Sabha. In respect of unauthorized occupation of the petitioners he stated that land in dispute was adjacent to the Aabadi of the village. He also stated that he could not give the correct number. He however stated that he did not know that in plot number 1269 how many house had been constructed. Tehsildar /Assistant Collector I Class Mand district Mathura held that petitioners' possession was quite old and they were using the land in dispute as their Aabadi and that earlier also ejectment proceedings were initiated against them but they were dismissed. Accordingly through order-dated 8.9.1997, Tehsildar decided the matter in favour of the petitioners and dropped the proceedings. Against the said judgment and order revision No. 38 of 1997-98 was filed which was dismissed by Additional Collector (Administration) Mathura on 12.8.1998. Revision was dismissed on the ground that possession of petitioner was quite old. Thereafter review petition was filed in revision by Gaon Sabha. Additional Collector (Administration) Mathura through judgment and order dated 5.7.2004, allowed the review petition, set-aside the earlier order dismissing the revision dated 8.9.97 and also the order of Tehsildar dated 12.8.1997. Matter was remanded to the court below/ Tehsildar with the direction that the property in dispute shall be got inspected / surveyed through revenue inspector or Naib Tahsildar and thereafter matter should be decided on merit. The said order dated 5.7.2004 was challenged through this writ petition.

In the writ petition stay order was granted for different periods. During the period when there was no stay order, Tehsildar heard and decided the matter in pursuance of remand order dated 5.7.2004. Tehsildar through judgment and order dated 9.1.2006, passed the eviction order against the petitioners in respect of land in dispute comprised in plot No. 1269 area .039 hectares and also imposed damages of Rs. 85112/- Said order has also been challenged through amendment application which has been allowed today.

In my opinion in the order dated 5.7.2004 through which review was allowed there is no such error which may warrant interference in exercise of writ jurisdiction. The earlier order of the revisional court dated 8.7.91 was extremely sketchy. Merely because some one is in possession of Gaon Sabha land for a long time, proceedings for eviction under section 122-B of U.P.Z.A.L.R Act cannot be dropped. In any case after order passed on review petition trial court has decided the matter through judgment and order dated 9.1.2006. Against the said order petitioner has got remedy of revision. Petitioner is entitled to file revision against the judgment and order dated 9.1.2006. If revision is filed within one month from today then the same shall be treated to be within time. While deciding the revision the revisional court shall not take into consideration any observation made in this judgment. Revision shall be decided on merit on the basis of evidence available on record.

Writ petition is dismissed with the above directions.




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