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Saleem v. The Commissioner, Moradabad Division, Moradabad & Others - WRIT - C No. 51991 of 2006  RD-AH 2664 (19 February 2007)
Civil Misc. Writ Petition No. 51991 of 2006.
The Commissioner, Moradabad Division, Moradabad and others.
Hon'ble Anjani Kumar, J.
By means of present writ petition under Article 226 of the Constitution of India, the petitioners have challenged the order passed by the revisional authority, namely Commissioner, Moradabad Division, Moradabad dated 25th July, 2006, whereby the revisional authority dismissed the revision filed by the petitioners against the order passed by the Collector, Rampur dated 30th November, 2005 by which the Collector has set aside the order dated 15th January, 1996, passed by the Sub-Divisional Magistrate concerned.
The brief facts of the present case are that the plot in dispute being plot no. 673, measuring area 0.044 hectare, situated in village Kamery, Tehsil Bilsapur, district Rampur, the father of the petitioners Bhoora filed a suit being O.S. No. 646 of 1991 in which Town Area Kameri was party. The suit was decreed by the Civil Court in favour of the petitioners' father and the land was ultimately settled in favour of petitioners by the then Sub-Divisional Magistrate under Section 123 (1) of the U.P. Zamindari Abolition and Land Reforms Act (In short 'the Act') on 15th January, 1996. On the complaint, the Assistant Collector/Tehsildar concerned on 13th October, 2003 directed the Lekhpal halka to submit a report with regard to the plot in dispute, who in turn submitted his report on 15th October, 2003. On the basis of the report submitted by Lekhpal, the Assistant Collector submitted a report on 15th October, 2003 before the Sub-Divisional Officer concerned with the recommendation that the settlement of the plot in dispute in favour of the petitioners may be cancelled and the same be recorded as pond, as the same is originally recorded as pond and lying vacant. Thereupon the Sub-Divisional Officer submitted a report on 16th October, 2003 stating therein that in fact on the plot in dispute neither there is any Abadi and the land is lying vacant, therefore the regularization purported to have been done under Section 123 (1) of 'the Act' is illegal. It was therefore recommended that the aforesaid plot be recorded as pond. The Sub-Divisional Officer submitted its report to the Collector concerned, who
issued notices to Bhoora, the predecessor in the interest of the petitioners. The petitioners were substituted, as Bhoora was dead and petitioners filed their objections which contain inter alia that the report submitted by the Sub-Divisional Officer is not correct. The petitioners further submitted that on the disputed plot there is no pond and that the petitioners are in possession since the time of their ancestors. It has been further submitted by the petitioners that on the adjacent plot no. 28, measuring area 0.118 hectare, the petitioners and one Kallan were recorded as tenure holders with transferable right and that on plot no. 28, the petitioners and others have built up their houses. The plot no. 28 and the plot in dispute i.e. plot no. 673 are adjacent to each other and there is no boundary between these two plots. In these circumstances, regularization order granted in favour of their predecessor Bhoora i.e. the father of the present petitioners is perfectly justified and in accordance with law. The petitioners further stated that the plot in dispute is situated within the limit of town area and not within the limit of Gaon Sabha. The petitioners filed their evidence in the form of affidavits and the concerned Lekhpal was examined on behalf of Gaon Sabha, who has also filed relevant Khatauni entries before the Collector. The Collector examined the evidence on record and after considering the objection raised by the petitioners observed in its order impugned that it is not disputed that the Khatauni regarding relevant plot stood recorded in category 6(1) being the land submerged with water, thus the land in dispute is covered by Section 132 of the Act and the same is recorded as pond. Thus the disputed land is a land of public utility which cannot be either allotted or regularized in favour of any person, including the petitioners or their ancestors. The Collector has further observed that from the material on record, it is apparent that over the land in dispute, there was no Abadi and the land is lying vacant. In this view of the matter, the regularization in favour of the predecessor of the petitioners deserves to be set aside. The Collector therefore vide order dated 30th November, 2005 set aside the order dated 15th January, 1996 by which land in dispute was regularized in favour of the predecessor of the petitioners.
Aggrieved by the order passed by the Collector dated 30th November, 2005, the petitioners filed revision before the Commissioner, Moradabad Division, Moradabad/revisional authority. Before the revisional authority, the petitioners-revisionists raised the same arguments as were
advanced before the Collector, along with one additional ground that according to Section 123 of 'the Act' in case a person belonging to Scheduled Caste constructs his residential house over the land belonging to the Gaon Sabha, then in view of the provisions of Section 122 (6) of 'the Act' the said house site shall stood settled in favour of the said scheduled caste person and this is what exactly the Sub-Divisional Magistrate has done when the possession of the petitioners was regularized by the order dated 15th January, 1996 under Section 123 (1) of 'the Act'. It is further submitted that cancellation of the allotment of the land in dispute is not maintainable under Section 198 (4) of 'the Act' as the allotment / regularization made in favour of the petitioners, the predecessor of the allottee was not done under Section 195 or 197 of 'the Act', therefore proceeding under Section 198 (4) of 'the Act' cannot be initiated against the petitioners and the dispute should have been raised before the civil Court. It was therefore prayed before the revisional authority that the order passed by the Collector deserves to be set aside. On behalf of Gaon Sabha it has been argued before the revisional authority that on paper no. 3/1 the report submitted by Sub-Divisional Officer wherein the plot in dispute is recorded as pond. Paper no. 3/2 clearly demonstrates that the plot in dispute is not recorded as Abadi and the same is lying vacant. The Khatauni from 1401 to 1406 Fasli clearly demonstrate that the plot in dispute is recorded as pond, thus the plot in dispute is the property of State/Gaon Sabha, which is ear-marked for public utility, which could not have been allotted in favour of the petitioners even by the Gaon Sabha. The petitioners were addressed themselves as the persons belonging to Muslim scheduled caste, but since the land in dispute is the land earmarked for public utility and is recorded as pond, in this circumstance the petitioners possession over the plot in dispute could not have been regularized under Section 123 (1) of 'the Act', as the petitioners do not belong to scheduled caste and the order passed by the then Sub-Divisional Magistrate dated 15th January, 1996 deserves to be set aside. Thus, the revisional authority vide order dated 25th July, 2006 dismissed the revision filed by the petitioners.
Before this Court, learned counsel for the petitioners has reiterated the same arguments as were advanced before the Collector as well as before the revisional authority. Learned counsel for the petitioners has not been able to demonstrate that the findings arrived at by the Collector and
affirmed by the revisional authority to the effect that in the Khatauni 1401 to 1406 Fasli the plot in dispute is recorded as pond and from other documents the land has been shown for the land of public utility, which could not have been allotted to any person, including the present petitioners, are perverse or in any way suffer from any error much less error apparent on the face of record. In these circumstances, the findings arrived at by the Collector and affirmed by the revisional authority do not require any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
In view of what has been stated above, this writ petition has no force and is dismissed. However, there will be no order as to costs.
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