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Krishna Murari and another v. A.D.M., Rampur and others - WRIT - C No. 177 of 1984  RD-AH 1014 (4 October 2004)
Civil Misc. Writ Petition No. 177 of 1984
Krishan Murari & another ---- Petitioners
Additional District Magistrate, Rampur & others -- Respondents.
Hon'ble V.C.Misra, J.
Heard Sri B.D.Mandhyan, learned Senior Advocate assisted by Sri Ramendra Pratap Singh, learned counsel for the petitioners. No one has appeared on behalf of the respondent no. 3. In this writ petition no counter affidavit has been filed on behalf of the respondents.
1. This writ petition has been filed by the petitioners for quashing the impugned orders dated 14.12.1982 (Annexure No. 2 & 3) passed by the respondent no. 2- Assistant Collector, Tehsil Shahabad, district Rampur and dated 20.10.1983 (Annexure No. 4 & 5) passed by the respondent no. 1-Additional District Magistrate, Rampur, respectively, ejecting the petitioners from the land/plots, in question, and imposing damages upon the petitioners.
2. The present writ petition arises out of the proceedings initiated against the petitioners under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as ''the Act') in respect of plots No. 366/3 & 366/4 situate in village Dhakiya, Tehsil Sahbad, district Rampur. From the report of Lekhpal submitted to the Assistant Collector- respondent no. 2, notices in Form 49-A were issued to the petitioners. The petitioners filed their objections before the respondent no. 2, wherein, inter alia, they stated that they were not in
possession of any land of the Gram Samaj and their possession over the land/plots, in dispute had been from the time of their ancestors. In the said proceedings on behalf of the Gram Samaj only Lekhpal was examined, whereas on behalf of the petitioners, both the petitioners had got themselves examined in support of their case. The respondent no. 2 directed Naib Tehsildar to make spot inspection but the Naib Tehsildar submitted its report dated 30.8.1982 without serving any notice upon the petitioners and allegedly made a spot inspection behind the back of the petitioners. When the petitioners came to know about the said inspection report they moved an application before the respondent no. 2 stating therein that the inspection report was not correct and Naib Tehsildar be directed to make spot inspection again in their presence but no orders were passed by the respondent no. 2 on their applications.
3 The respondent no. 2- Assistant Collector vide its both impugned orders dated 14.12.1982 (Annexure No. 2 & 3) directed the ejectment of the petitioners from the land/ plots, in question and imposed damage to the tune of Rs. 6200/- against the petitioner no. 1 and Rs. 3230/- against the petitioner no. 2. Being aggrieved, both the petitioners filed a revision before the Additional District Magistrate, Rampur- respondent no. 1, who by the both impugned orders dated 20.10.1983 (Annexure No. 3 & 4) dismissed the revision confirming both the orders passed by the Assistant Collector- respondent no. 2.
4 The petitioners have stated in para 7 of the writ petition that the report of the Lekhpal, which was not corroborated by any other evidence, has been blindly accepted by the respondents no. 1 and 2. Neither Pradhan of the village was examined nor any other person of the village came forward to support the case of the Gram Samaj nor any documentary evidence was filed on behalf of the Gram Samaj to prove that the land/ plots, in dispute actually belonging to it, whereas the petitioners had
adduced sufficient oral evidence. The respondent no. 3 had admitted before the respondent no. 1 and 2 in the said proceedings that only about 200 yards from the land/plots, in dispute there existed a pond, which was under the law full possession of the petitioners. The petitioners have further stated that neither any survey was made by the concerned authorities to establish that the land/ plots, in dispute formed a part of the pond, nor the identity of the land of the Gaon Sabha was established, therefore, the proceedings under Section 122-B of the Act ought to have been dropped.
5 Learned counsel for the petitioners has submitted that according to Section 122-B (3) of the Act the Assistant Collector could direct a trespasser to be evicted from the land belonging to the Gaon Sabha if the cause shown by the trespasser was found to be insufficient. Therefore, the respondents no.1 and 2 have grossly erred in passing the impugned orders of eviction and imposing damages there upon without showing any reason. Since no criterion has been disclosed in the impugned orders as to how damages have been assessed, the same being arbitrary and passed without application of mind are liable to be set aside.
6. Learned counsel for the petitioners has relied upon the decision of this Court rendered in Puran & another Vs. Collector, Muzaffar Nagar and others (1997 (3) ALR 368) on the points that, the impugned orders directing the ejectment of the petitioners should not have been passed without fixing identity of the plots, in question, and the revisional authority had wrongly placed reliance upon the report of the Lekhpal and erred in not permitting spot inspection by the Tehsildar. Thus, the impugned order is liable to be quashed. Learned counsel for the petitioners further relied upon another decision of this Court rendered in Jagpati Vs. Chief Revenue Officer, Allahabad & others (2001 (3) A.W.C. 2319) on the point that cryptic orders passed for evicting the
occupants and imposing damages was not based on definable material but on conjectures and surmises and neither recording any reasons in support of the conclusion nor any finding on the objection of petitioner that he was not in possession of the land of Gaon Sabha , such order passed was found invalid.
7. Since the respondents have not filed any counter affidavit in rebuttal to controvert the averments made in the writ petition till date, inspite of time being granted to them, this Court is left with no option but to accept the averments made in the writ petition to be correct and true, since it is settled law, that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct and the presumption is in favour of the petitioner, in terms of Section 114 Illustration (G) of the Evidence Act, as laid down in catena of decisions including A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. page 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709.
8. From the facts and circumstances of the case averred in the writ petition and from perusal of the impugned orders, I am satisfied that the respondents no. 1 and 2, both, have committed manifest error of law in directing the eviction of the petitioners from the land/plots, in question, and imposed damages particularly in view of the fact that respondent no. 3- Gram Samaj had not submitted any evidence in support of their ownership of the land/plots, in question. I also find that the orders of eviction and imposition of damages upon the petitioners are not based on definable material nor any cogent reasons, and it is apparent on the face of the record that the reasons which have been recorded by the authorities- the respondents no. 1 And 2 while rejecting the case of the petitioners were erroneous and passed on non-existent grounds.
In view of the above said facts and circumstances of the case, settled law and observations made herein above, the writ petition is allowed. The impugned orders dated 14.12.1982 (Annexure No. 2 and 3) passed by the respondent No. 2- Assistant Collector and dated 20.10.1983 (Annexure no. 4 and 5) passed by the respondent no. 1- Additional District Magistrate, Rampur, respectively, are hereby quashed. There will be no order as to costs.
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