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MAHADEO versus COLLECTOR

High Court of Judicature at Allahabad

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Mahadeo v. Collector - WRIT - C No. 15437 of 1986 [2004] RD-AH 1689 (13 December 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 51

Civil Misc. Writ Petition No. 15437 of 1986

Mahadeo                                        ------                   Petitioner

Vs.

The Addl. Collector (Rural Area), Allahabad & others----Respondents.

----

Hon'ble V.C.Misra, J.

Sri N.D. Kesari, learned counsel for the petitioner and learned Standing Counsel on behalf of respondents no. 1 and 2 are present. No one is present on behalf of respondents no. 3 and 4- Land Management Committee, Bharauhan and Gaon Sabha, Bharauhan, respectively nor any counter affidavit has been filed on their behalf in rebuttal to the averments made in the writ petition.

1. This writ petition has been filed by the petitioner for quashing the impugned judgments and orders dated 23.12.1985 (Annexure No. 8 to the writ petition) passed by the Additional Collector (Rural Area), Allahabad- respondent no. 1 and dated 31.5.1984 (Annexure No. 7 to the writ petition) passed by the Tehsildar, Karchhana, Allahabad- respondent no. 2 holding that the petitioner had occupied the land, in question, which was reserved for abadi without any right or title and have imposed damages upon the petitioner.

2. The facts of the case in brief are that on the report of Lekhpal, a notice under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act (hereinafter referred to as ''U.P.Z.A. & L.R. Act') was issued against the petitioner alleging therein that he has made an encroachment over plot no. 111, admeasuring 14 biswa, 1 Dhoor, situated at Village Bharauhan, Pargana Arail, Tehsil Karchhana, District Allahabad and he damaged the Gaon Sabha property and was liable to be ejected from the land, in question. The petitioner filed his objections before the respondent no. 2 mentioning therein that he was Harijan by caste and had built his house, cattle shed, Charhee, Maraha etc., over the land, in question and had also planted trees over it for more than fifty years before and being a landless agricultural labourer was entitled to be protected by Section 122-B (4-F) of the U.P.Z.A. & L.R. Act. The respondent no. 2 vide its impugned order dated 31.5.1984 (Annexure No. 7 to the writ petition) rejected the objections filed by the petitioner and held that encroachment over the land, in question, made by the petitioner was proved. The respondent no. 2 had also rejected the application of the petitioner for re-inspection of the land, in question. Being aggrieved, the petitioner filed a revision under Section 333 of the U.P.Z.A. & L.R. Act, being Revision No. 487/175 of 1984-85, before the respondent no. 1-Additional Collector (Rural Area), Allahabad, who too, dismissed the revision on the ground that the revisionist, petitioner herein, had occupied the land, in question, without any right or title and if his version that his house was about fifty years old and there existed 100-150 trees planted by his ancestors was true then why had he not taken any steps for getting the said land recorded in his as his Abadi or grove and since no documentary evidence was filed by him in this regard, there was no force in the revision. Being aggrieved, the petitioner moved the present writ petition.

3. 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 repeatedly. It is settled law as laid down in 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 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 drawing the presumption in favour of the petitioner in terms of Section 114 Illustration (g) of the Evidence Act, 1872. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be correct and true.

4. I have looked into the record of the case and heard learned counsel for the petitioner and learned Standing Counsel at length. Considering the facts and circumstances of the case, I find that the orders dated 23.12.1985 (Annexure No. 8 to the writ petition) of the Additional Collector (Rural Area), Allahabad- respondent no. 1 and dated 31.5.1984 (Annexure No. 7 to the writ petition) the Tehsildar, Karchhana, Allahabad- respondent no. 2 have been passed without considering the oral evidence led by the petitioner which remain uncontroverted and more so, the said impugned orders cannot be said to be speaking orders. The respondents no. 1 and 2 have also not considered the provisions of Section 122-B(4-F) of the U.P.Z.A. & L.R. Act which clearly applies   to the present case of the petitioner.

5. In view of the above said facts and circumstances of the case, the impugned orders dated 23.12.1985 (Annexure No. 8 to the writ petition) passed by the Additional Collector (Rural Area), Allahabad- respondent no. 1 and dated 31.5.1984 (Annexure No. 7 to the writ petition) passed by the Tehsildar, Karchhana, Allahabad- respondent no. 2 are hereby quashed. The writ petition is allowed. The matter is remanded back to the respondent no. 1 to decide the case afresh after affording opportunity of hearing to the petitioner and other interested parties, if there are any, in accordance with law, keeping into consideration the provisions of Section 122-B (4-F) of the U.P.Z.A. & L.R. Act and other provisions of law applicable to the present case.

The writ petition is allowed to the extent indicated above. There will be no order as to costs.

December 13, 2004

Kdo


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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