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Manaiya v. Addl. Collector & Others - WRIT - C No. 18223 of 1985  RD-AH 446 (4 August 2004)
Civil Misc. Writ petition No. 18223 of 1985
Manaiya Vs. Addl. Collector and others.
Heard Sri H.O.K. Srivastava, learned counsel for the petitioner and learned standing counsel for the respondents.
In this case the dispute relates to plot no. 317 area 0.2.0 situate in village Amaur Pargana Ghatampur District Kanpur. The proceedings under Section 122-B of the U.P.Z.A. & L.R. Act (hereinafter referred to as the Act) were initiated against the petitioner in respect of the land in dispute. A notice under Form 49-Ka was issued to the petitioner in which it was alleged that the petitioner had encroached upon the land in dispute for the last 5 years after constructing a house over it and thereby caused a damage of Rs.300/-. The petitioner filed an objection against the notice and stated in his objection that the notice is illegal and not maintainable, and that the land in dispute was allotted to the petitioner in 1972 for abadi and in pursuance thereof the petitioner constructed the house over it and is using it for his dwelling purpose. It was also stated that on 12.7.1981 the Goan Sabha passed a resolution and upheld the possession of the petitioner over the land in dispute and also of the construction of the house. It was further stated that the land does not belong to the Goan Sabha and that no encroachment had been made over the Goan Sabha Land. On behalf of Goan Sabha Ram Lal Lekhpal was examined on 7.12.1984. He has admitted in his statement that the land in dispute was allotted to the petitioner-Manaiya.
On behalf of the petitioner Chhotey Singh Up Pradan was examined on 18.12.1984 as D.W.1 and one Cheedi Lal was examined as D.W.2. The Ex-Up Pradhan Chhotey Singh stated in his statement that the land in dispute was allotted to the petitioner in 1972. Chheda Lal in his statement also stated that the land in dispute was allotted to the petitioner in 1972 for constructing his house over the land in dispute and since then he is in possession over it. These witnesses were never cross-examined. The petitioner Manaiya also got himself examined as D.W.3 and stated that the land in disputed was allotted to him about 13/14 years back and since then he is in possession over it and has also built a house thereon and is still living in it since then.
The learned Assistant Collector/Tehsildar after considering the entire evidence on record came to the conclusion that the land in dispute was allotted to the petitioner in 1972 and he built a house over it and is using the same for residential purposes. The learned Assistant Collector also came to the conclusion that since the land had been allotted by the Goan Sabha the proceedings under Section 122-B of the Act are not maintainable and therefore, he withdrew the notice and dropped the proceedings against the petitioner.
Being aggrieved by the judgment dated 26.2.1985 the Goan Sabha filed a revision before the Collector, Kanpur, which was registered as revision no.98/84-85, and cameup for hearing before the Additional Collector, who by his order dated 13.8.1985 allowed the same, and ordered for ejectment of the petitioner from the land in dispute and also imposed damages of Rs.300/- on him.
Being aggrieved, the petitioner filed the present writ petition mainly on the ground that the revision before the Additional Collector is not maintainable, and that the finding of the trial Court relating to the allotment of the land in dispute in his favour had not been upset by the order dated 13.8.1985, and that the land having been allotted to the petitioner, the Goan Sabha was divested of its ownership and the land remained no longer its property, as such the proceedings under Section 122-B of the Act did not lie, more so, since the petitioner was not a trespasser nor an authorized occupant of the land of the Goan Sabha and his house was standing on the land in dispute and unless and until the allotment was cancelled in accordance with law by the Competent Authority the petitioner could not be ejected in summary proceedings and lastly, because Revenue Court did not have any jurisdiction in the matter as dispute of title could be decided by the Civil Court only in accordance with law, specially since earlier proceedings under Section 122-B of Act had already been finally decided in favour of the petitioner by the Assistant Collector then the course left open to the Goan Sabha was to file a suit for declaration of title as per the provision of Section 122-B (4) of the Act.
The respondents till date have not filed their counter affidavit in rebuttal to the averments made in the writ petition. It is settled law that if no counter 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. ppage 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709. 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.
I have looked into the record and heard the learned counsel for the parties at length. Under the above said facts and circumstances of the case, and observations made herein above, the order-dated 13.8.1985 (Annexure No.6 to the writ petition) is hereby quashed. The writ petition is allowed with no order as to costs.
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