# Kali Charan and others v. Additional Collector, Aligarh and others

- **Citation:** (2005) 4 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-08
- **Case number:** Civil Misc. Writ Petition No.14671 of 1984
- **Bench:** V.C. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kali-charan-and-others-v-additional-collector-aligarh-and-others-40579
- **Pages:** 5

## Headnote

U.P.Z.A. & L.R. Act 1955-Section 122-BPetitioner was granted lease of Bachat
land being uneven and uncultivated by
the L.M.C. under Section 195-earliear
case under Section 209 dismissed on
317.75 with findings the possession of
petitioner is not illegal-became final
between
the
parties-another
village
Pradhan initiated proceeding u/s 122-B
decided in favour of petitioner by order
dt. 21.1.84-on the basis of report of
Lekhpal to the effect the name of
petitioner recorded in colum-4-hence
possession illegal-the Tehsildar by order
dt.
30.6.84
passed
the
order
of
dispossession with direction to Pay
damage
of
Rs.24,675/-held-without
jurisdiction,
manifestly
erroneous,
wrong, bad and illegal-Quashed the
finding recorded earlier will operate as
resjudicata.

Held: Para 8

The assumption of power to initiate
proceedings by the Tehsildar again under
Section 122-B of the Act in which the
impugned orders dated 19.9.1984 and
30.6.1984
were
passed
by
the
respondents no.1 and 2 respectively are
wholly
without
jurisdiction
and
manifestly erroneous, wrong, bad and
illegal and liable to be quashed. In view
of the same, the imposition of damages
to the extent of Rs.24,675/- imposed
arbitrarily
by
the
respondent
no.2
without any basis is also unjust and the
petitioners are not liable to pay the
same.

## Text

4 All] Kali Charan and others V. Addl. Collector, Aligarh and others
1173
immovable property it will be open to him
to decide the objections on merits. If he
comes to the conclusion that it is movable
property the objection would have to be
dismissed as being not maintainable. It is
not necessary for me to advert to the other
submission made by Sri S.N. Singh that
the order passed by the Commissioner
was an ex parte one and without
opportunity as the order is being set aside
on another point.

9. In view of the discussions made
above the writ petition is allowed and the
order dated 16.10.2004 passed by the
Commissioner,
Varanasi
Division,
Varanasi is quashed. The Commissioner
is directed to decide the matter afresh and
if possible within a period of six months
from the date of presentation of a certified
copy of this order before him. Counsel for
the parties agree that they will appear
before the Commissioner on 26.9.2005
and in case for any reason that is not a
working day then on the next working
day.

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2005

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No.14671 of 1984

Kali Charan and others ...Petitioners
Versus
Additional Collector, Aligarh and others

 ...Respondents

Counsel for the Petitioners:
Sri A.K. Sand
Sri P.M. Gupta
Sri M.C. Joshi

Counsel for the Respondents:
Sri V.K. Singh
Sri Anuj Kumar
S.C.

U.P.Z.A. & L.R. Act 1955-Section 122-BPetitioner was granted lease of Bachat
land being uneven and uncultivated by
the L.M.C. under Section 195-earliear
case under Section 209 dismissed on
317.75 with findings the possession of
petitioner is not illegal-became final
between
the
parties-another
village
Pradhan initiated proceeding u/s 122-B
decided in favour of petitioner by order
dt. 21.1.84-on the basis of report of
Lekhpal to the effect the name of
petitioner recorded in colum-4-hence
possession illegal-the Tehsildar by order
dt.
30.6.84
passed
the
order
of
dispossession with direction to Pay
damage
of
Rs.24,675/-held-without
jurisdiction,
manifestly
erroneous,
wrong, bad and illegal-Quashed the
finding recorded earlier will operate as
resjudicata.

Held: Para 8

The assumption of power to initiate
proceedings by the Tehsildar again under
Section 122-B of the Act in which the
impugned orders dated 19.9.1984 and
30.6.1984
were
passed
by
the
respondents no.1 and 2 respectively are
wholly
without
jurisdiction
and
manifestly erroneous, wrong, bad and
illegal and liable to be quashed. In view
of the same, the imposition of damages
to the extent of Rs.24,675/- imposed
arbitrarily
by
the
respondent
no.2
without any basis is also unjust and the
petitioners are not liable to pay the
same.

(Delivered by Hon'ble V.C. Misra, J.)

Heard learned counsel for the parties
at length and perused the record.

1. This writ petition has been filed
challenging the Judgments and Orders
1174 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
dated 19.9.1984 and 30.6.1984 passed by
respondents no.1 and 2 respectively by
which the petitioners were declared to be
in illegal possession and were to be
dispossessed from the land in question
and also to pay a sum of Rs.24,675/- to
the Gaon Sabha as damages.

2. The facts of the case in brief are
that during consolidation proceedings in
district Aligarh Tehsil Hathras the Gaon
Sabha of village Lutsan as per the earlier
decision of Land Management Committee
(in short LMC) after due publication by
beat of drum decided to allot plot
no.741/1 vested in it and left as bachat
land being uneven and uncultivated. No
one came forward to take this plot except
the petitioners. The said plot was allotted
in their name and they invested money as
alleged by the petitioners to the tune of
Rs.10,000/- and laboured hard to make it
even and cultivable. The LMC while
allotting the plot imposed a condition that
after the expiry of 10 years of period of
cultivation the petitioners shall start
paying Rs.100/- per year to the Gaon
Sabha. A Patta was granted on 10.4.1962
by the LMC exercising its power under
Section 195 of the U.P. Zamindari
Abolition and Land Reforms Act (in short
the Act).

3. In the year 1972, a new Pradhan
was elected and he filed a Suit No.514
Gram Sabha Vs. Kali Charan and others
before the Magistrate 1st class under
Section 209 of the Act, which was
dismissed on 31.7.1975 on merits holding
the possession and occupation of the
petitioners as not illegal in nature but with
the consent of the Gaon Sabha. The Gaon
Sabha being aggrieved by the said order
dated 31.7.1975 filed a First Appeal
No.165 of 1974-75 in the Court of
Additional Commissioner, Agra which
too was dismissed on merits vide order
dated 19.2.1976 upholding that the land in
question belonged to the petitioners who
were in possession on the basis of the
resolution dated 10.4.1962 of LMC and
that their possession was not of a
trespasser as contemplated by Section 209
of the Act. The Gaon Sabha did not prefer
any appeal against the said order dated
19.2.1976
of
the
Additional
Commissioner
before
the Board
of
Revenue and the Judgments and findings
of both the aforesaid Courts became final.
The petitioners on legal advice filed an
application for fixation of the land
revenue
before
the
Sub
Divisional
Officer, Hathras which fixed the land
revenue at the rate of Rs.56.90 paise per
annum. In the mean time, another Pradhan
was elected and he filed an application
before the Sub Divisional Officer to
initiate proceedings under Section 122-B
of the Act against the petitioners on the
ground
that
they
were
in
illegal
possession of the land in question and the
Gaon Sabha was suffering a loss. The said
proceedings also culminated in favour of
the petitioners and vide order dated
21.7.1984 the notice under Section 122-B
of the Act was discharged, holding
thereby the possession of the petitioners
as not unauthorized.

4. During the pendency of the
proceedings,
said
proceedings
under
Section 122-B of the Act the Lekhpal of
the village on 21.3.1984 submitted a
report to the Tehsildar under Section 122B of the Act to the effect that the names
of the petitioners was shown in column
no.4 of the revenue records and they were
in illegal possession of the land in
question. The Tehsildar issued a notice to
the petitioners. The petitioners contested
4 All] Kali Charan and others V. Addl. Collector, Aligarh and others
1175
the said notice claiming themselves to be
in authorized possession which had
already been finally held by the revenue
Court in the aforesaid regular Suit No.514
and that the present proceedings under
Section 122-B of the Act were wrong bad
and mala fide in nature. The Tehsildar
without giving an opportunity of hearing
to the petitioners passed an order dated
30.6.1984 against the petitioners to the
effect that they be dispossessed from the
land in question and pay damages to the
tune of Rs.24,675/- to the Gaon Sabha.

5. Being aggrieved by the said order
of the Tehsildar, the petitioners filed a
revision before the Additional Collector
who too disposed off the same on
19.9.1984 upholding the order of the
Tehsildar. Being aggrieved by the order
dated 30.6.1984 passed by the Tehsildar
and the order dated 19.9.1984 passed by
the Additional Collector, the petitioners
preferred the present writ petition on the
ground that the respondents no.1 and 2
had no jurisdiction to initiate proceedings
under Section 122-B of the Act which are
summary in nature and could be initiated
against those persons only when their
possession on the land in question was of
a recent origin and without any right or
title. That the question of deciding the
bona fide right and title was beyond the
scope of Section 122-B of the Act. In the
present case a clear case of right and title
became involved as in the previous
proceedings of Suit No.514 before the
Court of law, it was held that the
petitioners were not in illegal possession
and the findings would act as res-judicata
thereby debarring the respondents from
dispossessing the petitioners from the
land in question by a subsequent summary
proceedings under Section 122-B of the
Act.
6. After having heard the learned
counsel for the parties at length and
perusal of the record, I find that the
petitioners had been validly granted a
Patta by the said LMC on 10.4.1962
exercising its powers under Section 195
of the Act, which does not come under the
mischief of Section 209 of the Act. The
relevant portion of Section 195 of the Act
which as it stood on the date of the grant
of Patta, reads as under:-

195. The Gaon Sabha shall have the right
to admit any person as sirdar to any
land (other than land falling in any
of the classes mentioned in Section
132) where-
(a) the land is vacant land,
(b) the land is vested in the Gaon Sabha
under Section 117 or
(c)
the
land
has
come
into
the
possession of Gaon Sabha under
Section 194 or under any other
provision of this Act.

The relevant portion of Section 209
of the Act is quoted below:-
A
person
taking
or
retaining
possession of land otherwise than in
accordance with the provisions of the law
for the time being in force, and -
(b) where the land does not form part of
the holding of a bhumidar, sirdar or asami
without consent of the Gaon Sabha, shall
be liable to ejectment on the suit of the
Gaon Sabha, or the Collector and shall
also be liable to pay damages.

In the said suit No.514 issue no.3
was framed as, "whether the defendants
are in possession without the consent of
the Gaon Sabha and against the provisions
of law?" This issue was decided in
negative on the basis of evidence placed
on record by the parties with a finding
1176 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
that the Pradhan did not produce the
proceedings book of the relevant year
inspite of it being in his possession. As
the suit was dismissed holding that the
defendants-petitioners were not liable to
ejectment, and findings being confirmed
in Appeal No.165 of 1974, which were
not challenged subsequently before the
higher Court it became final and binding
between
the
parties.
Even
in
the
subsequent proceedings initiated under
Section 122-B of the Act by the Pradhan
before the Sub Divisional Officer the
notice
was
discharged
and
the
proceedings were dropped by him as it
could
not
be
initiated
against
the
petitioners.

7.

The
proceedings
initiated
subsequently before the Tehsildar again
under Section 122-B of the Act in which
the impugned order dated 30.6.1984 was
passed by the Tehsildar against the
petitioners was in the teeth of the
aforesaid Judgments passed in the Suit
No.514 and confirmed in Appeal No.165
of 1974 and the question of the validity of
the possession of the petitioners could not
be re-agitated and looked into and decided
by the revenue authorities as the principle
of res judicata applied. The revisional
Court also erred in upholding the order of
Tehsildar The whole process of reasoning
given by the revisional Court also stands
vitiated in law. More so, the provisions of
Section 122-B of the Act are not
applicable in the present case as at the
time when the Patta was granted by the
LMC on 10.4.1962 in favour of the
petitioners. Section 122-B of the Act had
not seen the light of the day. It came into
effect only from 3.6.1981 by U.P. Act
No.20 of 1972. The relevant portion of
Section 122-B of the Act is quoted
below:-
122-B.
Powers
of
the
Land
Management
Committee
and
the
Collector.-

(1) Where any property vested under
the provisions of this Act in a Gaon Sabha
or a local authority is damaged or
misappropriated or where any Gaon
Sasbha or local authority entitled to take
or retain possession of any land under the
provisions of this Act and such land is
occupied otherwise than in accordance
with the provisions of this Act, the Land
Management
Committee
or
Local
Authority, as the case may be, shall
inform the Assistant Collector concerned
in the manner prescribed.

(2) Where from the information
received
under
sub-section
(1)
or
otherwise, the Assistant Collector is
satisfied that any property referred to in
sub-section (1) has been damaged or
misappropriated or any person is in
occupation of any land, referred to in that
sub-section, in contravention of the
provisions of this Act, he shall issue
notice to the person concerned to show
cause why compensation for damage,
misappropriation or wrongful occupation
as mentioned in such notice be not
recovered from him or, as the case may
be, why he should not be evicted from
such land.

(3)......

(4) If the Assistant Collector is of
opinion that the person showing cause is
not guilty of causing the damage or
misappropriation or wrongful occupation
referred to in the notice under sub-section
(2) he shall discharge the notice.
4 All] Kripal Singh V. State of U.P. and others
1177
(4-A) Any person aggrieved by the
order of the Assistant Collector under
sub-section (3) or sub-section (4) may,
within thirty days from the date of such
order prefer, a revision before the
Collector on the grounds mentioned in
clause (a) to (e) of Section 333.

(4-E) No such suit as is referred to in
sub-section (4-D) shall lie against an
order of the Assistant Collector if a
revision is preferred to the Collector
under sub-section (4-A).

It is also found that the subsequent
proceedings in which the impugned
orders were passed had been initiated by
the Pradhan himself individually and not
by the LMC as no such resolution was
duly passed by the LMC as is required by
it to inform the Assistant Collector
concerned in the manner prescribed,
which is only by way of passing a
resolution, the fact that no resolution was
passed by LMC is apparent from the
statement of the Lekhpal contained in the
Judgment of the Assistant Collector dated
31.7.1975
annexure-4
to
the
application/affidavit of the petitioners
dated
10.10.2002,
which
reads
as
follows:-

"izfroknhx.k ds fo:/k ;g eqdnek nk;j djus ds fy;s
dksbZ izLrko is'k ugh gqvk A"

8. The assumption of power to
initiate proceedings by the Tehsildar
again under Section 122-B of the Act in
which
the
impugned
orders
dated
19.9.1984 and 30.6.1984 were passed by
the respondents no.1 and 2 respectively
are wholly without jurisdiction and
manifestly erroneous, wrong, bad and
illegal and liable to be quashed. In view
of the same, the imposition of damages to
the
extent
of
Rs.24,675/-
imposed
arbitrarily by the respondent no.2 without
any basis is also unjust and the petitioners
are not liable to pay the same.

In view of the aforesaid facts,
circumstances, and observations made
hereinabove, the impugned orders dated
19.9.1984 and 30.6.1984 passed by
respondents no.1 and 2 respectively are
hereby quashed. The writ petition is
allowed with costs throughout.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.7.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 48682 of 2005

Kripal Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.R. Singh

Counsel for the Respondents:
Chief Standing Counsel
Sri V.K. Singh (S.C.)
 (Gaon Sabha)

U.P.
Zamindari
Abolition
and
land
Reform
Act-
Section
122-B
(4-F)-
Settlement
of
Gaon
Sabha
Land-
petitioner
alleging
himself
to
be
scheduled cost candidate- on basis of
compromise the village pradhan-given
the land in question for construction of
'Barat
Ghar'-
No
material
produced
regarding plea of agricultural labour-the
man
possessing
financial
status
to
construct a 'Barat Ghar' cannot be
agricultural
labour-
compromise
between the petitioner and the Gaon
Panchayat-
unsustainable-Court
expressed
its
great
concern-
D.M.