# Mardan v. Collector Kanpur Dehat & others

- **Citation:** (2012) 2 ILRA 916
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-19
- **Case number:** Civil Misc. Writ Petition No. 41252 of 1996
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mardan-v-collector-kanpur-dehat-others-42215
- **Pages:** 4

## Headnote

Act, 1950-Section9, 122-B-Eviction of
2 All] Mardan V. Collector Kanpur Dehat & others
917
land recorded as pond-contention of
petitioner-nature of land being abadistructure standing from the period of his
ancestors-settled by the then Zamindar
since much prior to the Zamindari
Abolition-stood settled under Section 9
of the Act-admitted position by the
Revenue
authorities-land
belongs
to
Zamindar-can not be restricted to settle
any body-only consideration requires
whether land was recorded as Abadi on
pond at the time abolition of Zamindariorders impugned not sustainable-liberty
given to the Revisional Court to consider
its public utility.

Held: Para 8

In the aforesaid circumstances, in the
opinion
of
the
Court,
neither
the
revisional
authority
nor
any
other
authority has been able to successfully
conclude that the land over which the
petitioner has raised his construction is
recorded as a pond or was recorded as a
pond prior to abolition of Zamindari
when the said constructions are said to
have been raised. It also needs to be
clarified that a hereditary tenancy could
not be created under the provisions of
Section 20 of the U.P. Tenancy Act over
public utility land before abolition of
Zemandari. Nonetheless there was no
bar or prohibition on a Zamindar to have
leased out any form of land for any other
purpose. The reason was simple that the
zamindar was the owner or every inch of
land and he could have leased out even a
pond. A heriditary right could not have
been in a tenant, but that did not take
away the power of the Zemandari to
settle the land. In the circumstances
where
the
evidence
is
that
the
petitioner's
construction
and
his
possession is prior to the abolition of
Zamindari then it was the duty of the
revisional autholrity to have looked into
the aforesaid provisions of the U.P.
Tenancy Act as well before arriving at
any conclusion.

(Deliverd by Hon'ble Amreshwar Pratap
Sahi, J.)

## Text

916 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5.

Aggrieved,
the
petitioner
approached this Court through this
petition
and
the
operation
of
the
impugned order was stayed vide interim
order dated 31.12.1995.

6. The contesting respondents
including the State have filed counter
affidavits and they contend that the
appellate authority has not committed any
error and has disposed of the appeal
keeping in view its long pendency. In the
circumstances they pray that the writ
petition be dismissed as the petitioner
himself was responsible for the delay
caused in the hearing of the appeal.

7. Having considered the aforesaid
submissions and having perused the
records as well as the order sheet of the
appellate court, this Court finds that the
appellate authority has committed a
manifest error by showing disrespect to
the resolution of the Bar Association for a
genuine cause, namely, to attend the
funeral of one the senior lawyers who had
expired on that date. In the circumstances
the request made by the counsel on behalf
of the petitioner for adjournment was
absolutely justified and could have been
granted. The finding recorded that the
petitioner
was
seeking
unnecessary
adjournments with a view to prolong the
appeal, therefore, does not appear to be
correct on the basis of the facts which
have been brought on record.

8. The learned Standing Counsel and
the learned counsel for the contesting
respondents have not been able to justify
the action of the appellate authority in
dismissing the appeal cursorily without
the assistance of the petitioner's counsel
and in his absence.

9. Apart from this Section 38 of the
U.P. Imposition of Ceiling on Land
Holdings Act requires that the procedure
for hearing and deciding an appeal to be
followed by the appellate authority shall
be the same as that of a civil court and the
procedure laid down in the Code of Civil
Procedure Code, 1908. Since the matter
arose out of an appeal, therefore, the
provisions of Order XXXXI Rule 17 (1)
stood attracted. The court, therefore,
could have dismissed the case in default
but not on merits in the absence of the
counsel for the petitioner. On both counts,
therefore, the order of the appellate
authority is unsustainable. Accordingly,
the order of the learned Additional
Commissioner dated 31st October, 1995
is quashed. The appellate authority may
now proceed to dispose of the appeal on
merits in accordance with law.

10. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 41252 of 1996

Mardan

 ...Petitioner
Versus
Collector Kanpur Dehat & Others

 ...Respondents

Counsel for the Petitioner:
Sri A..K. Sachan

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

U.P.Zamindari abolition and Land Reform
Act, 1950-Section9, 122-B-Eviction of
2 All] Mardan V. Collector Kanpur Dehat & others
917
land recorded as pond-contention of
petitioner-nature of land being abadistructure standing from the period of his
ancestors-settled by the then Zamindar
since much prior to the Zamindari
Abolition-stood settled under Section 9
of the Act-admitted position by the
Revenue
authorities-land
belongs
to
Zamindar-can not be restricted to settle
any body-only consideration requires
whether land was recorded as Abadi on
pond at the time abolition of Zamindariorders impugned not sustainable-liberty
given to the Revisional Court to consider
its public utility.

Held: Para 8

In the aforesaid circumstances, in the
opinion
of
the
Court,
neither
the
revisional
authority
nor
any
other
authority has been able to successfully
conclude that the land over which the
petitioner has raised his construction is
recorded as a pond or was recorded as a
pond prior to abolition of Zamindari
when the said constructions are said to
have been raised. It also needs to be
clarified that a hereditary tenancy could
not be created under the provisions of
Section 20 of the U.P. Tenancy Act over
public utility land before abolition of
Zemandari. Nonetheless there was no
bar or prohibition on a Zamindar to have
leased out any form of land for any other
purpose. The reason was simple that the
zamindar was the owner or every inch of
land and he could have leased out even a
pond. A heriditary right could not have
been in a tenant, but that did not take
away the power of the Zemandari to
settle the land. In the circumstances
where
the
evidence
is
that
the
petitioner's
construction
and
his
possession is prior to the abolition of
Zamindari then it was the duty of the
revisional autholrity to have looked into
the aforesaid provisions of the U.P.
Tenancy Act as well before arriving at
any conclusion.

(Deliverd by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the
petitioner, Sri A.K. Sachan and learned
standing counsel for the State.

2. This is a writ petition arising out
of proceedings under Section 122-B of
the Uttar Pradesh Zamindari Abolition
and
Land
Reforms
Act,
1950
(hereinafter referred to as 'the U.P.Z.L.
& L.R. Act') on the ground that the
petitioner has encroached upon Gaon
Sabha land. The stand of the State is
that the land of plot No. 93 was
recorded as a pond over which the
petitioner has encroached upon and has
constructed his house.

3. The petitioner's contention is
that he is in possession over plot No.
161 which was recorded as Abadi and
not a pond and that he was in a
permissive possession over the said land
from the then Zamindar even from prior
to abolition of Zamindari. The evidence
which was led on behalf of the
petitioner also was believed by the
revising authority. This fact is being
stated as it is on record.

4. The tehsildar dropped the
proceedings against the petitioner. On a
revision filed by the Gaon Sabha the
order has been reversed on the ground
that
the
petitioner
is
in
adverse
possession even if it is correct that the
land was that of the Zamindar.

5. The issue is if the land was in
the shape of an Abadi then the
Zamindar,
prior
to
abolition
of
Zamindari, who was the owner of every
inch of land, had authority to allow any
918 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
of his tenants or villagers to raise
constructions
on
such
land.
The
petitioner's consistent case is that he and
his ancestors had obtained the said land
and the house was constructed thereon
and is existing there prior to the
abolition of the zamindari.

6. The revisional authority, in the
opinion of the Court, has completely
overlooked the provisions of Section 9
of the U.P.Z.L. & L.R. Act which
provides that in case an Abadi had been
settled prior to abolition of Zamindari in
favour of either the intermediary or the
tenant then the constructions stand
thereon together with the Abadi will be
deemed
to
be
settled
with
the
intermediary or the tenant as the case
may be. In the instant case the
revisional authority itself has accepted
and admitted that the land belonged to
the then Zemindar.

7. The only question that remains
to be seen is whether the land was
Abadi or a pond as alleged by the
respondent-state. The evidence which
was brought on record including the
statement of Lekhpal does not indicate
any clarity with regard to the location of
the disputed land and it
cannot,
therefore,
be
concluded
that
the
constructions are situated over a land
which is recorded as a pond. It is for
this reason that while granting an
interim order on 19.12.1996 this Court
had categorically taken notice of this
fact.

8. In the aforesaid circumstances,
in the opinion of the Court, neither the
revisional authority nor any other
authority has been able to successfully
conclude that the land over which the
petitioner has raised his construction is
recorded as a pond or was recorded as a
pond prior to abolition of Zamindari
when the said constructions are said to
have been raised. It also needs to be
clarified that a hereditary tenancy could
not be created under the provisions of
Section 20 of the U.P. Tenancy Act over
public utility land before abolition of
Zemandari. Nonetheless there was no
bar or prohibition on a Zamindar to
have leased out any form of land for any
other purpose. The reason was simple
that the zamindar was the owner or
every inch of land and he could have
leased out even a pond. A heriditary
right could not have been in a tenant,
but that did not take away the power of
the Zemandari to settle the land. In the
circumstances where the evidence is
that the petitioner's construction and his
possession is prior to the abolition of
Zamindari then it was the duty of the
revisional autholrity to have looked into
the aforesaid provisions of the U.P.
Tenancy Act as well before arriving at
any conclusion.

9. Accordingly, the revisional
order dated 13.9.1996 is quashed. It
shall be open to the revisional authority
to pass a fresh order in the light of the
observations made hereinabove.

10. With the aforesaid directions
the writ petition is allowed.
---------
2 All] Ashish Sharma and another V. State of U.P. and others
919
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Recall Application No.247150 of 2011
And
Criminal Misc. Application No. Nil of 2011
In
Civil Misc. Writ Petition No. 43896 of 2011

Ashish Sharma and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Amit Jaiswal
Sri Manoj Kumar Gautam

Counsel for the Respondents:
Sri Seema Mishra
C.S.C.

Constitution of India, Article 226-Writ
Court-where within definition of 'Court'
for purposes of initiating of proceeding
under Section 195 (3) with Section 340
Cr.P.C.-Writ Court decided Writ Petition
being
satisfied
with
documentary
evidence regarding age of girl and boygranted protection-recall application on
allegation of fraud-affidavit filed by
applicant is counter to affidavit by
petitioner-can not be determining aspect
of fraud unless established by Courthaving power of evidence and recording
specific finding-admittedly no FIR as yet
filed against the petitioner-application
for initiation of criminal proceedingrejected-writ court is not court of
evidence-can not be termed as court
under provisions of Section 195 readwith
340 Cr.P.C.

Held: Para 10

Proceedings under Section 195 is to be
proceeded under Section 340 Cr.P.C.
therefore,
at
the
time
of
making
application both the sections will be
conjointly read. Sub-Section 3 of Section
195 Cr.P.C. speaks about the meaning of
the 'Court', which means a Civil, Revenue
or
Criminal
Court,
and
includes
a
Tribunal constituted by or under a
Central,
Provincial
or
State
Act
if
declared by that Act to be a 'Court' for
the
purposes
of
this
Section.
The
applicant has made out a case under
Sections 193, 196, 199, 200, 463, 471
and 475 IPC, but no FIR has been lodged
nor any complaint case was filed nor the
applicant proceeded before the Criminal
Court to obtain an order. Law is well
settled by now that the term 'Court'
indicates that there must be power to
record evidence and to come to a judicial
determination
on
the
evidence
so
recorded.
The
words
used
in
the
provision are important. The Writ Court
is not the Court of evidence. Thus, the
Writ Court under no circumstances can
be said to be the 'Court' under the
provisions of Section 195 read with
Section 340 Cr.P.C.
Case law discussed:
1976 (3) SCC 234; 2006 (5) SCC 475; AIR
2010 SC 3196; 2011 (6) SCC 396; Civil Misc.
Writ Petition No. 16299 of 2012 (Niresh Kumar
Srivastava and another Vs. State of U.P. and
others)

(Delivered by Hon'ble Amitava Lala, J.)

Amitava Lala, J.-- These are the
applications of the respondent no.4 to
recall the order passed by this Bench on
04.08.2011 in connection with marriage
between petitioner nos. 1 and 2 and
interference with their private life and to
proceed under Section 340 of the Code
of
Criminal
Procedure,
1973
(hereinafter in short called as ' Cr.P.C.').
Like few others, in this State also, even
in 21st century so many factors are
involved in connection with the life and
security
of
the
married
couples.
Casteism, religionism, 'honour' killings,