# Ramesh Singh v. Gram Panchayat and others

- **Citation:** (2012) 2 ILRA 870
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-13
- **Case number:** Civil Misc. Writ Petition No. 15560 of 2000
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-singh-v-gram-panchayat-and-others-42189
- **Pages:** 4

## Headnote

Sri Anuj Kumar
C.S.C.

U.P.
Zamindari
Abolition
and
Land
reform
Act
1950-Section
122-BEjectement
order-ignoring
Decree
passed in Civil Suit in favor of petitionerpatta granted after realizing premium of
lease-categorical
finding
regarding
validity of patta and grant of lease-exparte Decree not recalled-subsequent
order
of
ejectment-held-illegalpossession of petitioner can not be
unauthorizes
one-impugned
order
quashed.

Held: Para 8

Even assuming that the decree was exparte,
the
respondents
could
have
2 All] Ramesh Singh V. Gram Panchayat and others
871
applied to the court for setting aside the
ex-parte
decree.
In
view
of
the
categorical
finding
recorded
by
the
appellate court that the suit had been
contested by the respondents and the
written statement had also been filed, it
cannot be said that the suit was decreed
ex-parte.

## Text

870 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(supra) while dealing with the various
provisions contained in the 1982 Act and
the 1921 Act, had laid down that no ad hoc
appointment could be made by the
management
against
the
substantive
vacancy in view of the provisions contained
in Sections 16 and 18 of the 1982 Act. It,
however, further held that only short term
vacancies could be filled up by the
management after following the due
procedure
prescribed
in
the
Second
Removal of Difficulties Order, which had
not been rescinded till then. After its
rescission in 1999 the power to fill up short
term vacancy of a teacher can be derived by
the management from section 16-E(11) of
the 1921 Act and regulation 9 of the
Chapter II of the Regulations framed under
the 1921 Act.

33.We have also dealt with the
practical aspect of the matter that in order
to maintain not only the discipline but also
the standard of education and commitment
enforced under the Constitution, regular
teaching is essential. For enforcing the
same, in the given circumstances and under
emerging
situations,
the
short
term
vacancies need to be given urgent attention.
If short term vacancies are not filled up in
time, the teaching would intensely suffer.
Apparently for this reason the Legislature
knowing fully well that selections will be
made by the Board, not for individual cases,
but at State level would result into long
durations, left the selection for short term
vacancies outside the purview of the
Board."

12. In view of the aforesaid legal
position and the facts admitted in the
impugned order itself, the impugned order
dated 30.10.2006 therefore, is absolutely
illegal and cannot survive.

13. The writ petition is allowed and
the impugned order dated 30.10.2006 is
quashed.

14. It is directed that the petitioner
will be entitled to full salary and other
emoluments on the post of Assistant
Teacher, L.T. grade month to month and in
case he has not been paid salary, he shall
also be entitled to arrears of salary as per
Rules.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 15560 of 2000

Ramesh Singh

 ...Petitioner
Versus
Gram Panchayat and others

 ...Respondents

Counsel for the Petitioner:
Sri Anil Sharma

Counsel for the Respondents:
Sri Anuj Kumar
C.S.C.

U.P.
Zamindari
Abolition
and
Land
reform
Act
1950-Section
122-BEjectement
order-ignoring
Decree
passed in Civil Suit in favor of petitionerpatta granted after realizing premium of
lease-categorical
finding
regarding
validity of patta and grant of lease-exparte Decree not recalled-subsequent
order
of
ejectment-held-illegalpossession of petitioner can not be
unauthorizes
one-impugned
order
quashed.

Held: Para 8

Even assuming that the decree was exparte,
the
respondents
could
have
2 All] Ramesh Singh V. Gram Panchayat and others
871
applied to the court for setting aside the
ex-parte
decree.
In
view
of
the
categorical
finding
recorded
by
the
appellate court that the suit had been
contested by the respondents and the
written statement had also been filed, it
cannot be said that the suit was decreed
ex-parte.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. By this writ petition, the
petitioner is seeking a writ in the nature of
certiorari quashing the notice dated
5.2.2000 whereby the Tehsildar Chandpur
District Bijnor held the possession of the
petitioner to be unauthorised and called
upon the petitioner to show cause as to
why he may not be evicted for unlawful
occupation of the land in question which
belongs to Gaon Sabha and also for
causing damages to the property.

2. The facts of the case, in brief, are
that the petitioner was allotted the land in
question by the Land Management
Committee for a sum of Rs.900/- payable
to the Gaon Sabha through receipt dated
20.4.1980. The petitioner constructed
boundary wall, two rooms, tin shed
besides a thatch over this land. He
tethered his cattle and used to store cow
dung cakes. He also kept his tractortrolley, tiller and buggi etc. One room was
used for storing chaff. The case of the
petitioner further is that the Gram Pradhan
and his employees are trying to forcibly
evict the petitioner from the property to
construct an office for Krishi Prasad in
the north of the disputed land. The
petitioner filed a suit no. 783 of 1992
which the respondents did not contest
and, therefore, the decree became final
between the parties. Thereafter the
respondents again tried to forcibly evict
the petitioner from the land in question
and, therefore, the petitioner again filed
another suit no. 28 of 1994, which was
decreed on 12.12.1994. This suit was
contested by the respondent-Gaon Sabha
by filing its written statement, paper no.
47-A. In the written statement it was
alleged that the Pradhan was the father of
the petitioner and therefore, he could not
have allotted the land in question to his
son and even otherwise there was no
resolution of the Land Management
Committee of the Gaon Sabha. It was
alleged that the petitioner took advantage
of the fact that his father was the Pradhan
of the Gaon Sabha and took possession
over the land in question. The trial court
held that the plaintiff-petitioner was in
possession over the land in question and
that he had a receipt from the Land
Management Committee in his favour but
it also recorded a finding that the receipt
was issued by his own father and beside
the plaintiff-petitioner had not filed copy
of the resolution of the Gaon Sabha and
suit was ultimately dismissed.

3. Aggrieved the plaintiff-petitioner
filed civil appeal no. 18 of 1997 (Ramesh
Singh Vs. Babu Ram and others). The
appellate court has recorded a clear cut
finding that the appellant-petitioner was
in possession over the land in question
and this finding had not been challenged
by the respondent-Gaon Sabha. It has also
recorded a finding that receipt was issued
by the Gaon Sabha in favour of the
appellant-petitioner showing him to be a
valid allottee of the land in question.
However, the court held that as long as
the appellant-petitioner had a valid
allotment order in his favour he could not
have been dispossessed from the land in
question and he cannot be said to be a
person who had encroached over the land
of Gaon Sabha so far as the legal
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
allotment
certificate
in
his
favour
survives. On the question of damages the
appellate court had held that the petitioner
had failed to establish the extent of
damage he had sustained and therefore,
the relief to the extent of damage was
rejected and the appeal of the appellantpetitioner was partly allowed. It was held
that the appellant-petitioner cannot be
evicted from the suit property otherwise
than in accordance with law.

4. I have heard Shri Anil Sharma,
learned counsel for the petitioner and the
learned
standing
counsel
for
the
respondents as well as perused the
material on record.

5. The submission of Shri Sharma is
that the appellate court in civil appeal no.
18 of 1997 has recorded a clear cut
finding that there was an allotment order
in favour of the petitioner dated 20.4.1980
and there was also a receipt of payment of
Rs. 900/- in pursuance of the order of
allotment and therefore, the possession of
the petitioner over the land in question
cannot
be
said
to
be
illegal
or
unauthorised. His submission further is
that the order of the court below dated
13.4.1998 passed in civil appeal no. 18 of
1997 had become final between the
parties inasmuch as the respondent did not
challenge the same in any superior court
and, therefore, the possession of the
petitioner having been held to be valid
over the land in question, he could not be
said to be an unlawful occupant of the
disputed land or have caused any damage
to the same.

6. Rebutting the submissions of the
learned counsel for the petitioner, the
learned standing counsel has submitted
that at the time when the land was allotted
in favour of the petitioner, the petitioner's
father was the Pradhan of the Gaon Sabha
and, therefore, the land in any case could
not have been allotted in favour of the
petitioner and that it was a collusive
action and therefore, the possession over
the land in question and any receipt of the
Gaon Sabha was a fraudulent action and,
therefore,
there
was
absolutely
no
infirmity in the notice issued by the
Tehsildar, Chandpur, District Bijnor dated
5.2.2000 and the Tehsildar was well
within his right to proceed to take action
in pursuance of the provisions of section
122(B) of the U.P. Zamindari Abolition
and Land Reforms Act 1950. It has also
been submitted that the respondents were
never made a party to the suit and
whatever decree was obtained by the
petitioner was an ex-parte decree.

7. From a perusal of the records and
considering the submissions of the
learned counsel for the respective parties,
it is seen that there was a clear cut finding
of the appellate court in civil appeal no.
18 of 1997 (Annexure-3 to the writ
petition) that the possession of the
petitioner over the land in question was
valid and there was an allotment order in
his favour and also a receipt has been
issued to him of Rs.900/- which was paid
by the Gaon Sabha and, therefore, his
possession cannot be said to be illegal and
unauthorised. The appellate court has also
recorded a clear cut finding that the Gaon
Sabha was a party to the dispute and had
contested the suit by filing the written
statement which was filed as paper no.
47-A and, therefore, it cannot be said that
the Gaon Sabha was not a party in the suit
or that the decree was an ex-parte decree
and the finding recorded by the court
below
was
not
binding
upon
the
respondents.
2 All] Anita Gandhi V. Nideshak Rajya Shai Anu. Aur Prakashan Parishad Lko. and others
873

8. Even assuming that the decree
was ex-parte, the respondents could have
applied to the court for setting aside the
ex-parte decree. In view of the categorical
finding recorded by the appellate court
that the suit had been contested by the
respondents and the written statement had
also been filed, it cannot be said that the
suit was decreed ex-parte.

9. So far as the finding recorded by
the civil court that the possession of the
petitioner is valid and there was a receipt
in his favour, the learned standing counsel
has not been able to point out that any
challenge was given to the order of the
civil court dated 13.4.1998 and therefore,
in the circumstances the finding has
become final between the parties.

10. In this fact situation the
possession of the petitioner cannot be held
to be illegal, or unauthorized and the
order dated 5.2.2000 passed by the
Tehsildar,
Chandpur
District
Bijnor
holding the petitioner to be in illegal and
unauthorised possession over the land in
question deserves to be quashed.

11. For the aforesaid reasons the
writ petition is allowed and the order
dated 5.2.2000 passed by the Tehsildar,
Chandpur District Bijnor is accordingly
quashed.

12. There shall be no order as to
cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. Writ Petition No. 20313 of 2008

Anita Gandhi

 ...Petitioner
Versus
Nideshak Rajya Shai Anu. Aur Pra. Lko.
And Others

 ...Respondents

Counsel for the Petitioner:
Sri P.K. Mishra

Counsel for the Respondent:
C.S.C.

Uttar Pradesh Public Service (Reservation
for Physically Handicapped, Dependence of
Freedom Fighters & Ex-Serviceman) Act
1993-as amended on 19.08.2009-Section2(b)-inclusion of word "unmarried and
married grand daughter"-petitioner being
married
grand
daughter-selected
for
special B.T.C. Training course-cancellation
on ground-being married grand daughter
included for first time 2009-hence was not
eligible to claim benefit of dependant of
freedom fighters-held-misconceived-such
clarifactory
amendment
being
and
eurative as such it relates back from the
time
when
original
provision
was
introduced.

Held: Para 21

It is not a case where the old rule has
ceased to exist and a new rule is brought
into force. Evidently, the idea was only to
supply an omission and therefore the
amendment is only a clarificatory and
curative one and therefore the provision
will relate back to the time when the prior
provision was introduced.
Case law discussed:
AIR 1988 SC 740; (2001) 4 SCC 236; (2004) 8
SCC 1; {(2005) 7 SCC 396}; {(2009) 7 SCC
673}