Allahabad High Court
Jogendra & Another vs State Of U.P. & Others on 6 September, 2012
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 58
Case :- WRIT - C No. - 19311 of 2006
Petitioner :- Jogendra & Another
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Aditya Prasad Mishra
Respondent Counsel :- C.S.C.,V.K. Singh
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioners and learned counsel for the respondents.
This writ petition is directed against two orders passed on 30.11.2005 by Tehsildar, Judicial/ Assistant Collector, Meerut one in Case No.385 instituted by Gaon Sabha against petitioner No.1, Jogendra and the other in Case No.378 instituted by Gaon Sabha against petitioner No.2, Nawab. The allegation in the case against the petitioner No.1 was that about a year before he had illegally encroached upon an area of 100 square meters of Plot No.101, which was Gaon Sabha property and in the form of Jauhar (small pond). Petitioner No.1 outrightly denied his possession. It was also stated by petitioner No.1 that earlier also similar proceedings had been initiated against him which were subject matter of Writ Petition No.15512 of 2004 (the said writ petition in which area of land in dispute was 60 square meters has been allowed by me in part on 28.08.2012). Ultimately order of eviction was passed and Rs.10,000/- were also imposed as damages. Similarly, in the case against petitioner No.2 the allegation was that he had encroached upon an area of 70 square meter of same Plot No.101, total area of which was 6580 square meter. Petitioner No.2 also outrightly denied his possession over any part of Gaon Sabha land/ pond. In the said case also without recording specific findings regarding the assertion of petitioner No.2 that he was not in possession, order of eviction was passed and damages of Rs.7000/- were also imposed. Both the petitioners filed revisions against the orders passed by Tehsildar. Revision of petitioner No.1 was registered as Revision No.41 of 2005-06 and Revision of petitioner No.2 was registered as Revision No.42 of 2005-06. Additional Collector (Administration), Meerut dismissed both the revisions on 25.01.2006 by separate but similar orders hence this writ petition.
Revisional Court mentioned that lekhpal along with his report filed sketch map (nazri naksha). It is therefore quite clear that even lekhpal had not done any survey.
In this writ petition also in paragraphs No.6, 17 and 18, it has categorically been stated that petitioners were never in possession (through interim order dated 24.04.2006 also only recovery of damages was stayed). In such situation it was not appropriate to pass order of damages. I have allowed in part Writ Petition No.15512 of 2004 filed by petitioner No.1 of this writ petition against similar earlier order.
Accordingly, writ petition is allowed in part. Impugned orders are set aside only in respect of damages. However, in case petitioners are in possession then they must forthwith be evicted. In order to determine encroachment and its extent lekhpal shall make fresh survey after notice to the petitioners one week in advance. The amount of damages which may been deposited by the petitioners under interim order dated 24.04.2006 passed in this writ petition shall be returned to them.
However, before parting the petitioners are censured for making wild allegation against lekhpal stating that he had demanded Rs.5000/- from each petitioner. Similar allegation made in para-7 is also highly deprecated. In future petitioners must be careful otherwise action may be taken against them.
Order Date :- 6.9.2012
NLY
