- (1.) S. P. Pandey, J. This is a revision petition under Section 333 of the UPZA and LR Act preferred against the order dated 28-7-1998 passed by the learned Additional Commissioner, Moradabad Division, Moradabad arising out of an order dated 7-3-1998 passed by the tehsildar concerned to proceedings under Section 122-B (4-F) of the Act No. I of 1951 in respect of the land situate in village Mirzapur Shomali tehsil Hasanpur district Moradabad.
(2.) BRIEF and relevant facts of the case are that on a complaint moved on behalf of the revisionist, Brij Kishore under Section 186 of the UPZA and LR Act, there proceedings were initiated in the Court of the tehsildar concerned. By means of the aforesaid application the revisionist Brij Kishore prayed that the lease was granted in favour of Jasram and Makkhan in 1383 F but the possession over the suit land was not taken of by them and as such their names be expunged from the aforesaid disputed land and the name of the revisionist, Brij Kishore be recorded as he is in possession over the disputed land for the last 4 years. The Tehsildar Hasanpur passed an order of abandonment in respect of the suit land and also ordered the name of the revisionist to be expunged and the name of the Gaon Sabha concerned to be recorded over the disputed land. It was also ordered by the tehsildar concerned to send a report to the SDO concerned for recording the name of the revisionist, Brij Kishore over the disputed land as bhumid- har with non-transferable rights. Ag grieved by this order. A restoration application was moved and the documentary evidence was adduced in support of the same. The learned trial Court set aside the earlier order dated 16-9-1998 and restored the case to its original number. On 30-1-1998 after examining the relevant docu ments the learned trial Court ordered the proceedings under Section 186 of the UPZA and LR Act to be dropped. Ag grieved by this order a restoration applica tion was moved by the aforesaid Brij Kishore. This application was allowed and the case was fixed for inviting the objection. Against this order a revision petition was preferred. The learned Additional Com missioner has allowed the revision and set aside the aforesaid impugned order dated 7-3-1998 passed by the learned trial Court. Hence this second revision petition. I have heard the learned Counsel for the parties and have also perused the record on file. For the revisionist, it was contended that the learned lower revisjonal Court has erred in law by allow ing the revision petition on apprehension and has exercised its jurisdiction illegally in setting aside the order passed by the learned trial Court dated 7-3-1998; that it has misread and mis-interprettcd the provisions as contained under Section 186 of the UPZA and LR Act ; that there is jurisdictional error in the impugned order passed by the learned lower revisional Court ; that the learned lower revisional Court has illegally observed that the tehsil-dar should have initiated fresh proceed ings under Section 186 of the UPZA and LR Act if he wanted to initiate the proceedings under Section 186 of the U. P. Z. A. & L. R. Act and as such the aforesaid impugned order dated 28-7-1998 be set aside. " The learned Counsel for the op posite party submitted that no notice was served on the respondent of the proceed ings taken against them that the learned lower revisional Court has passed the aforesaid impugned order which cannot be said to be against the principles of natural justice and as such the aforementioned impugned order which is sustainable and jus tilled must be maintained. In support of his contention he has cited case laws reported in 1961 RD 1007 and 1989 RD 453 (HC ). I have closely and carefully con sidered the contentions raised by the learned Counsel for the parties and have also gone through the relevant records on file. The provisions as contained under Section 186 of the UPZA and LR Act are as follows:- "186. Abandonment.- (1) Where a bhumidhar with non- transferable rights other than a minor, lunatic or idiot or asami has not used his holding for a purpose connected with agriculture, horticulture or animal husbandary which includes pisciculture and poultry farming for two consecutive agricult ural years the Tehsildar may on the application of the on Sabha or land-holder or on facts coming to his notice otherwise issue a notice to such bhumidhar with non-transferable rights or asami as the case may be to show cause why the holding be not treated as abandoned. (2) The application shall contain such par ticulars as may be prescribed. (3) If the Tehsildar finds that the applica tion has been duly made he shall cause to be served on the bhumidhar with non-transferable rights or the asami or publish in the manner prescribed a notice in the form to be prescribed requiring him to appear and show cause on a date to be fixed why the holding be not held as abandoned. (4) If the bhumidhar with non-trans ferable rights or the asami does not appear in answer to the notice, or appears but does not contest it, the tehsildar shall declare the holding as abandoned and thereupon, except as provided in Section 172, the holding shall be deemed to be vacant land: Provided that no declaration under this sub-section shall be made in respect oi'a holding or any part there of, if the same has been mortgaged by the bhumidhar with non-trans ferable rights under sub- section (2) of Section 153 and the mortgage has not been fully re deemed, in which case the 'lehsildar shall move the Collector for the realization of the loan in such manner as may be prescribed. (5) If the bhumidhar with non-trans ferable rights or asami appears to contest the notice, the lehsildar shall drop the proceed ings. " On going through the aforesaid relevant provisions, it is crystal clear that if the bhumidhar with non- transferable rights or asami appears to contest the notice the lehsildar shall drop the proceedings. In ihe present case on 30-1-1998 the tehsildar concerned on examin ing the relevant papers and objection dropped the proceedings under Section 186 of the UPZA and LR Act against the contesting opposite party. Again initiating the proceedings under Section 186 of the UPZA and LR Act against the contesting opposite party is clear abuse of process of law. The learned lower revisional Court has rightly observed in its order dated 28-7-1998.
(3.) HAVING closely scrutinised the mat ter in question, 1 find that the learned lower revisional Court has examined the relevant material facts and circumstances of the instant case and has correctly al lowed the revision and set aside the order dated 7-1-1998 passed by the learned trial Court. No error of fact law or jurisdiction has been committed by the learned Addi tional Commissioner in allowing the aforesaid revision petition preferred by Jasram and others. To my mind the aforementioned impugned order dated 28-7-1998 is quite sustainable well-founded and wholly warranted in law which must be sustained. I find no infirmity in the aforesaid impugned order so as to warrant any interference in this revision petition by this Court. I find no force in the contention raised by the learned Counsel for the revisionist who has miserably failed to substantiate his claims over the suit land. In view of the discussions made hereinabovc, I come to the conclusion that this revision petition have no force is liable to be dismissed and the aforesaid im pugned order passed by the learned lower revisional Court deserves to be sustained.;