Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the Petitioner and learned standing counsel for the Respondents.
(2.) THIS writ petition arises out of proceedings under Section 122B of U.P.Z.A. & L.R. Act. The first order was passed on 09.06.1997 in Case No. 75 of 1994 -95 by Tehsildar/ Assistant Collector First Class, Tehsil Kairana, District Muzaffarnagar, which was in favour of the Petitioner. The allegation against the Petitioner was that he had encroached upon Gaon Sabha Plot No. 324, area 1.367 hectares, which was a pond. The encroachment was said to be since 1399 Fails and it was alleged that after leveling the pond, the land was being cultivated by the Petitioner. Petitioner claimed to be a member of Scheduled Caste and in possession since before 30.06.1985, hence entitled to the protection under Section 122B(4 -F) of the U.P.Z.A. & L.R. Act. The Tehsildar held that the plot in dispute was almost leveled and crops were being sown, hence it did not remain a pond therefore Petitioner was entitled to the protection as claimed by him. Against the order passed by Tehsildar, Revision No. 11 of 1997 -98 was filed by Gaon Sabha Thirawa Thana Bhawan Tehsil Kairana, District Muzaffarnagar. Additional Collector, Finance and Revenue, Muzaffarnagar allowed the revision through judgment and order dated 31.08.1998 directed eviction of the Petitioner and imposed damages of Rs. 12712/ -hence this writ petition. Learned Counsel for the Petitioner has placed reliance upon copies of C.H. Form -41 and 2 -ka annexed as Annexure SA -1 & SA -2 to the supplementary affidavit filed by the Petitioner, which was sworn on 12.10.1998. In C.H. Form -41, Annexure SA -1 against plot in dispute under the last column the word pond is clearly mentioned. Similarly in C.H. Form 2 -A which shows position of plot at the time of start of consolidation, pond is mentioned against the Plots No. 499/12, 499/13 and 499/14. Thereafter, pond is shown in Plots No. 500/1 to 500/5 and 501/1 to 501/18.
(3.) MOREOVER , Supreme Court in Hinch Lal Tiwari v. Kamala Devi : AIR 2001 SC 3215 has held that no one can be permitted to occupy the pond even if it has become leveled. Rights due to possession over Gaon Sabha land cannot accrue under Section 122B(4 -F) of the Act in respect of public utility land mentioned under Section 132 of the Act including pond.;