ABDUL AZIZ Vs. STATE OF U. P. AND ANOTHER
LAWS(ALL)-1965-11-30
HIGH COURT OF ALLAHABAD
Decided on November 10,1965

ABDUL AZIZ Appellant
VERSUS
STATE OF U. P. Respondents

JUDGEMENT

- (1.)THIS is an appeal by Abdul Aziz, plaintiff, against the order, dated 21-2-1963 of the Civil Judge of Agra, allowing the appeal of the State of Uttar Pradesh and the Gaon Samaj, defendants, and thereby remanding the suit for a fresh hearing after recording the evidence of the parties.
(2.)ABDUL Aziz was alleged to have unlawfully occupied the land belonging to the Gaon Samaj of Jetpur Kalan, Pargana Bah, district Agra, and as appears from the order of the Sub-Divisional Officer, he took action under R. 115-C of the U.P. Zamindari Abolition and Land Reforms Rules and directed the ejectment of Abdul Aziz on the ground that he had made encroachment on the land of the Gaon Samaj without any title. Thereupon Abdul Aziz instituted the present suit for declaration that he was the owner of the land in dispute and the defendants had no right or title therein, and that the order of the Sub-Divisional Officer passed under R. 115-C was ultra vires, without jurisdiction and was not binding on the plaintiff.
On the basis of the decision of this Court declaring R. 115-C to be invalid and beyond the rule making power of the State Government, the Munsif declared that the impugned order of the Sub-Divisional Officer was ultra vires without jurisdiction and not enforceable. The defendants were at the same time restrained from interfering with the plaintiffs possession of the property in suit by taking possession for demolition or otherwise in pursuance of the impugned order. The defendants went up in appeal before the District Judge, but before the final hearing thereof the U.P. Zamindari Abolition and Land Reforms Act was amended by incorporation therein of S. 122-B. Sub-Section (5) of this new section validating Rr. 115-C to 115-H of the U.P. Zamindari Abolition and Land Reforms Rules by laying down that these rules shall be deemed to have been made under the U.P. Zamindari Abolition and Land Reforms Act, as amended, as if the amendments, i.e., the provisions of S. 122-B, were in force on all the material dates. In view of this amendment the lower appellate Court recorded the finding that R. 115-C was now valid and, at the same time remanded the suit for hearing on merits.

(3.)THE validity of S. 122-B of the U.P. Zamindari Abolition and Land Reforms Act has been challenged. Sub-Section (2) of this section has been worded on the lines of R. 115-C and, consequently for purposes of this F. A. F. O., comments need be made on the provisions of S. 122-B only. Sub-Sections (1) and (2) of this section are as below :-
"(1) Where any property vested, under the provisions of this Act, in a Gaon Sabha or a local authority, is damaged or misappropriated by any person, or where any land so vested in it, or any vacant land or any land, which it is entitled to take possession of under this Act, is occupied otherwise than in accordance with the provisions of this Act by any person, the Land Management Committee, or the local authority, as the case may be, shall take steps forthwith to recover compensation for damage to. or misappropriation of the property and for the recovery of possession of the land together with damages caused by wrongful occupation. (2) Where the Land Management Committee or the local authority fails to take action in accordance with the provisions of Sub-S. (1) within a period of six months from the date of wrongful occupation, and one month from the date of damage or misappropriation, the Collector may, except, in a case involving a bona fide question of title, on an application of the Chairman, Member or Secretary of the Land Management Committee or the local authority, as the case may be, or on facts coming to his notice otherwise, take steps for the ejectment of the person in wrongful occupation of the land and for recovery of compensation for wrongful occupation of the land and for damage to, or misappropriation of the property."

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