B.L. Yadav, J. - (1.) THE present petition under Article 226 of the Constitution of India, arises out of the order dated 26th September, 1984 passed by the Additional Commissioner Meerut and the order dated 21st January, 1984 passed by the Naib -Tahsildar in a proceeding under Section 122 -B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act). Learned Counsel for the Petitioner was heard at great length and I have dismissed the writ petition summarily by order dated 23rd April, 1985. But before the order could be signed, learned Counsel, for the Petitioner placed reliance on Ram Diya v. Goan Samaj 1963 RD 34 a Single Judge decision of this Court. The learned Counsel insisted that this case may be considered and a reference may be made in the order. I am, therefore, giving this detailed order.
(2.) A notice under UP ZA Form 49 -ka was served en the Petitioner indicating that he has unlawfully occupied plot No. 318 area 0 -4 -0 (1600 sq. yard). It was alleged that the Petitioner has placed Kuri etc. without any right over the land and the land has actually vested in the Gaon Sabha. This notice was opposed by the Petitioner, who filed an objection alleging that it was not the Gaon Sabha land, rather he was using it for keeping Kuri and as using the land as Kolhu and the notice may be discharged. The parties led evidence and the Naib -Tahsildar by his order dated 12th January, 1984 (Annexure -2), directed the Petitioner to be ejected and further directed him to pay damages. It was held that the land in dispute was the Gaon Sabha land and that the land does not belong to the Petitioner nor he has any right to place Kuri or Kolhu over the area pointed out in the notice under ZA Form 49 -ka. It was not held that the Petitioner was Bhumidhar or Sirdar of the land in dispute and he was using the land under Section 7(aa) of the Act. This order was confirmed in the revision.
(3.) IN Ram Diya v. Gram Samaj (supra) the Plaintiff was held to be Bhumidhar by the court below in the suit for injunction filed by the Plaintiff -Appellant against the Gaon Sabha with a prayer to restrain the Gaon Sabha from interfering with the peaceful possession of the Plaintiff. But it was held that the Plaintiff was not entitled to the benefit of Section 7(aa) of the Act. On these facts it was held that as the Plaintiff was held to be Bhumidar and it was also found by the courts below that the Plaintiff was using the land in dispute for keeping Kuri and Kolhu, hence the Plaintiff -Appellant was held by this Court to be entitled to the benefit of Section 7(aa) of the Act. The statutory provisions of Section 7(aa) of the Act are set out below: 7(aa). being a bhumidhar, sirdar, adhivasi or asami of any land, to continue to enjoy an easement or any similar right for the more beneficial enjoyment of the land, as he was enjoying on the date immediately preceding the date of vesting.;