- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order of the Board of Revenue dated 31-1-1993 whereby the appeal was allowed and the judgment of the trial Court was restored.
(2.) THE dispute relates to plot No. 120/2 area 4 Bigha 9 Biswa situate in village Dunda Hera, Pargana Loni, Distriet Ghaziabad. THE Zamindari was abolished and under Section 4 the land in dispute vested in the State of Uttar Pradesh. THE land was recorded as banjar in revenue records. Om Prakash, father of the petitioner was found in possession over the land in suit. THE Land Management Committee of the Gaon Sabha took proceedings for his ejectment under Rule 115-D of U. P. Zamindari Abolition and Land Reforms Rules (in short the Rules ). On 30-8-1965 Tehsiklar/assisiant Collec tor 1st Class, District Ghaziabad, passed order for his eviction and for recovery of damages. This order was challenged by him before the Additional Commissioner, Meerul Division, Meerut. THE Additional Commissioner by his judgment dated 17-12-1965 made reference to the Board of Revenue with the recommendation that the revision may be allowed on the ground that the question raised in the proceedings involve question of title. THE Board of Revenue accepted the recommendation and set aside the order of the Assistant Collector by its order dated 11-6-1969. The Nagar Palika Ghaziahad, respondent No. 4, filed suit for ejectment against Om Prakash before the Civil Court on 18-6-1973 on the allegation that the land which vested in the State of U. P. was entrusted to it by the State Government by issuing a notification dated 11-8-1994 under Section 117-A of U. P. Zamindari Abolition and Land Reforms Act (in short the Act) but the defendant had taken its illegal possession and was liable for eject ment. The Civil Court returned the plaint on the ground that it had no jurisdiction to entertain the suit. The Nagar Palika thereafter filed suit No. 18 of 1973 on 16-2-1974 under Section 209 of the Act against Om Prakash. The suit was contested by defen dant on the ground that he was in posses sion over the land in suit for more than 23 years and after the date of vesting he has acquired sirdari rights. He also challenged the right of the plaintiff to file the suit. The trial Court decreed the suit on 27-2-1978 on the finding that the Nagar Palika, Ghaziabad is owner of the land in dispute. The suit was maintainable under Section 209 of the Act and the defendant did not acquire any right over the land in dispute under the provisions of U. P. Z. A. and L. R. Act. The defendant preferred an appeal before the Additional Commissioner. The Additional Commissioner set aside the judgment of the trial Court vide order dated 17-1-1980. The plaintiff filed second appeal before the Board of Revenue and the Board of Revenue has set aside the judgment of the Additional Commis sioner vide its order dated 31-1-1993 and restored the judgment of the trial Court. This judgment is under challenge in the present writ petition.
(3.) I have heard Sri Radhey Shyam, learned Counsel for the petitioner and Sri Prem. Chandra, learned Counsel for the respondent. The first point urged by learned Counsel for the petitioner is that the State Government by notification issued under Section 117 of the Act declared that the land and other things mentioned in sub section (1) of the Act vested in the Gaon Sabha and once such land vested in the Gaoa Sabha that can be divested from it only in accordance with sub-sections (2) and (6) of Section 117 of the Act which read as under: "117. Vesting of certain lands, etc. in Gaon Sabhas and other local authorities: - (2) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government may, (by general or special order to be published in the manner prescribed) declare that as from date to be specified in this behalf, all or any of the things specified in clause (i) to (iv) of sub-section (1) which after their vesting in the Stale under this Act had been vested in a Gaon Sabha or any other local authority, either under this Act or under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam. 1959, shall vest in any other local authority (including a Gaon Sabha) established for the whole or part of the village in which the said things are situate. (6) The State Government may at any time, (by general or special order to be publish ed in the manner prescribed), amend or cancel any (declaration, notification or order) made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority, and resume such things and whenever the State Government so resumes any such things, the Gaon Sabha or other local authorities, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things: Provided that the State Government may after such resumption make a fresh declaration under sub- section 9 (1) or sub-section (2) vest ing the thing resumed in the same or any other local authority (including a Gaon Sabha ). and the provisions of sub- sections (3), (4) and (5), as the case may be shall mutatis mutandis, apply to such declaration.;