IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1269 of 2007. (Old No. 32748 of 1996) Mangay Ram son of Bal Ram alias Ballu, Resident of village Makanpur Deopur, Pargana Bhagwanpur, Tehsil Roorkee, District Hardwar. ….Petitioner. Vs. 1. The Tehsildar (Upper)/Assistant Collector Roorkee District Hardwar. 2. Upper Collector Hardwar. 3. Gaon Sabha Makanpur Deopur, Pargana Bhagwanpur, Tehsil Roorkee Distrcit Hardwar through its Pradhan. …..Respondents. Sri M.S. Tyagi, learned counsel for the petitioner. Sri Sudhir Kumar, learned Brief Holder for the State-respondent nos. 1 and 2. Date April 02, 2009. P.C.: Hon’ble B.S. Verma, J. Heard learned counsel for the parties and perused the record including the impugned order. Admit the writ petition. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned orders dated 6.6.1995 passed by Tehsildar Roorkee as well as order dated 11.9.1996 which was passed by the Additional Collector, Hardwar under Section 122B (4-A) of the U.P. Zamindari and Land Reforms Act (for short the Act) in Revision No. 35/95-96 Mange Ram Vs. Gaon Sabha. Relevant facts giving rise to the present writ petition, according to the petitioner, in brief are that the petitioner is a resident of village Makanpur, Deopur, Pargana Roorkee, district Hardwar and is a poor small agriculturist. He got constructed a house in village abadi in Khasara No. 33. On 6-2-1993, the respondent no.1 issued a notice in Form 49-Ka to the petitioner alleging therein that he had encroached upon the land of Gaon Sabha to the tune of 510 sq.mt. thereby the Gaon Sabha suffered a loss of Rs. 100/- per sq. mt. The petitioner filed his objection/reply before the respondent no.1 Tehsildar. He has denied to have encroached the land of Gaon Sabha, rather it was submitted that the ancestral house of the petitioner is more than 50-60 years old. It was also alleged that earlier a case bearing no. 587/75-76 under Section 122B of the said Act was initiated against the petitioner and others, which was dismissed by the Tehsildar on 30-6-1976, hence for the same cause of action no proceedings can be taken again. The notice is liable to be quashed on this ground also. The petitioner denied his possession over Gata No. 51 M. and the Gaon Sabha has no concern with the abadi land. Evidence was led by the petitioner as well as Gaon Sabha before the respondent no.1. Ultimately, the respondent no.1 by his order dated 13-6-1994 set aside the notice issued in Form 49 Ka. Aggrieved by the said order, Gaon Sabha filed a revision before the respondent no.2, which was allowed and the case was remanded to the trial court vide order dated 3.4.1995. The respondent no.1 by his order dated 6.6.1995 passed an order of ejectment with imposition of damage to the tune of Rs. 25,000/- against the petitioner vide Annexure No.4 and consequently, notice in Form No. 49-Ga was issued against the petitioner. On 25.6.1995, the Revenue Inspector visitged the spot and found the alleged disputed land to be vacant. Copy of his report has been annexed as Annexure-5 to the writ petition. The petitioner preferred revision no. 35/95-96 before the respondent no.1/Additional Collector Hardwar, which was dismissed by his order dated 11-9-1996. Hence this writ petition. On behalf of the respondent no.1-Tehsildar, counter affidavit has been filed. Along with the same, copy of Khasra no. 51/1 measuring 0.215 Hectare has been annexed as Annexure CA-1. From a perusal of this document, it is obvious that Khasra no. 51/1 is Khalihan. The learned counsel for the petitioner has contended that the petitioner is not in possession of the land in dispute and is not claiming possession now. He relied upon the report of the Revenue Inspector dated 25-6-1995 (copy Annexure-5 to the writ petition). It reveals from a perusal of the report that on Khasara No. 51, area 0.051 Hectare, there is Khalihan on the spot and no one was in possession thereon. It was also mentioned that the consolidation proceeding is going on and Chak has been allotted. Moreover, it is the positive stand of the petitioner that his house etc. are standing over Khasra no; 33 and he has no possession over Khasra No. 51 M. The contention of the petitioner find support from the report of Revenue Inspector (copy Annexure-5 to the writ petition). Having heard the submissions of the learned counsel for the petitioner and having perused the material on record, I am of the considered view that since the petitioner has not claimed possession of the disputed land, therefore, no proceeding under Section 122-B of the Act is called for and he cannot be asked to pay damages. I am fortified in my view by the judgment of the Allahabad High Court in the case of Ram Singh and others Vs. State of U.P. and others [1987, Revenue Decisions, Page 203]. The impugned orders directing the petitioner to pay damages of Rs. 25,000/- is liable to be set aside. The writ petition deserves to be partly allowed. The writ petition is partly allowed. The damages of Rs. 25,000/- imposed against the petitioner by the impugned order dated 6- 6-1995 by the respondent no.1 is set aside. The impugned orders stand modified to this extent. Costs easy. (B.S. Verma,J.) RCP