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Allahabad High Court · body

2015 DIGILAW 2220 (ALL)

Shiv Kumar v. State of U. P.

2015-08-03

RITU RAJ AWASTHI

body2015
JUDGMENT Ritu Raj Awasthi, J. Heard learned counsel for the petitioner, learned Standing Counsel and Mr. Azad Khan, learned counsel for opposite party no.4/Gram Sabha. 2. The instant writ petition has been filed challenging the impugned orders dated 11.4.2014, 27.6.2015 and 10.11.2006, whereby the order under Section 122-B of U.P.Z.A. & L.R. Act for dispossession of petitioner from land recorded as Gata No.1239 measuring 0.002 hectare chakroad and Gata No.1995 measuring 0.013 hectare recorded as naveen parti at Village Kauhar, Pargana Amethi, Tehsil Gauriganj, District Sultanpur has been directed and Rs.430/- as compensation and Rs.5/- as expenses have been awarded. 3. As per the facts of the case as given in the writ petition, the petitioner claim that his house is existing in a part of Gata No.1995, measuring 0.013 hectare in the said village. It is submitted that on the basis of false report of Lekhpal notice om Form 49-Ka was issued to the petitioner by opposite party no.3 to which the petitioner had filed objection. Thereafter the impugned order dated 10.11.2006 was passed dispossessing the petitioner from the land in question. The petitioner had filed revision before opposite party no.2 which was rejected without considering the submissions made therein. The restoration/recall applications moved against the said order was also rejected vide orders impugned dated 11.4.2014 and 27.6.2015. 4. Learned counsel for the petitioner submits that in fact the proceedings for dispossession were initiated with respect to land situated at Gata No.1239 measuring 0.002 hectare which is a chakroad as well as the land situated at Gata No.1995 measuring 0.013 hectare. The petitioner has no concern with the land situated at Gata No.1239 and the said land may vest with Gaon Sabha. However, so far the land measuring 0.013 hectare at Gata No.1995 is concerned, the house of the petitioner is existing on a part of the said land. The said house was constructed by his ancestors more than 50 years back. The opposite parties have not considered this fact while passing the impugned orders and have not given the benefit of Section 123 (1) of U.P.Z.A. & L.R. Act. 5. Learned Standing Counsel on the basis of instructions submits that the petitioner has encroached the land in question and dispossession order has been passed by the authorities concerned after considering the relevant records and making spot inspection. 6. 5. Learned Standing Counsel on the basis of instructions submits that the petitioner has encroached the land in question and dispossession order has been passed by the authorities concerned after considering the relevant records and making spot inspection. 6. I have heard the submissions made by parties' counsel and gone through the records. 7. The orders impugned does not indicate that the authorities have considered the provision of Section 123 (1) of U.P.Z.A. & L.R. Act while passing the impugned orders. Sub Section (1) of Section 123 of U.P.Z.A. & L.R. Act clearly provides that where any person referred to in sub-section (3) of Section 122-C has built a house on any land referred to in sub-section (2) of that section, not being land reserved for any public purpose, and such house exists on May 13, 2007 the site of such house shall be held by the owner of the house on terms and conditions as may be prescribed. Section 123 of U.P.Z.A. & L.R. Act on reproduction reads as under: - "123. Certain house sites to be settled with existing owner thereof.-[(1)] Without prejudice to the provisions of Section 9, where any person referred to in sub-section (3) of Section 122-C has built a house on any land referred to in sub-section (2) of that section, not being land reserved for any public purpose, and such house exists on [May 13, 2007] the site of such house shall be held by the owner of the house on terms and conditions as may be prescribed. [(2) Where any person referred to in sub-section (3) of Section 122-C has built a house on any land held by a tenure-holder (not being a Government lesee) and such house exists on [June 3, 1995] the site of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure-holder on such terms and conditions as may be prescribed. Explanation.-For the purpose of sub-section (2), as house existing on [June 3, 1995] on any land held by a tenure-holder shall, unless the contrary is proved, be presumed to have been built by the occupant thereof, and where the occupants are members of one family by the lead of that family.]" 8. As such, the authority concerned is required to reconsider the matter in the light of the provisions quoted above. As such, the authority concerned is required to reconsider the matter in the light of the provisions quoted above. However, so far the land situated at Gata No.1995 which is under cultivation, if any, by the petitioner is concerned, the petitioner will have no right over the said land. 9. Learned counsel for the petitioner has specifically stated before the Court that he has no concern with the land situated at Gata No.1239 measuring 0.002 hectare which is a chakroad, as such, the impugned order dated 10.11.2006 of opposite party no.3/Tehsildar/Assistant Collector, Gauriganj, Sultanpur shall stand confirmed, so far as the land situated at Gata No.1239 measuring 0.002 hectare is concerned. 10. The petitioner may approach the authority concerned seeking benefit of Section 123 (1) of U.P.Z.A. & L.R. Act. In case any such application is filed the opposite party no.3 may consider and pass appropriate orders after making spot inspection and giving opportunity of hearing to the parties concerned. The petitioner, in case is advised, may file such application within 15 days from today. Till disposal of such application the house of petitioner, if any, situated over part of Gata No.1995, as claimed by the petitioner, shall not be demolished. In case petitioner fails to file any application as observed above within the time prescribed, he will not be entitle to the benefit of this order. 11. With these observations, writ petition stands disposed of.