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2016 DIGILAW 2501 (ALL)

Prabhu v. State of Uttar Pradesh

2016-07-19

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard Sri Ajay Shankar, learned counsel for the petitioners, Sri Mahesh Narain Singh has appeared for respondent no. 4, Sri Saynendra Pratap Singh for respondent no. 5, 6 and 7 and learned Standing Counsel for respondents no. 1, 2 and 3. 2. The petitioners allege that they are in possession of plot no. 173 area 0.073 hectares, situate in village Khewali, Paragna Kaswarraja, District Varanasi for more than 40-50 years and they have constructed a house over it. They have acquired rights as owner over it under Section 123 of the U.P.Z.A. & L.R Act. The aforesaid land is therefore not open for allotment by the Gaon Sabha to any person on the basis of any incorrect revenue entry of the said land as naveen parti. 3. The land was said to be allotted to predecessor in interest of respondents no. 4, 6 and 7 on 15.06.1998. 4. The petitioners moved an application under Section 198 (4) of the Act for cancellation of the patta grant on 15.06.1998 to the predecessor in interest of the respondent no. 4, 6 and 7. The application was initially allowed but the order was set aside by the revisional court and the matter was remanded. 5. On remand, the application of the petitioners filed under Section 198 (4) of the Act was rejected on 30.11.2009 and the revision preferred against it was dismissed on 04.08.2010. 6. The above two orders have been impugned in the writ petition alleging that the land was not vacant which could not have been allotted. The petitioners have perfected their rights over it under Section 123 of the Act. The authorities below have manifestly erred in rejecting their application on the ground that as the petitioners are backward class persons they have no locus to get the patta cancelled of the contesting respondents who are persons of the Scheduled Caste. 7. I have perused the impugned orders as well as the pleadings exchanged between the parties. 8. The petitioners by moving an application under Section 198 (4) of the Act sought cancellation of the patta on two grounds that the land was not vacant and could have been allotted and secondly, the predecessor in interest of contesting respondents has sufficient land and were not entitled to allotment. 8. The petitioners by moving an application under Section 198 (4) of the Act sought cancellation of the patta on two grounds that the land was not vacant and could have been allotted and secondly, the predecessor in interest of contesting respondents has sufficient land and were not entitled to allotment. The father and son both could not have been allotted of different pieces of land in the same meeting 9. The application of the petitioners was rejected as persons of backward class have no locus to seek cancellation of the patta executed in favour of the Scheduled Castes. Secondly, the land recorded as naveen parti has been allotted to the Scheduled Caste persons, pursuant to the resolution of the Gaon Sabha. 10. The order of the revisional court dated 04.08.2010 records that at the time of allotment the land in disputed was not vacant. It was in occupation of the petitioners, who has their abadi from the time of their ancestors. The land was not an agricultural land. It was in possession of the petitioners. The proper procedure of allotment was not followed. The allotment made in favour of the respondents was doubtful. Accordingly, the order of the authority below dated 30.11.2009 is unsustainable. However, as the petitioners have no locus standi to seek cancellation of the patta executed in favour of Scheduled Caste persons, the revision was dismissed. 11. The respondents have not challenged the findings of the revisional court. 12. In view of the revisional order, the only ground on which the application of the petitioners filed under Section 198 (4) of the Act stands rejected is that they have no locus to seek cancellation of the patta executed in favour of the Scheduled Caste persons. 13. I have not come across any law which puts any embargo upon the persons belonging to backward classes from seeking cancellation of the patta of the Gaon Sabha land executed in favour of the Scheduled Caste persons. 14. Learned Standing Counsel on being asked if there exists any such provision expresses his inability to point any such provision and states that there is no such provision in law. 15. On repeated quarries put to Sri Satyendra Pratap Singh, learned counsel appearing for respondents no. 14. Learned Standing Counsel on being asked if there exists any such provision expresses his inability to point any such provision and states that there is no such provision in law. 15. On repeated quarries put to Sri Satyendra Pratap Singh, learned counsel appearing for respondents no. 5, 6 and 7 in this regard, he also admitted that law does not provide that a person belonging to backward class cannot question the validity of the patta executed in favour of Scheduled Castes persons. 16. In the absence of any specific provision prohibiting a backward class person from seeking cancellation of the patta of the Gaon Sabha land executed in favour of Scheduled Castes persons, the authorities below have manifestly erred in law in passing the impugned orders dated 30.11.2009 and 04.08.2010. 17. In Kalika Prasad and others v. Board of Revenue, UP. at Allahabad and others, ( 2009 (106) RD 39 ) learned Single Judge of this Court has held that in making allotment of the Gaon Sabha land under Section 195 and 197 of the U.P.Z.A. & L.R. Act the first requirement is that the land proposed for allotment must be vacant which means it is not occupied not even by unauthorised persons as none can be thrown out without taking recourse of law particularly, in a case where unauthorised occupation is of long standing. 18. The aforesaid decision clearly demonstrates that before making allotment of the Gaon Sabha land the authorities have to ensure that the land is vacant and have to be examine that it is not in possession of any one not even by unauthorised persons having any claim over it. It is only thereafter that the authorities could proceed to make allotment. This procedure has not been followed in making the allotment of the land in disputed. The revisional order as well the inspection report on record rather reveals that the petitioners are in possession of the land in disputed having their Abadi over it since the times of their ancestors. 19. This procedure has not been followed in making the allotment of the land in disputed. The revisional order as well the inspection report on record rather reveals that the petitioners are in possession of the land in disputed having their Abadi over it since the times of their ancestors. 19. In view of the aforesaid facts and circumstances of the case, the impugned orders dated 30.11.2009 and 04.08.2010 are hereby quashed to the extend it holds that the petitioners have no locus to seek cancellation of the patta of Scheduled Cast persons and the application of the petitioners under Section 198 (4) of the Act stands allowed in respect of the land claim by them but this would not affect the allotment of the remaining land. 20. The writ petition is allowed with no order as to cost. Petition Allowed.