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Allahabad High Court · body

2017 DIGILAW 21 (ALL)

Sudhakar v. State of U. P.

2017-01-03

SUNITA AGARWAL

body2017
JUDGMENT Sunita Agarwal, J. Heard Sri Kedar Nath Mishra, learned counsel for the petitioner and Sri Tariq Maqbool Khan, learned counsel for the respondent no.4 and Sri S.C. Pandey, learned counsel for the respondent no.5. 2. By means of the present writ petition, the petitioner is challenging the order dated 8.5.2012 and 30.9.2013 as also the order dated 24.10.2016 passed by the Sub Divisional Officer, Barhaj, District Deoria and the Commissioner Gorakhpur Division, Gorakhpur. 3. It appears that a plot no. 242 was settled in favour of the respondent no. 5 namely Amrendra under the order dated 8.5.2012 passed by the Sub Divisional Officer under Section 123 (1) of U.P.Z.A. & L.R. Act, 1950 on the ground that he was in possession of the site in question since before 30.6.1995 and had constructed his house over the said plot. On the said report submitted by the Halka Lekhpal/ Naib Tahsildar dated 5.4.2012, it was found that the respondent no.5 was an eligible person for settlement of housing site under Section 123 (2) read with Section 122-C(3) of the U.P.Z.A. & L.R. Act. 4. Challenging the order dated 8.5.2012 of settlement of land in favour of respondent no.5, the petitioner filed objection under Section 122-C that the respondent no.5 was not eligible for allotment of the land in question and the settlement has been made in collusion with the Halka Lekhpal/Revenue Inspector . The recall of the order dated 8.5.2012 was sought by the petitioner/complainant on the ground that he was in possession of the land in question and was using the same as his 'Sahan' and 'Hatha'. There existed a brick wall which had been constructed by the petitioner over the plot in question. 5. This objection of the petitioner has been rejected vide order dated 30.9.2013 on the ground that the petitioner was not an aggrieved person within the meaning of Section 122-C (3) of U.P.Z.A. & L.R. Act. This order was challenged in revision before the Commissioner Gorakhpur Division, Gorakhpur. The revisional Court by a detail order dated 24.10.2016 has rejected the revision and hence this writ petition. 6. Challenging these orders, the categorical submission of learned counsel for the petitioner is that earlier proceedings had been initiated for allotment of housing site in the name of respondent no.5 and a report was submitted by Halka Lekhpal and Tahsildar in his favour. 6. Challenging these orders, the categorical submission of learned counsel for the petitioner is that earlier proceedings had been initiated for allotment of housing site in the name of respondent no.5 and a report was submitted by Halka Lekhpal and Tahsildar in his favour. There was a resolution of the Land Management Committee dated 30.5.2011 for allotment of land of Lekhpal Chetra Sankhya 28 in favour of the respondent no.5, however, the said resolution was upturned by the then Sub Divisional Officer vide order dated 18.12.2011. The settlement made in the year 2012 by the order of Sub Divisional Officer dated 8.5.2012, therefore, cannot be sustained. 7. This apart, he vehemently submits that the objection raised by the petitioner regarding settlement of land in favour of the respondent no.5 has wrongly been rejected by the Sub Divisional Officer and the Revisional Court on the ground that the petitioner was not an aggrieved person. The correctness of the settlement order passed by the Tahsildar dated 8.5.2012 has not been examined by any of the concerned Authority. The fact recorded in the order that the petitioner is a man of good means is incorrect. 8. Moreover, there was no reason for rejection of the objection of the petitioner as the Commissioner in his order as specifically recorded that the petitioner was in possession of the land in question. The possession of the petitioner having been found, his application could not have been rejected on the ground mentioned in the order impugned. 9. Having considered the submission of learned counsel for the petitioner and perused the record, it is found that the application for recall of the settlement order dated 8.5.2012 passed in favour of the respondent no.5 has been filed by the petitioner with the specific assertion therein that he was entitled for the settlement of the said land as he was in possession thereof. The order dated 30.9.2013 has been passed by the Sub Divisional Officer after making on the spot inspection of the plot in question. 10. In the inspection done regarding the possession of the plot in question, he found that the petitioner/applicant is in possession of the remaining portion of the land in question and is using the same as 'Sahan' and 'Hatha'. 10. In the inspection done regarding the possession of the plot in question, he found that the petitioner/applicant is in possession of the remaining portion of the land in question and is using the same as 'Sahan' and 'Hatha'. It is also recorded that the land on which the petitioner was in possession does not belong to him rather he was making an effort to remove the respondent no.5 from his possession over the land in question by initiating the proceeding for cancellation of settlement. 11. The petitioner being a man having good means was held not eligible within the meaning of Section 122-C (3) of the U.P.Z.A. & L.R. Act. The Commissioner Gorakhpur, Division Gorakhpur in his order dated 24.10.2016 after referring the spot inspection report of the Sub Divisional Officer recorded a categorical finding of fact that the petitioner was possessed of 'Pakka house' and other sources of livelihood. 12. So far as the respondent no.5 are concerned, it has been found that nothing was brought on record to assail the settlement order passed in his favour. It was also recorded in the order impugned that the respondent no.5, who moved an application for settlement of land under Section 123(1) was an eligible person under Section 122-C (3) of the Act being a backward class landless labourer having only 0.40 decimal land in his possession upon which he had constructed a house which was not a pakka house. The above noted findings of fact recorded by the Competent authority could not be assailed by the petitioner. 13. Learned counsel for the petitioner could also not dispute that in order to maintain his application, it was necessary for the petitioner to establish that he was an 'aggrieved person' and that he was fully eligible for allotment/settlement of housing site which has been settled in favour of the respondent no.5. 14. On the plea of possession of the petitioner, no relief can be granted. It is open for him to initiate appropriate proceedings before an appropriate forum for establishing his right to the disputed property. 15. For the above noted reason, no infirmity is found in the orders impugned. 16. The writ petition is accordingly dismissed.