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2017 DIGILAW 665 (ALL)

Bhuriya v. State of U. P. Thru Secy.

2017-03-01

SUNITA AGARWAL

body2017
JUDGMENT Mrs. Sunita Agarwal,J. Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 to 3 and Sri Mahesh Narain Singh for respondent no.4 and 5. 2. By means of the present petition, the order dated 17.01.2017 passed by the Additional Commissioner, Merut Division, Meerut is under challenge on the ground that the documents filed by the petitioner in support of their claim for allotment being eligible person within the meaning of Section 198 of the U.P. Z.A. & L.R. Act have not been considered. It is contended in paragraph no.14 of the writ petition that the petitioner no.1 namely Smt. Bhuriya is a widow landless labourer aged about 60 years and has no land in the name of herself or her husband. The land which was in the name of her husband has been transferred to her step sons. From the order impugned, it appears that late Hari Ram was husband of Smt. Bhuria, the petitioner no.1. There are two sons of petitioner no.1 namely Smt. Bhuriya who are government employees. There is no averment on record that these sons are step sons or Hari Ram was her second husband. The name of first husband of Smt. Bhuriya is also not on record. 3. In view thereof, the contention of the petitioner in paragraph no.14 of the writ petition that petitioner no.1 has no real son and she has only one daughter and they are living separately and have no land in their name is beyond the material on record. No such plea has been taken before the Commissioner. This factual plea taken in the writ petition for the first time cannot be entertained to assail the findings recorded by the Commissioner. Even in the order of Additional Collector, Bulandshahar which was passed in favour of the petitioner no.1, Smt. Bhuriya, she was mentioned as widow of late Hari Ram and that her two sons were mentioned being government employees at the relevant point of time. It is also recorded by the Additional Collector that Hari Ram had 0.870 hectares of agricultural land which was inherited by his sons. The claim of petitioner no.1 Smt. Bhuria being eligible person has been allowed only on the ground that two sons of Smt. Bhuriya were residing separately and she has no land in her name. 4. It is also recorded by the Additional Collector that Hari Ram had 0.870 hectares of agricultural land which was inherited by his sons. The claim of petitioner no.1 Smt. Bhuria being eligible person has been allowed only on the ground that two sons of Smt. Bhuriya were residing separately and she has no land in her name. 4. The findings recorded by the Additional Collector have been upset by the Additional Commissioner on the ground that there was 14 Bhighas of land in the name of late Hariram which was inherited by his two sons. Smt. Bhuriya wife of late Hariram was 75 to 80 years old and could not do the work of agriculture. She was a lady of good means living with her two sons who were in government jobs. 5. These findings of fact recorded in the order impugned, though assailed by the learned counsel for the petitioner on the ground that the findings are against the evidence on record but no cogent material has been placed before the Court. The averments in paragraph no.14 of the writ petition to assail the said findings have already been dealt with herein above. 6. In view of the above, with regard to the petitioner no.1, the order impugned cannot be interfered with. 7. So far as the petitioner no.2 Dal Singh son of Hanse Raj is concerned, it is recorded that he was living permanently in District Khurja and he had sold his ancestral agricultural land prior to the allotment. The sale deed executed by Dal Singh was on record. 8. To challenge this findings it is contended by the learned counsel for the petitioner in paragraph no.14 of the writ petition that the findings in respect of petitioner no.2 are wholly erroneous and without examining the fact and material on record. However, there is no avement contradicting the sale deed executed by the Dal Singh son of Hanse Raj with respect to his ancestral land. The factum of petitioner no.2 being permanent resident of District Khurja is also not disputed. 9. The provisions of Section 198 of the Act are made with the view to provide the agricultural land to the landless labourer residing in the village. A person who is permanently residing outside the village cannot claim to be an eligible person within the meaning of Section 198 of the Act. 10. 9. The provisions of Section 198 of the Act are made with the view to provide the agricultural land to the landless labourer residing in the village. A person who is permanently residing outside the village cannot claim to be an eligible person within the meaning of Section 198 of the Act. 10. In view of the above, the cancellation order of allotment made in favour of petitioner no.2 also cannot be interfered. 11. So far as the petitioner no.3 namely Anil son of Madan Lal and petitioner no.5 Kushma Devi wife of Umesh Kumar are concerned it is recorded that they are members of the same family. Husband of Smt. Kushma namely Umesh Kumar possessed 30 Bighas of Kachcha agricultural land and the said fact had been concealed at the time of allotment. She was not eligible person within the meaning of section 198 of the Act. So far as the Anil is concerned, it is recorded that he was residing in a joint family with his two other brothers namely Umesh Kumar and Dev Pal who possessed agricultural lands for cultivation. 12. So far as the petitioner no.4 Smt. Shahsi Devi is concerned, it is categorically recorded that her husband Sri Gajendra Singh son of Ramji Lal owned 15 Bighas of agricultural land and they were residing in joint family. 13. These findings of fact with respect to the petitioner no.3, 4 and 5 are challenged on the ground that petitioner no.3 and 5 are residing separately and they are not member of joint family. So far as Umesh Kumar husband of Kushma is concerned, it is contended that he had only 4.4 Bighas of land and the fact of 30 Bighas of land owned by him is wrongly recorded in the order impugned. A copy of the Khatauni for 1422-1427 fasli has been filed at page no.68 of the paper book. A perusal thereof indicates that Umesh and Anil (namely petitioner no.3) are both sons of Madan residents of village Kiri, Khurja District Bulandshahar. Thus it is clear that petitioner no.3 and 5 are member of the same family. There is no material on record to indicate that they are living separately expect the Khatauni at page no.68 of the paper book which is insufficient proof of such averment. Thus it is clear that petitioner no.3 and 5 are member of the same family. There is no material on record to indicate that they are living separately expect the Khatauni at page no.68 of the paper book which is insufficient proof of such averment. The land recorded in the name of six members of the joint family of Madan, father of petitioner no.3 and Umesh is clearly indicated in the said Khatauni. 14. For all the above noted reasons this Court is not inclined to interfere in the findings of fact which are termed as perverse by the learned counsel for the petitioner. It is categorically recorded by the Additional Commissioner,, Meerut Division, Meerut in the order impugned that these persons have wrongly been given benefit by the Additional Collector while cancelling the allotment made in the name of the other persons. The proceeding for allotment also included the land which was kept aside for plantation within the meaning of Section 132 of the Act. The land of plot no.502, which is Pokhar land was also included in the allotment. The approval was granted by the concerned Sub Divisional Officer on 24.08.2009 by only writing "Yatha Prastava Swikrit" without application of his independent mind. The entire proceeding of allotment was found faulty. 15. For all the above noted reason, no infirmity is found in the order impugned on the ground taken in the writ petition. The writ petition is devoid of merits and hence dismissed.