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2020 DIGILAW 436 (ALL)

Baijnath v. Commissioner, Varanasi

2020-02-07

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard learned Counsel for the petitioner and Counsel appearing for the Gaon Sabha. 2. The instant writ petition arises out of an application under section 67-A of the U.P. Revenue Code, 2006 filed by the petitioner and seeks a writ of certiorari for quashing the order dated 30.4.2019 passed by the respondent No. 2 and the order dated 22.6.2019, whereby the consequential revision filed by the petitioner has been dismissed affirming the order dated 30.4.2019. 3. The dispute in the writ petition pertains to plot No. 554 area 0.134 hectares situated in village Ataharpar, Pargana and Tehsil Kerakat, District Jaunpur, recorded as banjar in the revenue records. 4. The petitioner filed an application under section 67-A alleging himself to be an eligible person under section 64(1) of the Code and that the plot had not been reserved for any public purpose. The house of the petitioner has been in existence over the said plot from before November 29, 2012. It was prayed the said land therefore, be recorded as abadi. 5. The Sub-Divisional Officer vide order dated 10.4.2019 allowed the application and directed that an area of 0.020 hectares of the aforesaid plot be recorded as abadi. 6. Subsequently this order was modified on 20.4.2019 stating therein that the order dated 10.4.2019 contained a typographical error only an area of 0.012 hectares was liable to be recorded as abadi. 7. Against the aforesaid two orders, a restoration application was filed by the respondent No. 5 alleging therein that the petitioner was not an eligible person. He had unauthorizedly raised construction over more than half of plot No. 554 and in the process blocked a public pathway. The orders were therefore liable to be set-aside and the land was liable to be recorded as banjar as it was, prior to orders dated 10.4.2019 and 20.4.2019 having been passed. 8. The Sub-Divisional Officer finding the petitioner to be an ineligible person, set aside the orders dated 10.4.2019/20.4.2019 vide order dated 30.4.2019. 9. The petitioner therefore, filed a revision before the Commissioner, Varanasi Division, Varanasi, which has been rejected on 22.6.2019 on the ground that the petitioner is possessed of sufficient land, even, prior to the order dated 10.4.2019. He was already possessed of a house and that the orders dated 10.4.2019 and 20.4.2019 had been passed, ex-parte. 9. The petitioner therefore, filed a revision before the Commissioner, Varanasi Division, Varanasi, which has been rejected on 22.6.2019 on the ground that the petitioner is possessed of sufficient land, even, prior to the order dated 10.4.2019. He was already possessed of a house and that the orders dated 10.4.2019 and 20.4.2019 had been passed, ex-parte. Therefore, the order impugned in the revision was found to be perfectly justified. The revision was accordingly, dismissed. Hence this writ petition. 10. The controversy in the petition primarily is whether the petitioner is entitled to the benefit of section 67-A of the U.P. Revenue Code, 2006, since he belongs to the backward class and claims to be in unauthorized occupation of plot No. 554 area 0.012 hectares, which is recorded in the revenue records as banjar. 11. This aspect has been elaborately dealt with in the judgment dated 9.1.2020 passed in a bunch of writ petitions, the leading case whereof was Writ - C No. 36353 of 2019, Sri Raju v. State of U.P. & 3 others, wherein it has been held as follows: "The issue in the writ petition is whether the petitioners are entitled to the benefit of section 67-A of the U.P. Revenue Code, 2006, which provides that in case a house exists over land referred to in section 63 of the Code, having been built prior to November 29, 2012, the housing site can be settled with its owner on such terms and conditions as may be specified. The benefit of section 67 is liable to be granted as regards land referred to in section 63 of the Code. Section 63 speaks of land, which may be allotted for abadi site and empowers the Sub Divisional Officer, on his own motion or on the resolution of the Land Management Committee, to earmark land for abadi site. The second requirement for a person to be entitled to the benefit of section 67-A is that he should be a person referred to in sub-section (1) of section 64. Section 64, sub-section (1) talks of the orders of preference to be observed while making allotment of land referred to in section 63, namely land which has been earmarked for abadi sites. Section 64 of the Code reads as follows. "64. Section 64, sub-section (1) talks of the orders of preference to be observed while making allotment of land referred to in section 63, namely land which has been earmarked for abadi sites. Section 64 of the Code reads as follows. "64. Allotment of abadi sites.--(1) The following order of preference shall be observed in making allotment of land referred to section 63:-- (a) an agricultural labourer or a village artisan residing in the [Gram Panchayat] and belonging to a Scheduled Caste or Scheduled Tribe or other Backward Classes or a person of general category living below poverty line as determined by the State Government. (b) any other agricultural labourer or a village artisan residing in the [Gram Panchayat]. (c) any other person residing in the [Gram Panchayat] and belonging to a Scheduled Caste or Scheduled Tribe or other Backward Classes or a person of general category living below poverty line as determined by the State Government: Provided that preference will be given to widow and physically handicapped person within same category. Explanation.--For the purposes of this sub-section-- (1) "other backward class" means the backward class of citizens specified Scheduled-I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U.P. Act, No. 4 of 1994); (2) "person of general category living below poverty line" means such persons as may be determined from time to time by the State Government. (2) In making an allotment under this section, preference shall be given to a person who either holds no house or has insufficient accommodation considering the requirement of his family. (3) Every land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed: [Provided that if the allottee is a married man and his wife is alive, she shall be co-allottee of equal share in the land so allotted.]" It is not disputed that land from where the petitioners have been ordered to be evicted, is recorded as 'Banjar'. It has not been earmarked as an abadi site till date and is therefore, not land referred to under section 63 of the Code. Section 64 extracted above, shows the order of preference to be followed up while making allotment of an abadi site. It has not been earmarked as an abadi site till date and is therefore, not land referred to under section 63 of the Code. Section 64 extracted above, shows the order of preference to be followed up while making allotment of an abadi site. Highest in this order of preference are agricultural labourers or village artisans belonging to the Scheduled Castes or Scheduled Tribes followed by other Backward Classes and, thereafter, by persons of general category living below the poverty line. None of the petitioners belongs to the Scheduled Caste or Scheduled Tribe as already noted herein above. Two of them claim to belong to the backward class while two appear to be from the general category. Careful perusal of the applications under section 67-A, which are stated to have been filed by the petitioners, reveals that nowhere in these applications have the applicants stated that no agricultural labourers or village artisan belonging to the Scheduled Caste or Scheduled Tribe are residing in village Pachrukhiya. This was necessarily required to be pleaded by them. Merely because a person lower in order of preference has encroached upon Gaon Sabha land, he cannot and should not be granted the benefit of section 67-A unless and until he is in a position to establish categorically that a person higher in preference is not available in the village. Any other interpretation of section 67-A would result in great injustice as an unauthorized occupant would be liable to be granted its benefit only on account of him or her having illegally encroached upon Gaon Sabha property, despite other needier and persons higher in preference being available in the village. Therefore, and for the reasons given above, this Court is constrained to hold that not only is the land in issue in this writ petitions not land governed by section 63 of the Code, as it has not been reserved for allotment as abadi site, the petitioners are also, prima facie, not eligible to the benefit of section 67-A as their applications are bereft of necessary pleadings. Therefore on both counts the benefit of section 67-A cannot be extended to the petitioners." 12. The above is a complete answer to the controversy involved in this writ petition and in its view, the writ petition is without force and is accordingly, dismissed.