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2020 DIGILAW 632 (ALL)

Indrasani v. Addl. Commissioner

2020-02-27

PANKAJ BHATIA

body2020
JUDGMENT : 1. Heard Sri Alok Kumar Yadav as well as Jigyasa Singh, learned counsel for the petitioners, learned Standing Counsel for the State-respondent and learned counsel appearing on behalf of private respondents. 2. The present petition has been filed challenging the order dated 15.3.2004 passed by UP-Zila Adhikari Ghosi, Mau (respondent no. 2) whereby the allotment granted in favour of petitioners under section 123 (1) of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act, 1950') has been cancelled on an application moved by Gram Sabha as well as the order dated 15.1.2009, passed by Additional Commissioner (I) Azamgarh Division, Azamgarh (respondent no. 1) whereby the revision filed challenging the order dated 15.3.2004 was dismissed. 3. This Court, vide order dated 06.5.2009, had granted six weeks' time to the Standing Counsel to file counter affidavit but no counter affidavit was filed in 11 years, as such, vide order dated 14.1.2020, this Court granted final opportunity of three weeks' to file counter affidavit. Despite the said, no counter affidavit has been filed, as such, the present petition is being disposed off on the basis of unrebutted averments made in the writ petition. 4. The petitioners claim that they had constructed a residential house over the Plot No. 249 situate at Village Mugesar, Pargana and Tehsil Ghosi, District Mau and were in occupation of the said property and the names were duly recorded in the Khatauni. It has been categorically stated that the property in question was not reserved for any public purpose and that the petitioner belong to Other Backward Class. It is stated on record that by an order dated 31.12.1995, the respondent no. 2 passed an order under Section 123(1) of the Act, 1950 settling the property in favour of petitioners. The respondents no. 4 to 8 moved an application seeking recall of the order dated 31.12.1995 to which the petitioners filed their objection. The respondent no. 2 while its order dated 15.3.2004 allowed the said application and recalled the order dated 31.12.1995. 5. A perusal of the said order reveals that the approval granted in favour of the petitioner was held to be improper solely on the ground that the husband of the petitioner no. The respondent no. 2 while its order dated 15.3.2004 allowed the said application and recalled the order dated 31.12.1995. 5. A perusal of the said order reveals that the approval granted in favour of the petitioner was held to be improper solely on the ground that the husband of the petitioner no. 1, namely, Parsotim already held land in excess of one hectare and as such the petitioners did not fall in the category of persons enumerated in the provisions of Section 123(1) of the Act, 1950. No other allegation was found against the petitioners. 6. The petitioners preferred revision challenging the order dated 15.3.2004 before the respondent no. 1. The said revision was dismissed vide order dated 15.1.2009 recording that the husband of the petitioner held land in excess of three acres (new finding recorded for first time) and it was further held that the petitioners are of a general category and the order of allotment was passed under section 123(1) of the Act, 1950 whereas in terms of the provision of Section 122-C(3)(iii) of the Act, 1950 only the persons of Scheduled Castes and Scheduled Tribes were eligible and the provisions with regard to general category was amended on 23.8.2004 to include persons of general category living below poverty line and thus the revision was dismissed. The present petition challenges both the said orders. 7. Learned counsel for the petitioners argues that the orders passed against the petitioners are wholly perverse inasmuch as there is no limitation prescribed either under section 123(1) of the Act, 1950 or under section 122-C of the Act, 1950 disentitling the petitioners from allotment on the ground of having land holding in excess of one acre or three acres as recorded by both the authorities. He further submits that even if the petitioners have been treated to be persons of general category, there is no finding that they were not persons below the poverty line. He argues that the petitioners belong to OBC and, thus, without there being anything on record, the impugned orders have been passed. 8. Section 123 and Section 122-C of the Act, 1950 are as under: 123. Certain house sites to be settled with existing owner thereof. He argues that the petitioners belong to OBC and, thus, without there being anything on record, the impugned orders have been passed. 8. Section 123 and Section 122-C of the Act, 1950 are 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 the [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. [the date 13.5.2007 has been amended from time to time] (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 lessee) 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. Explanation. -For the purposes of sub-section (2), a 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 head of that family.] 122-C. Allotment of land for housing site for members of Scheduled Castes, agricultural labourers, etc.-(1) The Assistant Collector in charge of the sub-division of his own motion or on the resolution of the Land Management Committee, may earmark any of the following classes of land for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes 2[and the Other Backward Classes and the persons of general category living below poverty line] and agricultural labourers and village artisans- (a) lands referred to in clause (i) of sub-section (1) of Section 117 and vested in the Gaon Sabha under that section; (b) lands coming into possession of the Land Management Committee under Section 194 or under any other provisions of this Act; (c) any other land which is deemed to be or becomes vacant under Section 13, Section 14, Section 163, Section 186, or Section 211; (d) where the land earmarked for the extension of abadi and reserved as abadi site for Harijans under the U.P. Consolidation of Holdings Act, 1953, is considered by him to be insufficient, and land earmarked for other public purposes under that Act is available, then any part of the land so available. (2) Notwithstanding anything in Sections 122-A, 195, 196, 197 and 198 of this Act, or in Sections 4, 15, 16, 28-B and 34 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may with the previous approval of the Assistant Collector in charge of the subdivision allot for purposes of building of houses, to persons referred to in sub-section (3)- (a) any land earmarked under sub-section (1); (b) any land earmarked for the extension of abadi sites for Harijans under the provisions of the U.P. Consolidation of Holdings Act, 1953; (c) any abadi site referred to in clause (iv) of sub-section (1) of Section 117 and vested in the Gaon Sabha; (d) any land acquired for the said purposes under the Land Acquisition Act, 1894. (3) The following order of preference shall be observed in making allotments under sub-section (2)- (i) an agricultural labourer or village artisan residing in the Gram Sabha and belonging to any of the following categories in the order of preference:- (a) persons belonging to the Scheduled Castes and the Scheduled Tribes; (b) persons belonging to Other Backward Classes; (c) persons belonging to the general category living below poverty line;] (ii) any other agricultural labourer or village artisan residing in the village; [(iii) any other person residing in the Gram Sabha and belonging to any of the following categories in the order of preference:- (a) persons belonging to the Scheduled Castes or the Scheduled Tribes; (b) persons belonging to Other Backward Classes; (c) persons belonging to the general category living below poverty line;] [(iv) a person with disability residing in the village.] Explanation I.-The expression "agricultural labourer" shall have the same meaning as in Section 198. [Explanation II.-The expression ‘village artisan’ means a person who does not hold any agricultural land and whose main source of livelihood is manufacture or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and includes a carpenter, weaver, potter, blacksmith, silversmith, goldsmith, barber, washerman, cobbler or any other person who normally earns his livelihood by practising a craft either by his own labour or by the labour of any member of his family in any rural area: Provided that no person shall be deemed to be a village artisan whose total income (including income of his or her spouse and minor children) exceeds two thousand four hundred rupees in a year.] [Explanation III.-The expression "person with disability" shall mean a person with any disabilities mentioned in clause (i) of Section 2, of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996).] Explanation [IV].-Preference shall be given to a person who either holds no house or has insufficient housing accommodation considering the requirements of his family. [Explanation V.-The expression "persons of general category living below poverty line" shall have the same meaning as in Section 198.] (4) If the Assistant Collector in charge of the sub-division is satisfied that the Land Management Committee has failed to discharge its duties or to perform its functions under sub-section (2) or it is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of sub-section (3). (5) Any land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed. (6) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease. (7) Every order passed by the Assistant Collector under sub-section (4) shall, subject to the provisions of subsection (6) and every order passed by the Collector under sub-section (6) shall be final, and the provisions of [Section 333 and Section 333-A] shall not apply in relation thereto. (8) [***] (9) In rule 115-L of the U.P. zamindari Abolition and Land Reforms Rules, 152, sub-rule (2) shall be deemed always to have been omitted. 9. From a plain reading of Section 123(1), it is clear that by statutory enactment the benefit of allotment was granted to the persons who had constructed their houses without any allotment, the rider being that this land should not be reserved for any public purpose and the house should be existing on the date of allotment (the said date has been amended from time to time). It is further clear from the reading of Section 123 that the persons, to avail the benefit of Section 123 should be referred to in section 122-C of the Act, 1950, thus, the three conditions to be satisfied for allotment are that the persons should be specified under section 122-C (3), the land in question should not be a land reserved for any public purpose and third that the construction of the proposed allottee should be existing as on the cut off date. 10. 10. The counsel for the petitioners argues that the petitioners clearly fall within the sub-clause (iii)(b) of Section 122-C(3) as she had house constructed prior to the cut off date to which there is no dispute and there is no finding against the petitioners that they are not OBC and third the land is not earmarked for any public purpose as is clear from the Khatauni annexed with the petition. 11. A perusal of the order reveals that the same has been passed only on the ground that the husband of the petitioner no. 1 was having land in excess of one acre and thus were not entitled to the benefit of allotment under section 123 (1) of the Act, 1950. The said finding is wholly perverse as neither the mandate of section 123(1) nor the order of preference specified under section 122-C(3) of the Act, 1950 prohibits allotment to a person whose family members is having land in excess of one acre. Sections 123(1) and 122(c) are socio-beneficial provisions enacted for allotment to marginalised sections of society and the action for cancellation being exproprietary in nature are required to be interpreted strictly. To deprive a person of his allotted property requires establishment of violation of provisions of section 123 read with section 122(c) which as already recorded above are missing in the present case, thus, it can be safely held that the orders can be passed against the petitioners are against the mandate of section 123 (1) read with Section 122-C(3) of the Act, 1950, as such, the same are liable to be quashed. 12. The orders dated 15.3.2004, passed by UP-Zila Adhikari Ghosi, Mau, (respondent no. 2) and the order dated 15.1.2009, passed by Additional Commissioner (I) Azamgarh Division, Azamgarh, (respondent no. 1) are set aside. 13. The writ petition is allowed in terms of the order passed above.