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2023 DIGILAW 2534 (ALL)

Bankey Lal v. State of U. P.

2023-11-07

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Akhtar Ali, holding brief of Mr. Arun Kumar Gupta, learned counsel for the petitioner, Mr. R.C. Srivastava, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sher Bahadur Singh, learned counsel for respondent No.4/Gram Sabha. 2. With the consent of the parties, matter is being heard and disposed of without inviting counter affidavit. 3. Brief facts of the case are that plot number 38/3 area 0.194 hectare situated in Village-Chatdang @ Baldevpur, Pargana, Tehsil and District-Pilibhit was initially recorded in the name of Gaon Sabha as Navin Parti. Petitioner belongs to schedule caste community/ category and was landless agricultural labourer. Petitioner remained in possession over the plot No.38/3 accordingly petitioner was granted benefit of Section 122-B(4F) of U.P.Z.A.&L.R. Act vide order dated 20.07.2010 as such petitioner was recorded as bhumidhari with non-transferable right in Class- 6(2) Category. Petitioner applied for recording his name as bhumidhar with transferable right, after expiry of required period, which has been rejected by the impugned order dated 24.03.2023 passed by UP-Ziladhikari, Tehsil-Sadar, District-Pilibhit. Revision filed by the petitioner under Section 210 of U.P.Revenue Code, 2006, has been also dismissed vide order dated 24.05.2023, hence this writ petition on behalf of the petitioner challenging the order dated 24.03.2023, passed by Sub-Divisional Officer, Sadar, District-Pilibhit and order dated 24.05.2023 passed by Additional Commissioner (Administration) Bareilly Division, Barelilly. 4. This Court vide order 26.09.2023 has passed the following order: "1. Counsel for the petitioner submitted that petitioner was granted benefit of Section 122-B (4-F) of U.P.Z.A. and L.R. Act by the authority vide order dated 20.7.2010. He further submitted that order dated 20.7.2010 has attained finality and petitioner was recorded as bhoomidhar with non-transferable rights. He further submitted that petitioner initiated proceeding for recording the petitioner as bhoomidhar with transferable rights which has been refused on misconceived ground that proceeding for cancellation of lease is pending. He submitted that revision filed by the petitioner has also been dismissed in arbitrary manner. 2. Mr. Govind Kumar Saxana, learned Additional Chief Standing Counsel for the State-respondents is granted two weeks time to obtain instruction on the point as to whether the petitioner can be refused the relief for declaring him as bhoomidhar with transferable rights when the order by which the petitioner was given benefit under Section 122-B (4-F) of U.P.Z.A. and L.R. Act has attained finality. 3. 3. Put up this matter as fresh on 13.10.2023. " 5. Again on 13.10.2023 the Court has granted time to State to obtain instruction in the matter. 6. In compliance of the order of this Court dated 13.10.2023, Mr. R. C. Srivastava, learned Additional Chief Standing Counsel for the State-respondent has placed instruction dated 06.11.2023 before the Court, which is taken on record. 7. Mr. R.C. Srivastava, learned Additional Chief Standing Counsel for the State-respondents on the basis of the instruction submitted that State has filed a restoration application dated 28.02.2023 against the order 20.07.2020 after thirteen years, which has been registered as Restoration Case No. T 202312560102096 and next date fixed in the matter is 14.11.2023. He further submitted that petitioner's prayer for recording his name as bhumidhar with transferable right shall be considered after disposal of aforementioned restoration application. 8. Learned counsel for the petitioner submitted that order passed on 20.07.2010 has not been set aside, as such petitioner is entitled to be recorded as bhumidhar with transferable right after expiry of required period for the same. He further submitted that mere filing of Restoration application by State after 13 years cannot stop the authority to record the name of the petitioner as bhumidhar with transferable right. He further submitted that impugned orders are wholly illegal and are liable to be set aside. He further submitted that a suitable direction be issued to respondents to record the name of the petitioner as bhumidhar with transferable right forthwith. 9. Mr. R. C. Srivastava, learned Additional Chief Standing Counsel for the State-respondent and Mr. Sher Bahadur Singh, learned Counsel for respondent No.4/ Gram Sabha further submitted that impugned orders have been rightly passed as no opportunity was afforded to the State/ Gaon Sabha before passing the order dated 20.07.2010. He further submitted that after disposal of restoration case, the prayer of the petitioner can be considered. He further submitted that no interference is required in the matter and writ petition is liable to be dismissed. 10. I have considered the argument advanced by the learned counsel for the parties and peruse the record. 11. There is no dispute about the fact that order dated 20.07.2010 passed under Section 122-B, 4(F) of U.P.Z.A. & L.R.Act, in favour of the petitioner has not been set aside till date and petitioner's name are recorded as bhumidhar with non-transferable right with effect from 20.07.2010. 11. There is no dispute about the fact that order dated 20.07.2010 passed under Section 122-B, 4(F) of U.P.Z.A. & L.R.Act, in favour of the petitioner has not been set aside till date and petitioner's name are recorded as bhumidhar with non-transferable right with effect from 20.07.2010. There is also no dispute about the fact that restoration proceeding initiated by the State after 13 years against the order dated 13.07.2010 is pending before the court concerned. 12. In order to appreciate the controversy involved in the writ petition perusal of order dated 20.07.2010 passed by the court will be relevant, which is as under: 13. Perusal of order reveals that State was afforded opportunity before passing the impugned order under Section 122-B, 4 (F) of U.P.Z.A.&L.R. Act as such filing restoration application after 13 years by the State is nothing but in order to harass the petitioner who was granted benefit under Section 122-B 4(F) of U.P.Z.A.&L.R. Act in accordance with law. 14. It is also material that order dated 20.07.2010 has not been set aside till date and petitioner's name is recorded as bhumidhar with non-transferable right with effect from 20.07.2010, as such, petitioner is entitled to be recorded as Bhumidhar with transferable right. 15. Considering the entire facts and circumstances of the case, the impugned order dated 24.05.2023 passed by respondent No.2 and 24.03.2023 passed by respondent No. 3 cannot be sustained in the eye of law, therefore, impugned order are hereby set aside and writ petition stands allowed. Respondent No. 3, Sub-Divisional Officer Sadar, Pilibhit is directed to record the name of petitioner over plot No. 38/3, area 0.194 hectare as Bhumidhar with transferable right within period of six weeks from the date of production of certified copy of this order before respondent No.3.