Allahabad High Court
Ram Singh vs Ghanshyam Singh And Others on 7 August, 2012
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED
Court No. - 18
Case :- MISC. SINGLE No. - 458 of 1991
Petitioner :- Ram Singh
Respondent :- Ghanshyam Singh And Others
Petitioner Counsel :- Awadhesh Kumar
Respondent Counsel :- C.S.C
Hon'ble Anil Kumar,J.
Heard Shri Awadhesh Kumar, learned counsel for the petitioner, learned State Counsel and perused the record.
By means of the present writ petition, the petitioner has challenged the impugned order dated 17.12.1990 (Annexure No.3) passed by opposite party no.4/District Magistrate/Collector, Kheri.
Factual controversy of the present case as submitted by learned counsel for the petitioner, relates to plot no.261, area 0.02 acre, situated at Village Padri Mohan, Pergana, District-Kheri (hereinafter referred to as the said land) was Abadi land of Gram Samaj, the said land being allotted to the petitioner on 19.12.1981.
Thereafter, the petitioner constructed boundary wall and put a thatch over the said land where he used to tether cattle. Further, there is one Jamun, two eucalyptus trees, one Labhera and one Bamboo Thania of which the ages are 8-9 years.
On 26.4.1990, petitioner moved an application before the opposite party no.4/District Magistrate/Collector, Kheri that respondent nos.1 and 2 were trying to take forcible possession of the said land.
In response to the said facts, the contesting respondents filed a written statement inter alia stating therein that in respect of the said land, a patta was executed in their favour, accordingly, the matter came up for consideration before the opposite party no.4/District Magistrate/Collector, Kheri, who after giving adequate opportunity to the parties concerned, passed the impugned order dated 17.12.1990 (Annexure No.3). Aggrieved by the said facts, present writ petition has been filed by the petitioner before this Court.
Shri Awadhesh Kumar, learned counsel for the petitioner has assailed the impugned order on the ground that the said land/patta of the Gram Samaj was allotted by the Gaon Sabha to the petitioner on 19.12.1981. Thereafter, he has paid Nazrana Rs.40/-. In view of the abovesaid fact, the action on the part of the Gaon Sabha to allot the land by way of patta in favour of opposite party nos.1 and 2 is wholly illegal and arbitrary in nature, thus the impugned order dated 17.12.1990 (Annexure No.3) passed by opposite party no.4/District Magistrate/Collector, Kheri is contrary to the record, liable to be is set aside.
I have heard learned counsel for the parties and gone through the records.
In order to decide the controversy involved in the present case, I feel appropriate to go through the relevant provisions as provided in statute which governs the field.
In brief, Section 122-C of the Act was originally inserted by U.P. Act 21 of 1971. By the Amending U.P. Act 35 of 1976, the Explanation II to sub-section (3) was substituted and sub-section (9) was added towards the end. By U.P. Act 24 of 1986, sub-section (8) was omitted, and in sub-section (7), the word and figures '333-A' were inserted. Section 112-C(8) was omitted in 1986 because of the addition of section 122-D.
By U.P. Act 27 of 2004, which came into force on August 23, 2004, section 122-C was further amended as follows:
i.In sub-section (1), for the words 'the Scheduled Tribes', the words 'the Scheduled Tribes and the Other Backward Classes and the persons of general category living below poverty line' were substituted.
ii.In sub-section (3), for the words 'the Scheduled Tribe', the words 'Scheduled Tribe or Other Backward Classes or a person of general category living below poverty line' were substituted.
iii.In sub-section (3), after existing clause (iii), clause (iv) was newly inserted.
iv.In sub-section (3), the Explanation III was re-numbered as Explanation IV,
v.In sub-section (3), a new Explanation V was also inserted.
Scope of the Section :- Section 122-C of the Act, which came into force on 24.05.1971, contained as many as nine sub-sections. Sub-section (1) simply empowers the S.D.O. For earmark (to identify or reserve) certain specified categories of land for abadi sites for the following persons:--
i.Members of the Scheduled Castes;
ii.Members of the Scheduled Tribes;
iii.Members of Other Backward Classes;
iv.Persons of general category living below the poverty line ;
v.Agricultural labourers ; and
vi.Village artisans.
Sub-section (2) empowers the Land management Committee to allot land for building of houses to persons referred to in sub-section (3). The order of preference for the purposes of allotment is also specified in sub-section (3). sub-section (4) is most important because it confers overriding powers on the S.D.O. To allot housing sites even without reference to L.M.C. Sub-section (5) deals with the terms and conditions of the allotment whereas sub-section (6) confers powers on the Collection to cancel irregular allotments. Sub-section (6) is comparable to section 198(4) and rule 115-P of the rules. Sub-section (7) gives finality to the orders passed by the S.D.O. And the Collector. Lastly, sub-section (9) omits sub-rule 115-L.
Moreover, provisions as provided under Section 122-C of the Act and Rules 115-L and 115-M, all the three provisions deals with allotment of land for non-agricultural purposes, but they differ from each other in several respects. Allotment of land under rule 115-L relates to the category of persons referred to in section 112-C(3) of the Act, whereas allotments made under rule 115-M falls outside the said category. Section 112-C of the Act as well as rule 115-L both authorise allotment of land for residential purposes, but under rule 115-M, allotment can be made for charitable purposes and for cottage industries as well. The order of preference for allotment under section 122-C and rule 115-L differ from what has been provided under rule 115-M.
Thus, in view of the abovesaid facts, with effect from 24.5.1971 the patta for Abadi purpose can be allotted only as per the provisions as provided under Section 122-C U.P. Z.A. &L.R. Act in the present case as per version of the petitioner the patta in question was allotted on 19.12.1981 i.e. after the enforcement of Section 122-C of the Act, keeping in view the said facts and finding as given by opposite party no.4, the impugned judgment that "उभय पक्षों द्वारा प्रस्तुत साछ्यो के अवलोकन से स्पस्ट है की श्री रामसिंह का विवादित भूमि पर कोई भी वैधानिक अधिकार नहीं है I श्री राम सिंह द्वारा केवल एक रसीद के आधार पर विवधित भूमि पर अपना अधिकार बताया जा रहा है जो की नियम के अनुसार उचित नहीं है क्योकि केवल इस प्रकार की रसीद प्राप्त का लेने से विवादित भूमि पर श्री राम सिंह का कोई अधिकार नहीं बनता I ".
For the foregoing reasons, writ petition is dismissed.
No order as to costs.
Order Date :- 7.8.2012
Mahesh
