Allahabad High Court
Mithru & Others vs Commissioner Azamgarh Division, ... on 23 August, 2012
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 58
Case :- WRIT - C No. - 25704 of 2007
Petitioner :- Mithru & Others
Respondent :- Commissioner Azamgarh Division, Azamgarh & Others
Petitioner Counsel :- Govind Krishna
Respondent Counsel :- C.S.C.,A.P. Singh,Anuj Kumar,S.C.
Hon'ble Sibghat Ullah Khan,J.
Heard Sri Govind Krishna, learned counsel for the petitioners and Sri A.P. Singh, learned counsel for the respondent No.3 and learned standing counsel for respondents No.1, 2 and 4.
This Writ Petition is directed against order dated 07.11.2002 passed by Collector/ D.M. Azamgarh in Case No.22 under Section 122-B/ Rule 115-P of U.P.Z.A. & L.R., Act and Rules. The said case was initiated on the complaint of Asfaq Ahmad, the respondent No.3. Through the impugned order allotment of land by Gaon Sabha/ Land Management Committee in favour of the petitioner No.1 and father of petitioners made in the year 1966-67 was cancelled. A small piece of land had been allotted for constructing house. It was asserted in the cancellation application that land in dispute was rasta and construction had not been made within three years as required by Rule 115-Q. It was also pleaded that under U.P. Road Side Land Control Act, 1945 no construction could be made on the land as it was within prohibited distance from a regulated road. It is also mentioned in the impugned order that during pendnecy of suit in the year 1983 petitioner started making constructions hence proceedings under U.P. Road Side Land Control Act were initiated against the petitioners which were decided on 30.08.2006 against the petitioners. Through order dated 30.08.2006 constructions were directed to be removed and were subsequently removed. It is also mentioned that the land in dispute was entered as usar in the land revenue record. It is also mentioned in the said order that according to the report of Niab Tehsildar dated 14.07.1983, the land was being used as rasta. Plot number of the land in dispute is 198, area 33 kari (about 160 square yard).
In para-3 of the writ petition, it is mentioned that 50 kari was allotted to the petitioner No.1 on 17.07.1966 and 52 kari was allotted in favour of father of petitioners on 11.03.1967, total 102 karis (about 500 square yards) under Section 115-M of U.P. Z.A. & L.R. Rules. Accordingly, it is clear that the impugned orders relate only to part of the allotted land. In para-6 of the writ petition it is mentioned that first application for cancellation was filed on 03.02.1981 which was dismissed on 22.08.1983. Thereafter, another application was filed, which was allowed by the impugned order dated 07.11.2002. It is not mentioned that when the second application was filed which was decided by order dated 07.11.2002.
Against order dated 07.11.2002 petitioner No.1 filed revision (No.97/A of 2006-07), which was dismissed on 11.04.2007 by Commissioner, Azamgarh Division, Azamgarh. Said order has also been challenged through this writ petition.
Application for cancellation having been filed after about 15 years of allotment was liable to be dismissed on this ground alone. If under U.P. Road Side Land Control Act order of demolition was passed in respect of construction made on part of the allotted land then it only meant that petitioners were not entitled to make construction thereupon, however, such order does not amount to depriving the person concerned of his ownership. Question of ownership in proceedings under U.P. Road Side Land Control Act is wholly irrelevant.
Accordingly, Writ Petition is allowed. Impugned orders are set aside. However it is clarified that the portion over which constructions were demolished after passing of the order dated 30.08.2006 under U.P. Road Side Land Control Act, petitioners shall not make any construction however the said land will continue to belong to them.
Order Date :- 23.08.2012
NLY
