Allahabad High Court

Smt. Sunari Devi vs Board Of Revenue & 5 Others on 24 August, 2017

Bench: Vivek Kumar Birla




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 7
 
Case :- WRIT - B No. - 38148 of 2017
 
Petitioner :- Smt. Sunari Devi
 
Respondent :- Board Of Revenue & 5 Others
 
Counsel for Petitioner :- Anup Kumar Srivastava,S.K. Varma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla, J.

1. Heard Sri S.K. Varma, learned Senior Counsel assisted by Sri Anup Kumar Srivastava, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State respondents and perused the record.

2. Present petition has been filed seeking a writ of certiorari quashing the impugned order dated 11.7.2017 passed by the Board of Revenue in Revision No. 27 of 2011-12 (Smt. Sunari vs. Commissioner, Gorakhpur Division, Gorakhpur and others) and the order dated 23.2.2012 passed by the Commissioner, Gorakhpur Division, Gorakhpur in Revision No. 261/311/198/G-1999 (Sri Chand Kiran and others vs. Smt. Sunari Devi).

3. The claim of the petitioner is based on facts that she belongs to scheduled caste category and has constructed a pacca house before 30.6.1985 on plot no. 125 of village Godsari, Post Office Kantiram, Tappa Pachisi Bhowapar, Tehsil Bansgaon, District Gorakhpur belonging to the respondents no. 4 to 6. In the year 1996, in order to protect her interest the petitioner applied under Section 123(2) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act') before the Sub Divisional Officer, Bansgaon, District Gorakhpur, on which notices were issued to the respondents no. 4 to 6 and the authority called for a report from the concerned Tehsildar. Allegation is that despite of the notices respondents no. 4 to 6 did not appear before the Sub Divisional Officer. The Tehsildar submitted its report on 3.3.1996 alongwith report of the concerned Lekhpal and vide order dated 4.7.1996 the application of the petitioner was allowed. Subsequently, the respondents no. 4 to 6 filed an application for recalling the order of Sub Divisional Officer dated 4.7.1996 before the authority concerned, which was rejected vide order dated 8.2.1999. Thereafter, respondents no. 4 to 6 filed a revision before the Commissioner, Gorakhpur Division, Gorakhpur, which was allowed vide order dated 23.2.2012. The revision filed by the petitioner against the aforesaid order before the Board of Revenue, Allahabad was dismissed vide order dated 11.7.2017. Hence, the present petition has been filed challenging the aforesaid two orders dated 23.2.2017 and 11.7.2017.

4. While allowing the revision filed by the respondents no. 4 to 6, by setting aside the order dated 8.2.1999 passed by the Sub Divisional Officer, the matter was remanded back for consideration of the recall/restoration application on its own merits. It was observed in the order that the property in dispute is recorded in the name of Chandra Kiran, Manoj Kumar and Ajai Kumar and they were not given any notice. It was also observed that husband of the petitioner herein was Lekhpal in the tehsil and ex-parte proceedings had taken place in collusion. It was also observed that the authority concerned was bound to consider the aspect as to whether the property in dispute was a gaon sabha land or not and as to whether the person claiming his rights over the same is entitled to claim the same as per the provisions of Section 122-C (3) of the Act. A direction to decide the matter on merits within two months was also given. Being aggrieved by the order, revision was filed. Noticing the aforesaid facts, the revisional authority was of the opinion that under such circumstances the recall/restoration application is liable to be considered afresh on its own merit after spot inspection and after consideration of the eligibility of the person who is claiming such rights under Section 123(2) of the Act.

5. Submission of Sri S.K. Varma, learned Senior Counsel appearing for the petitioner is that there is no dispute about the fact that the petitioner belongs to scheduled caste category and a finding has been recorded that the petitioner has constructed a pacca house over the land in dispute before 30.6.1985 (the date fixed by the UP Act No. 24 of 1986) the abadi site on which the petitioner's house stood would be deemed to be settled with the petitioner. It was next submitted that the recall application, under such circumstances, was not maintainable when proper notice was issued to the respondents no. 4 to 6 and they preferred not to appear before the authority concerned. During the course of arguments, reference to Section 161 of the Act was also made. It was further submitted that since the question of eligibility in regard to the caste etc. of the petitioner is not under challenge, it has to be taken for granted that the petitioner belongs to scheduled caste category and therefore, the matter cannot be reopened by any authority. During the course of arguments, reference was also made to Sections 122-C and 123 of the Act.

6. Per contra, learned Standing Counsel appearing for the State respondents has submitted that no prejudice is caused to the petitioner as the matter has been sent back for consideration of the recall/restoration application on its own merit and that too within a time bound frame. It was next contended that in any view of the matter, it is necessary to find out as to whether the house has been constructed on a private land or on a public land and would be covered under Section 122-C of the Act and as to whether the petitioner would be eligible under Section 123(2) of the Act where certain house sites can be settled with the existing owner thereof.

7. I have considered the rival submissions and perused the record.

8. Before proceeding further, it is necessary to consider the provisions of Section 122-C, Section 123 and Section 198 (1) Explanation (2) of the Act noted above, which are quoted as under:-

"Section 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 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) land 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 sub-division 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;

(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 a village artisan residing in 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;

(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;

(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 & Rights and Full Participation) Act, 1955 (Act No. 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 92) 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 persons 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 sub-section (6) and every order passed by the Collector under sub-section (6) shall be find, and the provisions of Section 333 and Section 333-A shall not apply in relation thereto.

(8) ...... omitted by UP Act No. 24 of 1986.

(9) in Rule 115-L of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, sub-rule (2) shall be deemed always to have been omitted.

Section 123. Certain house sites to be settled with existing owners 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 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.

(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- 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."

198. Order of preference in admitting persons to land under Sections 195 and 197-

(1) In the admission of persons to land as bhumidhar with non-transferable rights or asami under Section 195 of Section 197 (hereinafter in this section referred to as allotment) the Land Management Committee shall, subject to any order made by a Court under Section 178 observe the following order of preference:

(a) landless widow, sons, unmarried daughters or parents residing in the circle of a person who has lost his life by enemy action while in active service in the Armed Forces of the Union;

(b) a person residing in the circle, who has become wholly disabled by enemy action while in active service in the Armed Fores of the Union;

(c) a landless agricultural labourer residing in the circle and belonging to any one of the following categories in the order of preference:-

(i) persons belonging to the Scheduled Castes or the Scheduled Tribes;

(ii) persons belonging to Other Backward Classes;

(iii) persons belonging to the general category living below poverty line;

(d) any other landless agricultural labourer residing in the circle;

(e) a bhumidhar or asami residing in the circle and holding land less than 1.26 hectares (3.125 acres);

(f) a landless person residing in the circle who is retired, released or discharged from service other than service as an officer in the Armed Forces of the Union;

(g) a landless freedom fighter residing in the circle who hs not been granted political pension; and

(h) any other landless agricultural labourer, not residing in the circle, but residing in the Nyaya Panchayat circle referred to in Section 42 of the United Provinces Panchayat Raj Act, 1947 and belonging to any of the following categories in the order of preference:-

(i) persons belonging to the Scheduled Castes or the Scheduled Tribes;

(ii) persons belonging to Other Backward Classes;

(iii) persons belonging to the general category living below poverty line.

Explanation- For the purposes of this sub-section-

(1) 'landless' refers to a person who or whose spouse or minor children hold no land as bhumidhar, or asami and also held no land as such within two years immediately preceding the date of allotment; and

(2) 'agricultural labourer' means a person whose main source of livelihood is agricultural labour;

(3) 'Freedom-Fighter' means an inhabitant of Uttar Pradesh who is certified by the Collector to have participated in the National struggle for freedom during the period between 1930 and 1947 and who in connection with such participation, is similarly certified to have-

(a) undergone a sentence of imprisonment for a period of at least two months; or

(b) been in jail for a period of at least three months by way of preventive detention or as an undertrial; or

(d) been declared as absconding offender; or

(e) suffered a bullet injury;

and includes a person who was involved in the Peshawar-Khand or who was a recognised member of the Indian National Army or former India Independence League; but does not include a person who was granted pardon on account of his tendering apology or expressing regret for such participation.

(4) 'Other Backward Classes' means the Backward Classes of citizens specified in Schedule 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).

(5) 'Persons of General Category living below poverty line' means such persons as may be determined from time to time by the State Government."

(Emphasis supplied)

9. Insofar as the facts of the present case are concerned, in the order dated 23.2.2012 passed by the Commissioner, it has been clearly noticed that the application was moved by the respondents no. 4 to 6 on the ground that their names were recorded in the revenue record over the property in dispute, on which allegedly a house has been constructed by the petitioner. A finding has been recorded by the Commissioner after perusal of the record that their names are existing on record and that they are claiming that they are bhumidhars of the aforesaid land and therefore, it has to be seen as to whether it is the private property or not and rightly so as in law no one can be permitted to construct over other house and get away with it without any sanction of law. A perusal of Section 123 indicates that it is with reference to Section 9 as well as sub-section (3) of Section 122-C of the Act. The heading of Section as well as Explanation of this Section further indicates that claim is not absolute in nature. It is rebuttable.

10. Under Section 123(1), the nature of land on which right can be claimed definitely is in reference to Section 122-C of the Act. Reference to provisions of Section 9 of the Act to protect the claim of the petitioner is of no consequence insofar as the present case is concerned as Section 9 of the Act has a reference to the date of vesting and provides for private wells, trees in abadi and building to be settled with the existing owners or occupiers thereof. In this case, the application of the petitioner is to the effect that he has built the house prior to 30.6.1985 and therefore, she does not claim to be an occupier of a house on the date of vesting.

11. A person claiming its benefit has to establish that he falls within the categories mentioned in Sections 122C (3) and has built a house over land of a tenure holder prior to the cut-off-date. There is a preoccupation that the house has been built by the occupier but this, as observed above, is a rebuttable presumption. The tenure holder has this right to rebuttal and it is for this reason that the matter has been remanded back by order impugned. Besides the order of the Sub Divisional Officer merely approved the report of the subordinate revenue staff without considering the aspects pointed out above, which necessarily required consideration. There is also no reference to any defence of the respondent who claims to be bhumidhar of the land in question.

12. That provisions as quoted above clearly indicate that a fact finding has to be done on various factors including nature of land and eligibility of a person to claim benefit before allowing claim of any person under Section 123 of the Act.

13. In such view of the matter, I do not find any legal infirmity in the orders impugned herein.

14. Present petition lacks merit and is accordingly dismissed. There shall be no orders to costs.

Order Date :- 24.8.2017

Abhishek