Allahabad High Court
Ram Chandra vs Collector/District Magistrate ... on 7 August, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:46160
Court No. - 3
Case :- WRIT - C No. - 1005355 of 2004
Petitioner :- Ram Chandra
Respondent :- Collector/District Magistrate Distt.Faizabad And Others
Counsel for Petitioner :- C.L.Yadav
Counsel for Respondent :- C.S.C.,R.N.Gupta
Hon'ble Irshad Ali,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondent.
2. Notice has been issued to the Gaon Sabha, which is deemed to be sufficient and no one has put in appearance on behalf of Gaon Sabha, when the case is taken up.
3. By means of the present writ petition, the petitioner is challenging the orders dated 17.7.2004, 21.1.2004 and 20.5.2004 passed by respondent Nos.1 and 2, contained as Annexures-1, 5 and 7 respectively.
4. Factual matrix of the case is that a notice under Section 49-k of U.P. Zamindari Abolition and Land Reforms Act, 1950 has been issued against the petitioner for eviction over the land in dispute of Gata No.91 area 0-1-15-5. The petitioner filed objection denying the allegations mentioned therein that the petitioner was granted lease of Gata No.91 for construction of house on 15.1.1978 by the Gram Pradhan and notice given to the petitioner is also defective.
5. The land in dispute of Gata No.91 area 157 which was recorded in 'gaddha' has been declared abadi land by the Sub Divisional Magistrate, Faizabad vide order dated 8.5.2001. The respondent No.2 decided the case without giving opportunity of hearing and leading evidence to the petitioner vide order dated 21.1.2004, it is the case of the petitioner. The petitioner filed restoration application before the respondent No.2 which was also rejected vide order dated 20.5.2004.
6. Thereafter, a revision has been filed before the respondent No.1 against the orders dated 21.1.2004 and 20.5.2004, which was rejected vide order dated 17.7.2004.
7. Submission of learned counsel for the petitioner is that prior to the grant of lease, the petitioner has constructed the house on the land in dispute. He submits that his objection has not been taken care of and without affording an opportunity of hearing, the case has been decided without permitting the petitioner to place evidence in the matter. He submits that the revisional court has also not considered the provision provided under Section 123 of the U.P. Zamindari Abolition and Land Reforms Act.
8. In support of his submission, learned counsel for the petitioner placed reliance upon the following judgments :-
(i) M/s Jain Cold Storage and Ice Factory Balrampur Vs. Deputy Labour Commissioner Faizabad [(2017) 152 FLR 225]. Relevant paragraphs-6 and 7 are being quoted below :-
"6. It has been submitted by the learned counsel for the petitioners that a perusal of the impugned order shows that the respondent no. 1 before holding that the petitioners had violated the provisions of Section 3 of the Act, has not even adverted to the objection filed by the petitioners against the report of the Inspector/Labour Enforcement Officer dated 11.12.1997 and has passed the order impugned in a mechanical manner. It is further submitted that the impugned order apparently suffers from complete non-application of mind and, as such, the same is liable to be quashed.
7. Per contra, the learned Standing Counsel has made a submission in support of his impugned order. However, he had failed to bring to our notice any material on record which may even remotely indicate that the respondent no. 1 while passing the impugned order has not even adverted to the objection filed by the petitioners against the report of the Inspector/Labour Enforcement Officer, Faizabad dated 11.12.1997 upon which he has extensively relied while holding that the petitioners had violated Section 3 of the Act."
(ii) Ram Narain Vs. Sub Divisional Officer and others [2008 (1) AWC 35]. Relevant paragraphs-15, 16 and 17 are being quoted below :-
"15. For better appreciation of the scope of the provisions of Sections 122C and 123 of the Act as stood at relevant time, the same are extracted as under :
122C. 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 agricultural labourers and village artisans
(a) lands referred to in clause (i) of subsection (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 185, 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 122A, 195, 196, 197 and 198 of this Act, or in Sections 4, 15, 16, 28B 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 subsection (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 subsection (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 subsection (2)
(i) an agricultural labourer or village artisan residing in the village and belonging to a Scheduled Caste or Scheduled Tribe;
(ii) any other agricultural labourer or village artisan residing in the village;
(iii) any other person residing in the village and belonging to a Scheduled Caste or Scheduled Tribe.
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 purpose ancillary thereto and includes a carpenter, weaver, potter, blacksmith, silversmith, goldsmith, barber, washer man, cobbler or any other persons 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. Preference shall be given to a person who either holds no house or has insufficient housing accommodation considering the requirements of his family.
(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 subsection (2) or it is otherwise necessary or expedient so to do, he may himself allot such land in accordance with the provisions of subsection (3).
(5) Any land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed.
(6).....................................
(7).....................................
(8)....................................
(9)...................................
122D..................................
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 122C has built a house on any land referred to in subsection (2) of that section, not being land reserved for any public purpose, and such house exists on the (30th day of June, 1985) 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 subsection (3) of Section 122C has built a house on any land held by a tenure holder (not being a Government lessee) and such house exists on the (30th day of June, 1985) 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 the (30th day of June, 1985) 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.)
16. Thus, from a plain reading of subsection (1) of Section 123 of the Act, it is clear that where any person referred in Section 122C(3) has built a house on any land which is not subject matter of Section 9 of the Act or on any land referred to in Section 122C (2) not being the land reserved for any public purpose and such house exists on 30th June, 1985, the site of the house shall be held by the owner of the house on such terms and conditions as prescribed by the Rules. The aforesaid provisions does not require any formal allotment order by Assistant Collector in charge of the subdivision concerned, rather statute itself recognises such settlement on satisfaction of the conditions stipulated under the aforesaid provisions of the Act.
17. Similarly subsection (2) of Section 123 of the Act provides that where any person enumerated in subsection (3) of Section 122C has built a house on any land held by tenure holder (not being a Government lessee) and such house exists on 30th June, 1985, the site of such house shall notwithstanding anything contained in the 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 under the Rules, therefore, the submission of learned Counsel for the petitioner that settlement of house site in favour of owners of the House belonging to the scheduled castes and scheduled tribes and agricultural labourers are permissible only in respect of land referred to in Section 122C (2) of the Act alone, in our considered opinion, appears to be wholly misconceived. We are of the considered opinion that the settlement of land can be made in favour of persons referred to in subsection (3) of Section 122C if they have built their houses on any land held by tenure holder (not being Government lessees) and such house existed on 30th day of June, 1985. The restriction is only in respect of the land held by a Government lessee and such restriction is not applicable in respect of land held by tenure holders of other categories. In other words, if other conditions of Section 123(2) of the Act are satisfied, the land covered by house sites of the persons enumerated under Section 122C(3) shall be deemed to be settled with the owner of such house by the tenure holders of the land except upon the land of Government lessee."
(iii) Rishipal Singh Vs. State of U.P. and others. Relevant paragraph-74 is being quoted below :-
"74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67,67A and 26 of the U.P. Revenue Code. It is all aimed at ensuring transparency in the procedure, judiciousness in approach by the authorities and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing of unnecessary harassment to an innocent villager:
(i) In case of complaint made on RC From 19, the official making it shall ensure that proper survey is done in the light of observations made in this judgment; the land, occupation of which has stood identified to be unauthorized is in exact measurement and so also shown in the survey map prepared on scale, as per the Land Revenue Survey Regulations, 1978; the exact assessment of damages on the basis of circle rate with details of calculation made on that basis.
(ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of subrule 1 Rule 67.
(iii) RC Form 20 must be accompanied by a copy of report and spot survey submitted alongwith RC Form 19 to the person against whom proceedings have been instituted, or even otherwise submitted in case of suo motu action vide para (ii) above.
(iv) Upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved.
(v) In the event, objection includes a plea of statutory protection/ benefit under Section 67-A, the authority should invite the objection from the Gaon Sabha, and will decide the same alongwith the matter under Section 67, without requiring aggrieved party to move separate application under Section 67-A.
(vi) If the report is admitted on record, may be in case no objection is filed, the authority must ensure presence of the person preparing the report before it, to prove the report by his statement, with a right to aggrieved party to cross question him.
(vii) The authority must endeavour to decide the case within time framed provided under the relevant Act and the Rules and should desist from granting adjournment to the parties in a routine manner.
(viii) In case of appeal under Section 67(5) of the U.P. Revenue Code, 2006, preferred/ filed within the time prescribed alongwith interim relief application, the interim relief application as far as possible should be decided within two weeks' time with prior notice to other side and where plea of settlement under Section 67-A has been taken before Assistant Collector-1st Class, and damages to the tune of 25 % at-least of the total damages are paid and an affidavit of undertaking is filed for not raising any further construction upon the land in question, the authorities including civil administration should avoid taking any coercive measure pursuant to the order appealed against until the disposal of interim relief application. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant.
(ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation."
9. On the other hand, learned Standing Counsel submits that the land in dispute is a pond and is for the public purpose, therefore, the land in dispute cannot be allotted to the petitioner and no house can be constructed on the land in dispute. In support of his submission, he placed reliance upon a judgment of the Apex Court, rendered in the case of Hinch Lal Tiwari vs Kamala Devi And others, wherein direction was issued to evict the persons who were under possession over the pond. His next submission is that the entire material was taken into consideration and thereafter, the Tehsildar has passed the order. He next submits that there is no illegality in passing the impugned orders and the orders are just and valid, thus, no interference is required in the matter.
10. I have heard the rival submissions of learned counsel for the parties and perused the material on record as well as the judgments relied upon by both the parties.
11. On perusal of the order of the Tehsildar, it is evident that the counsel for the petitioner was heard and thereafter, after giving fullest opportunity of hearing, the order was passed and the recall application for recalling the order treating to be ex-parte, an application was moved by the petitioner which has also been rejected by the Tehsildar, holding that prior opportunity of hearing was provided to the petitioner. The revisional court has also considered the objection raised by the petitioner and came to the conclusion that the land is for the public purpose, therefore, the house constructed by the petitioner has wrongly been constructed and it shall be demolished and possession to be handed over to the Gaon Sabha.
12. The judgments relied upon by the learned counsel for the petitioner takes notice of the fact that his objection was not considered while deciding the issue but in the present case, the Tehsildar as well as District Magistrate has taken notice of the fact of his objection raised, therefore, the judgments relied upon are not applicable to the facts and circumstances of the present case. Learned counsel for the petitioner has also placed reliance upon the provision of Section 123 of the U.P. Zamindari Abolition and Land Reforms Act. On its perusal, it is evident that the provision is not applicable to the case in hand.
13. In the opinion of the Court, both the courts below have committed no error in passing the impugned orders, therefore, the writ petition lacks merit and is hereby dismissed.
Order Date :- 7.8.2025
Gautam
