Partly allowed

Subhash Chandra v. State of U.P. and 5 Others

Allahabad HC15 Sept 2022WRIB/30260/2016

Case brief

AI extract

What is this about?

This High Court held that the Board of Revenue illegally interfered with the findings of the Additional Commissioner regarding the allottee's land status. The court set aside the impugned order and remitted the matter for a fresh decision on merits.

What did the court decide?

Impugned order dated 2.6.2016 passed by Board of Revenue set aside; matter remitted to Board of Revenue to decide revision afresh within four months.

Subhash Chandra Vs State of U.P. and 5 Others — Land Acquisition | Allahabad HC (2022)

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Court No. - 52

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Case :- WRIT - B No. - 30260 of 2016

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Petitioner :- Subhash Chandra Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Chandra Prakash,R.S.P. Rao Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi,Harish Pratap Singh,Manoj Kumar Yadav,Navneet Kumar Mishra

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Hon'ble Chandra Kumar Rai,J.

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Heard learned counsel for the petitioner, Sri Manoj Kumar Yadav, learned counsel for respondent no.6, learned Standing Counsel for respondent no.1 to 3 and Sri Bhupendra Kumar Tripathi, learned counsel for respondent nos.4 and 5.

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Brief facts of the case are that plot no.279/346 situated in Village-Sarai Bahadur, Pargana and Tehsil Mohammadabad, District- Ghazipur belongs to one Babunandan. Petitioner is permanent resident of VillageSarai Bahadur, Pargana and Tehsil Mohammadabad, District- Ghazipur and is adopted son of Babunandan as Babunandan had no issue. Babunandan had executed an unregistered Will-deed also on 6.10.1994 in favour of petitioner. On 16.1.1983 allotment was made in favour of respondent no.6(Jaddu Yadav). On behalf of Babunandan, an application for cancellation of allotment of respondent no.6 under Section 115P of U.P.Z.A. and L.R. Rules before Collector, Ghazipur and the Additional Collector vide order dated 24.4.1990 rejected the application filed by the Babanandan. Against the order dated 24.4.1990, a revision was filed by Babunandan under Section 333 of U.P.Z.A. and L.R. Act during pendency of revision before Additional Commissioner, Babunandan died and petitioner was substituted in the place of Babunandan. Additional Commissioner vide order dated 24.3.2001 allowed the revision setting aside the order dated 24.4.1990 and cancelled the allotment made in favour of respondent no.6 in respect to Plot No.279/346 recording finding of fact that respondent no.6 does not belong to scheduled caste community nor respondent no.6 have the land less than the required for allotment, as such, he was not landless agricultural labourer, against the

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order of the Additional Commissioner dated 24.3.2001, respondent no.6 filed a revision before the Board of Revenue and the Board of Revenue vide order dated 2.6.2016 without considering the finding of fact recorded by the Additional Commissioner has allowed the revision setting aside the order of Additional Commissioner dated 24.3.2001 and maintained the order of Additional Collector dated 24.4.1990, hence this writ petition. This Court while entertaining the writ petition passed the following order dated 6.7.2016:

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"Notice on behalf of respondents-1 to 3 has been accepted by the Chief Standing Counsel and on behalf of respondents-4 and 5 has been accepted by Sri Manoj Kumar Yadav.Issue notice to respondent-6.

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The counsel for the petitioner submits that Additional Commissioner in his order found that respondent-6 was not eligible for allotment of land for house site and allotment was irregular. Although allotment made in favour of respondent-6 was cancelled but the Board of Revenue, U.P. has illegally allowed the revision filed by him without setting aside the finding recorded by the Additional Commissioner that respondent-6 was not eligible for allotment of land for house site.

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The matter requires consideration.

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Till the next date of listing operation of the order dated 2.6.2016 shall remain stayed."

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Learned counsel for the petitioner submitted that respondent no.6 was not entitled for the allotment of land for residential purpose as he was already having seven bighas land, as such, as provided under Section 122-C(3) of the U.P.Z.A. and L.R. Act allotment cannot be made to respondent no.6. He further submitted that petitioner belongs to scheduled caste community and petitioner was in possession of the disputed plot w.e.f. 30.6.1975, as such, plot in dispute was not vacant on the date of allotment, accordingly, allotment made in favour of respondent no.6 was illegal. He further submitted that Additional Commissioner while allowing the revision of the petitioner has recorded a finding that respondent no.6 is not entitled to the allotment according to the provisions of the Act and Rules but Board of Revenue while allowing the revision of respondent no.6 has exceeded the revisional jurisdiction and illegally maintained the order of Additional Collector by which the application for cancellation of allotment filed by petitioner has been rejected. Counsel for the petitioner placed reliance upon Section 122C of

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U.P.Z.A. and L.R. Act which are as follows:

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"122-C. Allotment of land for housing site for members of Scheduled Castes, agricultural labourers, ect.—(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—

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(a) lands referred to in clause (i) of sub-section (1) of Section 117 and vested in the Gaon Sabha under that section;

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(b) lands coming into possession of the Land Management Committee under Section 194 or under any other provisions of this Act;

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(c) any other land which is deemed to be or becomes vacant under Section 13, Section 14, Section 163, Section 186, or Section 211;

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(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.

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(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)—

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(a) any land earmarked under sub-section (1);

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(b) any land earmarked for the extension of abadi sites for Harijans under the provisions of the U.P. Consolidation of Holdings Act, 1953;

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(c) any abadi site referred to in clause (iv) of sub-section (1) of Section 117 and vested in the Gaon Sabha;

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(d) any land acquired for the said purposes under the Land Acquisition Act, 1894.

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(3) The following order of preference shall be observed in making allotments under subsection (2)—

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[(i) an agricultural labourer or village artisan residing in the Gram Sabha and belonging to any of the following categories in the order of preference:—

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(a) persons belonging to the Scheduled Castes and the Scheduled Tribes;

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(b) persons belonging to Other Backward Classes;

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

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(ii) any other agricultural labourer or village artisan residing in the village;

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[(iii) any other person residing in the Gram Sabha and belonging to any of the following categories in the order of preference:—

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

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(b) persons belonging to Other Backward Classes;

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

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[(iv) a person with disability residing in the village.]

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Explanation I.—The expression "agricultural labourer" shall have the same meaning as in Section 198.

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[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:

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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.]

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[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 of Rights and Full Participation) Act, 1995 (Act 1 of 1996).]

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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.

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[Explanation V.—The expression "persons of general category living below poverty line" shall have the same meaning as in Section 198.]

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(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 (2) 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).

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(5) Any land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed.

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(6) The Collector may of his own motion and shall on the application of any person 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.

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(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 subsection (6) shall be final, and the provisions of [Section 333 and Section 333-A] shall not apply in relation thereto.

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(8) [Omitted]

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[(9) In Rule 115-L of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, subrule (2) shall be deemed always to have been omitted.]"

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On the other hand, respondent no.6 submitted that the Board of Revenue has rightly allowed the revision of respondent no.6 on the ground that respondent no.6 was landless agricultural labourer belonging to backward community, as such, he will come under the category prescribed under 122-C (3) of U.P.Z.A. and L.R. Act. He further submitted that there was no illegality in the allotment, as such, no interference is required against the impugned order and the revision is liable to be

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dismissed. He further submitted that brother of Babunandan was also allotted land by the same resolution/proceeding, as such, he has no right to fill application for cancellation of allotment made in favour of respondent no.6.

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Considered the submissions advanced by learned counsel for the parties and perused the records.

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There is no dispute about the fact that allotment was made in favour of respondent no.6 for residential purpose and the application for cancellation was filed by Babunandan under Section 115P of U.P.Z.A. and L.R. Rules which was dismissed by the Additional Collector but in appeal, Additional Commissioner has cancelled the allotment made in favour of respondent no.6 while allowing the appeal and setting aside the order of the Additional Collector. Board of Revenue while exercising the jurisdiction under Section 333 of U.P.Z.A. and L.R. Act allowed the revision of respondent no.6 and maintained the order of the Additional Collector by which the application for cancellation for allotment filed by Babunandan was rejected.

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Since the Additional Commissioner while allowing the revision of the petitioners has recorded finding of fact that respondent no.6 is not landless agricultural labourer as from the perusal of the revenue records, it reveals that he was having land more than the prescribed under the U.P.Z.A. and L.R. Act/Rules for the allotment, the finding has also been recorded that respondent no.6 is not scheduled caste rather he belongs to backward community and Babunandan belongs to scheduled caste community and is having land less than the limit prescribed for allotment. Accordingly, revision was allowed and the allotment of respondent no.6 was cancelled but Board of Revenue has illegally interfered with the finding of fact recorded by the Additional Commissioner only by saying that revisionist is having lesser land without any basis although Additional Commissioner mentioned that opposite party is having land more than the limit prescribed on the basis of Khatauni of 1390 fasli to

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1395 fasli and allowed the revision without setting aside the finding of fact recorded by the Additional Commissioner while allowing the revision of the Babunandan.

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The right and title of Babunandan will not matter rather the entitlement of the allottee will be relevant question to be examined under Section 115P of U.P.Z.A. And L.R. Rules accordingly, Board of Revenue will examine whether proceeding for allotment was conducted according to rules as prescribed under Section 122C of U.P.Z.A. and L.R. Act, the finding of courts below also to be considered in accordance with law but all these exercise is lacking in the order of Board of Revenue. The basis of finding that allottee was landless agricultural labourers be also recorded by Board of Revenue.

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Considering the entire facts and circumstances of the case as well as the scope of jurisdiction exercised by the Board of Revenue under Section 333 of the U.P.Z.A. and L.R. Act, the impugned order passed by Board of Revenue dated 2.6.2016 in Revision No.36 of 2000-01 (Jaddu Yadav Vs. Subhash and Others) is liable to be set aside and the same is hereby set aside.

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The writ petition is allowed in part and the matter is remitted back before respondent no.2 i.e. Board of Revenue, U.P. at Allahabad to decide the revision afresh on merits after giving an opportunity of hearing to both the parties in accordance with law expeditiously preferably within a period of four months from the date of production of certified copy of this order before him.

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Order Date :- 15.9.2022 Rameez

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Digitally signed by RAMEEZ AHMED Date: 2022.09.19 18:00:15 IST Reason: Location: High Court of Judicature at Allahabad

Subhash Chandra v. State of U.P. and 5 Others

Case brief

What is this about?

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Subhash Chandra v. State of U.P. and 5 Others

Case brief

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