Court No. - 21
Case :- WRIT - B No. - 1493 of 2021 Petitioner :- Bhoori Devi (Since Deceased) And 3 Others Respondent :- The Board Of Revenue And 2 Others Counsel for Petitioner :- Prem Sagar Verma,Madan Mohan Counsel for Respondent :- C.S.C.,Krishna Kant Singh
Hon'ble Dinesh Pathak,J.
1. Heard Sri Prem Sagar Verma, learned counsel for the petitioners, Sri Krishna Kant Singh, learned counsel for Gram Sabha-respondent no.3 and learned Standing Counsel for the State-respondent nos. 1 & 2 at the admission stage.
2. This is a highly belated writ petition challenging the order dated 17.07.2014 passed by the Board of Revenue, UP Circuit Court, Agra (respondent no.1) and order dated 04.09.2009 passed by the Additional Collector (Administration), Aligarh (respondent no.2) in a proceeding under Rule 115-P of Uttar Pradesh Zamindari Abolition and Land Reforms Rules (in brevity U.P. Z.A Rules).
3. Instant writ petition is arising out of lease cancellation proceeding under Rule 115-P of Z.A Rules. Land in question, subject matter of lease, are recorded as pasture land in the revenue record. Gaon Sabha, vide resolution dated 17.03.1996, proposed to change the entry of land in question from pasture land to Banjar, so that it could be allotted for Abadi site. UP- Ziladhikari had approved the said resolution by its order dated 11.04.1996. Later on, Gaon Sabha has passed resolution dated 19.06.1997 proposing the allotment of land for Abadi site in favour of 39 persons including the Bhoori Devi (mother of the present petitioners). Respondent no.3 had accorded approval to said resolution dated 19.06.1997 by its order dated 22.06.1997.
On the lease cancellation application, having being filed, trial court, vide order dated 01.06.2001, had upheld the allotment made in favour of allottees except eight (08) allottees including the Bhoori Devi (mother of the petitioners). On revision being filed, Additional Commissioner (Judicial), Agra has set aside the order dated 01.06.2001 and remitted the matter before trial court, vide its order dated 30.12.2003. After remand, trial court, by its order dated 30.04.2005, had cancelled the lease granted in favour of all allottees. Second time again, revision court, vide order dated 10.12.2008, had remitted the matter before trial court to decide the validity of lease afresh after giving proper opportunity of hearing to the allottees.
4. Additional Collector (Administration), Aligarh, in pursuance of remand order dated 10.12.2018, has reconsidered the validity of lease dated 22.06.1997 and cancelled the same on the ground that lease in question was initially recorded as a pasture land which had illegally been converted into Banzar land for which UP-Ziladhiakri concerned had got no jurisdiction. Simultaneously, it has been directed that the entry of the land should be restored as a pasture land. Feeling aggrieved, eight allottees including Bhoori Devi have filed revision dated 19.05.2010 (Annexure-5) which was partly allowed by the order dated 17.07.2014 (Annexure-6) passed by the respondent no.1 to the extent that allotment could be made under Section 123 of U.P. Z.A. & L.R. Act only to the persons belongs to the Scheduled Caste community.
5. Learned counsel for the petitioners submits that Bhoori Devi (mother of the present petitioners), who had filed the revision, was under the impression that the revision filed on her behalf was allowed, therefore, she kept mum and constructed a small house over the land allotted to her. In the year 2020, when the Tehsil authorities came on the spot for evicting the petitioners from their house, they came to know for the first time that the revision, filed by their mother, was dismissed vide order dated 17.04.2014. It is further submitted that the respondent no.1 has made discrimination between the villagers belongs to the SC/ST category and the other categories and has misread and misinterpreted the provisions of Section 123 of UP ZA & LR Act.
6. Per contra, learned Standing Counsel and learned counsel for Gaon Sabha contended that the present writ petition has been filed at belated stage after more than 2518 days without giving sufficient reason for the condonation of delay. Lease in question has rightly been cancelled by the respondent nos. 1 & 2. It is further contented that at this stage there is no justification to interfere in the impugned order passed by respondent nos. 1 & 2. There is no illegality or perversity in the impugned orders as to warrant indulgence by this Court in exercise of extraordinary jurisdiction.
7. This Court has carefully considered the rival submissions advanced by learned counsel for the parties and perused the record.
8. As per endorsement made by reporting section of this Court, there is an inordinate delay of 2518 days in filing the present writ petition against the order dated 17.07.2014. In para 29 of the writ petition, it is averred that the mother (who was allottee) of the petitioners was under the impression that the revision filed on her behalf was allowed, therefore, she kept mum under the bona-fide belief of success of revision. On 31.12.2020 when Tehsil authorities came on the spot to evict the petitioners from the land in question and threatened to demolish their house, thereafter, they came to know about the adverse order passed by the respondent no.1. Para 29 of the writ petition, explaining the delay is quoted herein-under:-
"29. That as regards laches in filing the present writ petition, it is stated that the petitioner-Bhoori Devi had joined in the revision which was filed before the Board of Revenue, Circuit Court at Agra (respondent no.1). However, the learned Board of Revenue vide order dated 17.07.2014 allowed the revision only in respect of allottess belonging to the Scheduled Caste and cancelled the allotment made in favour of the petitioners who are "Baghel" by caste. However, since Bhoori Devi was under bona fide impression that her allotment has been upheld by the learned Board of Revenue (respondent no.1). It so happened that with the passage of time, Bhoori Devi has died and her sons succeeded the house in accordance with law. It so happened that on 31.12.2020 the Tehsil officials came to the house of the petitioners and threatened to demolish their house then it is only thereafter the petitioners made enquiries from Commissioner's Court, Agra and came to know that in fact, the allotment in favour of the petitioner-Bhoori Devi stood cancelled. Accordingly, the petitioners were advised to challenge the order of the Board of Revenue before the Hon'ble High Court. Accordingly, after making necessary arrangement of funds and papers which took a little time the present writ petition is being filed. Therefore, there is no deliberate or willful negligence or laches on the part of the petitioners in assailing the impugned orders. The laches, if any, in filing the present writ petition is bona fide and may be condoned and the writ petition may kindly be heard and decided on merits, to secure the ends of justice."
9. Perusal of para 29 of the writ petition does not disclose the sufficient reason in filing the belated writ petition against the order dated 17.07.2014. It appears that Bhoori Devi, who has field the revision against the order dated 04.09.2009, was aware about the order passed on 17.07.2014 but has deliberately not assailed the aforesaid order before the higher court and in the meantime she died. After her death, present writ petition has been filed by her sons citing the reason of threat of demolition of their house given by the Tehsil authorities which does not appear to be sufficient reason for condoning the delay in filing present writ petition, to the satisfaction of the Court.
10. Even otherwise, the genesis of challenge the lease deed dated 22.06.1997 is the nature of land which was initially recorded as pasture land in the revenue record but the same was allotted to the allottees after changing its entry as Banzar. I do not find any error in the finding given by the Revenue Courts that the plots in question which was recorded as pasture land, are a public utility land, and the same cannot be allotted in favour of any person. Land in question being a public utility land is protected under Section 132 of UP ZA & LR Act, which prohibits the allotment of such land in favour of any person. Respondent no.2, in passing the order dated 14.09.2009 had justified in cancelling the lease which was accorded by the authorities concerned over the pasture land. Order dated 04.09.2009 reveals that despite the issuance of notice no one appeared before the court except one Neelam. Respondent no.1 has partly affirmed the order passed by the trial court to the extent that allotment of land for Abadi site can be made only to the persons belongs to the SC/ST category, inasmuch as, there is no provision under the law as enshrined under Section 123 of UP ZA & LR Act for allotment of land for Abadi site to the person belongs to other communities. Observation made by the respondent no.1 for the allotment of land for Abadi site to the persons belongs to the SC/ST category, in the light of provisions as enshrined under Section 123 of UP ZA & LR Act, is not justified to the satisfaction of the Court. It appears that respondent no.1 has misread and misinterpreted the provisions enunciated under Section 123 of UP ZA & LR Act. For ready reference, provisions of Section 123 of UP ZA & LR Act is quoted herein under.
"Section 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 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 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 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 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.)"
11. It is evident from the perusal of Section 123 of UP ZA & LR Act that the same is not meant for the allotment of land for Abadi site in favour of any person belongs to the SC/ST community. The provisions under the aforesaid section succients settlement of site, on which house built, with the persons, who has built a house, as referred under sub-section (3) of Section 122-C of UP ZA & LR Act. There is not express provision under the aforesaid section for the allotment of the land for the housing site to any person belongs to Scheduled Castes/Scheduled Tribes or OBC or general category. Respondent no.1 has illegally averted the phrase "not being land reserved for any public purpose" used in section 123 of U.P. Z.A. & L.R. Act.
12. In this conspectus, as above, I am of the view that respondent no.1 has exceeded its jurisdiction so vested in it by law. Instant writ petition is party allowed and the impugned order dated 17.07.2014, to the extent qua an observation that the allotment of land for Abadi site to the persons belongs to the Scheduled Castes could be made under the provisions of Section 123 of UP ZA & LR Act is hereby quashed. There is no order as to costs.
Order Date :- 24.9.2021/ Vikas