Court No. - 6
AFR Case :- WRIT - C No. - 41899 of 2019 Petitioner :- Harish Chand And 5 Others Respondent :- Commissioner Varanasi Division And 5 Others Counsel for Petitioner :- Kalp Nath,Vivekanand Counsel for Respondent :- C.S.C.,Manoj Kumar Yadav,Rajendra Prasad Yadav
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioners, Shri Manoj Kumar Yadav for the Gaon Sabha and Shri Rajendra Prasad Yadav for the caveator respondent nos.3 and 4 as also learned Standing counsel for the State-respondents.
The petition arises out of proceedings under Section 66 of the U.P. Revenue Code, 2006 for cancellation of allotment of an abadi site made in favour of the respondent nos.3 and 4.
The proceedings were initiated and the allotment was sought to be cancelled on the ground that the petitioner is in possession over the land, which was subject matter of the allotment as his Naad, Charan and Khunta etc. exists, thereon.
The Upper Collector (Finance & Revenue), Jaunpur vide order dated 15.10.2018 dismissed the application finding that the land in question of plot no.520 having total area of 0.010 hectare was recorded as naveen parti and that 0.081 hectares of this land was vacant, on this plot. Consequently 0.010 hectare each, had been allotted to the respondents. It was also found that the allotment was made in accordance with law. It was additionally recorded that earlier proceedings for cancellation of the same allotment had already been dismissed vide order dated 19.09.2018.
The order aforesaid dated 15.10.2018 has been affirmed by the Commissioner, vide order dated 26.09.2019.
The contention of counsel for the petitioner assailing the impugned orders is that the house of the petitioner has been in existence for a very long time. The land appurtenant thereto is being used as a sahan and therefore, the petitioner had installed Naad, Charan and Khunta etc. The land therefore, was not vacant and could not have been subject matter of any allotment.
In the context of the argument raised, I have carefully examined the application filed by the petitioner for cancellation of the allotment. In this application, nothing of consequence has been pleaded.
It is not the case of the petitioner that his house has been existing on the spot from before the date of vesting. It is only a house existing on the date of vesting, which is settled that the occupier along with the land appurtenant thereto. The extent of the term "land appurtenant" used in the U.P. Zamindari Abolition and Land Reforms Act has been clearly spelt out by the Apex Court in the decision of Maharaj Singh Vs. State of
U.P. and others, 1977 SCR (1)1072, as an area of 5 years , surrounding a building.
In the context of the law referred to above, this Court is constrained to hold that no relevant pleadings were incorporated in the application for cancellation of the lease. Neither, the distance of land subject matter of, allotment from the house of the petitioner was spelt out therein.
It is now sought to be contended that the relevant details shall be brought on record by means of a supplementary affidavit and for this purpose, counsel has prayed for time.
However, in my considered opinion, the petitioner is not liable to be granted time to bring on record new facts which were never pleaded before the Courts below as the same would amount to carving out a new case. After, the two Courts below have rejected the application for cancellation of the allotments. Even otherwise, it is settled law that the land in occupation of an unauthorized occupation is vacant for the purposes of an allotment by the Gaon Sabha.
Admittedly, the land in dispute is recorded as naveen parti and therefore, the petitioner is not claiming any title to the same. Nor was any such claim raised during consolidation operations when the land in question came to be recorded as naveen parti. Any claim of title is now clearly barred by Section 49 of the U.P. Consolidation of Holdings Act.
In view of the foregoing discussion and since the revisional Court has rightly dismissed the revision of the petitioner holding that he is not an aggrieved person and therefore, not competent to maintain the application for cancellation, which finding this Court is in complete agreement with, this writ petition without merit and is dismissed.
Order Date :- 17.12.2019 RKM