Court No. - 10
Case :- WRIT - C No. - 36083 of 2018 Petitioner :- Ram Naresh Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Bhriguram Ji,Ashish Kumar Pandey,Yadvendra Yadav Counsel for Respondent :- C.S.C.,Ram Babu Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri B.R.J. Pandey, learned counsel for the petitioner; Shri Rajesh Kumar Srivastava, learned Standing Counsel for the State respondents and Shri Ram Babu Yadav, learned counsel appearing for the Gaon Sabha.
The petitioner is before this Court assailing the validity of the impugned order dated 29.6.2015 passed by the fourth respondent, Tehsildar, Sadar, District Mirzapur as well as the order dated 28.9.2018 passed by the second respondent, Collector/District Magistrate, Mirzapur.
Record in question reflects that the Land Management Committee allotted the land measuring 0.009 hectare of Arazi No.92M situated in village Saravan, Tappa Majhavan, Paragana Kasivar, Tehsil Sadar, District Mirzapur to the petitioner for construction of the house and the same was approved by the Additional District Magistrate in accordance with law vide order dated 12.5.1993. By the impugned order dated 29.6.2015, the proceedings under Section 122B of UP ZA & LR Act have been initiated against the petitioner after lapse of about 22 years on the ground that at no point of time proper resolution was ever accorded in favour of the petitioner and the same was not approved by the Competent Authority i.e. Sub Divisional Magistrate. The petitioner filed an application for recalling the order dated 29.6.2015 and the same was also rejected on 30.5.2016. Aggrieved with the aforesaid orders, the petitioner preferred an appeal before the District Magistrate, Mirzpur and the same was also dismissed on 28.10.2016 with observation that for irregular lease the petitioner has to move an appropriate application before the Sub Divisional Magistrate for regularization.
In this backdrop, learned counsel for the petitioner states that so far as proceeding under Section 122B of UP ZA & LR Act is concerned, the same has been initiated after more than 25 years. The allotment was made in favour of the petitioner by the Land Management Committee in the year 1993 and the higher authority i.e. Additional District Magistrate, Mirzapur had approved the allotment on 12.5.1993. The petitioner is still in possession over the land in dispute since the year 1993. For his claim the petitioner has also placed reliance on Section 225 of U.P. Land Revenue Act, 1901, wherein the Collector may exercise all or any powers of an Assistant Collector under this or any other Act for time being in force, as such, this Court should come for rescue and reprieve the petitioner.
On the other hand, learned Standing Counsel has raised objection that so far as both the impugned orders are concerned, it is admitted situation that the petitioner failed to substantiate his case that there was any valid allotment in his favour and the Competent Authority has approved the said allotment. The petitioner has not established that there was a proper resolution as well as approval by the Competent Authority. There is no infirmity or illegality in the impugned orders and the writ petition is liable to be dismissed.
In this backdrop, the Court has proceeded to examine the record in question and finds that so far as the claim set up by the petitioner is concerned the alleged allotment took place in the year 1993. It is also admitted situation that the proceeding under Section 122B of UP ZA & LR Act has been initiated against the petitioner after substantial long time. It has also been claimed that the Additional District Magistrate has approved the said allotment vide order dated 12.5.1993, which has been brought on record as Annexure No.2 to the writ petition. The Court has also perused the relevant provision contained in Section 67A of UP Revenue Code, 2006, which provides as under:-
"67A- Certain house sites to be settled with existing owners thereof.-
(1) If any person referred to in sub-section (1) of section 64 has built a house on any land referred to in Section 63 of this Code, not being land reserved for any public purpose, and such house exits on the November 29, 2012, the site of such house shall be held by the owner of the house on such terms and conditions as may be prescribed. (2) Where any person referred to in sub-section (1) of section 64, has built a house on any land held by a tenure holder (not being a government lessee) and such house exits on November 29, 2000, the site of such house, notwithstanding anything contained in this Code, 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 purpose of sub-section (2), a house existing on November 29, 2000, 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."
In the present matter, the Court finds that the alleged resolution was passed way back in the year 1993 and the same was approved by the Additional District Magistrate, Mirzapur on 12.5.1993. It is also claimed that on the said site the construction has already been made and as such this Court is of the considered opinion that the case of the petitioner definitely falls in the category wherein the house exits on the November 29, 2012. Once the aforesaid lease/resolution is not in consonance with the provision, then in such situation the authority has every right to regularize the said house in case the same is not raised on the public utility land. It has also been claimed that the construction is not raised on the public utility land. In such situation, no useful purpose will be served in keeping the writ petition pending.
Considering the above, this petition stands disposed of with the direction to the Sub Divisional Magistrate, Sadar, District Mirzapur to proceed in the matter as per provision contained under Section 67A of UP Revenue Code, 2006. In case any fact finding enquiry is required in the matter, the same may also be done within a period of three months from the date of production of certified copy of this order. Till disposal of the said claim no coercive action would be taken against the petitioner.
Order Date :- 30.10.2018 RKP