Hon’ble S.U. Khan, J.—Heard learned counsel for the petitioner and learned standing counsel for the respondents. The dispute relates to plot No. 104 area 0.16 acre and plot No. 910 area 0.10 acre (total area 0.26 acre = 1260 sq. yard). Initially these plots were entered as banjar and navin parti. Petitioner claims that he was having his house over the plots in dispute since long. Accordingly on the basis of favourable reports given by Lekhpal on 12.7.1992 and Supervisor Kanoongo on 3.8.1992, Sub Divisional Officer passed an order on 3.8.1992 in favour of the petitioner under Section 123 (1) of U.P.Zamindari Abolition and Land Reforms Act as it stood at the relevant date which is quoted below:

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. The favourable reports and order of S.D.O. dated 12.7.1992 and 3.8.1992 are Annexure-3 to the writ petition which is not easily legible.

3. Thereafter Gram Pradhan initiated proceedings for cancellation of the above order under Rule 115 (P) of U.P.Z.A.&L.R. Rules. The matter was registered as case No. 50 Gram Pradhan v. Ram Preet and was decided against the petitioner through order dated 15.7.1998 passed by District Magistrate, Maharajganj. The Collector, Maharajganj through order dated 15.7.1998 allowed the case and cancelled the allotment. Rule 115 (P) of the U.P.Z.A.&L.R. Rules is quoted below:

115-P. The Collector may, of his own motion or on the application of any person aggrieved by any order of allotment of land under rule 115-L or 115-M, proceed to make an inquiry in the manner given hereunder.

(2) The allottee and Land Management Committee shall be necessary parties to all such cases.

From the above it is clear that this Rule applies only to allotment and Section 123 does not deal with allotment but with settlement.

4. The Collector mentioned in his order that Tehsildar in his report had reported that Revenue Inspector had entered the name of the mother of the petitioner on 25.9.1987 over plot No. 104 area 0.16 acres. Against the order of Collector petitioner filed Revision No. 150/179/M of 1998 which was dismissed on 19.11.1998 by Additional Commissioner (Judicial), Gorakhpur division, Gorakhpur with the direction that action must be taken against those officers who gave report in favour of the petitioner.

5. Through this writ petition orders dated 15.7.1998 and 19.11.1998 have been challenged.

In my opinion both the orders are wrong. The Sub Divisional Officer was not authorised to settle the land through its order dated 3.8.1992 without issuing notice to the Gaon sabha/Land Management Committee. S.D.O. also appears not to have given any reason. S.D.O. simply approved the reports of Lekhpal and Kanoongo. This virtually amounts to dereliction of duty and delegation of power by S.D.O. to Lekhpal and Kanoongo which is not permissible. On the other hand order passed by the District Magistrate under Rule 115 (P) is also not correct as firstly Gaon sabha had not challenged the order, it was only Pradhan who had challenged and secondly, it was not allotment hence proceedings under Rule 115 (P) were not maintainable.

6. However, the fact is that since before 1992 petitioner is in possession. It appears that some construction of the petitioner is also there. Even though it is not full fledged house but at least boundary wall is standing there. Setting aside the impugned orders and then directing the gaon sabha/Land management committee to challenge the order of S.D.O. dated 3.8.1992 settling the land with the petitioner in appropriate proceedings will be impracticabl