Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Ambrish Kumar Tiwari holding brief of Sri S.K. Tyagi, learned counsel for the petitioners and learned Standing Counsel.

2. The present writ petition is directed against the order dated 15.2.2006 passed by respondent No. 3, the Assistant Collector, Hapur, Ghaziabad in Case No. 8/51/05-06 under Section 122-B of U.P. Zamindari Abolition and Land Reforms Act (in short, the Act) and the order dated 19.5.2006 in revision No. 29/05-06 under Section 122-B (4A) of the Act. It appears that on the report submitted by Halka Lekhpal dated 13.3.2004, the case was instituted against the petitioner for unauthorised occupation of Khasra No. 228 area 200 square yard. Notice 49-Ka was served upon the petitioner. In reply to the said notice., the petitioners raised objection that they were landless labourers of scheduled caste category and they were in occupation of the disputed plot since prior to the year 2002. They have raised their ‘Abadi’ over the plot in question and therefore, were entitled to the benefit of Section 123 (1) of the Act. The notice 49-Ka, therefore, was liable to be cancelled.

3. Halka Lekhpal in his report submitted that the petitioners had illegally occupied Khasra No. 228 area 2000 sq. yard and had raised construction in 1411 fasli. The statement of Satya Veer, petitioner No. 1 was recorded on 9.11.2004 wherein he has submitted that they were in possession of the disputed plot for the last three years as ‘Abadi’. The statement of witness Rampal was recorded on 25.11.2014 wherein he has also stated that the land in question is in possession of the petitioners as ‘Abadi’ for the last three years. Initially, on the basis of these evidences, benefit of Section 123(1) of the Act was given by the Additional District Magistrate, Hapur vide order dated 29.11.2004 and the notice 49-Ka was cancelled. Against the order dated 29.11.2004, the Land Management Committee, Meerpur, Majra, District Hapur, filed a writ petition which was allowed on 15.6.2005. The order dated 29.11.2004 passed by the Additional District Magistrate, Hapur was set aside and the matter was remanded back to decide afresh on merits.

4. The Assistant Collector, Hapur examined the matter afresh and in its order dated 15.2.2006 has recorded that the petitioners have failed to establish that they were in occupation of the land in question prior to 1.5.2002 and as such benefit of Section 123(1) could not be given to them. Accordingly, a direction was given for eviction of the petitioner and damage was imposed. The revision filed challenging the order dated 15.2.2006 was dismissed on 19.5.2006 wherein it was found that there was nothing on record to indicate that the petitioner’s Abadi was existing prior to the cut-off date i.e. 1.5.2002 and hence the benefit of Section 123(1) could not given to the petitioner. Further, it was recorded by the revisional Court that the earlier order dated 29.11.2004, giving benefit of Section 123 (1) passed by the Additional District Magistrate was wholly without jurisdiction. It was held that the Additional District Magistrate had no jurisdiction to provide benefit of Section 123 (1) of the Act as it is a substantive provision and requires appreciation of evidence. As the petitioners/revisionists had failed to establish their possession over the plot in question prior to the cut of date, it was found that no relief could be granted to them.

5. Challenging the orders impugned, learned counsel for the petitioners submits that there is no dispute about the fact of the petitioners being landless agricultural labourers belonging to scheduled castes category. There was ample evidence to prove that the petitioners were in possession of the plot in question prior to “May, 1 2002” the cut off date. The fact of possession of the petitioner over the plot in question and the fact of constructions ‘Abadi’ raised by them, was not disputed. The land in question is not a land mentioned in Section 132 i