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IN THE HIGH COURT OF ALLAHABAD
PANKAJ BHATIA, J.
Smt. Indrasani And Others – Appellants
Versus
Addl. Commissioner And Others – Respondents
Writ C No. - 23949 of 2009
Decided on : 27-02-2020
Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 – Section 123 (1) – United Provinces Panchayat Raj Act, 1947 – Sections 4, 15, 16, 28-B and 34 – U.P. Consolidation of Holdings Act, 1953 – Land Acquisition Act, 1894 – Property Dispute - A perusal of order reveals that the same has been passed only on the ground that the husband of the petitioner no. 1 was having land in excess of one acre and thus were not entitled to the benefit of allotment under section 123 (1) of the Act, 1950.
Facts of the case : Present petition has been filed challenging the order passed by UP-Zila Adhikari Ghosi, Mau (respondent no. 2) whereby the allotment granted in favour of petitioners has been cancelled on an application moved by Gram Sabha as well as the order passed by Additional Commissioner (I) Azamgarh Division, Azamgarh (respondent no. 1) whereby the revision filed challenging the order was dismissed .
Finding of the court : Sections 123(1) and 122(c) are socio-beneficial provisions enacted for allotment to marginalised sections of society and the action for cancellation being exproprietary in nature are required to be interpreted strictly – To deprive a person of his allotted property requires establishment of violation of provisions of section 123 read with section 122(c) which as already recorded above are missing in the present case, thus, it can be safely held that the orders can be passed against the petitioners are against the mandate of section 123 (1) read with Section 122-C(3) of the Act, as such, the same are liable to be quashed .
Result : Writ Petition Allowed
JUDGMENT :
1. Heard Sri Alok Kumar Yadav as well as Jigyasa Singh, learned counsel for the petitioners, learned Standing Counsel for the State-respondent and learned counsel appearing on behalf of private respondents.
2. The present petition has been filed challenging the order dated 15.3.2004 passed by UP-Zila Adhikari Ghosi, Mau (respondent no. 2) whereby the allotment granted in favour of petitioners under section 123 (1) of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act, 1950') has been cancelled on an application moved by Gram Sabha as well as the order dated 15.1.2009, passed by Additional Commissioner (I) Azamgarh Division, Azamgarh (respondent no. 1) whereby the revision filed challenging the order dated 15.3.2004 was dismissed.
3. This Court, vide order dated 06.5.2009, had granted six weeks' time to the Standing Counsel to file counter affidavit but no counter affidavit was filed in 11 years, as such, vide order dated 14.1.2020, this Court granted final opportunity of three weeks' to file counter affidavit. Despite the said, no counter affidavit has been filed, as such, the present petition is being disposed off on the basis of unrebutted averments made in the writ petition.
4. The petitioners claim that they had constructed a residential house over the Plot No. 249 situate at Village Mugesar, Pargana and Tehsil Ghosi, District Mau and were in occupation of the said property and the names were duly recorded in the Khatauni. It has been categorically stated that the property in question was not reserved for any public purpose and that the petitioner belong to Other Backward Class. It is stated on record that by an order dated 31.12.1995, the respondent no. 2 passed an order under Section 123(1) of the Act, 1950 settling the property in favour of petitioners. The respondents no. 4 to 8 moved an application seeking recall of the order dated 31.12.1995 to which the petitioners filed their objection. The respondent no. 2 while its order dated 15.3.2004 allowed the said application and recalled the order dated 31.12.1995.
5. A perusal of the said order reveals that the approval granted in favour of the petitioner was held to be improper solely on the ground that the husband of the petitioner no. 1, namely, Parsotim already held land in excess of one hectare and as such the petitioners did not fall in the category of persons enumerated in the provisions of Section 123(1) of the Act, 1950. No other allegation was found against the petitioners.
6. The petitioners preferred revision challenging the order dated 15.3.2004 before the respondent no. 1. The said revision was dismissed vide order dated 15.1.2009 recording that the husband of the petitioner held land in excess of three acres (new finding recorded for first time) and it was further held that the petitioners are of a general category and the order of allotment was passed under section 123(1) of the Act, 1950 whereas in terms of the provision of Section 122-C(3)(iii) of the Act, 1950 only the persons of Scheduled Castes and Scheduled Tribes were eligible and the provisions with regard to general category was amended on 23.8.2004 to include persons of general category living below poverty line and thus the revision was dismissed. The present petition challenges both the said orders.
7. Learned counsel for the petitioners argues that the orders passed against the petitioners are wholly perverse inasmuch as there is no limitation prescribed either under section 123(1) of the Act, 1950 or under section 122-C of the Act, 1950 disentitling the petitioners from allotment on the ground of having land holding in excess of one acre or three acres as recorded by both the authorities. He further submits that even if the petitioners have been treated to be persons of general category, there is no finding that they were not persons below the poverty line. He argues that the petitioners belong to OBC and, thus, without there being anything o
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