Under U.P. Revenue Code, 2006, Section 65 empowers Sub-Divisional Officer to restore possession of allotted residential plot to scheduled caste landless labourer against encroachers even post-initial allotment until shelter provided and state title vests.

JUDGMENT :

Siddharth Nandan, J.

1. Heard Sri Dinesh Kumar Mishra, Advocate along with Sri Marghoob Hussain, Advocate appearing on behalf of the petitioner and the learned Standing Counsel for the State.

2. Since the matter involves, purely a question of law, with the consent of the parties the present writ petition is decided finally at the admission stage itself.

Facts

3. The present writ petition has been filed for issuance of writ of mandamus directing the respondents authorities i.e. respondent.2 (District Magistrate/Collector, Fatehpur) and respondent no.3 (S.D.M. Tehsil Khaga, District Fatehpur), to take appropriate actions against the encroachers of Gata No.605 in Village Orha, Pargana Ekdala, Tehsil Khaga, District Fatehpur; which was allotted to the petitioner in pursuance of the proposal dated 16.4.2012 and approval dated24.12.2012 by the respondent no.3.

4. It is an admitted fact that the petitioner was given a residential lease with respect to land as prescribed under Section 63 of the U.P. Revenue Code, 2006 (In short Code, 2006), since he was eligible under Section 64 of the Code, 2006 being an agriculturist labour, belonging to Scheduled Caste category, with no house.

5. It is the specific case of the petitioner that the husband of petitioner no.1 was given the allotment over Gata No.605 and petitioner no.2 is the brother of the said late Ram Lal. Only partial house was constructed, when the husband of the petitioner no.1 died and eventually after she got some compensation from the Motor Accident Claim Tribunal, she mustered resources to resume the construction, which was partially done earlier; and over a period time which was also destroyed due to heavy rains. Thereafter when she started the constructions certain musclemen in the area are not permitting her to raise the construction, so as to make the house inhabitable and are encroaching over the said plot.

6. In view of the aforesaid circumstances he has approached respondent nos. 2 and 3 but till date no action being taken on her application. She has approached this Court to protect her right to shelter, as enshrined under Article 21 of the Constitution of India. It is a specific case that she does not have any shelter over her head and is living in an outhouse, permitted by one of her neighbours.

Issues (i) Whether Section 65 of the Code, 2006 empowers the Sub-Divisional Magistrate to put the allottee in possession of a land being allotted as provided under Section 64 of the Code, 2006, when “any person other than the allottee” is in occupation especially when the house is to be constructed or not and;

(ii) Whether Section 34 of the Code, 2006 or remedy under the Civil Procedure Code is an efficacious remedy and can act as a bar to power under Section 65 of the Code, 2006.

Arguments (Issue no. 1)

7. Learned counsel for the petitioner has contended that since on account of the death of the husband of the petitioner no.1, the family was in destitute, therefore, they could not complete the construction of the house over the plot allotted to them, being eligible under Section 64 of the Code, 2006; and it is only after that, on account of the accident being the factor for the death of the husband of the petitioner no.1,