Ram Naresh vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard Sri O.P. Rai, learned Counsel for the petitioner and Sri Indrasen Singh Tomar for respondent No. 5. Learned Standing Counsel has accepted notice for respondents No. 1 to 3 and Sri R.C. Upadhayay, learned Counsel for Gaon Sabha for respondent No. 4.

All the learned Counsel for the parties agree that the matter be disposed of finally, at this stage itself, without waiting for any further affidavits as a legal question is involved on the basis of the facts that already emerge and are recorded in the impugned orders.

Having heard the learned Counsel for the parties, the petitioner is claiming regularisation of unauthorized occupation over the disputed land in terms of section 123 of the U.P.Z.A. & L.R. Act, 1950. The petitioner, admittedly, is of the Other Backward Class. Such benefits have been extended provided the possession is established in terms of the said section in relation to other backward classes who were introduced as a preferential category under the notification that was brought into force w.e.f. 23.8.2004 through Amendment Act No. 27 of 2004.

In the present case, the order passed in favour of the petitioner granting such regularisation is prior to that date i.e. 31.7.2003.

The respondent No. 5, claiming himself to be of a preferential category, filed an objection for restoration and setting aside of the aforesaid order on the ground that the petitioner did not belong to the preferential category as on the date when the benefit was extended to him and secondly the answering respondent No. 5 was a lease holder since 1986, therefore, he was entitled to occupy the said disputed land as a member of the preferential category as defined under the provisions of the 1950 Act.

The restoration application was allowed by the Sub-Divisional Officer on 11.10.2012 recording that the petitioner was not entitled or eligible to avail such benefit over the disputed area of plot No. 249. A further direction was issued to restore the land in the name of the Gaon Sabha and the order in favour of the petitioner of 2003 was set aside. The petitioner was aggrieved by the said order on the ground that the restoration was time barred and without condoning the delay in correct prospective the same was allowed and even otherwise the petitioner was entitled to the benefits of such regularisation which aspect has been overlooked.

The revisional Court went one step further to examine the claim of the respondent No. 5 as well and found that even though the photostat copies of the lease of respondent No. 5 dated 13.5.1986 were filed yet they were inadmissible in evidence, but the litigation that went on between the parties did indicate that the respondent No. 5 fell within the preferential category and, therefore, was entitled to the benefit of section 123 of the 1950 Act.

Sri Rai learned Counsel for the petitioner contends that mis finding which was recorded could have been done on an application moved separately by the respondent No. 5 u/s 123 of 1950 Act itself and not on the restoration application filed by him. It is further contended that the respondent No. 5 failed to establish his unauthorized occupation so as to seek the benefit of section 123 of the 1950 Act and photostat copies of the alleged lease which were inadmissible in evidence could not have been taken into account for extending any such benefit.

Sri Rai further submits that in 2010 the respondent No. 5 filed a civil suit being Suit No. 187 of 2010 where his statement in cross-examination was recorded wherein the respondent No. 5 has admitted that he had no lease in his favour. A copy of the statement has been filed as Annexure 9 to the writ petition. Sri Rai, therefore, submits that on that count even the revisional order deserves to be set aside and the writ petition deserves to be allowed.

Replying to the said contentions, Sri Tomar contends that the petitioner was absolutely ineligible as on the date when the regularisation order was passed u/s 123 of 1950 Act keeping in view his financial status and the ownership of land as has been disclosed in the various reports that were filed before the authorities. He, therefore, submits that an ineligible person without establishing his possession prior to the appointed date u/s 123 of 1950 Act could not have been extended any such benefit.

He further submits that the petitioner being of the other backward class was even otherwise not entitled to any such benefit as a preferential category candidate prior to 20.8.2004. The order, therefore, dated 31.7.2003 has been rightly set aside. So far as the claim of the respondent No. 5 is concerned, Sri Tomar submits that there was other evidence available even if the lease had not been established and the answering respondent was in occupation and was therefore entitled to the benefit of section 122-C(3) of the U.P.Z.A. & L.R. Act, 1950.

Learned Standing Counsel and the learned Counsel for the Gaon Sabha have supported the impugned orders urging that the petitioner being ineligible was wrongly extended the benefit by the Sub-Divisional Officer which order has been rightly recalled and does not call for interference by this Court.

They further contend that, as a matter of fact, neither the petitioner nor the respondent No. 5 have been able to qualify for any such regularisation u/s 123 of the 1950 Act as they do not fall within the category of occupants as contemplated therein in view of the submissions raised and the facts that remain undisputed.

The Sub-Divisional Officer before proceeding to have restored the matter, should have first decided the issue of limitation keeping in view the provisions of section 5 of the Limitation Act which does not appear to have been done. In such circumstances, the impugned orders cannot be sustained on the said count. Secondly, the issue relating to claim of the petitioner for regulation as an occupant should have been assessed keeping in view the benefits which have been extended to other backward category candidates under the notified amendment that has been enforced w.e.f. 23.8.2004. Thirdly, the status of the respondent No. 5 was absolutely unclear so as to claim any such benefit u/s 123 of the 1950 Act, inasmuch as, there was no cogent material on record to establish the grant of lease or otherwise possession of the respondent No. 5. The order of the Sub-Divisional Officer dated 11.10.2012 does not discuss any such material. If the respondent No. 5 claims possession under a lease of 1986 then the possession can-not be an unauthorized occupant and would be permissive possession. This aspect also did deserve to be considered which does not find notice in either of the orders. Apart from this, the statement of the respondent No. 5 in the civil suit filed by him also requires consideration because admission is the best piece of evidence. Consequently, on all these aspects the order dated 11.10.2012 becomes unsustainable. For the same reason, the order passed in revision by the learned Additional Commissioner also cannot be sustained as the matter has not been assessed in correct perspective as observed hereinabove. Consequently, both the orders dated 11.10.2012 and 10.9.2013 are quashed. The writ petition is allowed and the matter is remitted back to the respondent No. 3 to decide the matter afresh in the light of the observation made hereinabove after providing an opportunity of hearing to the parties concerned including the State and the Gaon Sabha in accordance with law.