High Court · 2025
Case Details
Cited in this judgment
5. The brief facts of the case are as under:- (i) An application for seeking benefit of Section 67-A of the Code of 2006 was preferred by the petitioner before the opposite party No. 2 and thereupon an order was passed on 20.10.2023 by the opposite party No. 2 whereby a report was called from the Revenue Official, as appears from the copy of the application annexed at page no. 24 of the paper book. (ii) The application aforesaid also indicates the annual income of the petitioner i.e. Rs. 48,000/-. To establish the annual income, no document has been placed before this Court. In other words, to establish that the petitioner, a person of general category, at the time of moving the application was living below the poverty line, no evidence has been placed on record. This evidence is relevant in view of Section 64 and Section 67- A of the Code of 2006. (iii) The application aforesaid, further indicates that the same was moved with regard to the regularising the possession for the land recorded as banjar, area 0.012 hectare (120 square meters). (iv) The application aforesaid also indicates the period of possession i.e. about 15 years.
6. The law with regard to providing benefit of Section 67-A over the Gaon Sabha Land including the land recorded as 'Banjar' land has been settled by this Court. In the judgment passed in case of Raju Vs. State of U.P. reported as MANU/UP/0717/2020 it has been held that:- "The issue in the writ petition is whether the petitioners are entitled to the benefit of Section 67A of the U.P. Revenue Code, 2006, which provides that in case a house exists over land referred to in Section 63 of the Code, having been built prior to November 29, 2012, the housing site can be settled with its owner on such terms and conditions as may be specified. The benefit of Section 67 is liable to be granted as regards land referred to in Section 63 of the Code. Section 63 speaks of land, which may be allotted for abadi site and empowers the Sub Divisional Officer, on his own motion or on the resolution of the Land Management Committee, to earmark land for abadi site. The second requirement for a person to be entitled to the benefit of Section 67A is that he should be a person referred to in sub-section 1 of Section 64. Section 64 sub-section 1 talks of the orders of preference to be observed while making allotment of land referred to in Section 63, namely land which has been earmarked for abadi sites. Section 64 of the Code reads as follows. "64. Allotment of abadi sites.- (1) The following order of preference shall be observed in making allotment of land referred to Section 63 :- (a) an agricultural labourer or a village artisan residing in the [Gram Panchayat] and belonging to a scheduled caste or scheduled tribe or other Backward Classes or a person of general category living below poverty line as determined by the State Government. (b) any other agricultural labourer or a village artisan residing in the [Gram Panchayat]. (c) any other person residing in the [Gram Panchayat] and belonging to a scheduled caste or scheduled tribe or other Backward Classes or a person of general category living below poverty line as determined by the State Government: Provided that preference will be given to widow and physically handicapped person within same category. Explanation. - For the purposes of this sub-section - (1) "other backward class" means the backward class of citizens specified scheduled-I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U.P. Act, No. 4 of 1994); (2) "person of general category living below poverty line" means such persons as may be determined from time to time by the State Government. (2) In making an allotment under this section, preference shall be given to a person who either holds no house or has insufficient accommodation considering the requirement of his family. (3) Every land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed: [Provided that if the allottee is a married man and his wife is alive, she shall be co-allottee of equal share in the land so allotted.]" It is not disputed that land from where the petitioners have been ordered to be evicted, is recorded as 'Banjar'. It has not been earmarked as an abadi site till date and is therefore, not land referred to under Section 63 of the Code. Section 64 extracted above, shows the order of preference to be followed up while making allotment of an abadi site. Highest in this order of preference are agricultural labourers or village artisans belonging to the scheduled caste or scheduled tribes followed by other backward classes and, thereafter, by persons of general category living below the poverty line. None of the petitioners belongs to the scheduled caste or scheduled tribe as already noted herein above. Two of them claim to belong to the backward class while two appear to be from the general category. Careful perusal of the applications under Section 67A, which are stated to have been filed by the petitioners, reveals that nowhere in these applications have the applicants stated that no agricultural labourers or village artisan belonging to the scheduled caste or scheduled tribe are residing in village Pachrukhiya. This was necessarily required to be pleaded by them. Merely because a person lower in order of preference has encroached upon Gaon Sabha land, he cannot and should not be granted the benefit of Section 67A unless and until he is in a position to establish categorically that a person higher in preference is not available in the village. Any other interpretation of Section 67A would result in great injustice as an unauthorized occupant would be liable to be granted its benefit only on account of him or her having illegally encroached upon Gaon Sabha property, despite other needier and persons higher in preference being available in the village. Therefore, and for the reasons given above, this Court is constrained to hold that not only is the land in issue in this writ petitions not land governed by Section 63 of the Code, as it has not been reserved for allotment as abadi site, the petitioners are also, prima facie, not eligible to the benefit of Section 67A as their applications are bereft of necessary pleadings. Therefore on both counts the benefit of Section 67A cannot be extended to the petitioners. Although, reference has also been made in the writ petition as also the applications under Section 67A to provisions of the U.P. Zamindari Abolition and Land Reforms Act, such reference or reliance, in my considered opinion, is not tenable because on date, as also on the date the applications under Section 67A have been filed by the petitioners, the said Act, namely U.P. Zamindari Abolition and Land Reforms Act stood repealed."
7. Upon due consideration of the above, particularly, the claim of the petitioner related to the land recorded as 'Banjar' which according to the judgment passed by this Court in the case of Raju Vs. State of U.P. (supra) is not sustainable, this Court is not inclined to interfere in the impugned order dated 17.04.2025 on the ground that power of review is not provided under the statute to the opposite party No. 2. It is for the reason that interference in the order would revive another illegal order.
8. It is settled principle of law that the writ court should not set- aside the order which appears to be illegal, if its effect is to revive another illegal order, (Vide: Gadde Venkateswara Rao v. Govt. of A.P AIR 1966 SC 828, Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, AIR 1999 SC 3609, Mallikarjuna Mudhagal Nagappa v. State of Karnataka, AIR 2000 SC 2976, Chandra Singh v. State of Rajasthan, AIR 2003 SC 2889 and State of Uttaranchal v. Ajit Singh Bhola, 2004 6 SCC 800).
9. This petition is accordingly dismissed. Cost made easy. Order Date :- 2.5.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench
5. The brief facts of the case are as under:- (i) An application for seeking benefit of Section 67-A of the Code of 2006 was preferred by the petitioner before the opposite party No. 2 and thereupon an order was passed on 20.10.2023 by the opposite party No. 2 whereby a report was called from the Revenue Official, as appears from the copy of the application annexed at page no. 24 of the paper book. (ii) The application aforesaid also indicates the annual income of the petitioner i.e. Rs. 48,000/-. To establish the annual income, no document has been placed before this Court. In other words, to establish that the petitioner, a person of general category, at the time of moving the application was living below the poverty line, no evidence has been placed on record. This evidence is relevant in view of Section 64 and Section 67- A of the Code of 2006. (iii) The application aforesaid, further indicates that the same was moved with regard to the regularising the possession for the land recorded as banjar, area 0.012 hectare (120 square meters). (iv) The application aforesaid also indicates the period of possession i.e. about 15 years.
6. The law with regard to providing benefit of Section 67-A over the Gaon Sabha Land including the land recorded as 'Banjar' land has been settled by this Court. In the judgment passed in case of Raju Vs. State of U.P. reported as MANU/UP/0717/2020 it has been held that:- "The issue in the writ petition is whether the petitioners are entitled to the benefit of Section 67A of the U.P. Revenue Code, 2006, which provides that in case a house exists over land referred to in Section 63 of the Code, having been built prior to November 29, 2012, the housing site can be settled with its owner on such terms and conditions as may be specified. The benefit of Section 67 is liable to be granted as regards land referred to in Section 63 of the Code. Section 63 speaks of land, which may be allotted for abadi site and empowers the Sub Divisional Officer, on his own motion or on the resolution of the Land Management Committee, to earmark land for abadi site. The second requirement for a person to be entitled to the benefit of Section 67A is that he should be a person referred to in sub-section 1 of Section 64. Section 64 sub-section 1 talks of the orders of preference to be observed while making allotment of land referred to in Section 63, namely land which has been earmarked for abadi sites. Section 64 of the Code reads as follows. "64. Allotment of abadi sites.- (1) The following order of preference shall be observed in making allotment of land referred to Section 63 :- (a) an agricultural labourer or a village artisan residing in the [Gram Panchayat] and belonging to a scheduled caste or scheduled tribe or other Backward Classes or a person of general category living below poverty line as determined by the State Government. (b) any other agricultural labourer or a village artisan residing in the [Gram Panchayat]. (c) any other person residing in the [Gram Panchayat] and belonging to a scheduled caste or scheduled tribe or other Backward Classes or a person of general category living below poverty line as determined by the State Government: Provided that preference will be given to widow and physically handicapped person within same category. Explanation. - For the purposes of this sub-section - (1) "other backward class" means the backward class of citizens specified scheduled-I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U.P. Act, No. 4 of 1994); (2) "person of general category living below poverty line" means such persons as may be determined from time to time by the State Government. (2) In making an allotment under this section, preference shall be given to a person who either holds no house or has insufficient accommodation considering the requirement of his family. (3) Every land allotted under this section shall be held by the allottee on such terms and conditions as may be prescribed: [Provided that if the allottee is a married man and his wife is alive, she shall be co-allottee of equal share in the land so allotted.]" It is not disputed that land from where the petitioners have been ordered to be evicted, is recorded as 'Banjar'. It has not been earmarked as an abadi site till date and is therefore, not land referred to under Section 63 of the Code. Section 64 extracted above, shows the order of preference to be followed up while making allotment of an abadi site. Highest in this order of preference are agricultural labourers or village artisans belonging to the scheduled caste or scheduled tribes followed by other backward classes and, thereafter, by persons of general category living below the poverty line. None of the petitioners belongs to the scheduled caste or scheduled tribe as already noted herein above. Two of them claim to belong to the backward class while two appear to be from the general category. Careful perusal of the applications under Section 67A, which are stated to have been filed by the petitioners, reveals that nowhere in these applications have the applicants stated that no agricultural labourers or village artisan belonging to the scheduled caste or scheduled tribe are residing in village Pachrukhiya. This was necessarily required to be pleaded by them. Merely because a person lower in order of preference has encroached upon Gaon Sabha land, he cannot and should not be granted the benefit of Section 67A unless and until he is in a position to establish categorically that a person higher in preference is not available in the village. Any other interpretation of Section 67A would result in great injustice as an unauthorized occupant would be liable to be granted its benefit only on account of him or her having illegally encroached upon Gaon Sabha property, despite other needier and persons higher in preference being available in the village. Therefore, and for the reasons given above, this Court is constrained to hold that not only is the land in issue in this writ petitions not land governed by Section 63 of the Code, as it has not been reserved for allotment as abadi site, the petitioners are also, prima facie, not eligible to the benefit of Section 67A as their applications are bereft of necessary pleadings. Therefore on both counts the benefit of Section 67A cannot be extended to the petitioners. Although, reference has also been made in the writ petition as also the applications under Section 67A to provisions of the U.P. Zamindari Abolition and Land Reforms Act, such reference or reliance, in my considered opinion, is not tenable because on date, as also on the date the applications under Section 67A have been filed by the petitioners, the said Act, namely U.P. Zamindari Abolition and Land Reforms Act stood repealed."
7. Upon due consideration of the above, particularly, the claim of the petitioner related to the land recorded as 'Banjar' which according to the judgment passed by this Court in the case of Raju Vs. State of U.P. (supra) is not sustainable, this Court is not inclined to interfere in the impugned order dated 17.04.2025 on the ground that power of review is not provided under the statute to the opposite party No. 2. It is for the reason that interference in the order would revive another illegal order.
8. It is settled principle of law that the writ court should not set- aside the order which appears to be illegal, if its effect is to revive another illegal order, (Vide: Gadde Venkateswara Rao v. Govt. of A.P AIR 1966 SC 828, Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, AIR 1999 SC 3609, Mallikarjuna Mudhagal Nagappa v. State of Karnataka, AIR 2000 SC 2976, Chandra Singh v. State of Rajasthan, AIR 2003 SC 2889 and State of Uttaranchal v. Ajit Singh Bhola, 2004 6 SCC 800).
9. This petition is accordingly dismissed. Cost made easy. Order Date :- 2.5.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench