Ram Nachhatra vs State of U.P.

Mrs. Sunita Agarwal, J.—Heard Sri Anup Kumar Srivastava, learned counsel for the petitioners, Sri Surya Narain, learned Advocate has put in appearance on behalf of respondent No.5, Sri Tariq Maqbool Khan, learned Advocate appears for respondent No.4 and learned Standing Counsel appears for respondent Nos.1 to 3.

It appears that Plot No. 1147 measuring 0.008 Hectares has been allotted under Section 122-C of U.P. Z.A. and L.R. Act (hereinafter referred to as the Act) in the name of three persons namely Ram Nachhatra (petitioner No.1), Ram Asrey and Param Hans (respondent No.5). The said allotment was made vide resolution of the land Management Committee dated 30.4.2005 which was approved on 6.5.2005 by the Sub Divisional Officer, Deoria. The possession of the land in question was given to the allottees. The petitioner No.1 and respondent No.5 are allottees of different portions of the same plot made in the year 2005. The petitioner No.1 namely Ram Nachhatra and Param Hans jointly filed an application in the year 2013 with the contention that the allotment made to respondent No.5 was illegal inasmuch as, the respondent No.5 was not eligible for allotment.

From a perusal of the application filed by the petitioners at "page No.43" of the paper book, it is clear that the petitioners are "Kumhars" by caste. They have been allotted a portion of Plot No.1147 by the resolution of the Gram Sabha dated 30.4.2005. It is stated that the portion which was allotted to the petitioners was in occupation of their ancestors and they were residing therein since a long period of time. The petitioners were doing work of making earthen pots. The ground taken to cancel the allotment of respondent No.5 was that he was not eligible as there existed a pucca house in the village in possession of the respondent No.5. It is also stated therein that the respondent No. 5 possessed agricultural land and that he was making effort to encroach upon the land allotted in the name of the petitioners and, therefore, the necessity of filing the application for cancellation of allotment arose. On this application, it appears that a report dated 20.12.2013 was submitted by the Lekhpal.

Learned counsel for the petitioners has invited attention of the Court to the narration of the said report in the order impugned at "page No.49" of the paper book. With the strength of the said report, it is submitted by the learned counsel for the petitioners that the Tehsildar gave a report in the year 2013 that respondent No.5 possessed a pucca house for a long period of time. He did not require the plot in question for housing purposes.

The respondent No.5 filed an objection dated 7.2.2014 to the report submitted by the Tehsildar which is also narrated in the order impugned. A categorical stand had been taken that there existed an old house in which only one room was constructed by the father of respondent No.5. Apart from the said room, there did not exist any land on which the respondent No.5 could do the work of making earthen pots.

The report dated 20.12.2013 was objected on the ground that it was submitted by the Tehsildar in collusion with the petitioners without making on the spot inspection. The prayer was made to reject the report dated 20.12.2013 submitted by the Tehsildar. On the other hand, the petitioners supported the report with the specific contention that Tehsildar had inspected the site in question.

It appears that on the objections taken by the respondent No.5 a fresh report from the Tehsildar was obtained which was submitted by the Naib Tehsildar on 8.8.2015. The extract of the said report has been narrated in the order impugned.

A perusal of the said narration indicates that specific reporting was made by the Naib Tehsildar that the allotment made was of abadi site. The possession had been handed over to the petitioners and respondent No.5 after making on the spot inspection and looking to the position on the spot. It was also reported therein that there was some dispute between the petitioners and respondent No.5 with regard to the possession over their respective portion of the lease land. The respondent No.5 has been described as eligible person for the allotment of abadi site under Section 122-C of the Act with the specific narration in the report that one room constructed under Indra Awas Yojana in the portion of respondent No.5 was in dilapidated condition. It was also mentioned therein that the petitioners made repeated efforts to restrain the respondent No.5 from making construction over the site in question.

This report was considered by the Additional District Magistrate (Administration) Deoria while passing the order impugned dated 10.12.2015. The order categorically records that the petitioners and respondents both are allotees of abadi site. The petitioners and respondents both are "Kumhars" by caste and are engaged in the work of making earthen pots. These facts recorded in the order impugned are not disputed by the learned counsel for the petitioners, however, in order to assail the order, he vehemently submits that the question before the Additional District Magistrate (Administration) Deoria was not to see the disputes between the parties but to examine as to whether the respondent No.5 was eligible for allotment of housing site under Section 122-C of the Act. The application filed by the petitioner was wrongly rejected on the ground of delay. Other facts recorded in the order impugned are irrelevant for the purposes of deciding the question raised before the Additional District Magistrate (Administration) Deoria.

Reliance is placed upon the judgment of this Court in Writ Petition No.5622 (M/S) of 2006 (Rameshwar v. Board of Revenue, U.P. Allahabad and Ors.) to submit that the report of Naib Tehsildar could not be taken in evidence. The court below had erred in placing reliance upon the said report to grant benefit to the respondent No.5 .

With reference to the judgment of this Court in the case of Dodram v. The Collector, Pilibhit and Ors. reported in 2015 ALL. C.J. 163, it is submitted that the application filed by the petitioner could not have been dismissed on the ground of delay. This Court has repeatedly held that the court should see the merits of the case while considering the delay condonation application as the courts are meant for imparting substantial justice and not to decide the matters on technicalities. The length of delay is also not material if there is substance on merits.

Dealing with these submissions of learned counsel for the petitioners, it would be relevant to go through the provisions as contained in Section 122-C of the Act.

A perusal thereof indicates that the allotment is made to an eligible person in the order of preference as per sub-section (3) of Section 122-C of the Act.

Clause (i) of sub-section (3) of Section 122-C of the Act, indicates that the allotment can be made in the name of an agricultural labourer or "village artisan" residing in the Gram Sabha who belongs to Scheduled Castes, Scheduled Tribes, other backward classes or the person living before poverty line. Clause (ii) further provides that the allotment can be made in favour of any other agricultural labourer or "village artisan" residing in the village.

The meaning of "village artisan" has been explained in Explanation II attached to sub-section (3) of Section 122-C of the Act which reads as under:-

"Explanation II-The expression ''village artisan'' means a person who does not hold any agricultural land and whose main source of livelihood is manufacture or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and includes a carpenter, weaver, potter, blacksmith, silversmith, goldsmith, barber, washerman, cobbler or any other person who normally earns his livelihood by practising a craft either by his own labour or by the labour of any member of his family in any rural area:

Provided that no person shall be deemed to be a village artisan whose total income (including income of his or her spouse and minor children) exceeds two thousand four hundred rupees in a year."

A perusal of the said provisions makes it clear that any person who normally earns his livelihood by practising the craft either by his own labour or by the labour of any member of his family in the rural area will be treated within the meaning of expression "village artisan". However, a Clause has been added to the said explanation that the said person who hold no agricultural land and whose main source of livelihood is manufacturing the article by his craft will be a "village artisan" provided his total income does not exceed two thousand four hundred rupees. Such as person can only be included in the order of preference provided under subsection (3) of Section 122-C of the Act.

Explanation IV further says that the preference would be given to a person who does not hold a house or has insufficient housing accommodation considering the requirements of his family.

A careful reading of these provisions indicates that for including in the order of preference, a "village artisan" who is living below the poverty line and does not have sufficient means of livelihood except by making articles by his craft can be treated as an eligible person within the meaning of Section 122-C of the Act.

It is not stated by the learned counsel for the petitioner that the respondent No.5 possesses sufficient means of livelihood or he was not earning his livelihood by making earthen pots on the date of allotment i.e. 6.5.2005. Only objection taken by the petitioners with regard to the eligibility of respondent No.5 is that the father of respondent No.5 possessed a house which later on came in the possession of the respondent No.5. The allegations of pucca house in the name of father of respondent No.5 made by the petitioners were not substantiated from the report submitted by the Naib Tehsildar dated 8.8.2015.

The above contention of learned counsel for the petitioners regarding the eligibility of the respondent No.5 for the allotment in the year 2005, therefore, does not find merit.

So far as the contention of learned counsel for the petitioners regarding the reports submitted by the Naib Tehsildar dated 8.8.2015 is concerned, there is no dispute about the proposition that the report submitted by the Naib Tehsildar cannot be made sole basis for passing of the order by the Competent Authority.

From the above discussion and the order impugned, it does not, however, appear that the Additional District Magistrate (Administration) Deoria while passing the order impugned has solely relied upon the report submitted by the Naib Tehsildar dated 8.8.2015. It is also not disputed that the said report has been obtained on the dispute raised by the respondent No.5 regarding the earlier report dated 20.12.2013. The report had been obtained from the Naib Tehsildar to know about the situation on the spot.

So far as the merits of the case is concerned, the Additional District Magistrate (Administration) Deoria has categorically recorded that the allotment has been made on the resolution passed by the Gram Sabha which was approved on 6.5.2005. The petitioners have not challenged the procedure adopted by the Land Management Committee or the Sub Divisional Officer, Deoria in affirming the resolution of the Land Management Committee. Only ground of eligibility of respondent No.5 was taken to challenge the allotment which has been discussed above. The argument of the learned counsel for the petitioner to assail the order impugned, therefore, does not find merit.

So far as the delay is concerned, it is reflected from the records that the possession had been handed over to the parties after the allotment made in the year 2006, it is categorically recorded by the Additional District Magistrate (Administration) Deoria in the order impugned, that every efforts have been made to handover the physical possession of the building in question to respondent No.5 however, every time the petitioners had interfered in the said process. Even the brick wall and tin-shed raised by respondent No.5 had been removed by the petitioners. It is also recorded that the main dispute lies between the petitioners and respondent No.5 only for the reason that different portions of the same plots have been allotted to both. It is recorded that the possession to the parties has been given keeping in view of the physical position on the spot. The road to access the houses of the petitioners and respondent No.5 and their sahan are in different directions and on the land in dispute, there exist constructions up to the plinth level.

In view of the above-noted findings of fact recorded by the Additional District Magistrate (Administration) Deoria in the order impugned, it is more than apparent that the petitioners are aggrieved because the land allotted to respondent No.5 is adjacent to their land. It further appears that there was some dispute between the petitioners and respondent No.5 with regard to possession over their portions of lands allotted in their favour. With a view to settle his score, the petitioners moved the application for cancellation of allotment.

The revisional court has also recorded that there was no infirmity and the application moved by the petitioners suffers from severe delay moreso in view of the fact that the lands have been allotted to them in the same meeting held in the year 2005 and the possession had been delivered and there is no dispute regarding the procedure for allotment.

Lastly it is submitted that in ''paragraph Nos.10 and 11'' of the writ petition, it is stated that two contradictory reports have been submitted by the Naib Tehsildar and the petitioners were not afforded opportunity of hearing for filing objections and the said report was admitted in evidence.

The said objection pointed out by the learned counsel for the petitioners taken in the above noted paragraphs is not found correct inasmuch as, the report was obtained on 8.8.2015 and the order impugned was passed on 10.12.2015. The petitioners have not disputed the content of the said report inasmuch as, there is no submission that the said report had been submitted without making on the spot inspection in the presence of the parties.

For all the above noted facts, no merit is found in the submissions of learned counsel for the petitioners.

The writ petition is found devoid of merits and hence dismissed.