JIYA RAM Vs. STATE OF U P

JUDGEMENT

(1.) Petitioners are beneficiary of allotment made in their favour by the competent authority in the year 1976 in terms of the Section 195 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 (in short the UPZA & LR Act). They were admitted as Bhumidhar with Non Transferable Rights over the land which was vested in the Gaon Sabha. The allotment of the land was made in their favour in terms of the Section 198(1) of the UPZA & LR Act in order of preference. It is contended that the said allotment was made with prior approval of the competent authority. Aggrieved by this order, respondent no. 4 along with his brother filed a suit under Section 229-B of the UPZA & LR Act claiming that the land is their sirdari land and they are in continuous possession prior to coming into force of the UPZA & LR Act. It was further contended in the suit that the land in dispute is patti (part and parcel) of Mahal Samlal and the father of the respondents Dharam Singh as such it was not the property of the Gaon Sabha. The said suit was dismissed by the Assistant Collector/SDO, Kalpi vide order dated 29.10.1976. An appeal was preferred against this order which also stood dismissed vide order dated 3.2.1977 as it was not pressed by the respondents. Thereafter another suit was filed by the respondent no. 5 along with two brothers and one Smt Lachho widow of Darshan Singh under the Section 229-B of the UPZA & LR Act against the present petitioner. The ground taken in the suit was that the said land was gifted to Smt Lachho widow of Darshan Singh and was khudkast of the then Zamindar as such being khudkast the respondent no. 3 and his three brothers had automatically become Bhumidhar of the property in dispute. The said suit was dismissed being barred by principle of res-judicata vide order dated 8.3.1978 by the Assistant Collector/SDO, Kalpi. After having failed to obtain any relief from the Civil Court, respondent no. 5 filed an application under Section 198(4) of the UPZA 7 LR Act whereupon proceedings were initiated against the petitioner which was followed by notice under Section 198(5) of the UPZA & LR Act. Objection was taken that the application could not have been entertained after 1987 as provided under Section 198(6) of the Act and as such the proceedings were ultimately discharged. Another application was filed before the Collector who after filing of the application initiated proceeding under Section 198(4) of the Act and after issuing the notice has cancelled the lease of the petitioner vide order dated 9.12.2004. The ground for cancellation of the lease is that there was no prior approval of the allotment made in favour of the petitioners. Revision against the said order has also been dismissed vide order dated 5.8.2006. It is under these circumstances, the present writ petition has been filed.

(2.) Heard learned counsel for the parties and perused the material on record.

(3.) While scanning through the record of the case, it emerges that Respondent No. 5's right to claim as Bhumidhari stands rejected by the Civil Court. He has failed to establish his right as Bhumidhar under Section 229-B of the UPZA & LR Act. After having failed he has initiated the process of seeking cancellation of the lease in favour of the petitioners by invoking the provisions of Section 198(4) of the Act. His first application under the said provisions was not pressed, once the plea of limitation was raised by the petitioners in the first proceedings. Subsequent proceedings initiated under Section 198(4) of the Act has found favour with the Collector who has cancelled the lease of the petitioners.