Anjani Kumar Mishra, J. - Heard learned counsel for the petitioner, Shri T.M. Khan, counsel for the Gaon Sabha as also learned Standing Counsel for the State-respondents.
2. The writ petition arises out of proceedings under Section 122-B of the UP Zamindari Abolition & Land Reforms Act initiated against the petitioner for eviction from plot no. 159 (77) of village Bansahiya, Tappa Kevtali, Pargana Haveli, Tehsil Chauri Chaura, Gorakhpur which is recorded in the revenue records as khaliyan.
3. The Tehsildar by his order dated 18.03.2008 ordered to be eviction of the petitioner on the finding that despite she having appeared through counsel and having sought time for an objection, no objection was in fact, filed. This order has been affirmed by the revisional court vide order dated 25.05.2016.
4. The contention of learned counsel for the petitioner is that an area of 0.02 hectare of plot no. 77 was allotted to her husband for housing purpose. A hut has been raised over this plot and the petitioner is residing therein, even after the death of her husband. The petitioner belongs to Scheduled Castes and is, therefore, entitled to the benefit of sub-section (4-F) of Section 122- B. Since the land in question is being used for residential purposes, the same would stand settled in favour of the petitioner in view of Section 123 of the Act.
5. It is also submitted that the Tehsildar had passed the order without any valid measurement or demarcation of the plot in question.
6. Learned counsel for the petitioner has further submitted that there in no bar to the land of public utility being allotted in favour of a person and in case, such an allotment is made the allottee would be an asami thereof in view of subsection (9) of Section 198. The petitioner is, therefore, an asami and must therefore be evicted only in accordance with law.
7. It has additionally been submitted that the issue of an allotment in favour of the petitioner''s husband had been raised but the impugned orders do not contain even in whisper in this regard. Even the report of the revenue authorities indicate that the plot in question is being used by the petitioner for residential purposes and a hut exists thereon.
8. Learned counsel for the respondent have supported the impugned orders.
9. Learned Standing Counsel has additionally submitted on the basis of instructions received that the land in question is recorded as khaliyan in the revenue records and is, therefore, land of public utility governed by Section 132 of the Act wherein no right can accrue in favour of any person.
10. It has also been submitted that there is no proof of any allotment having been made in favour of the petitioner''s husband.
11. I have considered the submissions made by learned counsel for the parties and have perused the record.
12. The first issue to be considered is whether there was any allotment in favour of the petitioner''s husband. It is true that the impugned orders have not discussed this aspect of the matter.
13. However, learned counsel for the petitioner has placed reliance upon a Panchayat Raj Form No. 7 to buttress the claim of an allotment by the Gaon Sabha. The Forms under the Panchayat Raj Act are appended to the Rules framed thereunder. Form No. 7 provided therein is a receipt issued upon the same payment having been made in favour of the Gaon Sabha. Such a receipt is to be issued against some money having been paid to the Gaon Sabha and this receipt should contain the serial number of the payment and collection register of the Gaon Sabha. The receipt filed on record does not refer to the serial number of payment and collection register. In the column where the amount paid is to be recorded the words ''nisulk'' have been entered. There is no justification for issuing a receipt when no payment was being made or received.
14. It is, therefore, clear that this receipt does not in any way, even prima facie, evidence any allotment of the plot in question in favour of the petitioner''s husband. No other evidence in this regard, is available on record apart from the bald allegation made by the petitioner.
15. Under the circumstances, the petitioner has not able to establish a case of allotment of 0.002 decimal of plot no. 159 (77). The theory of an allotment therefore, is not liable to be accepted.
16. Since I have considered the case of the petitioner as regards the alleged allotment in favour of her husband and find that the same is not proved, I do not consider it a fit case for interference with the impugned orders on the ground that this aspect has not been considered by the courts below. This contention upon consideration by this Court, stands repelled.
17. Moreover since the theory of allotment of the land in question has not been accepted there is no question of the petitioner being its asami in accordance with sub-section (9) of Section 198.
18. The only contention of the learned counsel for the petitioner which survives for consideration is whether she is entitled to the benefit of sub-section (1) of Section 123 of the Act.
19. In my considered opinion, even this submission lacks substance because the benefit under Section 123 can be granted only with regard to land which has not reserved for any public purposes. The plot in question is reserved for a public purpose, namely, khaliyan. For the same reason, even the benefit of sub-section (4-F) of Section 122-B of the Act cannot be extended to the petitioner. Such a benefit is not available over land governed by Section 132 of the Act.
20. The submission that the order passed by the Tehsildar was ex parte and without a proper measurement or demarcation of the land, is also devoid of substance. It is clear from the record that at the revisional stage and upon the submission being made by the petitioner, a fresh survey report had been called for and the same was duly submitted.
21. There is yet another aspect of the matter which is necessarily required to be taken note off. One of the reasons given by the revisional court for dismissing the revision of the petitioner is that she is possessed of pucca house else where. This categorical finding recorded in the revisional order has not been challenged in the writ petition.
22. In view of the foregoing discussion, this writ petition is found to be devoid of merits and is accordingly dismissed.
