- (1.) WE have heard Ms. Manjusa Kapil, holding brief of Sri Kamlesh Singh, learned counsel for petitioner, learned Standing Counsel for State -respondents and Sri Yogendra Nath Yadav, learned counsel for respondent no.5, which is Gram Panchayat Dhawa, Post Chinhat, Pergana, Tehsil and District Lucknow.
(2.) LEARNED Standing Counsel has informed that controversy involved in this writ petition is squarely covered by the Division Bench decision of this Court dated 29.4.2014 passed in Writ Petition No. 3560 (MB) of 2014 [Daya Ram and three others Vs. State of U.P. and four others]. He states that this writ petition is liable to be dismissed for the reason that no application for declaration under Section 123(1) of U.P.Z.A. and L.R. Act can be maintained by the petitioner and the right cannot be claimed as actionable claim for seeking declaration.
(3.) LEARNED counsel for petitioner does not dispute that in Daya Ram's case the order dated 29.4.2014 has been passed. The order dated 29.4.2014 passed in Writ Petition No. 3560 (MB) of 2014 in its entirety quoted herein below: "We have heard learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents. The petitioner claims to be in possession of one bigha land in Khasra No.182/16 area 10.9390 hec., since the year 1972 and alleges to have constructed a house on the site. It is stated that the land is recorded as 'Usar' in the khatauni of Fasali Year 1419 -1424 for which the petitioner has filed an application under Section 123 (1) of UP ZA and LR Act, 1950 (the Act) before the Sub Divisional Magistrate, Sadar, Lucknow for declaration of his rights. Section 123 (1) of the Act does not provide for filing an application for declaration before the Sub Divisional Magistrate. It gives a right to the existing occupier of the housing site to be settled with him. The provisions of Section 123 (1) would show that this right cannot be claimed as actionable claim for seeking declaration. It can only be taken as defence, if any proceedings are initiated for ejectment of such person by the Gaon Sabha, subject to his eligibility to set up such defence. We further find that the provisions of Section 123 (1) of the Act are applicable without prejudice to the provisions of section 9 where any person referred to in sub -section (3) of Section 122 -C has built a house on any land referred to in sub -section (2) of that section. Section 122 -C provides for allotment of land for housing site for members of Scheduled Castes, agricultural labourers etc. Sub -section (2) provides that notwithstanding anything in Sections 122 -A, 195, 196, 197 and 198 of this Act or in Sections 4, 15, 16, 28 -B and 34 of the United Provinces Panchayat Raj Act, 1947, the Land Management Committee may, with the previous approval of the Assistant Collector in charge of the sub -division, allot for purposes of building of houses to persons referred to in sub -section (3) (a), (b), (c) and (d) of Section 122 -C of the Act. Sub -section (3) of Section 123 provides for an order of preference of such allotment. The defence under Section 123 (1) can be taken only where the land has been allotted or earmarked in sub -section (2) (c) of Section 123 of the Act for housing site. In the present case, the land is recorded as 'Usar' land. There is no pleading or any material to show that the land was reserved for housing site by the Land Management Committee and was allotted to the petitioner for the purposes of building of house. The petitioner Shri Daya Ram and others before Sub Divisional Magistrate, Sadar, Lucknow on 14.12.2011 do not fall in the category of the persons for whom the protection has been provided under Section 123 (1) of the Act. The writ petition is dismissed. Let a copy of the order be given to Chief Standing Counsel for communication to the Sub Divisional Magistrate, Sadar, Lucknow." v;