Hon'ble Ran Vijai Singh, J. - (1.) THIS writ petition has been filed for issuing a writ of certiorari quashing the judgment and order dated 15.02.2001 and 30.07.1996 passed by Board of Revenue in Reference No. 96 of 1996-97 and Additional Collector (Administration) Kanpur Dehat (hereinafter referred to as respondent no.2) in case no.140/95-96 under Rule 115-P of U.P.Z.A and L.R. Rules. Vide order dated 30.07.1996 the respondent no.2 has rejected the application of the petitioner dated 01.12.1993 for cancelling the allotment of abadi site over an area measuring about 10 biswansi situated in plot no. 267 which old number happened to be 322 and by subsequent order dated 15.02.2001 the Member Board of Revenue has rejected the reference made by Additional Commissioner, Kanpur Division Kanpur while exercising his Revisional power under Section 333 of U.P. Zaminadari Abolition and Land Reforms Act,1950 ( in short U.P.Z.A. and L.R. Act ) in Revision No. 40/96-97 Kalika Prasad and others v. Brijendra Kumar and others. The Revision was filed against the judgment and order dated 30.07.1996.
(2.) THE facts giving rise to this case are that an area of 10 biswansi situated in plot no. 267 was allotted to the respondent no.5 for abadi site by the respondent no.4 i.e., Land Management Committee. THE petitioners have filed an application for cancellation of the said allotment under Section 122-C (6) of U.P.Z.A. and L.R. Act read with Rule 115-P of U.P.Z.A. and L.R. Rules on the ground that the allotted area was given by the Zamindar to the petitioners since before the abolition of Zamindari for plantation of the trees and over the disputed land more than 50 years old trees belonging to the petitioners are standing and the land was not vacant, therefore, no allotment could be made. It has also been stated that the allotment was irregular as the respondent no.5 do not fall under the eligibility criteria and the procedure prescribed under the rules for allotment has also not been followed. THE said application was rejected by the Collector by the impugned order dated 30.07.1996 on the ground that the land is recorded as banjer in the revenue record and the possession of the petitioners over the disputed land, prima facie appears to be unauthorised. It has also been held that the petitioners have no right over the land in dispute. Since the allotment in favour of respondent no.5 was made in accordance with law, therefore, that cannot be cancelled in this proceeding. Aggrieved from the order dated 30.07.1996 the petitioner has filed a Revision No. 40/96-97 under Section 333 of U.P.Z.A. and L.R. Act before the Additional Commissioner, Kanpur Division, Kanpur. The Additional Commissioner has found that the Zamindar has given permission on 22nd May,1949 for plantation of trees. Therefore, the petitioner's right over the planted trees is established. But so far as the title is concerned the Divisional Commissioner has held that the land shall belong to the Gaon Sabha, however, the possession of the petitioner cannot be said to be illegal, or unauthorised as he has entered into the possession only after the permission of Zamindar since before the commencement of U.P.Z.A.and L.R. Act. Hence he made a reference to the Board of Revenue for allowing the application dated 01.12.1993 filed by the petitioners for cancellation of the allotment over the plot no. 267. The Member Board of Revenue has rejected the reference made by the Additional Commissioner (Administration) Kanpur Division Kanpur vide order dated 15.02.2001 and maintained the order passed by the Collector the respondent no.2 dated 30.07.1996. In doing so, learned Member has observed that in case the permission was granted by the Zamindar for plantation of the trees since prior to the Zamindari abolition then why the petitioner has not taken any steps to get recorded his name on the basis of that permission. The Member Board of Revenue has taken the view that the petitioner has no locus standi to challenge the aforesaid allotment in favour of the opposite parties.
(3.) SRI V.C. SRIvastava, learned counsel for the petitioner while assailing the aforesaid orders have made following submissions: (i) Admittedly the land was not vacant at the time of allotment, therefore, no allotment could be made in view of the provisions contained under Sections 195,197 and 122-C of U.P.Z.A.and L.R. Act and Rules framed thereunder. (ii) The allotment has been made ignoring the mandatory provisions as contained in Rule 115- N of the U.P.Z.A.L.R. Rules as no munadi and beating of drums as required under the Rule has been made before the allotment, therefore allotment deserved to be cancelled. (iii) In his submissions assuming there was proposal for allotment of land by the Land Management Committee, the respondent did not fall under the eligibility criteria as contained under Section 122-C (3) of the U.P.Z.A.L.R. Act as the person in whose favour allotment is made is not a landless person. (iv) The father of the respondent happened to be the Member of the Land Management Committee, therefore, the allotment could not have been made. (v) The report of the Tehsildar with regard to the irregular allotment has also not been considered either by the Collector while passing the order dated 30.7.1996 on the application of the petitioner for cancellation of the lease or by the member Board of Revenue in the reference proceeding. He has also submitted that the permission/izazatnama given by the Zamindar in the year 1949 was a valid one and the petitioners have planted trees over the said land, therefore, a valuable right has accrued in favour of the petitioners and the Collector as well as Member Board of Revenue have erred in law in not examining the facts of the case in the legal perspective. In his submissions the reason recorded by the leaned Additional Commissioner Kanpur Division, Kanpur while sending the reference to the Board of Revenue is quite logical and legal one and learned Member Board of Revenue has erred in law in not accepting the reference and rejecting the same.;