# Jagat Narain & Ors v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-01
- **Case number:** Civil Misc. Writ Petition No.54062 of 2013
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagat-narain-ors-v-state-of-u-p-and-ors-42736
- **Pages:** 6

## Headnote

U.P.Z.A. & L.R. Act-Section 122-B-Eviction
of unauthorized occupant on small piece of
Gaon Sabha land-Single Judge taken view
in Budhee, Ajanta, Udyog Mandal Kishore
Singh-in which after realization of certain
amount their possession be regularizedwhile another Single Judge in Pratap Singh
Sishodiya case taken contrary view-matter
referred to Chief Justice for constitution
larger bench-as to which one is correct
view-direction issued accordingly.

Held: Para-21
Having noted the aforesaid decisions and the
provisions
aforesaid,
I
am
unable
to
persuade myself to extend the benefit of a
mandamus as prayed for by the petitioners,
but since there are a large number of
decisions
that
have
been
noticed
hereinabove and a contrary view in the case
of Pratap Singh Shishodia (supra), it would
be more appropriate that such issues should
be decided authoritatively by a larger bench
that may finally rest this dispute on the basis
of the statutory provisions that exist under
the U.P. Z.A. & L.R. Act, 1950.

Case
Law
discussed:
3 All] Jagat Narain & Ors. Vs. State of U.P. and Ors.
1517
W.P. No. 39068 of 2008; W.P. No. 4775 of
1983; 2005 (98) RD 741; W.P. No. 47268 of
2004; 2005(98) RD 741; 2007(102)RD 83;
2007(102) RD 303; 2007(103) RD 210; 1986
RD Pg. 298; 2007(103)RD; 2008(1) AWC 380;
W.P. No. 48874 of 2012.

## Text

1516 INDIAN LAW REPORTS ALLAHABAD SERIES
that whenever, a selection is to be made based
on merit performance involving competition,
the person possessing additional qualification
cannot be provided preference to the
exclusion of all others for the reason that in
the context of all such competitive scheme of
selection it would mean that other things
being qualitatively and quantitatively equal,
those with additional qualification may be
preferred, that too only when rules provide
possession of an additional qualification or
factor of preference.

17. In the present case, shortlisting is
not in the nature of screening of candidates
by giving an opportunity to them to compete
among themselves and thereafter to shortlist
the
candidates
for
further
stage
of
recruitment but despite possession of
minimum qualification, candidates like
petitioner are being denied opportunity of
participation i.e. equal opportunity of
employment only on the ground that person
possessing higher qualification are available
and therefore, recruitment would be confined
to those higher qualified candidates.

18. In the present case, post is that of
Dark Room Assistant, a Group 'C' post. It is
a little bit technical post but includes menial
job also. Therefore, suitability and merit of
candidate would depend upon various
aspects. Mere higher qualification cannot be
a sole governing factor. The exclusion of
petitioner, therefore, from the field of
competition in the name of shortlisting, in
my view, is patently illegal and arbitrary.

19. In the result the writ petition is
allowed. The respondents shall permit
petitioner to participate in the selection and
for this purpose shall issue admit card to the
petitioner forthwith, and, in any case, within
ten days from the date of receipt of a certified
copy of this order before respondent no.3

20. The petitioner shall also be
entitled to cost, which I quantify to
Rs.2,000/-.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No.54062 of 2013

Jagat Narain & Ors. ...Petitioners
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajay Srivastava

Counsel for the Respondents:
C.S.C., Sri Ashish Kr. Srivastava

U.P.Z.A. & L.R. Act-Section 122-B-Eviction
of unauthorized occupant on small piece of
Gaon Sabha land-Single Judge taken view
in Budhee, Ajanta, Udyog Mandal Kishore
Singh-in which after realization of certain
amount their possession be regularizedwhile another Single Judge in Pratap Singh
Sishodiya case taken contrary view-matter
referred to Chief Justice for constitution
larger bench-as to which one is correct
view-direction issued accordingly.

Held: Para-21
Having noted the aforesaid decisions and the
provisions
aforesaid,
I
am
unable
to
persuade myself to extend the benefit of a
mandamus as prayed for by the petitioners,
but since there are a large number of
decisions
that
have
been
noticed
hereinabove and a contrary view in the case
of Pratap Singh Shishodia (supra), it would
be more appropriate that such issues should
be decided authoritatively by a larger bench
that may finally rest this dispute on the basis
of the statutory provisions that exist under
the U.P. Z.A. & L.R. Act, 1950.

Case
Law
discussed:
3 All] Jagat Narain & Ors. Vs. State of U.P. and Ors.
1517
W.P. No. 39068 of 2008; W.P. No. 4775 of
1983; 2005 (98) RD 741; W.P. No. 47268 of
2004; 2005(98) RD 741; 2007(102)RD 83;
2007(102) RD 303; 2007(103) RD 210; 1986
RD Pg. 298; 2007(103)RD; 2008(1) AWC 380;
W.P. No. 48874 of 2012.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. The petitioners have sought for a
relief that a direction be issued to the District
Magistrate, Firozabad to consider the claim of
the petitioners and settle the land in their
possession on the basis of a lease that may be
granted in terms of the judgment dated
9.3.2007 passed in Writ Petition No.39068 of
2008, Brijesh Kumar Upadhayay & others
Vs. State of U.P. & others.

2. The case of the petitioner no. 1 and 2
are distinguishable from the other petitioners.
The causes of action and foundation of claim
on facts are different but all the petitioners have
joined together to pray for a common relief.

3. Having heard the learned counsel
for the petitioners and having perused the
judgment referred to hereinabove, it appears
that in proceedings under Section 122-B of
the U.P.Z.A. & L.R. Act, 1950 certain
occupants thereon claimed that they should
be settled with the land and the proceedings
for having encroached on Gaon Sabha Land
against them under Section 122-B of the
1950 Act should be dropped. The judgment
also refers to a judgment in the case of Ram
Charan & others Vs. Additional Collector
(Prashashan), Firozabad & another, Civil
Misc. Writ Petition No.4775 of 1983 decided
on 9.3.2007. A copy of the said judgment has
also been filed on record.

4. Having considered the facts of the
said decision also, I find that the learned
Judge in turn has referred to the judgment in
the case of Budhaee Vs. Collector, Fatehpur,
reported in 2005 (98) RD 741, where it has
been held that if on a small portion of a Gaon
Sabha land some individual in possession for
long and has made constructions, then
instead of eviction or penalty, damages
equivalent to the market value of the land
should be realized as it would be a more
appropriate relief and accordingly the land
should be settled with that person. It was
further directed therein that the amount so
realized should be deposited in the Gaon
Sabha Fund under Section 125-A of the
U.P.Z.A. & L.R. Act for its utilization.

5. Thus, a method relating to grant of a
sort of free hold rights over the said land was
enunciated in the aforesaid decisions of the
learned Single Judge, on the basis whereof
the petitioners herein also claim that the land
should accordingly be settled in their favour.
It is for the said purpose that they have filed
an application before the Collector and have
also prayed for a mandamus to that effect.

6. Having considered the aforesaid
submissions raised, in the opinion of the
Court, there is no such provision under
the U.P. Z.A. & L.R. Act, 1950 that may
empower the authorities or this Court to
grant any such tenurial rights or confer
any such benefit over Gaon Sabha Land.

7. The petitioners in Paragraphs 5 to
8 of the writ petition have claimed
allotment of the disputed holding as an
abadi site for residential purposes. The
claim, that they are in long standing
possession and therefore they are entitled
for such settlement is founded on the
decisions referred to in this order. They
also rely on certain decisions in relation to
summary proceedings under the 1950 Act
as also in a civil suit to urge that they
have perfected their rights and in such
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances the petitioners are entitled
for the regularization of their occupation
in terms of the judgment dated 9th March,
2007 referred to hereinabove in the case
of Brijesh Kumar Upadhyay and Ram
Charan and others (supra). It is for this
reason that they have prayed for a
direction to be given to the District
Magistrate to extend such benefit.

8.

Learned
counsel
for
the
petitioners has been unable to point out
any statutory provision under the U.P.
Z.A. & L.R. Act, 1950 to that effect in
order to issue a mandamus. Nonetheless
since heavy reliance has been placed on
the judgment in the case of Ram Charan
(supra), it would be apt to refer to the
decisions on this count.

9. A learned Single Judge of this
Court in the case of Ajanta Udyog
Mandal Vidyalaya Vs. State of U.P. and
others, writ petition no. 47268 of 2004
decided on 28th January, 2005 held that
since a school was running and was in
occupation of Gaon Sabha land having
been constructed 25 years hence, the said
occupation was regularized on payment of
Rs. 1, 75,000/- as damages instead of
evicting the institution.

10. The same learned Single Judge
while deciding the case of Budhaee Vs.
Collector, Fatehpur and others, 2005 (98)
RD 741 relying on the aforesaid decision
decided another case where the petitioner
was in occupation of the Gaon Sabha land
unauthorizedly that had been earmarked
and entered in the revenue record as a
Basic Primary School. The learned Single
Judge recorded that there was nothing to
indicate the existence of the School and
since the petitioner in that case was in
occupation of the said land it was found
appropriate not to evict him and the award
of damages was held to be the proper
relief. While allowing the writ petition on
the payment of the damages as fixed
therein the learned Single Judge made
observations in Paragraphs 5 to 7
indicating ingredients which require to be
assessed
while
regularising
such
occupations on payment of damages. The
learned Single Judge also noted that
unauthorized occupation of Gaon Sabha
land can be settled in favour of the
Scheduled Caste and Other Backward
Category or of the General Category in
accordance
with
the
preference
as
prescribed under the Act and Rules under
the amended provisions of Section 123 of
the U.P. Z.A. & L.R. Act, 1950 and the
provisions of Section 122-A, B and C of
the said Act.

11. It appears that the learned Single
Judge drew an analogy that since the
Legislature
had
permitted
the
regularization of unauthorized occupied
land in favour of such category of persons
provided they were in possession in
accordance with the Rules and the cut-offdate mentioned therein, such a course was
acceptable.

12. It is the said judgment which has
been again relied upon by the same
learned Single Judge in the cases of Ram
Charan and Brijesh Kumar Upadhyay
(supra).

13. Three other decisions have also
relied on the aforesaid ratio to grant relief
to unauthorized occupants in the case of
Sukhdeo Vs. Collector, Banda and others,
2007 (102) RD 83; Kishore Singh Vs.
Additional Collector, Agra and others,
2007 (102) RD 303 and reiterated in the
decision of Siya Ram and others Vs.
3 All] Jagat Narain & Ors. Vs. State of U.P. and Ors.
1519
Additional Commissioner (Adm.) Kanpur
and another, 2007 (103) RD 210.

14. In the case of Sukhdeo Vs.
Collector (supra), the same learned Single
Judge in Paragraph 3 of the said decision
has indicated that even if there is no
limitation for initiating the eviction
proceedings, a delay of 30 years is
sufficient to refuse to pass such order of
eviction and again relying on the case of
Budhaee awarded damages and allowed
the
regularisation
of
unauthorized
occupants over Gaon Sabha land. In the
case of Kishore Singh (supra) also the
land which was recorded as "Navin Parti"
and was found to be in possession to the
petitioner therein was settled by awarding
damages in favour of the petitioner.

15. Having perused the aforesaid
decisions
and
having
perused
the
provisions of Section 122-B, 122-C and
Section 123, I find that there are specific
provisions under which unauthorized
occupation
has
been
legalized
and
regularised. I however do not find any
such regularisation or acceptance of
lawful possession in respect of land as
presently involved through any provision
under the U.P. Z.A. & L.R. Act, 1950
recommended by the Legislature in a
general
way
to
all
unauthorised
occupants.
The
decisions
aforesaid
therefore appear to have been guided by
pure equity without there being any legal
provision under which such unauthorized
occupation could be regularised after
award of damages.

16. There is yet another dimension
relating to the problem. The Gaon Sabha
has been empowered to file a suit for
ejectment against unlawful occupation
under Section 209 of the 1950 Act. The
consequences of non-filing of a suit are
prescribed in Section 210 thereof. The
learned Single Judge in the case of
Sukhdeo
Vs.
Collector
(supra)
has
referred to the period of limitation and the
consequence of a suit not being filed
within a reasonable time. The said
observation appears to find support from
the decision in the case of Shish Ram Vs.
Board of Revenue 1986 RD Pg. 298 even
though the same has not been referred to.
It would however be useful to note the
decision in the case of Rakshpal Singh
Vs. Board of Revenue 2007 (103) RD Pg.
49
where,
after
considering
the
amendments with retrospective effect in
Section 210 of the 1950 Act, the court has
held that no period of limitation arrests of
the right of the Gaon Sabha to file a suit
for eviction. Thus the observations made
in
Sukhdeo's
case
may
require
a
reconsideration on this aspect for an
authoritative view.

17. The courts in my opinion, and on
settled principles of interpretation, "can
iron out the creases and not weave a new
texture." A general observation and
successive decisions based on the same
principle of settling land on payment of
damages may not be in consonance with
the law as codified under the 1950 Act.

18. Learned Standing Counsel for
the State has submitted that the decisions
aforesaid do not therefore come to the aid
of the petitioners as they are not backed
up by any statutory provision. It is also
urged that the Court in the exercise of
powers
under
Article
226
of
the
Constitution of India can interpret the law
as laid down by the Legislature but a new
provision
cannot
be
created
for
regularising unauthorized occupancy by
awarding damages as has been done by
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
the learned Single Judge in the aforesaid
cases.

19. The learned Standing Counsel has
relied on a contrary view expressed by
another learned Single Judge in the case of
Pratap Singh Shishodia Vs. Board of
Revenue, Allahabad and others, 2008 (1)
AWC 380 (Paragraphs 10 and 11). The
learned Single Judge in that case was also
urged to extend such benefit in the alternative
relying on the decisions in the case of
Sukhdeo and Kishore Singh (supra) which in
turn rely on the decision in the case of
Budhaee (supra). The learned Single Judge
noted the said decisions and submissions in
Paragraph 5 and then answered the same in
the negative in Paragraph 11 of the said
judgment. It was held that the reliefs granted
in the aforesaid decisions were on the facts of
that particular case but the learned Single
Judge opined that if such a method is
permitted, it will give an opportunity to
mighty persons to encroach upon Gaon
Sabha land through a back door process and
as such the Court rejected the claim of the
petitioner therein for settling the land on any
premium basis.

20. Another learned Single Judge in
the case of Neresh Kumar and others Vs.
State of U.P. and others, Writ Petition No.
48874 of 2012, decided on 21.9.2012 has
opted not to follow the decisions in the
case of Siya Ram (supra) and Budhaee
(supra), even though on issues based on
facts involved therein, copy whereof has
been placed before the Court by the
learned Standing Counsel.

21. Having noted the aforesaid
decisions and the provisions aforesaid, I
am unable to persuade myself to extend
the benefit of a mandamus as prayed for
by the petitioners, but since there are a
large number of decisions that have been
noticed hereinabove and a contrary view
in the case of Pratap Singh Shishodia
(supra), it would be more appropriate that
such
issues
should
be
decided
authoritatively by a larger bench that may
finally rest this dispute on the basis of the
statutory provisions that exist under the
U.P. Z.A. & L.R. Act, 1950.

22. Consequently, the following
questions are framed for such consideration
in view of the conflict of the decisions
referred to hereinabove, as against the
opinion of the learned Single Judge in the
case of Pratap Singh Shishodia (supra) and
Rakshpal Singh (supra):-

1. Whether the law laid down by the
learned Single Judge in the cases of
Ajanta Udyog Mandal Vidyalay (supra),
Budhaee
(supra),
Sukhdeo
(supra),
Kishore Singh (supra) and Siya Ram
(supra), are in direct conflict with the
view taken by another learned Single
Judge in the case of Pratap Singh
Shishodia (supra) and consequently;

2. As to which of the said decisions lay
down the law correctly keeping in view the
provisions referred to hereinabove of the
U.P. Z.A. & L.R. Act, 1950.

3. Whether the view expressed in the
case of Sukhdeo (supra) on the issue of
limitation runs counter to the view taken
in the case of Rakshpal Singh (supra)?

23. Learned Standing Counsel for
the respondent no. 1, 2 and 3 and the
learned counsel for the Gaon Sabha -
Respondent No. 4, are directed to file a
counter affidavit in response to the writ
petition and also submissions in relation
to the reference made hereinabove.
3 All] Abdul Rahman Ansari Vs. State of U.P. and Ors.
1521

24. Let the papers be placed before
Hon'ble the Chief Justice for passing
appropriate orders for referring the matter to a
larger bench to resolve the aforesaid conflict,
and for an authoritative pronouncement on the
issues raised at the earliest.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 55902 of 2013

Abdul Rahman Ansari ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri R.C. Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service lawseniority-challenged after 7 years-neither
seniority list challenged nor the affected
persons impleaded-consequent to upward
placement of petitioner relief for proper
placement-can not be granted.

Held: Para-18
Even today, neither seniority list has
been challenged and there is no writ of
certiorari
quashing
seniority
list
is
prayed for nor the persons likely to be
affected in case petitioner's name is
directed to move upward in seniority
have been impleaded and therefore, this
writ petition also suffers from the vice of
impleadment of necessary parties.

Case Law discussed:
(1991) 1 UPLBEC 250; AIR 1970 SC 470; AIR
1970 SC 898; AIR 1974 SC 259; AIR 1974 SC
2271; (1998) 8 SCC 685; (2003) 1 SCC 335; AIR
1982 SC 101; AIR 1984 SC 850; AIR 1986 SC
2086; AIR 1988 SC 268; AIR 1999 SC 1510;
(2001) 6 SCC 292; JT 2009(14) SC 298.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri R.C.Singh, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. Admittedly, final seniority list was
published in 2006 wherein petitioner's name
finds place at serial no.95 though, according
to him, that was wrong placement in the
seniority list. Admittedly, he did not
challenge the same throughout and for seven
years, the matter remained unchallenged.

3. It is no doubt true if seniority of two
or more individuals has been determined long
back and a person placed lower in seniority
did not feel aggrieved to challenge the same
within a reasonable time, he shall be non
suited to do so after a long time since it may
result in unsettling so many settled things. It is
said
that
scrambled
eggs
cannot
be
unscrambled after process is complete.
Challenge must come within a reasonable
time. There is a long chain of decisions on this
aspect.

4. A Full Bench of this Court in
Smt. S.K. Chaudhari Vs. Manager,
Committee of Management, Vidyawati
Darbari Girls Inter College, Lookerganj,
Allahabad & others (1991) 1 UPLBEC
250 said that seniority list existing for the
last 15 years would not be quashed after
such a long time. It observed, "The law is
well settled that the Court will not
interfere with a seniority list which had
remained in existence for a long time and
which had become final."

5. In Rabindranath Bose and others
Vs. Union of India and others AIR 1970