# Jagdev v. Commissioner, Gorakhpur Division and others

- **Citation:** (2009) 3 ILRA 749
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-11
- **Case number:** Civil Misc. Writ Petition No. 1104 of 2008
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdev-v-commissioner-gorakhpur-division-and-others-41441
- **Pages:** 4

## Headnote

U.P. Z.A. & L.R Act-Section 122-C-
Allotment of land under section 115-Qrespondent failed to make any effort
either
to
get
possession
or
raise
construction within statutory period of 3
years-admittedly the petitioner never
disturbed
the
possession
inspite
of
knowledge
of
proceeding
since
99Dakhalnama executed in the year 2003direction for registration F.I.R against
petitioner-not sustainable-quashed -with
direction to proceed further keeping in
view
of
observation
after
affording
opportunity of hearing to both parties.

Held: Para-7

It is evident that Rule 115-Q prescribes a
clear time limit for raising constructions
after allotment for the purpose of which
it was allotted. In the instant case the
admitted position is that the land was
allotted in 1994 and no efforts appear to
have
been
made
either
for
taking
possession or for raising constructions
within three years of the date of
allotment. There is also no evidence to
indicate that it was the petitioner who
prevented the taking of such possession
750 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

or that the respondents in any way were
responsible
for
not
allowing
the
respondents to raise constructions. As a
matter of fact the Additional District
Magistrate has not adverted at all to
determine as to what were the factors
existing that led to this situation of
Dakhalnama being executed in the year

## Text

3 All] Jagdev V. Commissioner, Gorakhpur Division and others

749
question as to limitation even at the stage
of admission of the appeal. The rule does
not prescribe the period of limitation for
an appeal. The period of limitation is
provided only under Art. 116 of the
Limitation Act, 1963 in respect of appeals
and it cannot be said that O.41, Rule 3-A
gives any additional right to litigants to
claim
condonation.
Moreover,
condonation of delay is not a matter of
right. The litigant who comes to court
after the prescribed period of limitation is
bound to satisfy the Court that he has
sufficient cause for the delay."

28. We respectfully agree with the
aforesaid observation.

To put the record straight, it is relevant
here to state that it has also been
contended on behalf of the appellants that
principles of natural justice demand that
in case of the appellants showing
sufficient cause, the appeal deserves to be
heard, though presented beyond the
period of limitation.

29. We are of the opinion that
appeal has to be presented according to
the procedure prescribed. The remedy of
appeal is a statutory right and hence it has
to be presented in accordance with the
procedure, the manner and within the time
prescribed by the Statute, and the
principles of natural justice are not
remotely attracted so far as the question
of limitation is concerned.

30. Having held that the delay in
filing the appeals cannot be condoned, we
have no option than to dismiss all the
appeals as barred by limitation and they
are dismissed accordingly.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 1104 of 2008

Jagdev

...Petitioner
Versus
Commissioner, Gorakhpur Division and
others

 ...Respondents

Counsel for the Petitioner:
Sri Sri R.C.Singh

Counsel for the Respondents:
Sri V.K. Singh
Sri R.N. Bhakta
S.C.

U.P. Z.A. & L.R Act-Section 122-C-
Allotment of land under section 115-Qrespondent failed to make any effort
either
to
get
possession
or
raise
construction within statutory period of 3
years-admittedly the petitioner never
disturbed
the
possession
inspite
of
knowledge
of
proceeding
since
99Dakhalnama executed in the year 2003direction for registration F.I.R against
petitioner-not sustainable-quashed -with
direction to proceed further keeping in
view
of
observation
after
affording
opportunity of hearing to both parties.

Held: Para-7

It is evident that Rule 115-Q prescribes a
clear time limit for raising constructions
after allotment for the purpose of which
it was allotted. In the instant case the
admitted position is that the land was
allotted in 1994 and no efforts appear to
have
been
made
either
for
taking
possession or for raising constructions
within three years of the date of
allotment. There is also no evidence to
indicate that it was the petitioner who
prevented the taking of such possession
750 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

or that the respondents in any way were
responsible
for
not
allowing
the
respondents to raise constructions. As a
matter of fact the Additional District
Magistrate has not adverted at all to
determine as to what were the factors
existing that led to this situation of
Dakhalnama being executed in the year
2003. Further the finding that the
petitioner approached the authorities
after a lapse of time is not supported by
any cogent reason. If the petitioner was
aware of the proceedings of 1994, his
possession and alleged occupation had
not been disturbed till 2003 when the
Dakhalnama
was
issued
and
when
subsequently the first information report
was lodged. In view of the aforesaid the
findings recorded by the Additional
District Magistrate that the petitioner
was guilty of lapses is unsubstantiated
from the pleadings and the evidence on
records. Accordingly, the order of the
Additional
District
Magistrate
is
unsustainable.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri R.C. Singh learned
counsel for the petitioner and Sri R.N.
Bhakta for the respondent nos. 5 and 6
and the learned standing counsel for the
respondent nos. 1 and 2.

2. A counter affidavit has been filed
on behalf of the contesting respondents as
also on behalf of the Gaon Sabha.
However, no counsel is present for the
Gaon Sabha when the matter is taken up
by this Court.

3. The challenge in the present
petition is to the order passed by the
Additional District Magistrate (Finance
and Revenue) dated 6.12.2007 whereby
the authority has refused to take action on
the proceedings initiated by the petitioner
under Section 122-C of the U.P.Z.A. &
L.R. Act. The application was moved
under Clause 6 of Section 122-C praying
that the allotment be cancelled keeping in
view the provisions of Section 115-Q of
the rules framed under the aforesaid Act.
The same is quoted below:-

"115-Q. The person to whom the
housing site is allotted shall be required to
build a house and begin to reside in it or
to use it for the purpose for which it was
built within three years from the date of
allotment: If he fails to do so or uses it at
any time for a purpose other than that for
which it was allotted his rights shall be
extinguished and the site may be taken
over
by
the
Land
Management
Committee:

Provided that in the case of a person
belonging
to
Scheduled
Caste
or
Scheduled Tribe the aforesaid time limit
for building of the house shall not apply."

4. The ground taken is that the
allotment was made in favour of the
contesting respondent in 1994. The fact
that possession was not handed over to
the
contesting
respondents
is
also
admitted in the counter affidavit where a
copy of Dakhalnama had been filed which
is dated 3.4.2003. A first information
report was lodged that the petitioner failed
to deliver the possession and in the first
information report it is admitted that the
possession was sought to be given on
3.4.2003. It was submitted by Sri R.C.
Singh learned counsel for the petitioner
that in view of the aforesaid admitted
position the contesting respondents could
not be permitted to raise constructions
after a lapse of nine years in view of the
bar as contained in Rule 115-Q. It is not
disputed that the contesting respondents
are not scheduled caste and, therefore, the
bar of three years would operate against
them.
3 All] Jagdev V. Commissioner, Gorakhpur Division and others

751
5. Learned standing counsel contends
that these proceedings were initiated by the
petitioner after a lapse of nine years and
the same could not have been done in view
of the fact that it was heavily barred by
time and latches as well and that the
petitioner cannot claim any semblance of
title over the land in question.

6. In rejoinder learned counsel for
the petitioner contends that that the
petitioner has claimed allotment and
possession keeping in view sub section 3
of Section 122-C of the U.P.Z.A. & L.R.
Act
and,
therefore,
the
contention
advanced on behalf of the respondents
deserves to be rejected. He further
submits that the cause arose when the
Dakhalnama was executed and as a matter
of fact respondents taking aid of the
administrative
machinery
started
disturbing the petitioner. He further
submits that the petitioner had filed a
revision even though ill advised inasmuch
no revision would lie against the order
under Section 122-C(6). He , therefore
submits that the time which has been
consumed in the aforesaid proceedings
clearly explains the delay in approaching
the Court.

7. It is evident that Rule 115-Q
prescribes a clear time limit for raising
constructions after allotment for the
purpose of which it was allotted. In the
instant case the admitted position is that
the land was allotted in 1994 and no
efforts appear to have been made either
for taking possession or for raising
constructions within three years of the
date of allotment. There is also no
evidence to indicate that it was the
petitioner who prevented the taking of
such possession or that the respondents in
any way were responsible for not
allowing
the
respondents
to
raise
constructions. As a matter of fact the
Additional District Magistrate has not
adverted at all to determine as to what
were the factors existing that led to this
situation of Dakhalnama being executed
in the year 2003. Further the finding that
the petitioner approached the authorities
after a lapse of time is not supported by
any cogent reason. If the petitioner was
aware of the proceedings of 1994, his
possession and alleged occupation had not
been disturbed till 2003 when the
Dakhalnama
was
issued
and
when
subsequently the first information report
was lodged. In view of the aforesaid the
findings recorded by the Additional
District Magistrate that the petitioner was
guilty of lapses is unsubstantiated from
the pleadings and the evidence on records.
Accordingly, the order of the Additional
District Magistrate is unsustainable.

8. The contention of the learned
standing counsel that the petitioner had
preferred a revision against the said order
also cannot be entertained in view of the
order having been passed under Section
122-C which is final and not revisable.

9. For the conclusions drawn herein
above the impugned order dated 6.12.07
and 13.12.07 are quashed. The matter is
remanded back to the respondent no.2 to
decide the matter in view of the
observations made herein above after
giving an opportunity of hearing to the
concerned parties preferably within a
period of three months from the date of
production of a certified copy of this order.

10. The writ petition is allowed. No
order as to costs.
---------
752 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2009

BEFORE
THE HON'BLE A. P.SAHI, J.

Civil Misc. Writ Petition No.33589 of 2007

Dhanai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ramendra Asthana
Sri Atul Srivastava

Counsel for the Respondents:
Sri P.N. Rai,
Sri Jai Prakash Singh
S.C.

U.P.Panchayat Raj Act, 1947-Section 5A(a)- readwith Representation of People
Act 1551-Section 8(3)- Disqualificationrespondent
-7
elected
as
village
Pradhan-admittedly
convicted
under
section 302-defence taken about bail in
appeal and stay of conviction in pending
criminal
appeal-not
available-writ
of
'quo warrante' issued declaring the
election of respondent 7 as illegal -who
shall not be construed to hold public
office of village Pradhan.

Held: Para-13 & 20

It has been held that mere filing of an
appeal
would
not
take
away
the
disqualification
incurred
by
the
petitioner by virtue of his conviction. The
aforesaid decision has taken notice of
the
decision
in
the
case
of
K.
Prabhakaran Vs. P. Jayarajan, in which it
has been held that once the conviction
has been pronounced and the sentence
awarded, then the disqualification is
attached in view of the provisions, which
are presently in consideration. Section 5A of the Act 1947 clearly entails that a
person shall be disqualified for being
chosen in the event he is convicted. In
the instant case, it is an admitted
position that the conviction has been
pronounced and sentence awarded.

In view of the aforesaid conclusion
drawn and in view of the fact that the
respondent no. 7 admittedly suffers from
an inherent disqualification as provided
under Section 5-A, a declaration is
hereby issued that the election of the
respondent no. 7 as Gram Pradhan was
illegal and invalid and he shall not be
construed to hold the public office of
Gram
Pradhan
of
Gram
Panchayat
Muriari, District Ghazipur forthwith as it
stands
accordingly
annulled.
The
impugned order dated 30.03.2007 is also
quashed.
Case law discussed:
1964 ALJ 1118, 2003 (2) AWC 1385, 2005
(99) RD 746, 2001 (7) SCC 231, AIR 1999 SC
1723.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Shri Atul Srivastava,
learned counsel for the petitioner and Shri
Jai Prakash Singh, learned counsel for the
respondent no. 7 and Shri C.P. Mishra,
learned standing counsel appearing on
behalf of the respondent nos. 1 to 6.

2. In spite of repeated time having
been granted by the Court no counter
affidavit was filed, as a result whereof,
the Court had to summon the concerned
officials. Today a short counter affidavit
supported with an application has been
filed by Shri Arvind Kumar Singh,
District Panchayat Raj Officer, Ghazipur
stating therein that unqualified apology is
being tendered for the delay caused in
providing assistance to the Court and
another short counter affidavit has been
filed by Shri Jitendra Mohan Singh, SubDivisional
Magistrate,
Jakhaniya,
Ghazipur stating therein that pursuant to