# Raju v. The Collector Sitapur & Ors

- **Citation:** (2025) 3 ILRA 819
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-19
- **Case number:** Writ C No. 1002243 of 2001
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-v-the-collector-sitapur-ors-53243
- **Pages:** 5

## Headnote

Law
-
Unauthorized
occupation - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Section 122-B -
Chapter VIII Rule 12 Explanation II of
Rules of the Court - Legal requirement of
inspection and proof - Failure to conduct
inspection in presence of petitioner or
counsel and lack of reliable measurement
renders
order
illegal
-
Illegality
in
assuming possession without basis in
revenue record - Reliance on defective
820 INDIAN LAW REPORTS ALLAHABAD SERIES
measurement
and
unproved
Lekhpal
report is erroneous - Courts below erred in
relying on unverified and non-proven
materials - Reports of Lekhpal not proved,
no basis for assumption of possession,
inspection not per rules - Orders passed
on
unverified
report
and
without
complying
procedural
fairness
are
unsustainable.(Para -20,21,22,23)

Petitioner
alleged
to
have
unauthorisedly
occupied 2000 sq.ft. of Gaon Sabha land -
constructed a house - proceedings initiated
under Section 122-B on report of Lekhpal -
petitioner contested claim asserting construction
on ancestral land - Spot inspection conducted
without petitioner or counsel - Assistant
Collector directed eviction and penalty -
Revision dismissed by Collector. (Para - 4 to
11)

HELD: - Placement of reliance on the report
submitted by Naib Tehsildar was wholly
erroneous and the order passed on that basis
suffered from apparent illegality. Courts below
had misconstrued the fact that the complaint of
the Lekhpal was not proved in any manner,
therefore, the reliance placed thereon was not
acceptable in the eyes of law. Accordingly, the
impugned orders were set aside. (Para -
21,22,23)

Writ Petition allowed. (E-7)

## Text

3 All. Raju Vs. The Collector Sitapur & Ors.
819
agreement of sale does not have the
effect of transferring any holding or part
thereof even if possession was transferred
of the holding in pursuance of the said
agreement, it cannot be said that the
agreement amounted to a sale under
Section 164. Section 164 contemplates
transfer by a bhumidhar.

15. In the case of Umesh Chand
and another (Supra), it has been held that
it is clear that any transfer of any holding
regarding an amount of Rs.100/- or more
can be only executed by registered
documents. "Any transfer of any holding"
referred to under Section 164 of U.P.
ZA&LR Act refers to transfer of any
interest in any holding if the value is more
than 100 rupees of immovable property, the
transfer has to be effected in accordance
with law. No right or interest can pass in in
immovable property in a manner contrary
to provisions of Transfer of Property Act
and Indian Registration Act.

16. In the case of Rama Shanker and
others (Supra), it has been held that since a
simple agreement to sell does not have the effect
of transferring any holding, mere passing of
possession, even if proved, could not have given
birth to title in favour of Nepal, under section 164
of the Zamindari Act. The essential pre-condition
of Section 164 of the Zamindari Act, was never
claimed or proven to have existed.

17. In view of facts
and
circumstances
of
present
case,
the
judgments relied upon by learned counsel
for the petitioner are fully applicable to the
present case and in view of reasoning
recorded therein, the writ petition deserves
to be allowed.

18. Accordingly, the impugned
order
dated
14.05.2003
passed
by
Commissioner,
Faizabad
Division,
Faizabad in revision No.73 Barabanki
under Section 56 of Indian Stamp Act;
Pawan Kumar Agrawal Vs. State of U.P.
and others and order dated 05.03.2001
passed by Additional District Magistrate,
(Finance and Revenue) (ADM - F&R),
Barabanki in case No.80/2000-01 under
Section 47A/33 Indian Stamp Act; State of
U.P. Vs. Pawan Kumar Agrawal are hereby
quashed.

19. The writ petition succeeds and
is allowed.

20. No order as to costs.
----------
(2025) 3 ILRA 819
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.03.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 1002243 of 2001

Raju ...Petitioner
Versus
The Collector Sitapur & Ors.
 ...Respondents

Counsel for the Petitioner:
Avadhesh Kumar

Counsel for the Respondents:
C.S.C., R.N. Gupta

(A)
Revenue
Law
-
Unauthorized
occupation - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Section 122-B -
Chapter VIII Rule 12 Explanation II of
Rules of the Court - Legal requirement of
inspection and proof - Failure to conduct
inspection in presence of petitioner or
counsel and lack of reliable measurement
renders
order
illegal
-
Illegality
in
assuming possession without basis in
revenue record - Reliance on defective
820 INDIAN LAW REPORTS ALLAHABAD SERIES
measurement
and
unproved
Lekhpal
report is erroneous - Courts below erred in
relying on unverified and non-proven
materials - Reports of Lekhpal not proved,
no basis for assumption of possession,
inspection not per rules - Orders passed
on
unverified
report
and
without
complying
procedural
fairness
are
unsustainable.(Para -20,21,22,23)

Petitioner
alleged
to
have
unauthorisedly
occupied 2000 sq.ft. of Gaon Sabha land -
constructed a house - proceedings initiated
under Section 122-B on report of Lekhpal -
petitioner contested claim asserting construction
on ancestral land - Spot inspection conducted
without petitioner or counsel - Assistant
Collector directed eviction and penalty -
Revision dismissed by Collector. (Para - 4 to
11)

HELD: - Placement of reliance on the report
submitted by Naib Tehsildar was wholly
erroneous and the order passed on that basis
suffered from apparent illegality. Courts below
had misconstrued the fact that the complaint of
the Lekhpal was not proved in any manner,
therefore, the reliance placed thereon was not
acceptable in the eyes of law. Accordingly, the
impugned orders were set aside. (Para -
21,22,23)

Writ Petition allowed. (E-7)

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Avadhesh Kumar,
learned counsel for the petitioner and
learned Additional CSC for the respondent
- State.

2. Notice was issued to respondent
No.3 and on the basis of office report dated
22.01.2025 notice was found deemed to be
sufficient upon respondent No.3 in view of
provisions contained under Chapter VIII
Rule 12 Explanation II of Rules of the
Court, therefore, the matter is ready for
final disposal.

3. By means of present writ
petition, the petitioner is challenging the
orders
dated
27.11.2000
passed
by
Additional Tehsildar / Assistant Collector,
Sitapur - annexure 5 to the writ petition and
order dated 19.01.2001 passed by the
Collector, Sitapur annexure - 7 to the writ
petition.

4. Factual matrix of the case is that
on the basis of report of Lekhpal in regard
to plot No.114M/.251 hectare, which was
recorded as banjar ghas on revenue papers,
a notice was issued to the petitioner that he
has unauthorisedly occupied 2000 sq.ft.
land
and
has
constructed
a
house
unauthorisedly and damaged gaon sabha
property worth Rs.50,000/-.

5. On the said report of Lekhpal
dated 14.07.1998 case No.85/190 under
Section 122-B U.P. ZA&LR Act was
registered as Gaon Sabha Khagesia Mau
VS. Raju and thereafter a notice under
Section 49-Ka was issued to the petitioner.

6. On receiving the said notice
under Section 49-Ka, the petitioner filed an
objection on 18.01.1999 on the ground that
he was a poor fellow of backward caste and
as per family settlement, he got constructed
a shot and house to his brother over the
portion allotted to him over plot No.113/3
area .045 and in front of the house of the
petitioner, there was a land of gaon sabha
plot No.114, which was lying vacant and
there was no possession of the petitioner
and a false report was made by the
Lekhpal. Copy of the khatauni extract for
the year 1396-1401 F. is annexed as
annexure 1 to the writ petition.

7. On 22.09.1998, Satendra Kumar
- Lekhpal and on 15.02.2000 Ram Sahai
Verma - Lekhpal were produced for oral
3 All. Raju Vs. The Collector Sitapur & Ors.
821
testimony. ON 11.08.2000, the petitioner
produced Abdul Razzak- Pradhan of Gaon
Sabha Khagesia Mau, who deposed that he
was knowing the petitioner, who was
having five brothers - Asha Ram, Ram
Asrey, Nankai, Chhotey Lal and Raju
(petitioner) and their ancestral house was
situated in the village and Ram Swarup -
Pradhan had executed a patta of the land in
favour of Ram Asrey on which the house
was constructed, where the petitioner was
living.

8. On 09.10.2000, the petitioner
filed an application that he had not
occupied even one inch of the disputed plot
No.114 of Gaon Sabha Khagesia Mau and
therefore, the measurement in presence of
counsel for the petitioner be made. On
20.10.2000, the Naib Tehsildar, Khairabad
District Sitapur submitted his report to the
Tehsildar that he went on the spot and
found the possession of the petitioner over
plot No.114.

9. The measurements made by the
Naib Tehsildar, Khairabad or Lekhpal were
made
in
absence
of
the
petitioner.
Moreover, the measurements were not
made by fixed points or from Chaumera or
Tihadda. No field book was prepared and
even the measurements were not cross
checked. On 27.11.2000, the Apar Tehsildar
/ Assistant Collector, Sitapur passed an
order to vacated plot No.114 measuring
2000 sq.ft. situated in village Khagesia
Mau and a penalty of Rs.5500/- was also
imposed.

10. It is stated in the order
impugned that on moving an application on
behalf of the petitioner on 19.10.2000, the
spot inspection was made on 20.10.2000 by
him himself and the measurement was
made by the concerned Lekhpal and by
measurement and inspection, it was clearly
proved that the house of the petitioner was
constructed over plot No.114.

11. Against the order of Assistant
Collector, Sitapur, the petitioner preferred a
revision before the Collector, Sitapur on
08.01.2001 denying the possession over the
disputed plot No.114 pointing out that his
house is constructed over plot No.113/3
area .045. The Collector, Sitapur also
dismissed the revision on 19.01.2001 on
the ground that by measurement and spot
inspection, it was proved that house was
constructed by the petitioner over disputed
plot No.114 without any permission.

12. While assailing the impugned
orders, submission of learned counsel for
the petitioner is that the Collector, Sitapur
has committed manifest error of law in
affirming the judgment and order of the
trial court without perusing the lower court
record as in the order of trial court it was
mentioned that he himself conducted spot
inspection, whereas, the same was made by
the Naib Tehsildar, Khairabad and not by
the trial court.

13. His next submission is that the
Naib Tehsildar made inspection in absence
of the petitioner in spite of the fact that he
requested that the spot inspection be made
in presence of his counsel.

14. His further submission is that
both the courts below have relied upon spot
inspection as well as measurement but no
detail has been given that in what manner
and how the measurement was made as
neither any fixed point was made nor
Chaumera or Tihadda was traced out and it
was made from two fixed points and no
field book was prepared and even cross
check was not made of the area.
822 INDIAN LAW REPORTS ALLAHABAD SERIES
15. His next submission is that the
trial court has not taken in to consideration
that no order was passed on the application
moved by the petitioner on 19.10.2000 that
the measurement be made in presence of
counsel for the petitioner and apart from it,
the spot inspection was not made in
presence of counsel for the petitioner as
required and no detail of spot inspection
was given to the petitioner and the
petitioner was not given opportunity to
rebut the same.

16. He submitted that both the
courts
below
have
not
taken
into
consideration the fact that reports of
Lekhpal could not be proved as it was
given by Lekhpal Satendra Kumar and
statement was given by Ram Sahai Verma,
therefore, the statement of Lekhpal, who
was not the complainant is liable to be
ignored.

17. Last submission of learned
counsel for the petitioner is that the report
was also not reliable as details of
measurement is not given, scale of
measurement is not given and particulars of
zarib is also not mentioned.

18. On the other hand, learned
Additional CSC for respondent - State
submitted that both the orders passed by the
lower court are just and valid and no
infirmity or illegality has been committed
by the courts below. The writ petition is
misconceived and is liable to be dismissed
with costs.

19. I have considered the submissions
advanced by learned counsel for the parties and
perused the material on record.

20. On perusal of record, it is
evident that the proceeding was initiated on
the complaint of Lekhpal, who was not
examined by the Assistant Collector while
passing the impugned order. Another
Lekhpal was examined and relying on his
statement, the order was passed.

21. On perusal of record, it is also not
clear that the spot inspection was made on the
basis of revenue records, which was available
at the time of inspection. It is also not clear
that on what basis it was assumed that
possession of the petitioner is on plot No.114
and not on plot NO.113/3. There is no whisper
about the application filed by the petitioner for
inspection in presence of his Advocate and
immediately on 20.10.2000, the inspection
was not made in presence of Advocate of the
petitioner nor intimation was given to the
petitioner, therefore, placement of reliance on
the report submitted by Naib Tehsildar is
wholly erroneous and the order passed on that
basis suffers from apparent illegality.

22. It is also revealed that the
statement of fact given by the Lekhpal and
report
was
also
not
proved
while
considering the material by the trial court
as well as revisional court, therefore, the
order appears to be malacious in nature.
The courts below have misconstrued the
fact that the complaint of the Lekhpal was
not proved in any manner, therefore,
reliance placed thereon is not acceptable in
the eyes of law. The submission made by
learned Additional Chief Standing Counsel
is devoid of merit and the orders impugned
are liable to be set aside by this Court.

23. Accordingly, the impugned
orders
dated
27.11.2000
passed
by
Additional Tehsildar / Assistant Collector,
Sitapur - annexure 5 to the writ petition and
order dated 19.01.2001 passed by the
Collector, Sitapur annexure - 7 to the writ
petition are hereby set aside.
3 All. Smt. Bigni Devi Vs. U.P. Cooperative Tribunal Lko. & Ors.
823
24. The writ petition succeeds and
is allowed.

25. No order as to costs.
----------
(2025) 3 ILRA 823
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 1003067 of 2015

Smt. Bigni Devi ...Petitioner
Versus
U.P. Cooperative Tribunal Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sudeep Seth, Manoj Kumar, Sridhar Awasthi

Counsel for the Respondents:
C.S.C., K.S. Pawar, Rakesh Kumar Chaudhary,
Rakesh Srivastava

A. Civil Law - UP Cooperative Societies
Act, 1965 - Sections 2(c), 12, 13 & 14 -
Cancellation of allotment - Model bye
laws - Notified by the Registrar -
Modification or amendment carried in the
bye laws, but not adopted by the Society -
Applicability - Held, a model bye law
notified
by
the
Registrar
is
not
automatically applicable upon a society
and is in fact required to be first adopted
by the society whereafter procedure is
required mandatorily to be followed - It
would therefore be the bye laws of 1976
which would govern the issue in dispute
and not the bye laws of 1979 which were
never adopted by the society. (Para 31
and 35)

B. Civil law - UP Cooperative Societies Act,
1965 - Sections 2(c), 12, 13 & 14 -
Cancellation of allotment - Allotment was
made in favour of two members of the
same family - Validity challenged -
Prohibition of one family - Prohibition was
provided in the bye laws of 1976, but not
in the bye laws of 1979 - Applicability -
Held, the prohibition of one 'family' having
more than one plot in the society was not
present in the bye laws of 1976 - Since
there was no such prohibition in the bye
laws of 1976, it is held that cancellation of
petitioner's allotment of plot by means of
deed dated 24th March, 1986 was not in
accordance with law. (Para 4, 41 and 42)

Writ petition allowed. (E-1)

List of Cases cited:

1. Ishwar Nagar Cooperative Housing Building
Society versus Premanand Sharma & ors.; AIR
2011 SC 548

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Sudeep Seth learned
Senior Counsel assisted by Mr. Shridhar
Awasthi learned counsel for petitioner,
learned State Counsel for opposite party
No.1, Mr. Rakesh Kumar Chaudhary
learned counsel for opposite party No.2 and
Mr. Rakesh Srivastava learned counsel for
opposite party No.3.

2.

Petition
has
been
filed
challenging order dated 23rd July, 2010
passed in an arbitration case No. 128-E of
2008 upholding cancellation of plot of
petitioner. Also under challenge is the
judgment and order dated 7th May, 2015
whereby appeal No.161 of 2015 preferred
by petitioner has been rejected.

3. Learned counsel for petitioner
submits
that
petitioner
submitted
an
application dated 5th November, 1985 for
being admitted as a member of the opposite
party No.3 Sri Saraswati Cooperative
Housing Society Limited, Kanpur, which
was allowed and in pursuance thereof,
registered lease deed in perpetuity was