# Ramdhari v. Addl. Commissioner (J) & Others

- **Citation:** (2012) 3 ILRA 1554
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-29
- **Case number:** Civil Misc. Writ Petition No. 3853 of 2005
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramdhari-v-addl-commissioner-j-others-42362
- **Pages:** 5

## Headnote

C.S.C.
Sri Anuj Kumar
Sri M.N.Singh
Sri Manish

U.P.
Zamindari
Abolition
and
Land
Reform
Act,
1950-Section
123
(2)-
settlement of Land-in favor of R-3simply based upon report of Lekhpal-as
R-3 being pot man making earthen potsthrough Chak-had built Mandahi using
for
residential
purpose-should
be
declared as Abadi-while plot in question
recorded with petitioner as BhumidharS.D.O. without opportunity of hearing to
petitioner-by
one
word-written
"Sweekrit"-held-such
benefit
under
section 123 (2)-available to those person
referred to Section 122-C-who had built
a house on 03.06.1995-'Mandahi' being
not covered with definition of house-one
word order (Sweekrit) by S.D.O.-not
sustainable.

Held: Para-14

Taking into consideration of the said
judgment, it may be noticed that in the
present case, no opportunity of hearing
was provided to the petitioner nor there
is any report of any of the authorities
that the respondent no. 3 has built her
3 All] Ramdhari V. Addl. Commissioner (J) & Others
1555
house
and
such
houseexisted
on
3.6.1995 on the land of the petitioner.
The act of keeping Mandahi, charni and
chak will not amount to building of a
house as intended and required under
Section 123(2) of the Act. This apart, the
order dated 18.7.1996 passed by the Up
Ziladhikari is a non-speaking order. The
land of the petitioner could not have
been
settled
by
one
word
order
(Sweekrit) by the Up Ziladhikari. No
opportunity of filing any objection for
contesting the matter was given to the
petitioner by the Up Ziladhikari.
Case Law discussed:
2008 (1) AWC 35

## Text

1554 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

30. The scope of rights of the
candidates, who are empanelled in the select
list but have not been given appointment
has been discussed by Hon'ble the Supreme
Court. The Constitution Bench of Hon'ble
the Supreme Court in the case of
Shankarsan Dash(supra) has held that the
candidates empanelled in the merit list do
not
acquire
indefeasible
right
of
appointment. Only the exception has been
carved out on the event of violation of
Article 14 of the Constitution of India. In
the instant case the whole selection was
cancelled and none of the candidates
empanalled in the select list prepared by the
Committee under the Chairmanship of Sri
S.S.
Singh
Yadav
has
been
given
appointment. Though the petitioner has
adverted
the
mala
fideness
of
the
respondents but no substantive material has
been brought on record to establish it. Only
the decision for cancellation of selection
and initiate fresh proceedings cannot be said
to be mala fide.

31. In the light of the decisions
discussed, herein above, I am of the
considered opinion that even the petitioners
being empanalled in the select list have no
right to claim appointment save violation of
Article 14 of the Constitution of India. In
the
instant
case
no
element
of
discrimination exists.

32. Therefore, I am of the view that no
interference is warranted in the selection,
which has been given effect to, by issuing
orders of appointment in favour of the
private respondents.

33. The writ petitions stand dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2012

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Civil Misc. Writ Petition No. 3853 of 2005

Ramdhari

 ...Petitioner
Versus
Addl. Commissioner (J) & Others

 ...Respondents

Counsel for the Petitioner:
Sri Namwar Singh
Sri Sanjiv Singh

Counsel for the Respondents:
C.S.C.
Sri Anuj Kumar
Sri M.N.Singh
Sri Manish

U.P.
Zamindari
Abolition
and
Land
Reform
Act,
1950-Section
123
(2)-
settlement of Land-in favor of R-3simply based upon report of Lekhpal-as
R-3 being pot man making earthen potsthrough Chak-had built Mandahi using
for
residential
purpose-should
be
declared as Abadi-while plot in question
recorded with petitioner as BhumidharS.D.O. without opportunity of hearing to
petitioner-by
one
word-written
"Sweekrit"-held-such
benefit
under
section 123 (2)-available to those person
referred to Section 122-C-who had built
a house on 03.06.1995-'Mandahi' being
not covered with definition of house-one
word order (Sweekrit) by S.D.O.-not
sustainable.

Held: Para-14

Taking into consideration of the said
judgment, it may be noticed that in the
present case, no opportunity of hearing
was provided to the petitioner nor there
is any report of any of the authorities
that the respondent no. 3 has built her
3 All] Ramdhari V. Addl. Commissioner (J) & Others
1555
house
and
such
houseexisted
on
3.6.1995 on the land of the petitioner.
The act of keeping Mandahi, charni and
chak will not amount to building of a
house as intended and required under
Section 123(2) of the Act. This apart, the
order dated 18.7.1996 passed by the Up
Ziladhikari is a non-speaking order. The
land of the petitioner could not have
been
settled
by
one
word
order
(Sweekrit) by the Up Ziladhikari. No
opportunity of filing any objection for
contesting the matter was given to the
petitioner by the Up Ziladhikari.
Case Law discussed:
2008 (1) AWC 35

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Ms. Minakshi Singh,
Advocate holding brief of Sri Namwar
Singh, learned counsel for the petitioner,
Sri Manish, learned counsel for the
respondent no. 3 and learned Standing
Counsel appearing on behalf of the
respondents no. 1,2 and 5.

2. By the present petition, the
petitioner prays for quashing of the
orders dated 18.7.1996 and 16.12.2004
passed by the respondents no. 2 and 1;
respectively .

3. By the order dated 18.7.1996, Up
Ziladhikiari, Chandauli had settled the
plot no. 64 area 4- 1/2 Decimal in favour
of respondent no. 3 on the report of
Tehsildar giving benefit of Section
123(2) of the U.P. Z.A.& L.R. Act,
1950(hereinafter referred to as the 'Act').
The petitioner filed revision challenging
the order dated 18.7.1996 before the
Additional Commissioner which was
rejected by the order dated 16.12.2004
saying that the order dated 18.7.1996
passed by Up Ziladhikari requires no
interference.

4. The facts of the case are that the
petitioner was recorded Bhumidhar in
possession of plot no. 64 area 0.08
Hectares situate in village Khandwari,
Pargana
Mahuari,
Tehsil
Sakaldiha,
District Chandauli. The application was
made by respondent no. 3 for recording
area 4-1/2 Decimal as 'Abadi' on the
ground that she is using the same by
keeping her Mandahi, Charani (Cattle
shed)
and
Chak
etc.
since
before
3.6.1995. She is 'Kumhar' by caste and
has got her house beside the land in
dispute, therefore the area 4-1/2 Decimal
of plot no. 64 which is being used by her
for her cattle shed, chak etc. be recorded
in her name as her 'Abadi' under Section
123(2) of the Act. The application of the
respondent no. 3 has been brought on
record. On the said application, the
record was called for and Lekhpal,
Revenue Inspector submitted reports
dated 4.7.1996 that the disputed land was
being used by respondent no. 3 as
appurtenant land of her house and she is
doing work of making earthen pots
through Chak etc. in the Mandahi built
over the disputed land which was not
being used for housing purpose. However,
the Tehsildar in his one line report dated
4.7.1996 stated that the respondent no. 3
could be given benefit of village artisan
under Section 123(2) of the Act. On the
report of the Tehsildar dated 4.7.1996,
one word order 'Sweekrit' was passed by
the
Up
Ziladhikari(Sub
Divisional
Magistrate).

5. Learned counsel for the petitioner
submits that in the revision filed before
the Commissioner, the grounds were
taken that respondent no. 3 had no
1556 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
concern over the disputed land and her
house exists at the southern side of the
disputed land and not on the disputed
land. In any case, the land could not be
recorded as 'Abadi' at the instance of
respondent no.3 as there was no
construction over the same. It was further
contended that there is no report so as to
give benefit of Section 123(2) of the Act
to the respondent no. 3 and the order had
been
passed
without
any
information/intimation
to
the
petitioner. The revisonal court did not
consider the objections raised by the
petitioner and dismissed the revision that
as per the report of the Lekhpal,
Revenue Inspector and Naib Tehsidar
that respondent no. 3 was in possession
of disputed land and therefore the order
passed under Section 123(2) of the Act
taking
into
consideration
of
the
preferential category given under Section
122-C(3)
of the
Act
required
no
interference.
While
concluding
the
argument
learned
counsel
for
the
petitioner submitted that mere keeping
Mandahi, cattle shed and chak on the
disputed land of the petitioner do not
confer any right upon the respondent no.
3. The benefit of Section 123(2) of the
Act can be given only to a person
referred to in sub-section (3) of Section
122-C of the Act who has built a house
on the land of the tenure holder.

6. Admittedly, the house of the
respondent no. 3 does not exist over the
land of the petitioner and keeping of
Mandahi etc. will not amount to
building of the house. From the report
of Lekhpal and Revenue Inspector dated
4.7.1996 it appears that respondent no. 3
at the best is using the land as
appurtenant land for the purpose which
are not covered under Section 123(2) of
the Act. There is no question of adverse
possession over the land of the petitioner
and no right can be conferred to her. The
order passed by the Up Ziladhikari is
non-speaking order without giving any
opportunity of hearing to the petitioner
who is admittedly recorded Bhumidhar of
the disputed plot.

7. Learned counsel for respondent
no. 3, on the other hand, submitted that
the area 4-1/2 Decimal of plot no. 64 is in
possession of respondent no. 3 before the
cut of date i.e. 3.6.1985 and there is
finding to this effect in the report of
Tehsildar. The Up Ziladhikari has rightly
accepted the report and proceeded to
settle the land in favour of respondent
no.3 who comes within the preferential
category of sub-section(3) of Section
122-C of the Act. The act of building her
Mandahi, Charni and Chak and doing
work of making pots by the respondent
no. 3 come within the meaning of village
artisan
residing
in
the
village
as
mentioned in the sub clause (ii) of Sub-
Section (3) of Section 122-C of the Act .
The respondent no. 3 was found in
possession over the disputed land. The
revision was rightly rejected.

8. Learned counsel for respondent
no. 3 in the counter affidavit has brought
on record the fact that respondent no. 3
has filed the Original Suit No. 477 of
1996 against the then petitioner and his
heirs who have been brought on record
after death of the petitioner Ramdhari.

9. The relief sought in the said suit
is for declaration of respondent no. 3 as
owner in possession over the disputed
land and permanent injunction against
the defendant. In the said suit, an interim
injunction dated 23.7.1996 was passed by
3 All] Ramdhari V. Addl. Commissioner (J) & Others
1557
the Court of Civil Judge, Varanasi
restraining the petitioner/defendant from
evicting the respondent no. 3 from the
disputed land. The interim order is in
operation and the suit is still pending.

10. In the rejoinder affidavit, learned
counsel for the petitioner submits that the
suit filed by the respondent no. 3 is being
contested by the heirs of petitioner and
the temporary injunction was granted on
incorrect facts given by the respondent
no. 3.

11. Having heard learned counsel
for the parties and perused the record, it is
apparent that before passing the order
dated 18.7.1996 no proper enquiry was
conducted by the Up Ziladhikari. The
report of the Tehsildar is only one line
report recommending for benefit under
Section 123(2) of the Act to the
respondent no. 3 being the landless
village artisan. Indisputably the house of
respondent no.3 exists at the southern
side of the disputed land. The report of
the Lekhpal and Revenue Inspector dated
4.7.1996 further substantiate the fact that
no house has been built by the respondent
no. 3 over the disputed land i.e. plot no.
64 area 4-1/2 Decimal. The land was
being used by the respondent no. 3 for the
purposes other than that is provided
under Section 123(2) of the Act. At this
stage reference may be made to Section
123(2) of the Act which is quoted
below:-

" 123(2)Where any person referred
to in sub-section (3) of Section 122-C has
built a house on any land held by a
tenure-holder (not being Government
lessee) and such house exists on (June 3,
1995), the site of such house shall,
notwithstanding anything contained in
this Act, be deemed to be settled with the
owner of such house by the tenure-holder
on such terms and conditions as may be
prescribed. "

12. From perusal of Section 123(2)
of the Act it is evident that the benefit of
Section 123(2) of the Act can only be
given to a person referred to in sub
section (3) of Section 122-C of the Act
who has built a house on any land held
by a tenure holder and such house should
exist on 3.6.1995.

13. From a perusal of the application
moved by the respondent no. 3 dated
27.5.1996 annexed as Annexure 2 to the
writ petition, it is clear that she has
never pleaded that her house exists on
the land held by the petitioner on
3.6.1995. Infact the contention was that
she is in possession of the disputed land
as 'Abadi' and therefore comes within the
preferential category for the purpose over
land under Section 122-C (3) of the Act.
As held by this Court in 2008(1) AWC
35(Ram Narain & others vs. SDO,
Kairana, District Muzaffarnagar and
others) that the deeming provisions
under Section 123(2) of the Act has been
enacted with non-obstante clause and
therefore the same has to be given effect
by the Court despite any other provision
contrary contained in the Act itself. In
order to effectuate the deeming provision
under the Statute the Court would assume
all those facts on which the legal fiction
created by the statute can operate, even if
those facts do not exist in reality and the
rights of the parties will have to be
determined on such imaginary things to
achieve the purpose for which such legal
fiction has been created by the Statute. It
has
further
been
observed
in
the
paragraph 26 of the judgment on the
1558 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
basis of facts on record that the house of
respondents exist on 3.6.1995 therefore
the land covered by their houses shall be
deemed to be settled with them by the
tenure holder of the land in question. It is
immaterial whether they have built their
houses with the consent/ permission of the
tenure holder of the land in question or
otherwise by taking forceful possession
of the land or their such possession is
unauthorized or as of tresspasser. It was
concluded that no other view is possible,
for the reason that it would completely
distort and defeat the very purpose of
deeming provisions which are coupled
with non-obtante clause of Section
123(2) of the Act.

14. Taking into consideration of the
said judgment, it may be noticed that in the
present case, no opportunity of hearing was
provided to the petitioner nor there is any
report of any of the authorities that the
respondent no. 3 has built her house and
such house existed on 3.6.1995 on the land
of the petitioner. The act of keeping
Mandahi, charni and chak will not amount
to building of a house as intended and
required under Section 123(2) of the Act.
This apart, the order dated 18.7.1996 passed
by the Up Ziladhikari is a non-speaking
order. The land of the petitioner could not
have been settled by one word order
(Sweekrit) by the Up Ziladhikari. No
opportunity of filing any objection for
contesting the matter was given to the
petitioner by the Up Ziladhikari.

15. The revisional court also did not
consider this aspect of the matter and not
considered the objections raised by the
petitioner. Moreover, the report of Lekhpal
and Revenue Inspector dated 4.7.1996, if
considered, would further substantiate the
case of the petitioner that the benefit of
Section 123(2) of the Act could not have
been given to the respondent no. 3
However, as a suit No. 447 of 1996 was
filed by respondent no. 3 against the
petitioner and she has got temporary
injunction thereunder, the suit is being
contested by the petitioner. Both the parties
can get their rights decided in the pending
suit. Both the impugned orders dated
18.7.1996 and 16.12.2004 are quashed.

16. The writ petition is allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 5473 of 2006

Nagar Palika Parishad, Saharanpur And
Another

 ...Petitioner
Versus
Deputy
Director/
Regional
Director
Employees State Insurance

 ...Respondents

Counsel for the Petitioner:
Sri C.K. Parekh
Sri Mukhtar Alam

Counsel for the Respondents:
Sri P.K. Pandey
Sri Rajesh Tiwari

Employees State Insurance Act-1948Recovery
of
amount
of
employees
insurance-from Corporation on Nagar
Palika-held-provisions of Insurance Act
not applicable either upon Municipal or
Corporation-recovery order quashed.

Held: Para-4

In view of above authorities ESI Act does
not apply to the petitioner; neither it
applied when it was Municipality nor it