# Smt. Haseena & Ors v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 687
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** Writ-C No. 25025 of 2023
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-haseena-ors-v-state-of-u-p-ors-49508
- **Pages:** 8

## Headnote

Civil Law - U.P. Revenue Code, 2006Section
67-A-petitioner
belongs
to
OBC
category and permanent resident of Village-
being landless agricultural labourer living below
poverty line- petitioners have constructed pucca
house with bricks and khaprail -and are in
possession over the same -respondents are
denying the petitioner's possession in any
manner-petitioners are claiming benefit of
Section 67-A- all the mandatory condition as
mentioned above are not fulfilled in the instant
matter- no evidence that petitioners were in
possession over the plot in dispute -which is
14th mandatory condition for settlement under
Section 67-A.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

12 All. Smt. Haseena & Ors. Vs. State of U.P. & Ors.
687
natural justice were grossly violated. We
find that the order of this Court dated
10.8.2023 was very clear to the effect that
the petitioner had to reply to the notice.
This order was passed in the presence of
the learned Standing Counsel yet the
District Magistrate had absolutely, not only
flouted the order of this Court but had also,
not cared to wait to get a reply of the
petitioner. Therefore, we have no other
option but to set aside the order impugned
dated 14.8.2023.

12. Under such circumstances, the
order dated 14.8.2023 passed by the
District Magistrate, Sonbhadra, is set aside.
The writ petition is accordingly allowed.

13. The petitioner may now submit
his reply afresh within a period of one
week and, thereafter, after giving a
personal hearing to the petitioner, the
District
Magistrate
shall
adjudicate,
following the principles laid down in
Ranveer Singh (supra), on the reply of the
petitioner within the next one month.

14. The petitioner be allowed to
function so far as the lease vis-a-vis his
land is concerned. For that purpose OTPs
be generated for making Form MM-11
functional with immediate effect.
----------
(2023) 12 ILRA 687
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 25025 of 2023

Smt. Haseena & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Sanjay Kumar Pundir

Counsel for the Respondents:
Sri Abhishek Shukla, Addl. C.S.C., Sri B.K.
Singh Raghuvanshi, Sri Kaushal Kumar
Mani

Civil Law - U.P. Revenue Code, 2006Section
67-A-petitioner
belongs
to
OBC
category and permanent resident of Village-
being landless agricultural labourer living below
poverty line- petitioners have constructed pucca
house with bricks and khaprail -and are in
possession over the same -respondents are
denying the petitioner's possession in any
manner-petitioners are claiming benefit of
Section 67-A- all the mandatory condition as
mentioned above are not fulfilled in the instant
matter- no evidence that petitioners were in
possession over the plot in dispute -which is
14th mandatory condition for settlement under
Section 67-A.

W.P. dismissed. (E-9)

List of Cases cited:

1. Manorey alias Manohar Vs Board of Revenue
(U.P.) & ors., AIR 2003 Supreme Court 4102

2. Baij Nath Vs Commissioner Varanasi & ors. ,
2020 (147) RD 360 Baij

3. Raju Vs St. of U.P. & ors., 2020 (149) RD 434

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Sanjay Kumar Pundir,
learned counsel for the petitioners, Mr.
Abhishek Shukla, learned Addl. C.S.C. for
the state-respondents and Mr. B.K. Singh
Raghuvanshi,
learned
counsel
for
respondent no.6.

2. Brief facts of the case are that
Khata No.151 Plot No.163 area 0-4-0
Biswa situated in Village- Bhuribans,
688 INDIAN LAW REPORTS ALLAHABAD SERIES
Tehsil- Nakur, District- Saharanpur was
recorded as banjar in the basic year
khatauni of 1359 fasli. In the first
consolidation operation commenced in the
year 1967-68 New Plot No. 123 area 0-6-0
Biswa of Khata No. 115 was carved out
from old Plot No. 163/2 of Khata No.151.
According to petitioner, he belongs to OBC
category caste 'teli' Muslim by religion and
permanent resident of Village- Bhuribans
being landless agricultural labourer living
below
poverty
line.
According
to
petitioners they have constructed pucca
house with bricks and khaprail to its
appurtenant land in area of 180 square
meters and are in possession over the same
for last more than 25-30 years however
respondents are denying the petitioner's
possession in any manner. Department of
Telecommunications Government of India
under the Universal Service Obligation
Fund (USOF) has planned to provide
connectivity in India's rural and remote
area wherein BSNL has required cooperation from the Government of U.P. to
provide land measuring in area 200 square
meter free of cost in each village. On the
basis of report dated 22.10.2022 submitted
by Lekhpal, a letter dated 14.4.2023 has
been issued to BSNL for installation of
BSNL tower over Plot No.123 area 0.0300
hectare out of its total 0.0620 hectare.
Tehsildar vide letter dated 30.6.2023 issued
auction notice for cutting down the trees on
Plot No.123 accordingly trees were cut
down on 17.7.2023 in presence of revenue
authorities. According to petitioners their
house was demolished by the authorities on
22.7.2023 and started digging the ground to
facilitate the installation of BSNL Tower.
Hence this writ petition on behalf of
petitioners for mandamus commanding the
respondent authorities, Collector/District
Magistrate Saharanpur to prevent the
eviction of the petitioners' Pucca house
built with bricks and 'khaprail' to its
appurtenant land measuring in area about
180 sq.m. over Banjar land of Plot No.123
out of its total 0.0620 hectare ,existing
since before 29.11.2012,more than 25-30
years back, as by operation of law under
enactment of Section 67-A of U.P.
Revenue Code, 2006, r/w Rule 68 of the
U.P. Revenue Code Rules,2016 the site of
said house shall be presumed to be held by
owner and deemed to be settled with the
occupant
thereof,
and
thereby,
the
petitioners shall be treated to have been
already perfected their perpetual rights and
title over the same, and further the BSNL
authorities maybe directed not be install the
proposed tower over/within the premises of
petitioners existing house on the proposed
Plot No.123,situated in Village- Bhuribans,
Tehsil-Nakur, District- Saharanpur, so that
their constitutional rights guaranteed under
Article 300A of the Constitution of India
may
be
safeguarded,
otherwise
the
petitioners' shall suffer irreparable loss and
injury.

3. This court on 7.8.2023 passed the
following order:-

"1. Heard Sri Sanjay Kumar
Pundir, learned counsel for petitioner
and
Sri
B.K.
Singh
Raghuvanshi,
learned counsel for respondent no. 6 and
Sri Dhananjai Singh, learned Standing
counsel
appearing
on
behalf
of
respondent no. 1, 2, 3, 4 and 7 and Sri
Ramesh Prasad holding brief of Sri
Kaushal Kishore Mani, learned counsel
for respondent no. 5.

2. It is the case of the petitioner
that he was having a house fortified with
a boundary and the same has been
demolished on the behest of the portion
of land over which the construction has
12 All. Smt. Haseena & Ors. Vs. State of U.P. & Ors.
689
been raised by the petitioner has already
been entered as Banjar in the revenue
records.
There
is
a
proposal
for
installation of tower by the respondent
no. 6 for smooth connectivity of the
telephone/mobile connections.

3. It is the admitted case on
behalf of the petitioner that the plot in
question
does
not
belongs
to
the
petitioner but at the same time the
occupation over the same is covered
under Section 67(a) of the U.P. Revenue
Code, 2006 and the benefit of the same
may be extended in favour of him and
without
conducting
any
proceeding
under Section 67 of the Code of 2006 the
revenue authorities proceeded illegally
against the petitioner.

4. Sri Dhananjai Singh, learned
Standing counsel is hereby granted 10
days time to seek instructions specifically
over the issue whether any demolition
proceeding has been initiated? Whether
any coHon'ble Chandra Kumar Rai,J.

5. Learned counsel for the
respondents prays for and are granted
two weeks time for filing counteraffidavit.

6. One week time thereafter is
granted for filing rejoinder affidavit, if
any.

7.
Put
up
this
case
on
28.08.2023 as fresh."

4. In pursuance of the order dated
7.7.2023 passed by this court counter
affidavit as been filed by state as well as
short counter affidavit has been filed by
respondent no.6/BSNL. Petitioners have
filed their rejoinder affidavit also.

5. Counsel for the petitioners
submitted that petitioners belongs to OBC
category (teli) Muslim by religion and
permanent resident of village in question
being landless agricultural labourer is
entitled to benefit of Section 67-A of U.P.
Revenue Code, 2006 but respondent
authorities have illegally demolished the
petitioner's residential construction without
initiating proper proceeding in accordance
with law. He further submitted that land in
dispute was initially recorded as banjar in
revenue record and at present is abadi as
such petitioners are entitled to benefit of
Section 67-A of U.P. Revenue Code, 2006.
He further submitted that villagers of the
village in question have submitted affidavit
before the authorities that petitioners are in
possession of the plot for the last more than
5 years and their residential construction
without following procedure of law. He
further submitted that petitioners belong to
Muslim Community as such authorities
have proceeded with malice intention
against
the
petitioners.
He
further
submitted that title and entitlement of the
petitioners
being
infringed
which
is
guaranteed under Article 300A of the
Constitution of India as such petitioners are
entitled to the relief claimed in the writ
petition. He further placed the provisions
contained under Sections 64, 67 and 67-A
of U.P. Revenue Code, 2006 as well as
Rule 68 of U.P. Revenue Code Rules 2016
in support of his argument. He further
placed reliance upon the judgment of
Hon'ble Apex Court reported in AIR 2003
Supreme Court 4102 Manorey alias
Manohar Versus Board of Revenue (U.P.)
and Others in order to demonstrate that
petitioners are entitled to benefit of Section
67-A of U.P. Revenue Code, 2006.

6. On the other hand Mr. Abhishek
Shukla learned Additional Chief Standing
690 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the state respondents submitted
that Plot No.123 area 0.06620 hectare is
recorded as category 5(3)- Bajar in the
revenue record. He further submitted that
there was no construction of the petitioners
over plot in dispute and the averments
made to this effect in the writ petition are
wholly false. He further submitted that in
order to provide proper mobile connectivity
to the villagers, the land in dispute was
proposed for installation of BSNL Tower
but the ownership of the land shall
remained with Gaon Sabha. He further
submitted that construction/installation of
BSNL Tower of BSNL Tower has been
completed. He further submitted that after
inspection/demarcation of the land in
dispute illegal construction of Mohar
Singh,Ratan and Bhullan were found
accordingly three cases under Section 67(1)
of U.P. Revenue Code, 2006 have been
registered
being
Case
No.
T202309600306164,
T202309600306165
and T202309600306166 which are pending
before Tehsildar. He further submitted that
petitioners have taken contradictory stand
in their defense by stating at one hand that
their residential construction is situated
over disputed land and on the other hand
stating that trees are situated over the land
in dispute after demolition of the house. He
further submitted that in view of the entry
of the plot in dispute as well as the other
facts relating to possession of the plot in
dispute petitioner is not entitled to the
protection of Section 67-A of U.P. Revenue
Code, 2006 and writ petition is liable to be
dismissed.

7. Mr. B.K.Singh Raghuvanshi, learned
counsel for the respondent no.6 submitted
that state has given plot to respondent no.6
for construction/ installation of BSNL Tower
to provide mobile connectivity to the
villagers and the work has already been
completed as such no interference is required
in the matter. He further submitted that
petitioner is neither owner nor in possession
of the land in dispute as such petitioners are
entitled to claim any relief in the matter.

8. Mr. Kaushal Kishore Mani, learned
Counsel for the respondent no.5/Gram
Panchayat submitted that petitioners have not
found in possession of the land in dispute as
such petitioners cannot claim benefit of
Section 67-A of U.P. Revenue Code, 2006.
He further submitted writ petition filed on
behalf of petitioners for mandamus claiming
benefit of Section 67-A U.P. Revenue Code,
2006 in respect to the plot in dispute is not
maintainable before this court.

9. I have considered the argument
advanced by learned counsel for the parties
and perused the records.

10. There is no dispute about the fact that
Plot No. 123 area 0.0620 hectare is recorded
as banjar class 5(3) in the latest Khatauni of
1429-1434 fasli (1.7.2021 to 30.6.2027) as
well as in C.H. Form 45 which have been
annexed as Annexure No.2 to the writ petition.

11. Petitioners are claiming benefit of
Section 67-A U.P. Revenue Code, 2006 read
with Rule 68 of U.P. Revenue Code Rules,
2016 as such perusal of Sections 64,67-A and
Rule 68 of U.P. Revenue Code Rules, 2016
will be relevant which is as under:-

"U.P. Revenue Code, 2006

64. Allotment of abadi sites-
(1) The following order of preference
shall be observed in making allotment of
land referred to in Section 63-

(a) an agricultural labourer or
a village artisan residing in the Gram
12 All. Smt. Haseena & Ors. Vs. State of U.P. & Ors.
691
Sabha and belonging to a Scheduled
Caste or Scheduled Tribe or Other
Backward Classes or a person of general
category living below poverty line as
determined by the State Government.

(b)
any
other
agricultural
labourer or a village artisan residing in
the Gram Sabha.

(c) any other person residing in
the Gram Sabha and belonging to a
scheduled caste or scheduled tribe or
other Backward Classes or a person of
general category living below poverty
line
as
determined
by
the
State
Government:

Provided that preference will
be given to widow and physically
handicapped
person
within
same
category.

Explanation.-For
the
purposes of this sub-section-

(1) "other backward class"
means the backward classes of citizens
specified in Schedule I of the Uttar
Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 (U.P.
Act No. 4 of 1994);

(2) "person of general category
living below poverty line" means such
persons as may be determined from time
to time by the State Government.

(3) In making an allotment
under this section, preference shall be
given to a person who either holds no
house or has insufficient accommodation
considering the requirements of his
family.

(4) Every land allotted under
this section shall be held by the allottee
on such terms and conditions as may be
prescribed[ : ]

[Provided that if the allottee is a
married man and his wife is alive, she
shall be co-allottee of equal share in the
land so allotted.]

Section 67-A. Certain house
sites tobe settled with existing owners
thereof.-(1) If any person referred to in
sub-section (1) of Section 64 has built a
house on any land referred to in Section
63 of this Code, not being land reserved
for any public purpose, and such house
exists on the November 29, 2012, the site
of such house shall be held by the owner
of the house on such terms and
conditions as may be prescribed.

(2)
Where
any
person
referred to in sub-section (1) of
Section 64, has built a house on any
land held by a tenure holder (not
being a government lessee) and such
house exists on November 29, 2000,
the site of such house, notwithstanding
anything contained in this Code, be
deemed to be settled with the owner of
such house by the tenure holder on
such terms and conditions as may be
prescribed.

Explanation.-For the purpose
of sub-section (2), a house existing on
November 29, 2000, on any land held by
a tenure holder, shall, unless the
contrary is proved, be presumed to have
been built by the occupant thereof and
where the occupants are members of one
family by the head of that family.]

U.P. Revenue Code Rules,2016
692 INDIAN LAW REPORTS ALLAHABAD SERIES

68. Settlement of house sites
with existing owners thereof (Section 67A).- (1) Where any person referred to
in sub-section (1) of Section 64 has built
a house on any land referred to in
Section 63 of the Code, not being land
reserved for any public purpose and
such house exists on twenty-ninth day of
November 2012, the site of such house
shall be held by the owner of the house
on terms and conditions prescribed in
Rule 64.

Note.-For
the
removal
of
doubt it is hereby declared that the
maximum area of the site settled under
Section 67-A(1) of the Code or the rules
famed thereunder shall not exceed two
hundred square metres.

(2) Where any person referred
to in sub-section (1) of Section 64 has
built a house on any land held by a
tenure holder (not being a government
lessee) and such house exists on twentyninth day of November 2000, the site of
such house shall be deemed to be held by
the owner of the house on the following
terms and conditions-

(a) the maximum area of the
site settled under Section 67-A(2) of the
Code or the rules framed thereunder
shall not exceed two hundred square
meters.

(b) the owner of the house as
well as his heirs shall have a heritable
interest in the site and shall also have
unrestricted right to use the trees and
wells existing on the site subject to
existing rights of easements.

(c) he shall have a right to use
the site for construction of a residential
house, subject to existing rights of
easement.

(d) the owner of the house shall not be
liable to pay to the tenure holder or the
State Government any future rent in
respect of the site.

(e) the succession over the site
shall be governed by personal law which
the house owner was subject to.

(f) the owner of the house and
his heirs shall not be liable to ejectment
on any ground whatsoever.

(g) if the building is abandoned
or if the owner thereof dies without any
heir entitled to succeed, the land or site
shall escheat to the State.

(h) the tenure holder shall be
allowed remission of the proportionate
land revenue for the portion of his
holding settled under this rule with
house owners. The land shall also be
classified as abadi in the Khatauni
maintained under the Code."

12. In the instant matter petitioners
are claiming benefit of Section 67-A U.P.
Revenue Code, 2006 in exercise of
jurisdiction
under
Article
226
of
Constitution of India by way of writ of
mandamus although respondent authorities
are
denying
the
possession
of
the
petitioners
in
any
manner
nor
any
document on record demonstrate that
petitioners are in possession over the plot in
dispute for the last 25 years. Respondents
have not initiated proceeding against the
petitioners under Section 67 of U.P.
Revenue Code, 2006 as petitioners have not
found in possession over the plot in
dispute.
12 All. Smt. Haseena & Ors. Vs. State of U.P. & Ors.
693

13. The scheme has been provided
under Section 67 of U.P. Revenue Code,
2006 for settlement of the house site in
favour of occupant provided occupant built
a house which exists on 29.11.2012 and
occupant belong to particular category as
well as land should also be of particular
category upto certain area but all the
mandatory condition as mentioned above
are not fulfilled in the instant matter.

14. This court in the case reported in
2020 (147) RD 360 Baij Nath Versus
Commissioner Varanasi and Others as
well as 2020 (149) RD 434 Raju Versus
State of U.P. and Others has adjudicated
the same controversy. Paragraph Nos. 11 to
17
of
the
judgment
rendered
in
Raju(Supra) will be relevant for perusal
which are as under:-

"11. It is not disputed that land
from where the petitioners have been
ordered to be evicted, is recorded as
'Banjar'. It has not been earmarked as
an abadi site till date and is therefore,
not land referred to under Section 63 of
the Code.

12.
Section
64
extracted
above, shows the order of preference
to be followed up while making
allotment of an abadi site. Highest in
this
order
of
preference
are
agricultural
labourers
or
village
artisans belonging to the scheduled
caste or scheduled tribes followed by
other
backward
classes
and,
thereafter, by persons of general
category living below the poverty line.

13. None of the petitioners
belongs to the scheduled caste or
scheduled tribe as already noted herein
above. Two of them claim to belong to
the backward class while two appear to
be from the general category.

14. Careful perusal of the
applications under Section 67A, which
are stated to have been filed by the
petitioners, reveals that nowhere in these
applications have the applicants stated
that no agricultural labourers or village
artisan belonging to the scheduled caste
or scheduled tribe are residing in village
Pachrukhiya.
This
was
necessarily
required to be pleaded by them.

15. Merely because a person
lower in order of preference has
encroached upon Gaon Sabha land, he
cannot and should not be granted the
benefit of Section 67A unless and until he
is in a position to establish categorically
that a person higher in preference is not
available in the village. Any other
interpretation of Section 67A would
result
in
great
injustice
as
an
unauthorized occupant would be liable
to be granted its benefit only on account
of him or her having illegally encroached
upon Gaon Sabha property, despite
other needier and persons higher in
preference being available in the village.

16. Therefore, and for the
reasons given above, this Court is
constrained to hold that not only is the
land in issue in this writ petitions not
land governed by Section 63 of the Code,
as it has not been reserved for allotment
as abadi site, the petitioners are also,
prima facie, not eligible to the benefit of
Section 67A as their applications are
bereft of necessary pleadings. Therefore
on both counts the benefit of Section 67A
cannot be extended to the petitioners.
Although, reference has also been made
in
the
writ
petition
as
also
the
694 INDIAN LAW REPORTS ALLAHABAD SERIES
applications
under
Section
67A
to
provisions
of
the
U.P.
Zamindari
Abolition and Land Reforms Act, such
reference or reliance, in my considered
opinion, is not tenable because on date,
as also on the date the applications under
Section 67A have been filed by the
petitioners, the said Act, namely U.P.
Zamindari Abolition and Land Reforms
Act stood repealed.

17. In view of the foregoing,
these writ petitions lack force and are
accordingly dismissed."

15. In view of the ratio of law laid
down by this court in Raju (supra) and
Bajnath (supra) petitioners are not entitled
to any type of declaration or settlement as
provided under Section 67A of U.P.
Revenue Code, 2006 in exercise of
jurisdiction
under
Article
226
of
Constitution of India by way of writ of
mandamus.

16. So far as case law of Hon'ble
Apex Court in Manorey alias Manohar
(supra) is concern, the ratio of Manorey
alias Manohar (supra) is not available to
petitioners as petitioners have failed to
demonstrate from any evidence on record
that petitioners were in possession over the
plot in dispute which is the mandatory
condition for settlement under Section 67A of U.P. Revenue Code, 2006.

17. Considering the entire facts and
circumstances of the case no interference is
required in exercise of jurisdiction under
Article 226 of Constitution of India by way
of writ of mandamus.

18. Writ petition is dismissed
accordingly.

----------
(2023) 12 ILRA 694
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-C No. 25388 of 2023

Dayali & Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandra Prakash Kushwaha

Counsel for the Respondents:
C.S.C.,
Sri
Achal
Singh,
Sri
Ambhuj
Srivasatava

Civil Law - U.P. Revenue Code, 2006-Any
person belongs to Scheduled Caste community-
has been extended lease of a particular plot -
after passage of time- rights have been incurred
in favour of person belongs to Scheduled Caste
community as bhumidhar with transferable
rights -for the same plot and recorded in the
revenue records - in case, part of the same plot
has been transferred in contravention with the
provisions u/s 98 of U.P. Revenue Code, 2006 -
the same has been determined against the
person
belonging
to
Scheduled
Caste
community- entire plot shall not be vest with the
St.- only part transfer in contravention of the
sec. 98 of Code, 2006 -provisions available in
Rule 103 of U.P. Revenue Code Rules, 2016
shall vest with the St. and other left out portion
of the same plot- shall remain with the recorded
tenure holder belongs to Scheduled Caste
community-impugned order modified.

W.P. allowed. (E-9)

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Chandra Prakash
Kushwaha,
learned
counsel
for
the