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2010 7 ADJ 306 ; 2010 6 AWC 5742 ; 2010 0 Supreme(All) 2486
[2010(7) ADJ 306 (DB)]
ALLAHABAD HIGH COURT
BEFORE : F.I. REBELLO, C.J. AND A.P. SAHI, J.
DEV NATH YADAV AND ANOTHER ….Petitioners
Versus
STATE OF U.P. AND OTHERS ….Respondents
(Civil Misc. Writ Petition No. 44391 of 2010, decided on 30th July, 2010)

U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 117(6)—U.P. Consolidation of Holdings Act, 1953—Section 29-C—Land—Resumption of—Justification—Grievance of petitioners that land earmarked for pasture, pond, pathway and school sought to be resumed by Government under Section 117 to construct residential colony—Contention that once the land is earmarked for the purpose stated above, it is not open to Government to resume the same—As per statutory provisions, no fetter on the power of State Government to resume land reserved for pasture, pond, land submerged under water pathway and school—Only right of Gaon Sabha is to receive compensation—As per Section 117 the land vested in Gaon Sabha can only be utilised for which it is earmarked—But it would be a fetter on Gaon Sabha and not a fetter on Government to resume the land for any purpose. [Paras 7, 8 and 10]

       Result; Petition Dismissed.

       

Act Referred :
UTTAR PRADESH CONSOLIDATION OF HOLDINGS ACT : S.29(c)
UTTAR PRADESH ZAMINDARI ABOLITION AND LAND REFORMS ACT : S.117(6)

Counsel :
R.C. Singh for the Petitioners; C.S.C. for the Respondents.

DEV NATH YADAV VS STATE OF U. P.

JUDGMENT

By the Court.—We have heard learned counsel for the parties.

2. It is the case of the writ petitioners that the land identified, being plot Nos. 513, 515 and 520 were earmarked for pasture, pond, land submerged under water, pathway and school. This land is sought to be resumed by the State Government under Section 117 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’) to construct residential colony under Kanshi Ram Shahari Awas Yojna for the residents of Mubarakpur.

3. The submission of the writ petitioners is that once the land is earmarked for the purpose as above, it is not open to the State Government to resume the land. It is further submitted that the land vested in Gaon Sabha is meant for the benefit of the villagers and not for the persons, who reside in the town.

4. Section 117 (1) of the Act reads as follows :

“117. Vesting of certain lands, etc. In Gaon Sabhas and other Local Authorities.— (1) At any time after the publication of the notification referred to in Section 4, the State Government may [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the following things, namely—

(i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove;

(ii) forests;

(iii) trees, other than trees in a holding on the boundary of a holding or in a grove or abadi;

(iv) fisheries;

(v) hats, bazars and melas, except hats, bazars and melas held on lands to which the provisions of Clauses (a) to (c) of sub-section (1) of Section 18 apply or on sites and areas referred to in Section 9; and

(vi) tanks, ponds, private ferries, water channels, pathways and abadi site, which had vested in the State under this Act, shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority (including a Gaon Sabha) and partly in another.

Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be [specified in such order].”

5. It is thus, clear that all the land set out therein, which were vested in the State Government, vests in the Gaon Sabha or local authority, as the case may be. In other words, the State Government, which was the owner of the lands by virtue of Section 117 of the Act, has sought to transfer that right in favour of the Gaon Sabha or any other local authority.

6. At the same time, by virtue of Section 117 (6) of the Act, it has been provided that it is open to the State to resume land on payment of compensation to the Gaon Sabha or other local authority.

Section 117 (6) of the Act reads as under :

“117 (6). The State Government may at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things.

Provided that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority including a Gaon Sabha), and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration.”

7. On a plain reading of sub-sections (1) and (6) of Section 117 of the Act, we do not find any fetter on the power of the State Government to resume land reserved for the pasture, pond, land submerged under water, pathway and school. The only right of the Gaon Sabha is to receive compensation.

8. It is also not permissible for the writ petitioners to contend that because the land was reserved for the benefit of the villagers, the poor persons residing in the town cannot be re-settled. The right of re-settlement of the persons, who do not have proper homes, is a part of the fundamental right to housing, which is now well recognised by the Supreme Court, being a part of life under Article 21 of the Constitution of India.

9. Learned counsel for the writ petitioners has also placed reliance upon Section 29-C of the U.P. Consolidation of Holdings Act, 1953, which reads as under :

“ 29-C. Vesting of land contributed for public purposes.—(1) The land contributed for public purposes under this Act shall, with effect from the date on

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