Sangeeta Chandra, J.
1. Heard.
2. This petition has been filed challenging the order dated 30.11.2016 passed by the Additional District Magistrate/Collector Sitapur in Suit No. D2016106400525 and also the order dated 8.9.2020 passed in Revision No. C201610002485, by Additional Commissioner (Judicial), Lucknow Division, Lucknow.
3. It is the case of the petitioner that he has been allotted a part of Gata No. 464/0.405 hectare for cultivation in 1995 as he did not have 3.120 acre agricultural land in the village concerned and fell within the eligibility criteria, on the basis of the Resolution passed by the Gaon Sabha under section 122-B (4) (F) of U.P.Z.A. & L.R. Act, in Case No. 25; decided on 15.3.1995 by Sub-Divisional Magistrate Mishrikh, Sitapur. The said land was recorded as 'Pashuchar' or public utility land but was never used as 'Pashuchar'. The name of the petitioner was recorded in the khatauni by an order dated 26.4.1995 and on 31.12.2005, the Sub-Divisional Officer taking into account the Government Order dated 14.9.1995, had passed an order giving transferable right to the petitioner. The name of the petitioner was recorded in the revenue record in plot No. 464/0.405 hectare and the petitioner has been cultivating the same till date. After a lapse of more than 21 years, the respondent No. 2 had issued a notice under section 128 (1) of the U.P. Revenue Code, 2016 on 9.8.2016. A copy of such notice has been annexed as Annexure-8 to the writ petition.
4. Learned Counsel for the petitioner says that such an action of issuing notice was without jurisdiction as it was beyond the limitation prescribed under the and the Rules. The petitioner filed his objections saying that the proceedings are not maintainable in view of the section 128 (1-A) of the U.P. Revenue Code.
5. Learned Counsel for the petitioner submits that under section 128 (1-A) which came into force on 11.3.2016, a limitation is provided but the petitioner was granted lease under section 122-B (4) (F) of the U.P. Z.A. & L.R. Act on 26.4.1995, and therefore, the proceedings were barred by limitation. The Additional Collector issued notices to the petitioner for filing of the objections of the petitioner. The case was registered as Case No. D2016106400525: State v. Ram Prasad. The objections filed by the petitioner with regard to the limitation were not considered but the Additional Collector on the basis of false report by the revenue officials cancelled the lease granted to the petitioner. Feeling aggrieved, the petitioner filed Revision before the Additional Commissioner (Judicial) bearing Revision No. C201610002485 and notice was issued. Later on the Additional Commissioner (Judicial) without taking into account the limitation under Act to initiate such proceedings, has rejected the Revision by the impugned order dated 8.9.2020.
6. It has been argued by learned Counsel for the petitioner that the State Government had issued a letter dated 14.9.1995 directing the authorities to grant lease to poor scheduled caste category villagers under section 122-B(4)(F) of the U.P. Z.A. & L.R. Act, who had agricultural land below 3.25 acres in the village concerned and had been continuing in possession of more than ten years. In this case, the petitioner was in possession of the land in question since 1985, therefore, his case was considered and he was granted lease. The petitioner has planted 18 mango trees, 5 neem trees, 10 goplar trees, 3 jamun trees, 15 shisham trees and 9 chandi trees and total of 94 trees which are standing in the land in question and he has sown the crop of sugarcane also.
7. It has also been argued that the petitioner shall suffer irreparable loss in case this Court does not interfere in the orders impugned to save his possession.
8. Sri Ratnesh Agnihotri, learned Standing Counsel, has pointed out the order initially passed by the Sub-Divisional Officer on 15.3.1995 allegedly under section 122-B (4) (F) of the U.P. Z.A. & L.R. Act. He states that the Sub-Divisional Officer taking into account only the fact that although the land was public utility land but has been used for the said purpose since long and the petitioner was in possession before 30.6.1995 passed an order changing the nature of the land from Category 5ga i.e. 'Charagah' to 'Naveen Parti' and then directed for recording the name of the petitioner therein on account of the fact that the petitioner was scheduled caste and had been in possession since long.
9. Sri Ratnesh Agnihotri, learned Standing Counsel, has also pointed out the orders passed by the Additional Collector, wherein the Additional Collector has considered section 132 of the U.P. Z.A. & L.R. Act, now re-numbered as section 77 of the U.P. Revenue Code, wherein it has been specifically provided that land reserved for public utility cannot be given and no transferable or non-transferable rights as 'sankramaniya' or 'asankramaniya' Bhumidhar can be granted on such land.
10. Learned Standing Counsel has further pointed out from the order of the Additional Collector (Judicial) that the Additional. Collector (Judicial) has considered the fact that the nature of the land has been changed by the Sub-Divisional Officer in his order dated 26.4.1995 which could not have been changed as such power lies only with the Board of Revenue.
11. He has submitted that this Court in Writ Petition No. 7026 (Cons.) 2019: Babu Ram v. Consolidation Officer, has held that nature (Navayyait) of the land cannot be changed by the Sub-Divisional Officer or even by the Additional Collector and if any order has been passed changing the nature, of land from 'charagah' to 'naveen parti' and lease has been granted which has matured also into bhumidhari rights, the initial order changing the navayyait being vitiated and without jurisdiction, it becomes non. est and even the bar of limitation would not help the bhumidhar/lease holder.
12. This Court has considered the orders impugned and finds no good ground in the writ jurisdiction as no direction can be issued by this Court which amounts to restoring an illegal order passed by any authority without jurisdiction. More so this Court also find that the orders impugned if interfered with will only lead to perpetuation of illegality.
13. The writ petition is dismissed. However, it is provided that before taking possession of the Gata No. 464/0.405 hectare, an on the spot inspection shall be carried out by the area Lekhpal and the supervisor Kanungo alongwith the members of the Land Management Committee and the petitioner and they shall count the trees planted by the petitioner on such land and ensure that proper valuation of such trees is done and he is given the value of the trees planted by him after adjusting any dues that are admissible to the Gaon Sabha for unauthorized possession over public utility land.
