S.N. Phukan ORDER
1. Leave is granted.
2. This appeal is form the judgment and order of the High Court of Judicature at Allahabad allowing in part Civil Misc. Writ Petition No. 26572 of 1999, filed by respondent 1 to 10, on August 16, 2000.
3. The dispute relates to plot No. 774-KA measuring 15 biswas situated in village Ugapur, Talluka Asnao. District Sant Ravidas Nagar (U.P.) (hereinafter referred to as pond) It appears that proceeding was initiated by Lekhpal of the village to allot plot of land to an extent of 15 biswas of the pond area on August 11, 1988.
4. The S.D.O. allotted 250 Sq. yards to each of respondents 1 to 10 who are said to belong to one family. Seventeen persons of that village objected to the said allotment under Rule 115-P of the U.P. Zamindari Abolition & Land Reforms Rule (for short, `the Rules'). The Additional Collector called for a report form the Tehsildar on their objections but the matter seems to have rested there as the objectors withdrew their objections. At that state the appellant filed an application praying the Additional Collector to cancel the allotment of land in favour respondents 1 to 10. On February 25, 1999 the Additional collector cancelled the allotment in question made in their favour. They carried the matter unsuccessfully in revision before the Commissioner Who by order dated March 12, 1999 dismissed the revision. Challenging the correctness of the order of the Divisional Commissioner said respondents filed Writ Petition No 26572 of 1999 in the High Court of Judicature at Allahabad BY the impugned order the High Court partly allowed the Writ Petition by confirming the allotment in respect of 10 biswas and cancelling in respect of biswas, which led to filing of this appeal.
5. Mr. Ranjit Kumar , the learned senior counsel for the appellant vehemently contends that the power of allotment of the land is available in respect of added site and not in respect of a pond which is a public utility and meant for public use; that no part of it could have been allotted in favour of any person, much less in favour of respondents 1 to 10 who do not fall in the specified categories of the beneficiaries under the Rules. He invited out attention to Section 122 C (1) which specifies the classes of land which can be earmarked for the provisions of abadi sites and pointed out that pond (Talab) area is not among them.
6. Mr. Dwivedi, the learned senior counsel appearing for the official respondents argued that having regard to the provisions of the Act and the Rules, it is difficult to support the allotment of the pond land in favour of respondents 1 to 10 and that the order of cancellation of allotment is justified and valid. Mr Garg the learned counsel appearing for respondents 1 to 10 submits that Legal forwarded proposals for allotment of house sites in the land which ceased to be pond, to the Additional Collector who allotted the plots in their favour. therefore, it must be assumed that the land was treated as abadi site in respect of which allotment of house site would be permissible.
7. The short question that arises for our consideration is whether the allotted land forms part of pond (Talab) and if so, can it be allotted under Section 122C (1) of the Act?
8. It would be useful to refer to the provisions of U.P. Zamindari