UP Revenue Code | SDM's Duty To Protect Allottee's Possession Continues Beyond Initial Allotment: Allahabad High Court

The Allahabad High Court has held that under Section 65 of the U.P. Revenue Code, 2006, the Sub-Divisional Officer/ Sub-Divisional Magistrate is required to protect the possession of the allottee as long as the title of the property vests in the State. It held that the job of the SDO does not end at after allotment of initial possession but continues till the State has title over the property. Section 65 of the U.P. Revenue Code, 2006 provides for delivery of possession of allotted property. Sub-section (1) of Section 65 provides that where a person other than the allottee under the Code, takes possession of the land in contravention to the provisions of the Code, the Sub-Divisional Officer can suo moto and on an application by the allottee, put the allottee in possession of the property. Necessary force may be used for restoring possession.Referring to the decision of Allahabad High Court in Hawaldar Yadav Vs. State of U.P. and others, the bench of Justice Atul Sreedharan and Justice Siddharth Nandan held“as such Sub-Divisional Magistrate is required to protect the possession of the allottee in exercise of his powers under Section 65 of the Code, 2006, as long as the title vests in the State and Gaon Sabha is entrusted with the property, with conditions for re-vesting, in the terms and conditions of allotment envisaged under Rule 64 of the Rules, 2016.”Petitioner was allotted the land in question in 2012 and was given a residential lease with no house under the Code. Petitioner pleaded that after her husband's death she started construction of a house, which was washed away due to heavy rain. Thereafter, certain men threatened her against raising any construction and began encroaching on her land. Petitioner pleaded that despite approaching the District Magistrate and the SDM, no action was taken. Accordingly, she approached the High Court seeking directions for appropriate action by the authorities. The Court observed that if the powers of the SDO are restricted to the time of initial allotment only, then the SDO cannot protect a person, who is of the weaker section of the society, when he is prevented from raising construction over his property. It held that such an interpretation would defeat the purpose of the beneficial legislation which is to provide “shelter to an agriculturist labour or a member of marginalised section.”Holding that where two constructions are possible, the beneficial view must be adopted, the Court held “The State cannot take a stand that in spite of the facts that the title belongs to the State, the onus to protect the same is on the allottee; and at the same time for want of such action, a third persons continues to enjoy the property of the State, in contravention of the provisions of the Code, 2006. It is for this purpose that Section 65 and Section 129 of the Code, 2006 hasbeen incorporated, to ensure that the possession of the allottee who is a landless, marginalised person, is protected; any other interpretation will only lead to futility, of the very purpose of the enactment; and the provision for allotment under Section 64 of the Code, 2006.”Noting that under the Code, the allottee does not become the Bhumidhar, the Court held that the SDM must protect the property and possession even after delivering the possession. Further, the Court held that the allottee does not become the Bhumidhar of the property, the title remains with the State/ Gaon Sabah. It held that “there is an un-escapable conclusion, on harmonising the construction of Section 65 and Section 129 read-with Rule 64; that as long as the State/Gram Panchayat holds an interest, in the property allotted, they are also under an onerous duty to protect the same against any damage or mis-appropriation which includes encroachment, till such time, the object of the allotment i.e. to provide a shelter, to an agriculturist labour, from marginalised section is achieved; and which is also a Constitutional obligation, on a welfare State.”The Court held that in a suit under Section 134 of the Code, the State and Gram Panchayat will be necessary parties as the title holders of the property. Accordingly, allowing the writ petition, the Court directed the S.D.M, Tehsil- Khaga, Disrtrict- Fatehpur to take cognizance of the application of the petitioner and proceed in accordance with law. Case Title: Smt. Geeta Devi and another Versus State of U.P. and 5 othersClick Here To Read/Download Order

UP Revenue Code | SDM's Duty To Protect Allottee's Possession Continues Beyond Initial Allotment: Allahabad High Court

Upasna Agrawal

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