Allahabad High Court
Harbar Chamar vs B.O.R. And Others on 22 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 52 Case :- WRIT - B No. - 15899 of 1985 Petitioner :- Harbar Chamar Respondent :- B.O.R. And Others Counsel for Petitioner :- Sanjai Srivastava,H.N. Pandey,Rajesh Kumar Tripathi Counsel for Respondent :- S.C.,M.N.Singh Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Rajesh Kumar Tripathi and Mr. H.N. Pandey, Counsel for the petitioner, learned Standing Counsel for respondent Nos.1, 2, 3 and 5 and Mr. Bhupendra Kumar Tripathi, Counsel for respondent Nos.4 and 6.
2. The brief facts of the case are that proceeding under Section 122-B of U.P. Z.A.& L.R. Act was initiated against the petitioner in respect to plot No.314 area 1.28 acre on the basis of report of lekhpal that petitioner is in illegal possession of Gaon Sabha land. Petitioner filed his objection stating that petitioner belongs to scheduled caste community and he is in possession of disputed plot since before 30.06.1975 and having land less than one (1) acre as such petitioner is entitled to be recorded as sirdar. Lekhapl was examined before the Court and stated that petitioner belongs to scheduled caste community, his possession is since June 1976. Sub-Divisional Officer vide order dated 19.04.1977 on the basis of oral and documentary evidence on the record of the case has declared the petitioner as sirdar of the plot in dispute. A restoration application without any prayer for condonation of delay has been filed by lekhpal on 25.05.1977 to recall the order dated 19.04.1977. The Sub-divisional officer vide his order dated 12.10.1977 allowed the restoration application setting aside the order dated 19.04.1977 and sent the record before Tehsildar for necessary action. Petitioner challenged the order dated 12.10.1977 before the Commissioner through revision and Additional Commissioner recommended the revision before Board of Revenue through reference vide order dated 19.09.1978 that revision be allowed on the ground the Lekhpal in his individual capacity has no right to file restoration application and Sub-Divisional officer without hearing the petitioner has set aside the order dated 19.04.1977, but board of revenue vide order dated 10.07.1985 dismissed the revision of petitioner and maintained the order of trial court date 12.10.1977. Hence this writ petition.
3. This court while entertaining the writ petition has passed the following interim order dated 12.11.1987:-
"Mr. K. B. Garg, learned counsel for the gaon sabha prays for and is granted two months' time for filing a counter affidavit. Rejoinder affidavit, if any, may be filed within another one month. List the petition for admission on 08.03.1988.
Until further orders of this Court, the petitioner shall not be dispossessed from the land in dispute."
4. On 04.07.1988 writ petition was admitted and following interim order was passed:-
"Issue notice.
Until further orders of this Court, the petitioner shall not be dispossessed from the land in dispute."
5. In pursuance of the order dated 12.11.1987/ 04.07.1988 Standing Counsel filed counter affidavit along with stay vacation application on 09.05.2012 which was heard and disposed of vide order dated 24.07.2012, the order runs as follows:-
"This is a stay vacation application filed on behalf of respondents no. 3 and 5 along with counter affidavit. Learned counsel for the petitioner states that he does not intend to file rejoinder affidavit.
According to learned Standing Counsel under the interim orders dated 04.07.1988 and 12.11.1987 the dispossession of the petitioner from the land in dispute has been stayed which requires to be vacated in view of the averments made in the counter affidavit to the effect that although the Tehsildar had recommended that the petitioner would be entitled and be given benefit of Section 122-B (4-F) of the U.P.Z.A. & L.R. Act but the Lekhpal was competent to file a restoration application against the said order of the Tehsildar since the proceedings under Section 122-B were initiated on the report of the Lekhpal.
Learned counsel for the petitioner has submitted that under the impugned order passed in Reference no. 208 of 1978-79 (Harbar Chamar Vs Board of Revenue and others) the revisional court has illegally held that the Lekhpal could file an application to recall the order dated 30.3.1977 passed by the Tehsildar wherein he had recommended that the petitioner be declared Sirdar in accordance with Section 122-B (4-F) of the Act whereupon the Sub Divisional Officer had dropped the proceedings under Section 122-B of the Act and conferred sirdari rights on the petitioner. He states that once the sirdari rights had been conferred on the report of the Tehsildar the Lekhpal could not have filed a restoration application.
The submissions require adjudication.
In view of the aforesaid circumstances the stay vacation application stands dismissed. The interim order dated 4.7.1988 stands confirmed.
No order is passed as to costs"
6. Counsel for the petitioner submitted that petitioner belongs to the scheduled caste Community and is a landless agricultural labourer. He further submitted that petitioner is in possession since before 30.06.1975. He further submitted that trial court on the basis of report submitted by the Tehsildar has granted benefit of Section 122B (4F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 in favour of the petitioner and declared the petitioner as sirdar vide order dated 19.04.1977. He next submitted that against the order of trial court dated 19.04.1977 Lekhpal filed a restoration application without any prayer for condonation of delay and trial court vide order dated 12.10.1977 has allowed the restoration application and set aside the order dated 19.04.1977 without affording any opportunity to the petitioner. He next submitted that against the order dated 12.10.1977 revision filed by the petitioner, has been dismissed without considering the case of the petitioner. Counsel for the petitioner has relied upon the provisions contained under Section 122-B -(4F) of U.P.Z.A.&L.R. Act, which is as follows:
"Section 122-B(4F):-Notwithstanding anything in the foregoing sub-section, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in section 132) having occupied it from before (May 13, 2007) and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or assami does not exceed 1.26 hectares (3.125 acres) then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and he shall be admitted bhumidhar with non-transferable rights of this land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land."
7. Counsel for the petitioner further submitted that application for restoration/recall filed by lekhpal is against the provisions contained under para 128 of Gaon Sabha Mannual. He placed reliance upon the judgment reported in 1971 R.D. 115 Azimullah Vs. Gram Sabha.
8. On the other hand, learned Standing Counsel as well as counsel for respondent-gaon sabha submitted that earlier order of trial court has been recalled on the ground that petitioner was not found in possession on the relevant date, as such no interference is required in the matter and writ petition is liable to be dismissed.
9. I have considered the arguments advanced by the counsel for the parties and perused the record.
10. There is no dispute about the fact that petitioner belongs to scheduled caste community and was having 1.28 acre of land on the relevant date as such he was land less agricultural labourer. According to the petitioner, he is in possession of disputed plot since before 30.06.1975, but in the proceeding initiated under Section 122-B of UPZA & LR Act Lekhpal in his statement stated that petitioner is in possession since June 1976. Tehsildar in his report dated 30.03.1977 mentioned that from the oral evidence and the documentary evidences adduced in the proceeding under Section 122-B of U.P.Z.A.& L.R. Act, it is established that petitioner is in possession sine before 30.06.1975 accordingly trial court vide order dated 19.04.1977 granted benefit of Section122-B (4F) of U.P.Z.A. & L.R. Act to the petitioner and ordered to record the petitioner as sirdar. On the recall application of Lekhpal the order of trial court dated 19.04.1977 has been set aside vide order dated 12.10.1977 without any opportunity of hearing to the petitioner. Against the order of trial court dated 12.10.1977 petitioner filed revision which was sent before Board of Revenue through reference for allowing the revision but Board of Revenue has dismissed the revision and maintained the order of trial court dated 12.10.1977.
11. Since the trial court while ordering to record the name of petitioner has sirdar giving benefit of section-122-B (4F) of U.P. Z.A. & L.R. Act has considered the report of Tehsildar dated 30.03.1977 which was submitted after considering the statement of lekhpal, members of Gaon Sabha, petitioners & revenue records as such the order of trial court cannot be set aside on the recall application filed by lekhpal without any resolution of the Gaon Sabha, the basis of the restoration application is that he has stated before the Court that petitioner is in possession since June 1976. The trial court as well as Tehsildar has considered the Statement of the lekhpal as well as the statement of the members of the gram sabha so lekhpal has no locus to file restoration/recall application on the same ground which was already considered by the trial court and without affording opportunity of hearing to the petitioner the order passed on 19.04.1977 has been set aside and the revision filed by petitioner has been dismissed, which is arbitrary approach of the trial court and revisional court.
12. The Hon'ble Apex Court in the case reported in A.I.R. 2003 SC 4102 = 2003 (94) RD 538 Manorey @ Manohar Vs. Board of Revenue and others discussed the scope of Section 122-B (4F) of U.P.Z.A. & L.R. Act and has held that provisions contained under Section 122-B (4F) of the U.P.Z.A.&L.R. Act are beneficial provision and person is not liable to eviction if once claim is accepted it is bounden duty of the revenue authorities to make necessary entry in the revenue records. Paragraph Nos.8, 9, 10, 11 and 12 of the judgment rendered in Manorey (Supra) are as follows:
"....8. First, the endeavour should be to analyze and identify the nature of the right or protection conferred by sub-Section (4F) of Section 122B. Sub-Sections (1) to (3) and the ancillary provisions upto sub-Section (4E) deal inter alia with the procedure for eviction of unauthorized occupants of land vested in Gaon Sabha. Sub- Section (4F) carves out an exception in favour of an agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe having land below the ceiling of 3.125 acres. Irrespective of the circumstances in which such eligible person occupied the land vested in Gaon Sabha (other than the land mentioned in Section 132), no action to evict him shall be taken and moreover, he shall be deemed to have been admitted as a Bhumidhar with non transferable rights over the land, provided he satisfies the conditions specified in the sub-Section. According to the findings of the Sub- Divisional Officer as well as the appellate authority, the appellant does satisfy the conditions. If so, two legal consequences follow. Such occupant of the land shall not be evicted by taking recourse to sub-Section (1) to (3) of Section 122B. It means that the occupant of the land who satisfies the conditions under sub-Section (4F) is entitled to safeguard his possession as against the Gaon Sabha. The second and more important right which sub-Section (4F) confers on him is that he is endowed with the rights of a Bhumidhar with non transferable rights. The deeming provision has been specifically enacted as a measure of agrarian reform, with a thrust on socio-economic justice. The statutorily conferred right of Bhumidhar with non-transferable rights finds its echo in clause (b) of Section 131. Any person who acquires the rights of Bhumidhar under or in accordance with the provisions of the Act is recognized under Section 131 as falling within the class of Bhumidhar. The right acquired or accrued under sub-Section (4F) is one such right that falls within the purview of Section 131(b).
9. Thus, sub-Section (4F) of Section 122B not merely provides a shield to protect the possession as opined by the High Court, but it also confers a positive right of Bhumidhar on the occupant of the land satisfying the criteria laid down in that sub-Section. Notwithstanding the clear language in which the deeming provision is couched and the ameliorative purpose of the legislation, the learned single Judge of the High Court had taken the view in Ramdin Vs. Board of Revenue (supra) (followed by the same learned Judge in the instant case) that the Bhumidhari rights of the occupant contemplated by sub-Section (4F) can only blossom out when there is a specific allotment order by the Land Management Committee under Section 198. According to the High Court, the deeming provision contained in sub-Section (4F) cannot be overstretched to supersede the other provisions in the Act dealing specifically with the creation of the right of Bhumidhar. In other words, the view of the High Court was that a person covered by the beneficial provision contained in sub-Section (4F) will have to still go through the process of allotment under Section 198 even though he is not liable for eviction. As a corollary to this view, it was held that the occupant was not entitled to seek correction of revenue records, even if his case falls under sub-Section (4F) of Section 122B. We hold that the view of the High Court is clearly unsustainable. It amounts to ignoring the effect of a deeming provision enacted with a definite social purpose. When once the deeming provision unequivocally provides for the admission of the person satisfying the requisite criteria laid down in the provision as Bhumidhar with non-transferable rights under Section 195, full effect must be given to it. Section 195 lays down that the Land Management Committee, with the previous approval of the Assistant Collector in-charge of the Sub Division, shall have the right to admit any person as Bhumidhar with non-transferable rights to any vacant land (other than the land falling under Section 132) vested in the Gaon Sabha. Section 198 prescribes "the order of preference in admitting persons to land under Sections 195 and 197". The last part of sub-Section (4F) of Section 122B confers by a statutory fiction the status of Bhumidhar with non transferable rights on the eligible occupant of the land as if he has been admitted as such under Section 195. In substance and in effect, the deeming provision declares that the statutorily recognized Bhumidhar should be as good as a person admitted to Bhumidhari rights under Section 195 read with other provisions. In a way, sub-Section (4F) supplements Section 195 by specifically granting the same benefit to a person coming within the protective umbrella of that sub-Section. The need to approach the Gaon Sabha under Section 195 read with Section 198 is obviated by the deeming provision contained in sub-Section (4F). We find no warrant to constrict the scope of deeming provision.
10. That being the legal position, there is no bar against an application being made by the eligible person coming within the four corners of sub-Section (4F) to effect necessary changes in the revenue record. When once the claim of the applicant is accepted, it is the bounden duty of the concerned revenue authorities to make necessary entries in revenue records to give effect to the statutory mandate. The obligation to do so arises by necessary implication by reason of the statutory right vested in the person coming within the ambit of sub-Section (4F). The lack of specific provision for making an application under the Act is no ground to dismiss the application as not maintainable. The revenue records should naturally fall in line with the rights statutorily recognized. The Sub-Divisional Officer was therefore within his rights to allow the application and direct the correction of the records. The Board of Revenue and the High Court should not have set aside that order. The fact that the Land Management Committee of Gaon Sabha had created lease hold rights in favour of the respondents herein is of no consequence. Such lease, in the face of the statutory right of the appellant, is nonest in the eye of law and is liable to be ignored.
11. It is surprising that the State of U.P. had chosen to file an appeal against the order of the S.D.O., in tandem with the Gaon Sabha. It seems to be a clear case of non-application of mind on the part of the concerned authorities of the State who are supposed to effectuate the socio-economic objective of the legislation.
12. The appeal is allowed. The orders of the Board of Revenue and the High Court are set aside. The S.D.O's order is restored. No costs."
13. In the present case, the trial court on the basis of the report of Tehsildar dated 30.03.1977 has found that for granting the benefit of 122B (4F) of U.P.Z.A. & L.R. Act in favour of petitioner all the ingredients are fulfilled accordingly trial court has ordered to record the name of petitioner as sirdar as such lekhpal has no authority to file restoration/recall application in violation of para 128 of Gaon Sabha Manual, the trial court without affording opportunity of hearing to petitioner has set aside the earlier order by which petitioner was given benefit of Section 122-B (4-F) of U.P.Z.A. & L.R. Act as such the order of trial court was rightly ordered to be set aside by Additional Commissioner through reference to board of Revenue but Board of Revenue has arbitrarily dismissed the revisions filed by petitioner and maintained the ex parte order of trial court dated 12.10.1977.
14. Counsel for the petitioner relied upon the judgment of Board of Revenue reported in 1971 R.D. Page-115 Azimullah Vs. Gaon Sabha in which it has been held that Goan Samaj Litigation cannot be conducted at the sweet will of member of Gaon Sabha.
15. This Court in the case reported in 2011 (114) RD 106 Jagdish Pandey (dead) through LRs. Vs. Additional Collector (City) Gorakhpur and others has held that provision of para 128 of Gaon Sabha are binding and peremptory in nature. Relevant paragraph Nos.13 and 14 of the judgment are as follows:
"...13. The provisions of Para 131 appear to be binding and peremptory in nature. The procedure therein cannot be bypassed or else it would lead to a chaos. If any person or villager is allowed to sign documents the same would be not only inappropriate but also illegal as such a person will have no authority to represent a Gaon Sabha. The said provision cannot be wished off merely as directory in view of he language employed therein.
14. In view of the aforesaid conclusions drawn, the order impugned dated 14th March, 1997 is unsustainable and is hereby quashed. Consequently the revision which has been decided by the order dated 28th April, 1997 was also an incompetent order and the same is also set aside."
16. There is one more aspect of the case that the basis of the restoration/ recall application of the lekhpal was that petitioner is in possession since June 1976 but there was no dispute that petitioner belongs to scheduled caste community and is a landless agricultural labourer. The cut of date/ relevant date of possession under Section 122-B (4-F) of U.P.Z.A.&L.R. Act has become 13.05.2007 from 30.06.1975. The petitioner is in continuous possession since before 30.06.1975 according to petitioner as well as on the basis of other evidence but according to statement of lekhpal petitioner is in possession since June 1976. This court has stayed the dispossession of the petitioner vide interim order dated 12.11.1987/ 4.07.1988 and confirmed the interim order vide order dated 24.07.2012 rejecting the stay vacation application filed by State, which fully demonstrate the possession of the petitioner over the disputed plot since long.
17. Considering the entire facts and circumstances of the case as well as the ratio of law laid down by Apex Court in the Manorey (Supra) the impugned order dated 10.07.1985 passed by respondent No.1 and order dated 12.10.1977 passed by respondent No.3 are liable to be set aside and are hereby set aside.
18. The writ petition stands allowed and the order of trial court dated 19.04.1977 granting benefit of section 122-B (4F) of U.P.Z.A.&L.R. Act in favour of petitioner is hereby affirmed.
19. No order as to costs.
Order Date :- 22.11.2022 PS*