Allahabad High Court
Raj Kumar vs State Of U.P. Thru Collector & 4 Others on 14 July, 2017
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 7 Case :- WRIT - B No. - 18098 of 2017 Petitioner :- Raj Kumar Respondent :- State Of U.P. Thru Collector & 4 Others Counsel for Petitioner :- Ruduvant Pratap Singh,Ramesh Chandra Singh Counsel for Respondent :- C.S.C.,A.K.Saxena,Mehboob Ahmad,Rajesh Yadav Hon'ble Suneet Kumar,J.
Heard Sri R.C. Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
Petitioner is aggrieved by the order passed by the District Deputy Director of Consolidation affirming the order passed by the of Settlement Officer of Consolidation, whereby, the order of the Consolidation Officer directing to enter the name of the petitioner in the revenue record has been reversed.
During consolidation proceedings objection came to be filed by the petitioner under Section 9(A)2 of the U.P. Consolidation of Holdings Act, 1953, before the Consolidation Officer contending that he is landless agricultural labour belonging to scheduled caste community and is in possession of the disputed property prior to the cut of date i.e. 30 June 1985, therefore, the disputed plot stood settled as bhumidhar with non-transferable rights in terms of Section 122-B (4F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act). The objection was allowed upon recording the statement of one Tulsi and member of the Consolidation Committee.
Aggrieved, Gaon Sabha preferred an appeal which was allowed on 30 December 2012 by the Settlement Officer of Consolidation. Petitioner assailed the appellate order in revision which has been dismissed by the impugned order.
The dispute pertains to gata no. 376 plot no. 2006 admeasuring 3-0-0 bigha recorded "banjar" in the basic year khatauni, thus, vesting in the Gaon Sabha. In the impugned order, the revisional authority would note that to confer benefit of Section 122B (4F) of the Act, the occupant would have to prove and demonstrate continuous possession. The possession, however, was proved by the petitioner by leading oral evidence, whereas, there being no documentary evidence, viz. khasra (field register) etc. to show that petitioner was in possession of the land in dispute as unauthorized occupant. Merely on caste certificate and statement of two witnesses would not be sufficient to confer benefit of Section 122B (4F), without there being documentary evidence showing possession. Further, the Consolidation Officer would have no authority to exercise power or jurisdiction under Section 122B(4F).
Learned counsel for the petitioner would submit that petitioner belongs to scheduled caste community and is in possession of the disputed plot for several years prior to the cut of date. The possession was proved by the petitioner by leading oral evidence. He would further submit that in the basic year khatauni, the land is recorded banjar, therefore, the objection filed before the Consolidation Officer under Section 9(A)2 of the U.P. Consolidation of Holdings Act to expunge the entry of the Gaon Sabha and record the name of the petitioner would be maintainable before the consolidation authorities.
In rebuttal, learned Standing Counsel appearing for the contesting Gaon Sabha would submit that the impugned order is just and lawful, there is no documentary evidence available on record to show the continuous possession of the petitioner. The Consolidation Officer would have no authority to determine and decide the right of the parties on the date of notification i.e. 1981, issued under Section 4 of the Act. The impugned orders calls for no interference.
Facts interse parties are not in dispute.
On rival submissions, the issue for determinations is: (i) whether, possession of the land vesting in the Gaon Sabha could have been proved by merely leading oral evidence; (ii) whether, the Consolidation Officer would have jurisdiction under Section 122B (4F) of the Act.
To appreciate the issues, reference to Section 122B is necessary. The said section prescribes the procedure for eviction of a person wrongly occupying or damaging or misappropriating the property vesting in Gaon Sabha or a local authority. The Land Management Committee or Local Authority as the case may be, shall inform the Assistant Collector and thereupon the Assistant Collector should issue notice to the person concerned to show cause. The Assistant Collector is not satisfied with the explanation, he may direct eviction of the occupant by using force, if, necessary and may further direct that compensation be recovered from such person. The person aggrieved has a right of revision to the Collector and he can also file a suit to establish his right.
Sub-Section 4F is exception to Section 122B(1), (2) and (3). Sub-Section 4F begins with a non-obstante clause providing that where an agricultural labourer belonging to a scheduled caste or scheduled tribe is in occupation of any land vested in the Gaon Sabha under Section 117 having occupied it before June 13, 1985 which together with land, if any, held by him from before which does not exceed 1.26 hectares, then no action under the section shall be taken by the Land Management Committee or against such labourer, and it shall be deemed that he has been admitted as Bhumidhar with non-transferable rights of that land under Section 195.
Sub-section 1, 2 and 3 of Section 122B only empowers the Assistant Collector to initiate action on the basis of information received by him to evict unauthorized occupant of the property belonging to the Gaon Sabha. It does not specifically provide for entertainment of an application by a person who seeks protection of his rights under Sub-Section (4F), that is, of no material consequence in view of the right emerging under Sub-Section (4F). Sub-section 4F carves out an exception in favour of agricultural labourer belonging to scheduled caste or scheduled tribe community having land below the ceiling limit. Irrespective of the circumstances in which such eligible person shall have occupied the land vested in Gaon Sabha other than the land mentioned in Section 132, no action to evict him shall be taken and more over, he shall be deemed to have been admitted as bhumidhar with non-transferable rights over the land, provided he satisfies the conditions specified in sub-section.
The right acquired or accrued under subsection (4F) is one such right that falls within the purview of Section 131(b), therefore, two legal consequences follow: (i) such occupant of land shall not be evicted by taking recourse of Sub-Section 1, 2 and 3 of Section 122B. It, therefore, means that the occupant of the land, who satisfies the conditions is entitled to safeguard his possession as against the Gaon Sabha; (ii) the more important right which sub-section (4F) confers on him is that he is endowed with the right of a bhumidhar with non-transferable rights. The deeming provision has been specifically enacted as a measure of agrarian reform, with a trust on socio-economic justice. Thus, Sub-Section (4F) not merely provides a shield to protect the possession but it also confers a positive right of bhumidhar on the occupant of the land satisfying the criteria laid down in that sub-section. (Refer: Manorey alias Manohar vs. Board of Revenue, JT 2003 (3) SC 538: 2003 RD (94) 538) The lack of specific provision for making an application under the Act is good ground to dismiss the application as not maintainable. The revenue records should naturally fall in line with the rights statutorily recognized. 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.
Upon notification under Section 4 of the Consolidation of Holdings Act, 1953, all such occupant claiming settlement in terms of sub-section (4F), would, therefore, have a right to file objection aginst the Gaon Sabha for recording their names as bhumidhar with non-transferable rights vide Manorey (supra).
A bare reading of the section shows that the section originally raises a presumption that a person in occupation would fall in the category enumerated therein and shall be deemed to be admitted as Sirdar. The section was further amended by U.P. Act 11 of 2002 which clarified that it would not be necessary for the occupant to institute a suit for declaration of his right as Bhumidhar with transferable right for that land. Thus, the right is conferred by the statute upon fulfilling the conditions mentioned therein and not by an authority. If the conditions mentioned in the sub-section is proved by the occupant, then it is well within the jurisdiction of the Consolidation Authorities to the record name of any occupant.
In my opinion, the application would be maintainable for the reason that objection under Section 9 or Section 9A(2) is akin to a suit. The Consolidation Officer, therefore, on such application would have to return a finding that the conditions contemplated in Sub-Section (4F) is fulfilled and in the event a finding is returned that the condition stands fulfilled, the authority can direct correction of the record.
In so far as the finding recorded by the revisional authority that the Consolidation Authorities would have no jurisdiction under Section 122B (4F) to direct the entry of the name of the occupant in the revenue record upon returning a finding of possession is incorrect and against the law laid down in Manorey (supra), therefore, unsustainable.
Now returning to the admitted facts, inter se parties, to examine as to whether, petitioner successfully proved his possession over the land.
There is no documentary evidence to record the possession of the petitioner. Khasra (field register) of the relevant year was not filed to show that the petitioner was carrying on agricultural activity on the occupied land as was deposed by the witnesses. It is in the backdrop of oral evidence the Consolidation Officer came to the conclusion that the petitioner is in occupation of the land, therefore, directed the name of the petitioner be entered in the revenue record.
The question that would fall for determination is, as to whether, occupation of Gaon Sabha land can be proved exclusively by leading oral evidence without being supported by any credible documentary evidence to support the testimony.
This Court in Sanjai Kumar vs. Collector/District Magistrate, Kanpur Dehat, 2005 98 RevDec 454, opined that Section 122B(4F) is grossly misused, and the benefit of the sub-section does not reach to weakest and meekest amongst scheduled caste. Experience would show that the weakest and poor people do not encroach upon the Gaon Sabha land, it was only the strong and influential persons of the community who forcibly occupy. Therefore, the court was of the opinion that the misuse can sufficiently be checked if the benefit of sub-section (4F) is given only and only to those members of the community whose possession is entered into revenue records prior to the cut of date or eviction proceedings are pending against them before the said date. Reference was made to the decision rendered in Ghanshyam Singh vs. State of U.P. through Secretary Revenue, Secretariat, Lucknow and others, 2005 98 RevDec 489, wherein, it was held the occupant can get the benefit of sub-section (4F) only if the occupant can show that his name was entered in the revenue record as occupant before the cut of date and not otherwise. The aforementioned decisions have been referred in a subsequent judgment rendered in Satya Veer and another vs. State of U.P. and others, 2015 (4) AWC 3557.
It appears from the material brought on record that the objection under Section 9(A) was filed by the petitioner after the Land Management Committee of the Gaon Sabha had allotted the plot to the fifth respondent, a Government Electricity Company for setting up a power plant, meaning thereby, the land was not in the occupation of the petitioner. Had the petitioner been an occupant proceedings would have been initiated by the Land Management Committee under Section 122B for eviction.
Learned counsel for the petitioner would admit that at no point of time the petitioner was recorded as unauthorized occupant in the khasra. But it is for the first time he set up his claim before the Consolidation Officer on the basis of his possession which was sought to proved by oral evidence alone. The learned counsel would place reliance on a decision of this Court rendered in Mangu vs. Deputy Director of Consolidation, Allahabad, 2010 (111) R.D. 379, to contend that adverse possession can be proved by adducing oral evidence, as well as, documentary evidence. The decision pertains to adverse possession and would not apply in the facts of the present case for the reason that land vesting in the Gaon Sabha, title cannot be claimed by adverse possession. To prove possession of Gaon Sabha land being used for the purposes of agriculture by the occupant stands on a different footing. Even if the testimony of the witnesses is taken on face value, they would only contend that the petitioner was carrying on agricultural activity for several years prior to the cut of date. None of the witnesses have made a categorical statement as to when the petitioner occupied the land, the mouth nor the year was stated. Under the revenue law any and every activity that is being carried on agricultural land by any person, including an unauthorized occupant is recorded in the field register (khasra), however, no such documentary evidence was produced nor is available. The Bhumidhari right is being claimed on a parcel of land admeasuring 3 bighas, which is not a small holding. The land is being used, as per the contention of the petitioner, for sowing crops, however, this statement is not substantiated by any entry in the revenue record.
Khasra is the detailed description of the fields which are shown in the map. It is prepared and maintained year-wise, khasra itself is not a record of rights but it is the foundation of the record of rights and the source of all agricultural statistics. It contains all agricultural facts, such as crops, irrigation, trees, names of tenure holders, trespassers, occupants etc. Para A-55 of the Land Records Mannual provides that "in order to maintain the map and khasra, the Lekhpal shall make three field inspections of every village in his halka" khasra is prepared year-wise.
Had the petitioner been in prolonged possession and carrying agricultural activity, proceedings for eviction would have been initiated against the petitioner under Section 122B after informing the Assistant Collector. On the date on which the Gram Panchayat passed the resolution to allot the plot for setting up a power plant, no occupation or possession is recorded, established or proved. For carrying on agriculture, the land is to be prepared by erecting the boundaries (medh). It is not the case of the petitioner that the boundaries were erected. In the circumstances, the authorities were justified in coming to a conclusion that the petitioner is not in occupation of the land.
Having due regard to the facts and circumstances, I am of the considered opinion that possession of the petitioner over the land in dispute was not established by oral testimony. The testimony is not backed by any documentary evidence. Any person carrying on agricultural activity as an unauthorized occupant is duly entered in the field register by the Halka Lekhpal. It is the case of the petitioner that he entered possession of the land for more than 5 to 6 years, therefore, in the absence of any documentary evidence recording agricultural activity on the said land, possession would not be held to have been proved for claiming benefit under Sub-Section 4F.
Learned counsel for the petitioner failed to point out any illegality, infirmity or jurisdictional error in the impugned order.
The petition being devoid of merit is, accordingly, dismissed.
Order Date :- 14/7/2017 S.Prakash