Allahabad High Court
Shiv Raj And Others vs Addl. Collector (Supplies), Ghaziabad ... on 10 February, 1998
Equivalent citations: 1998(1)AWC730, 1998 ALL. L. J. 1511, 1998 A I H C 4154, (1998) 1 ALL WC 730, (1998) REVDEC 359
JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 25.11.1997 passed by the Additional Collector, respondent No. 1, allowing the revision filed by respondent Nos. 3 and 4.
2. The facts, in brief, are that the Lekhpal submitted a report on 5.8.1995 to the Tahsildar that the petitioners had encroached upon the land of the Gaon Sabha Dasna, District Ghaziabad. The Tahsildar/Assistant Collector. Ghaziabad took the proceedings under Section 122B of U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) against the petitioners. He issued notice in Form 49A to the petitioners Indicating that the petitioners were in unauthorised occupation of plot Nos. 3298. 3299. 3300. 3301 and 3303 of the village in question. The petitioners filed objection. They stated that they are Jatav by caste and belong to scheduled caste. They have been in possession over the land in dispute prior to the year 1985 and have acquired Bhumidhori rights under Section 122B (4F) of the Act. Shyam Lal, petitioner No. 2, appeared as witness and produced Ram Das and Daya Ram in support of their version. On behalf of the State, the Lekhpal made statement. The Assistant Collector by his order dated 23.11.1995 held that the petitioners were in possession since prior to June 30, 1985 and they, being Scheduled Caste landless agricultural labourers, were entitled to the benefit of Section 122B (4F) of the Act and dropped the proceedings.
3. On 29.12.1995 Raj Pal and respondent Nos. 3 and 4 filed an application before the Assistant Collector to recall the order dated 23.11.1995 alleging that they were in possession over plot Nos. 3301 and 3302. The petitioners were not parties in the proceedings which were taken against the petitioners and they have obtained order on 23.11.1995 whereby they have been granted the benefit of Section 122B (4F) of the Act. This has materially prejudiced their rights. The petitioners filed objection to the said application. The Assistant Collector rejected the application vide his order dated 29.6.1996. They filed review application before the Assistant Collector against the order dated 29.6.1996 and also filed revision before respondent No. 1. Respondent No. 1 has allowed the revision filed by the respondents by the Impugned order dated 25.11.1997 holding that the contesting respondents were entitled to be heard. It was further held that the Assistant Collector had no jurisdiction to pass an order under Section 122B (4F) of the Act.
4. I have heard Sri Janardan Sahai, learned counsel for the petitioners, and Sri V. K. Jaiswal, learned counsel for respondent Nos. 3 and 4.
5. Learned counsel for the petitioner submitted that the application filed by the respondents to recall the order dated 23.11.1995 was not maintainable as they were not parties to the proceedings under Section 122B of the Act. A perusal of the order dated 23.11.1995 indicates that the Assistant Collector had granted the benefit to the petitioners under Section 122B (4F) of the Act which provides that where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in Gaon Sabha under Section 117 of the Act before June 30, 1985. it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under Section 195 of the Act. Those provisions read as under :
"122B (4F) Notwithstanding anything in the foregoing sub-sections, 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 June 30, 1985 and the land so occupied together with land, If any. held by him from before the said date as bhumidhar, sirdar or asami, 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 it shall be deemed that he has been admitted as bhumfdhor with non-transferable rights of that land under Section 195.
195. Admission to land.--The Land Management Committee with the previous approval of the Assistant Collector incharge of the sub-division shall have the right to admit any person as bhumidhar with non-transferable rights to any land other than land being in any of the classes mentioned in Section 132, where:
(a) the land is vacant land,
(b) the land is vested in the Gaon Sabha under Section 117, or
(c) the land has come into the possession of Land Management Committee under Section 194 or under any other provision of this Act."
6. The effect of the order passed by the Assistant Collector dated 23.11.1995 is that the petitioners shall be deemed as bhumidhars of the land with non-transfer able rights. The petitioners were claiming the rights on the allegation that they were in possession of the land In dispute for the last 15 years. The contention of the respondents was that they were, In fact in possession. In these circumstances, respondents were justified to file an application to recall the order dated 23.11.1995 so as to determine which of the parties was in possession over the land in dispute.
7. Learned counsel for the petitioners has placed reliance upon the decision Ramdin and others v. Board of Revenue and others, 1994 RD 395, wherein it was held that Section 122B (4F) does not create title. It only protects possession of those who satisfy the eligibility criteria prescribed therein. It operates as a bar to the claim of Gaon Sabha or the local authority either for ejectment or for recovery of the amount of compensation for damages, misappropriation or wrongful occupation. This case has no application to the facts of the present case. The question involved here is as to whether the petitioners were in possession or respondents were in possession of the land in questiqn. This factual aspect has to be gone into before a final order giving benefit of Section 122B (4F) is passed by the Assistant Collector.
8. The second submission of the learned counsel for the petitioner is that respondents had not challenged the order dated 23.11.1995 by filing any revision against the said order and that became final. A perusal of the application filed by the respondents indicates that the respondents have prayed to recall order dated 23.11.1995. This order has been recalled by the Impugned order.
9. The last submission of the learned counsel for the petitioners is that the proceedings were taken against the petitioners for ejectment regarding five plots, namely, 3298, 3299, 3300, 3301 and 3303. The respondents have claimed a right only in respect of plot Nos. 3301 and 3302 (which was not in dispute). Respondent No. 1, it is urged, has set aside the entire order passed by the Assistant Collector dated 23.11.1995. Respondent No. 1 has found that under Section 122B (4F) of the Act, the order granting benefit under sub-section (4F) can be passed only by the Collector. The Explanation given under Section 122B (4F) provides that for the purpose of section the expression "Collector" means officer appointed as Collector under the provisions of Land Revenue Act, 1901 and includes Additional Collector. Assistant Collector was not entitled to grant the benefit to any person under Section 122B (4F) of the Act. The Assistant Collector had granted the benefit to the petitioners under the said provisions. Respondent No. 1 rightly held that Assistant Collector was not entitled to grant protection of Section 122B (4F) of the Act.
10. The order being a composite one, the order will have to be set aside as a whole. Respondent No. 1 by the Impugned order has given a direction to the Assistant Collector to submit a report to the Sub-Divisional Officer concerned in regard to applicability of Section 122B (4F) of the Act. On the report being submitted by the Assistant Collector to the appropriate authority, the matter shall be decided by such authority in accordance with law after affording opportunity of leading evidence and hearing to the parties concerned.
11. There is no merit in the writ petition. It is accordingly dismissed.