Allahabad High Court
Navmi Lal vs State Of U.P.Thru.Secy.Revenue Civil ... on 10 October, 2018
Equivalent citations: AIRONLINE 2018 ALL 4987
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 4 Case :- MISC. SINGLE No. - 29691 of 2018 Petitioner :- Navmi Lal Respondent :- State Of U.P.Thru.Secy.Revenue Civil Sectt.Lko.U.P. & Ors. Counsel for Petitioner :- Pradeep Kumar Tiwari Counsel for Respondent :- C.S.C.,Azad Khan Hon'ble Devendra Kumar Upadhyaya,J.
Heard learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Sri Azad Khan, learned counsel representing the Goan Sabha concerned.
The petitioner by instituting these proceedings under Article 226 of the Constitution of India has challenged the validity of the notice dated 03.08.2018 issued to him under Section 128 of the U.P. Revenue Code, 2006 requiring him to submit his reply in respect of the proposed action of cancellation of Patta in relation to Gata No. 925M/1, having an area of 0.180 hectare, situate in Village Saidkhanpur, Pargana Dariabad, Tehsil Sirauli Gauspur, District Barabanki.
Submission of learned counsel for the petitioner is that the land in question was settled in favour of the petitioner giving him the benefit of the provision of Section 122-B (4-F) of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as "U.P. Z.A. & L.R. Act") by means of order dated 30.07.2008, passed by the Sub Divisional Officer and, thus, it was not that the petitioner was admitted to the said land in question on the basis of any lease granted to him. In this view, the submission made on behalf of the petitioner is that in absence of the land in question having been granted to the petitioner by means of execution of any lease, the proceedings under Section 128 of U.P. Revenue Code, 2006 could not be instituted against the petitioner and accordingly the impugned show cause notice is absolutely unlawful and without jurisdiction.
Section 128 of the U.P. Revenue Code, 2006 vests an authority to the Collector to enquire into any allotment of any land and if the Collector is satisfied on an enquiry that allotment made is in contravention of the provisions contained in the Code or any other enactments repealed by the Code or the rules made thereunder, such allotment of land and lease may be cancelled. The provisions of Section 128 of the U.P. Revenue Code, 2006 are extracted herein below:
"128. Cancellation of allotment and lease.- (1) the Collector may, of his own motion and shall on the application of any person aggrieved, inquire in the manner prescribed into any allotment and if he is satisfied that the allotment is in contravention of the provisions of this Code or any of the enactments repealed by this Code or the rules made there under, he may cancel the allotment and the lease, if any.
(1-A) Any application under sub-section (1) may be moved in the case of an allotment of land made before the commencement of this Code, within five years from the date of such commencement and in the case of an allotment of land made on or after the date of such commencement, within five years from the date of such allotment or lease.
(2) Where the allotment or lease of any land is cancelled under sub-section (1), the following consequences shall ensue, namely-
(a) the right, title and interest of the allottee or lessee or any other person claiming through him in such land and in every tree or other improvement existing thereon shall cease, and the same shall revert to the Gram Panchayat;
(b) the Collector may direct delivery of possession over such land, tree or improvement forthwith to the Gram Panchayat after ejectment of every person holding or retaining possession thereof and may for that purpose use or cause to be used such force as may be necessary.
(3) Where in proceedings for cancellation of allotment or lease referred to in clause (b) of sub-section (1) the Collector is satisfied that any land referred to in section 77 66 excepting clause (a) or clause (h) or (i) thereof has been allotted to any person as bhumidhar with non-transferable rights, he may instead of cancelling the allotment, or lease, direct that the allottee or lessee shall be treated as an asami under clause (b) of section 125.
(4) Every order made by the Collector under this section shall, subject to the provisions of section 210, be final.
(5) The provisions of sections 5 and 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 shall not apply to the proceedings under this section.
The provisions of Section 128 of the U.P. Revenue Code are pari-materia to the provisions contained in Section 198(4) of the U.P. Z.A. & L.R. Act, which now has been repealed. The provisions of Section 198(4) of the U.P. Z.A. & L.R. Act are extracted herein below:
"198(4).The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any".
There is no dispute in this case that the petitioner was admitted to the land in question on the basis of an order passed by the Sub Divisional Officer on 30.07.2008, whereby the petitioner was given the benefit of the provision contained in Section 122-B (4F) of the U.P. Z.A. & L.R. Act.
However, what needs to be examined is the nature of admission under Section 122-B (4-F) of the U.P. Z.A. & L.R.Act or any settlement of any land in a person giving him the benefit of the said provision. Section 122-B(4-F) of the U.P. Z.A. & L.R. Act is the beneficial provision and was enacted by the State Legislature in the year 1986 for the purposes of giving certain benefits to the agricultural labourers belonging to the Scheduled Castes or Scheduled Tribes, who are in occupation of any land vested in a Gaon Sabha under Section 117 of the Act and if it was found that such an agriculture labourer belonging to the reserved category of Scheduled Castes/Scheduled Tribes had occupied the land from before a particular date and the land was occupied together with any other land held by him does not exceed 1.26 hectares, then the Land Management Committee was prohibited from taking any action under the said provision against such agricultural labourer belonging to the Scheduled Castes/Scheduled Tribes. The provision of Section 122-B (4-F) was amended by U.P. Act No.11 of 2002, w.e.f. 21.06.2002, whereby it was specifically provided that such a person shall be admitted as bhumidhar with non-transferable right of that land under Section 195 and further that it shall not be necessary to institute the suit for declaration of his right. Section 122-B (4-F) of the U.P. Z.A.& L.R. Act is quoted hereunder:
"122-B(4-F) 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 [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 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 [he shall be admitted as bhumidhar with non-transferable rights of that 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.]] Explanation. - The expression "agricultural labourer" shall have the meaning assigned to it in Section 198".
Form perusal of the afore-quoted provisions contained in Section 122-B (4-F), it is clear that any admission of any person to a land vested in Gaon Sabha under Section 117 of the Act is an admission under Section 195 of the said Act and such an admission confers non-transferable rights to the person concerned. Section 195 of the U.P. Z.A. & L.R. Act also permits the Land Management Committee with the previous approval of Assistant Collector-incharge of the sub-division concerned to admit any person as bhumidhar with non-transferable rights to any land vested in Gaon Sabha, other than the land as mentioned in Section 132 of the said Act. Section 198 of the U.P. Z.A. & L.R. Act provides for an order of preference which needs to be adhered to while admitting persons to land under Section 195 of the Act.
Accordingly, the provision contained under Section 198 read with Section 195 and Section 122-B (4-F) of the U.P. Z.A. & L.R. Act speak about admission of eligible persons to Gaon Sabha land vested under Section 117 of the Act, except the land described under Section 132. Thus, admission under Section 195 read with Section 198 of the Act is on the basis of proposal to be made in this regard by the Land Management Committee concerned and with the approval of the Assistant Collector-incharge of the sub-division. However, admission of eligible persons to Gaon Sabha land under Section 122-B(4-F) is not on the basis of any resolution to be passed by the Land Management Committee which needs to be approved by the Assistant Collector-incharge of the sub-division concerned; rather by operation of sub-section (4) of Section 122-B itself the person concerned fulfilling the eligibility as given therein, is admitted as bhumidhar with non-transferable rights without any resolution.
The words occurring in sub-section (4-F) of Section 122-B, "shall be admitted" are relevant to be noticed at this juncture, which accordingly would mean that such admission can be made by passing appropriate orders by the Sub Divisional Officer concerned after enquiry as regards the possession and other eligibility conditions given in Sub-Section (4-F) of Section 122-B of the Act.
However, for the purposes of proceedings either under Section 198(4) of the U.P. Z.A. & L.R. Act or under Section 128 of the U.P. Revenue Code, 2006, admission of a person to land vested in Gaon Sabha has been made under Section 195 read with Section 198 or under Section 122-B (4-F) of the U.P. Z.A & L.R. Act, does not make any difference. In both the proceedings, the eligible persons are admitted to Gaon Sabha land and Section 128 of the U.P. Revenue Code, as observed above, is a pari-materia to the provisions contained in Section 198(4) of the U.P. Z.A. & L.R. Act and vests an authority in the Collector to cancel such an allotment or admission after enquiry. ''Allotment of land' as occurring under Section 128 of the U.P. Revenue Code, 2006 and Section 198 (4) of the U.P. Z.A. & L.R. Act cannot be permitted to be confined to allotment of land under Section 195 read with Section 198 of the U.P. Z.A.& L.R. Act alone; rather it covers in its fold the admission of a person to Gaon Sabha land giving him the benefit of Section 122-B(4-F) of the said Act.
In view of the aforesaid discussion, the submission of learned counsel for the petitioner that impugned notice dated 03.08.2018 issued by the Additional Collector, Barabanki is without jurisdiction, is highly misconceived which merits rejection.
At this juncture, attention of the Court has been drawn to the provisions of Sub-section (6) of Section 198 of the U.P. Z.A. & L.R. Act to submit that any such proceedings for cancellation of allotment or admission either under Section 195 or under Section 122-B(4-F) could be possible within the limitation prescribed therein.
The aforesaid argument made by learned counsel for the petitioner is also not tenable for the reason that the limitation for initiating the proceedings for cancellation of lease/allotment of land/admission to land vested in Gaon Sabha is now prescribed in sub-section (1A) of Section 128 of U.P. Revenue Code, 2006, according to which such an application could be moved within five years from the date of commencement of U.P. Revenue Code, 2006, if the lease or admission to land has been made prior to commencement of the Code. U.P. Revenue Code, 2006, has been made applicable w.e.f. 11.02.2016 and as such in the aforesaid view of the matter, the impugned show cause notice cannot be said to be barred by any limitation.
For the reasons given above, the writ petition being highly misconceived, is hereby dismissed.
Order Date :- 10.10.2018 Sanjay