Allahabad High Court
Netrapal vs Addl. Collector, Aligarh And Others on 13 May, 1999
Equivalent citations: 1999(3)AWC1872, 1999 ALL. L. J. 1765, 1999 A I H C 4145, (1999) 3 ALL WC 1872, (1999) REVDEC 405, 1999 ALL CJ 2 821
Author: Shitla Prasad Srivastava
Bench: Shitla Prasad Srivastava
JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition, under Article 226 of the Constitution of India, has been filed by the petitioner for quashing the order dated 12.12.1983 passed by the Additional Collector. Aligarh and further for quashing the order dated 9.2.1983 passed by the Tahsildar, Aligarh.
2. The brief facts, as stated by the petitioner for the purpose of the present petition are that plot No. 27 measuring 4 bighas 8 biswas 5 biswancis situate in village Balbhandrapur, Pargana Koil, district Aligarh. was leased out to the petitioner by the Gaon Sabha concerned on 15.1.1966 for a period of one year on payment of annual rent of Rs. 30 payable six monthly in two Instalments, it is stated that the petitioner occupied the land on the basis of the aforesaid lease deed and was asami of the gaon sabha. It is further stated that on 18.1.1970, the gaon sabha again granted patta to the petitioner in respect of the aforesaid plot for a period of five years on the same annual rent and the petitioner remains in possession for five years without interference and paid rent. It is again stated that on 20.1.1975 again patta was granted for five years on the same terms and conditions and the period expired on 20-1.1975. Thereafter, the respondent again granted patta on 3.2.1977 after getting permission from the Sub-Divisional Officer and the actual rent was enhanced from Rs. 30 to Rs, 48.50 palse but there was no period mentioned in that lease deed and on 15.5.1977, the lease was verified by the Supervisor Qanoongo and the name of the petitioner was mutated in revenue record by order of the Supervisor Qanoongo dated 15.5.1977 on the basis of the lease dated 3.2.1977, It is further stated that prior to 1384 Fasli, the petitioner was recorded as class IV tenant and subsequently by order dated 15.5.1977 passed by Supervisor Qanoongo on the back of the lease deed dated 3,2.1977 the petitioner was recorded as class III tenant, i.e., asami in the revenue record and since then the petitioner is in continuous possession of the land in question. But due to election rivalry, proceeding under Section 122B of U. 'P. Zamindarl Abolition and Land Reforms Act was started against the petitioner on the report of the village Pradhan.
3. The petitioner contested the notice issued to him and claimed asami right and challenged the proceeding under Section 122B being without Jurisdiction, The respondent No. 2 on 9.2.1983 passed an order of ejectment and awarded an amount of Rs. 133.62 paise as damages for use and occupation of the land in dispute. It has been held by the respondent No. 2 that the period of lease has held by the respondent No. 2 that the period of lease has expired in the year 1977 and thereafter the possession of the petitioner was unauthorised from 1384 Fasli to 1389 Fasli.
4. Aggrieved by the order dated 9.2.1983, the petitioner filed a revision, which was dismissed by the respondent No. 1 on 12.12.1983. It is slated that the petitioner got stay order from the revisional Court, therefore, the order of ejectment passed by the Tahsildar could not be given effect to. The petitioner has challenged these two orders and judgments by means of the present writ petition.
5. The grounds of attack are that in view of the admission made by the Lekhpal. the petitioner was given lease of the plot in question ; that the petitioner was given lease of the plot in question ; that the petitioner was an asami and proceeding under Section 122B of the aforesaid Act was without jurisdiction. It was also vehemently urged that the finding of the respondent No. 1, i.e., revisional court, that the petitioner was unauthorised occupant is against the evidence and it is based on the basis of the forged dakhalnama dated 21.2.1983 : that the petitioner has not signed the dakhalnama nor the respondents could take possession as slay order was operating against them by the revisional court and further that the possession of the agricultural holding cannot be taken in the mid-session of agricultural year when the crops were standing. It has been urged by the learned counsel for the petitioner that when the petitioner was an asami of gaon sabha his eviction can only be made through a suit under Section 202 of U. P. Zamlndari Abolition and Land Reforms Act, 1950 and not in summary proceeding under Section 122B of the aforesaid Act. The further argument of the learned counsel for the petitioner is that the petitioner acquired rights under Section 122B (4) (F) of the aforesaid Act. The petitioner in support of his contention has filed documents along with the writ petition.
6. A counter-affidavit has been filed on behalf of one Hari Shanker, Pradhan/Chairman of the gaon sabha/Land Management Committee. In the counter-affidavit, it is stated that the land in question belongs to the gaon sabha in consolidation proceeding ; it was recorded the property of the gaon sabha ; execution of patta has also been denied. In paragraph 3 of the counter-affidavit asami right of the petitioner has also been denied ; the entry existing in the revenue record in the name of the petitioner has also been said to be forged and fictitious. It is stated in paragraph 6 of the counter-affidavit that since 1383 Fasli the petitioner was in occupation and has caused damage to the tune of Rs. 649. therefore, the petitioner is liable for the damages. In paragraph 10 of the counter-affidavit it is stated that after the judgment of the trial court the gaon sabha applied for delivery of possession and the petitioner was dispossessed on 20.2.1983 and on 21.2.1983 the gaon sabha was delivered possession of the land in dispute. But the petitioner declined to sign the dakhalnama. therefore, the stay order passed by the revisional Court was infructuous and the petitioner is not in possession of the land in dispute. It is further stated that benefit of Section 122B (4) (F) of the aforesaid Act cannot be given to the petitioner as the petitioner is not a member of scheduled caste and he was not in possession of the land on the appointed date. Rather in 1983 the gaon sabha took the possession. It has further been stated in paragraph 18 or the counter-affidavit that on 22.12.1983 the effect and operation of the order dated 9.2.1983 was stayed by this Court. Learned counsel for the gaon sabha has submitted that as the petitioner was already dispossessed on 20.2.1983 and dakhalnama was executed on 21.2.1983 therefore, the stay order passed by this Court on 22.12.1983 is of no effect and the petitioner is out of possession. The petitioner filed a counter-affidavit to the counter-affidavit filed by Harl Shanker and also has filed a rejoinder-affidavit against the same counter-affidavit. In paragraph 5 of the counter-affidavit dated 17.9.1985 it is stated by the petitioner that dakhalnama is a forged document and on 6.10.1984 stay order passed by this Court dated 22.12.1983 was confirmed after hearing learned counsel for the parties and the respondents are trying to occupy the land forcibly. In rejoinder-affidavit it is stated by the petitioner that he was asami and he paid rent to the Gaon Sabha for the year 1967. 1968 and 1969 and subsequently he also paid rent from 1970 to 1981. Therefore, he was in cultivatery possession in those years and is asami on behalf of the gaon sabha. He was in occupation and entry in his name is also in the revenue record, therefore, he has acquired right under the Act. In reply to paragraph 12 of the counter-
affidavit wherein it is stated that the petitioner is not member of the scheduled caste reply has been given in paragraph 13 of the rejoinder-affidavit to the effect that the petitioner is Kathera by caste and comes within the meaning of scheduled caste and as such is entitled to protection under Section 122B (4) (F) of the aforesaid Act.'
7. I have heard learned counsel for the parties at length and have also perused the judgment and other documents available on record. Learned counsel for the petitioner as stated above has urged that he was a lessee and became asami, therefore. proceedings under Section 122B of the Act was not maintainable and he could have agitated only on a suit under Section 202 of the aforesaid Act being filed by the Gaon Sabha. The second submission of the learned counsel for the petitioner is that the petitioner being Kathera by caste which comes within the definition of scheduled caste. Therefore, as he was in possession prior to the appointed date and entry to this effect was made in the revenue records and possession proceeding was only after the order passed by the Tahsildar that too was a forged, therefore, the petitioner was entitled to get benefit under Section 122 (2) (F) of the aforesaid Act.
8. Learned counsel for the respondent Sri B. B. Paul, has vehemently urged that in view of the facts that the petitioner has been ejected since 1983, after the judgment of the Tahsildar and he is not in possession no relief can be given to the petitioner under Article 226 of the Constitution and the petition is not maintainable. His second submission is that it was denied by the gaon sabha that the petitioner is a scheduled caste and the petitioner has only said in the rejoinder-affidavit that he was Kathera by caste therefore, the petitioner belongs to the category of the scheduled caste but since no evidence to this effect has been filed by the petitioner therefore unless a finding is there that he is a person belonging to the scheduled caste and was in possession prior to the relevant date and the land is not covered by Section 132 of the aforesaid Act no benefit can be given to the petitioner.
His further submission is that the revenue entries in the name of the petitioner were forged and fictiticious and the petitioner was never given any lease.
9. After hearing learned counsel for the parties, I am of the view that the question which has arisen for determination only in the present writ petition is as under-
(i) As to whether the petitioner was an asami on behalf of the gaon sabha and he could only be ejected on a suit being filed by the gaon sabha under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act?
(ii) Whether the petitioner was entitled to get benefit of Section 122B (4) (F) of the U. P. Zamindari Abolition and Land Reforms Act.
10. To appreciate these two points, it is necessary to see the relevant provisions of law. Section 122B is quoted herein below :
"122B. Power of the Land Management Committee and the Collector.--(1) Where any property vested under the provisions of the Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
(2) Where from the Information received under subsection (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him, or. as the same may be. why he should not be evicted from such land.
(3) If the person to whom a notice has been issued under subsection (2) fails to show cause within the time specified in the notice or within such extended time not exceeding three months from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue.
(4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2) he shall discharge the notice ;
(4A) Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order prefer, a revision before the Collector on the grounds mentioned in clauses (a) to (e) of Section 333.
(4B) The procedure to be followed in any action taken under this section shall be such as may be prescribed.
(4C) Notwithstanding anything contained in Section 333 or Section 333A but subject to the provisions of this section-
(i) every order of the Assistant Collector under this section shall, subject to the provisions of sub-sections (4A) and (4D). be final.
(ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4D), be final.
(4D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a Court of competent Jurisdiction to establish the right claimed by him in such property.
(4E) No such suit as is referred to in sub-section (4D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section [4A).
Explanation.--For the purposes of this section, the expression "Collector" means the officer appointed as Collector under the provisions of the U.P. Land Revenue Act, 1901 and includes an Additional Collector.
(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 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 bbumidhar with non-transferable rights of that land under Section 195).
(5) Rules 115C to 115H of the U. P. Zamindari Abolition and Land Reforms Rules, 1952, shall be and be always deemed to have been made under the U. P. Zamindari Abolition and Land Reforms Act. 1950 as amended by the Uttar Pradesh Land Laws (Second Amendment) Act, 1961, as if this section has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with the provisions of this Act."
11. Section 21 of the U. P. Zamindari Abolition and Land Reforms Act mentions the person who will acquire asami right. Section 202 of the U.P. Zamindari Abolition and Land Reforms Act is the procedure of ejectment of asami. Relevant Section 202 is quoted herein below :
"202. Procedure of ejectment of asami.--Without prejudice to the provisions of Section 338, an asami shall be liable to ejectment from the holding on the suit of the (Gaon Sabha) or the land holder as the case may be) on the ground or grounds-
(a) mentioned in Section (**), 191 or 206.
(b) that he-
(i) belongs to any of the classes mentioned in clauses (a), (b), (c), (e), (g) or (i) of sub-section (1) of Section 21, or sub-section (2| of the said section, or in clause (e) or (d) Section 133, or,
(ii) has acquired the rights of an asami under the Uttar Pradesh Land Reforms (Supple-mentary). Act, 1952.
and that he holds the land from year to year or for a period which has expired or will expire before the end of the current agricultural year.
(c) that he belongs to the class mentioned in (clause (d) of sub-section (1) of Section 21) and the mortgage has been satisfied (or the amount owing under the mortgage has. whether or not it has become payable thereunder, been deposited in Court).
(d) that he (is an asami under Section 11) and the right to maintenance allowance does not any longer subsist.
(f) that he belongs to the class mentioned in clause (h) of (sub-section (1) of Section 211 or clause (b) of Section 133 and than-
(i) the land-Holder wishes to bring the land under his personal cultivation and in cast's where the lease is for a fixed term such term has expired, or
(ii) the disability has determined,
(g) that he (is an asami under Section (3) and the period mentioned in clause (a) of sub-section (2) of (the said section) has expired.
(h) that there is an unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by ejectment."
12. A bare perusal of this section would show that the petitioner has not stated anywhere in his objection that under which clause of Section 202 he was asami. Therefore, he could only be ejected under Section 202 of the aforesaid Act. However, for the sake of the argument if he is treated to be an asami under Section 133 (c) then it must be in conformity with Section 133 as it finds place in Section 202 (f) of that Act. Section 133 is quoted herein be low ;
"133. Asami.--Any person belonging to any of the following classes shall be called an asami and shall have all the rights and be subject to all the liabilities conferred or imposed upon asami by or under this Act. namely-
(a) every person who. as a consequence of the acquisition of estates becomes an asami under Sections 11. 13 or 21;
(b) every person who was admitted before the commencement o', the Uttar Pradesh Land Law (Amendment) Act, 1977 by a bhumidhar or sindar or, after such commencement, by a bhumidhar as a lessee of the land comprise in his holding in accordance with the provisions of this Act :
(c) every person who on or after the date of westing is admitted by the (Land Management Committee;) or the person entitled as a lessee of land described in Section 132 : and
(d) every pe.rson who in any other manner acquires the right of an asami under or in accordance with the provisions of this Act or of any other law for the time being in force."
13. The petitioner's case was that he was a lessee for certain period, therefore, he acquired right of asami. For that purposes, the petitioner has filed receipts of the rent and khasra and khatauni of 1390 Fasli to 1396 Fasli wherein the petitioner's name is mentioned in tenant column but it is written over the land which is under the occupation of asami. On the basis of this, the petitioner says that he was asami therefore, a suit under Section 202 of the Act was a must. Now in view of the peculiar circumstances in the present case as the petitioner has been evicted after the judgment of the Tahslldar dated 9.2.1983 and no evidence has been filed that dakhalnama was forged document, it cannot be held that the petitioner is still in occupation of the land in question.
14. So far as the question of benefit of Section 122B (4) (F) is concerned as quoted above, the finding of the revislonal court Is that there is no evidence on record that the petitioner is member of scheduled caste or scheduled tribes. The petitioner has not filed any document to prove that caste Kathera is mentioned in the list of scheduled caste or scheduled tribe. To get the benefit of the aforesaid section, it was necessary for the petitioner to prove that the requirement of Section 122B (4) (F) were there. Therefore, to my mind, there is no infirmity, illegality in the Judgment passed by the Tahsildar dated 9.2.1983 and that of the Additional Collector dated 12.12.1983.
15. The writ petition has no force and it is accordingly dismissed but there shall be no order as to cost.