Allahabad High Court
Bhola vs State Of U.P. And Others on 20 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 11.10.2022. Delivered on 20.12.2022. Court No. - 30 Case :- WRIT - C No. - 48244 of 1999 Petitioner :- Bhola Respondent :- State of U.P. and Others Counsel for Petitioner :- V.P.Mishra,.,Ajeet Kumar Baranwal Counsel for Respondent :- C.S.C.,Ghanshyam Yadav,P.C. Srivastava,S.N. Srivastava Hon'ble Umesh Chandra Sharma,J.
Heard learned counsel for the petitioner, leaned Standing Counsel for the State and perused material available on record.
None appeared from the side of respondent no. 5.
This writ petition has been preferred against the order dated 22.09.1999(Annexure No. 4 to the writ petition) passed by respondent no.2 in Revision No.42/156 (Ram Milan Vs. Bhola and others) by which the Upper Ayukt (Prashasan), Basti Mandal, Basti allowed the revision and cancelled the orders dated 30.12.1995 and 05.08.1997 passed by the SDM, Bansi.
The petitioner has averred in the writ petition that one Salava son of Ali Raza was the owner of disputed plot no.78/1 area 0.2.1 and plot no.84 area 0.10.0 lying in Village Batwasia, Pargana Bansi Purab, District Siddhartha Nagar. After his death his wife was recorded as legal representative. She died issueless hence the land was vested in Gaon Sabha.
The petitioner was in continuous possession for the last 15 years over the plot in question and his name was recommended on 15.12.1995 to be substituted and mutated as Bhumidhar with non-transferable right. Tehsildar recommended his name which was approved by SDO, Bansi vide his approval dated 30.12.1995 which is annexed as Annexure-1 to this writ petition. Petitioner's name was recorded over the plot in question as bhumidhar with transferable right vide order of the SDO dated 06.04.1996 which is annexed as Annexure-2 to this writ petition. After that an objection was raised before the SDO, Bansi by respondent no.5, Ram Milan, that he was in possession and the petitioner had got his name recorded by playing fraud. Petitioner filed objection against the application of the respondent no.5 stating his case that petitioner was a member of scheduled castes and he is continuing his possession much prior to 03.06.1995 and his name was recorded after verification by the Revenue Authorities under Section 122-B(4)(f) of UPZA & LR Act.
The SDO rejected the application of respondent no.5 holding that he himself had inspected the spot and had found the petitioner's possession and rejected the restoration application of respondent no.5 vide his judgment and order dated 05.08.1997 which is annexed as Annexure-3.
Being aggrieved respondent no.5 filed revision before respondent no.2 who unjustifiably set aside the order dated 30.12.1995 and 05.08.1997 vide his judgment and order dated 22.09.1999 which is annexed as Annexure-4 to the writ petition. The revisional Court also directed the parties to get the title decided by a Competent Court which is wholly unjust and illegal.
Observation of the revisional Court that Gaon Sabha was not the party is wholly illegal and unjust and against the evidence on record as before the revisional Court Gaon Sabha was respondent no.2. The SDO has rightly passed the order in favour of the petitioner who had himself inspected the spot and found the petitioner in possession.
Hence a prayer has been made to issue a writ, order or direction in the nature of certiorari to cancel the order/judgment of Additional Commissioner (Administration), Basti Mandal, Basti dated 22.09.1999 passed in Revision No.42/106 and also to issue a writ, order or direction in the nature of mandamus commanding the respondents not to dispossess the petitioner from the plot in question.
The petitioner has annexed following documents in this petition:-
(i) Annexure no.1, photocopy of the order dated 30.12.1995 passed by SDO, Bansi certified by oath commissioner;
(ii) Annexure no.2, khatauni 1405 to 1410 fasli certified by oath comissioner;
(iii) Annexure no.3, order dated 05.08.1997 passed by SDO, Bansi, certified by oath commissioner;
(iv) Annexure no.4, order dated 22.09.1999 passed by the Additional Commissioner (Administration), Basti Mandal, Basti, certified by oath commissioner.
A counter affidavit has been filed by respondent no.5 in which it is stated that the petitioner was never in possession over the land in question but answering respondent came into possession after death of Makuma widow of Salvan, the land in question was vested in Gaon Sabha on 18.01.1993 and that time the answering respondent was in possession but the petitioner with the collusion of Tehsil Authorities got recorded his name as bhumidhar under Section 122-B(4)(5) of UP ZA Act. The petitioner is not an agricultural labourer but was working as teacher after retirement from military service hence he can not get the benefit of Section 122-B(4)(F). The S.D.O. neither made any spot inspection nor examined the possession of the parties and illegally by order dated 05.08.1997 rejected the restoration application of the answering respondent holding possession of the petitioner without any evidence.
The order dated 22.09.1999 is quite just whereby no harsh and prejudice occurred to any one. The learned court rightly set aside the order dated 30.12.1995 by advising the parties to get declared their title through competent court.
The Gaon Sabha has not been heard and has not been given opportunity of hearing before passing the order dated 30.12.1995. The answering respondent filed a suit under Section 229-B of UP ZA & LR Act but proceedings of the same have been stayed due to interim order dated 08.12.1999 passed by this Court which is liable to be vacated. The impugned order does not require any interference hence the writ petition be dismissed with costs.
A photocopy, certified by the oath commissioner, of the order dated 17.08.2002 passed by the SDO, Bansi has been annexed.
The petitioner has filed rejoinder affidavit denying almost all the averments made in the counter affidavit and has said that respondent no.5 had no concern with the property in question. The petitioner was a member of scheduled caste at the time of recommendation dated 15.12.1995 and was completing the criteria required under Section 122-B(4B) of the UP ZA & LR Act. The petitioner was subsequently engaged as teacher in February, 1997 which will not adversely affect the recommendation made earlier. Respondent no.2 has committed gross illegality while passing the impugned order dated 22.09.1999 before the Court of SDO the Gaon Sabha was a party and it was provided opportunity of hearing before passing the order dated 30.12.1995. The impugned order dated 22.09.1999 is illegal and unjustified and is liable to be quashed by allowing the writ petition.
Heard learned counsel for the petitioner and the learned Standing Counsel. None appeared for the respondent no.5. Perused the file.
Admittedly, the property in suit belongs to the Gram Panchayat and it is not a land under Section 132 U.P.Z.A & L.R. Act as public utility land. It is also admitted that the petitioner and respondent no. 5 both belong to the Scheduled Caste. It is also admitted that after the death of Smt. Makuna W/s Salvan, the land in question was vested in Gram Sabha on 18.01.1993.
According to the respondent no. 5, he was in possession, while according to the petitioner after the death of Smt. Makuna, he came into possession over the property in suit and considering his possession the property in suit was recommended for him being a member of Scheduled Caste on 15.12.1995. Since he was completing the criteria required under Section 122 - B (4-B), the land was settled with him. The Tehsildar has recommended his name and the S.D.O has approved his name on 30.12.1995, which is evident from Annexure No. 1. later on he became Bhumidhar of the property in suit vide order dated 06.04.1996 by the concerned S.D.O. These facts are clearly established from the Annexure Nos. 1 & 2.
According to the petitioner and according to the evidence available on record when his name was recorded the respondent no. 5 - Ram Milan came into picture and filed objection before the S.D.O that he was in possession and he is also a member of Scheduled Caste. The petitioner has got his name recorded by playing fraud. According to him he was in possession for more than fifteen years. After hearing both the learned counsel for the parties, the S.D.O. Bansi dismissed the objection of the respondent no.5, considering the facts that the property in suit had been vested in Gram Sabha first time on 18.03.1993 after the death of Smt. Makuma, so it was not possible for respondent no. 5 to have prior possession for about fifteen years at the time of filing of objection. it was noticed that when the name of the petitioner had been recorded in the Revenue Record only thereafter the respondent no. 5 has raised the objection, though, the respondent no. 5 had blamed the Tehsildar, officials and the officers that virtually he was in possession, he was unable to pay a sum of Rs.5,000/- to the Lekhpal, therefore the Lekhpal did not make any report in his favour. There is no proof about it. No photograph or any other document in respect of possession except the affidavit of seven persons, who are not cross examined, have been relied upon by respondent no. 5.
Another objection had been taken by respondent no. 5 that the petitioner - Bhola was an Ex-Military personal, he was Government Teacher, therefore, the property in suit could not be settled with him under Section 122-B (4-F). In this regard the fact had been examined by the S.D.O and it was found that the property in suit was settled with the petitioner in the year 1995 while the petitioner was appointed as Teacher in the month of February, 1997, therefore at the time of settlement of the land with the petitioner, the petitioner was not in Government Service but certainly he was the member of Scheduled Caste. Therefore this objection is also meaningless.
Another fact has also came into picture that the wife of the petitioner was Block Pramukh of the concerned Block.
According to this Court in the eyes of law the entity of wife and husband are separate and distinct and if a person is entitled of any benefit under the law he cannot be deprived of the benefit because of the status of his wife.
Another fact has also been mentioned in the order of the S.D.O. that he himself visited the spot and found that petitioner was in possession in the presence of villagers and none of the villagers had said that respondent no. 5 - Ram Milan is in possession over the property in suit.
Another question arisen about the finding of the fact regarding spot inspection made by the S.D.O. Bansi, Siddharth Nagar.
The Revisional Court made an interference and opined that the parties should file a suit for declaration for taking the benefit of Section 122 - B (4-f) even after the decision of the revision. Respondent no. 5 has instituted the suit under 339 (B) of the U.P.Z.A & L.R. Act.
Though due to stay order passed by this Court the proceedings of the case under Section 229-B has been stopped and is in abeyance.
Section 122-B(4F) is as under:
"122-B. Powers of the Land Management Committee and the Collector.--
(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 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."
In this regard following relevant citations are mentioned herein below:
In Raj Kumar Vs. Shri S.B. Tewari, S.D.M. Gautam Buddh Nagar, 2014 (2) RLT (DOC-71) 105 the question was as to whether for the benefit of Section 122-B (4-F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 a suit under Section 229-B is required to be filed. It was held that it is not necessary to file the suit under Section 229-B for claiming the benefit of Section 122-B (4-F) of the Act, 1950. The impugned order setting aside the order granting the benefit of Section 122-B (4-F) of the Act was found unsustainable.
In Smt. Reshma Devi Vs. Commissioner, Gorakhpur Division, Gorakhpur, 2014 (2) RLT 459 the question was as to whether it is necessary to institute a suit for declaration for getting the benefit of the benefit of U.P. Zamindari Abolition and Land Reforms Act, 1950 Setion122-B (4-F). It was held that it is not necessary to institute a suit four declaration for getting the benefit of Section 122-B (4-F). If the person is entitled for the benefit of Section 122-B he would be admitted as the bhumidhar with non-transferable right of the land. The very issue was not decided by the Court below.
In Smt. Ramakanti Vs. Gaon Sabha, 2013 (2) RLT (BR) 114 the Trial Court passed the order granting the benefit of Section 122-B(4F) on the basis of the report submitted by Tehsildar. The appeal was filed before the Appellate Court. the appellate Court set aside the order passed by the trial Court. The order passed by the Appellate Court is not sustainable inasmuch as the same is against the evidence available on the record. The impugned order passed by the Appellate Court was restored.
In the last line of Sub Section 4-F, it has also been mentioned that "it shall not be necessary for him to institute a suit for declaration of his right as Bhumidhar with non-transferable right in that land" Obviously, the order of the Revisional Court is not in consonance of Sub Section 4-F. In the facts and circumstances when the right from Lekhpal to S.D.O, were of the opinion that property in suit is under occupation of the petition, who is a member of Scheduled Caste and at the time of settlement, he was entitled to taken the benefit of Sub Section 4-F and accordingly the benefits of Sub Section 4-F were awarded to him, therefore there was no occasion to interfere with it.
This aspect has also been considered by the Supreme Court in the case of Manorey @ Manohar Vs. Board of Revenue (U.P.) & 2003 0 Supreme Court (S.C) 396, in which in Para Nos. 3, 9, 10, 11 & 12 are important, in which the Apex Court has held that :-
"Going by the orders of the Board of Revenue and the High Court, the maintainability of an application seeking recognition of right under Section 122B(4F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act') is the issue that loomed large before the Board and the High Court. We are of the view that it would be travesty of justice to deny relief to the appellant who is a Scheduled caste agricultural labourer and relegate him to an unfortunate situation of being left without remedy though he has a statutory right to continue in possession and enjoyment of the land. The High Court seems to have taken a narrow view of the rights and remedies of the appellant, leaving him to pursue a tortuous course of litigation to safeguard his rights.
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.
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.
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.
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."
The Principals laid in aforementioned judgements are totally apples in this case and in view of that this Court is of the opinion that judgement of the Revisional Court is not correct.
On the basis of the aforementioned discussion, this Court is of the view that the order of revisional court is not justifiable and is liable to be quashed and the revision is liable to be allowed.
Accordingly, this revision is allowed.
The order of Revisional Court dated 22.09.1999 annexed as Annexure no. 4 to this writ petition is hereby quashed and the order of S.D.O dated 30.12.1995 and 05.08.1997 are restored.
Let a certified copy of the order be sent to the S.D.O. Bansi, District Siddharth Nagar, for necessary compliance.
Order Date :- 20.12.2022 Vinod.
(Umesh Chandra Sharma,J.)