Allahabad High Court
Katwaru vs Addl. Commisisoner Administration And ... on 21 August, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 6 Case :- WRIT - C No. - 9013 of 2003 Petitioner :- Katwaru Respondent :- Addl. Commisisoner Administration And Others Counsel for Petitioner :- Shashi Prakash Mishra Counsel for Respondent :- C.S.C.,Anuj Kumar,D.D. Chauhan,M.S. Haq,Pradeep Narain Pandey,Ramanand Pandey Hon'ble Yashwant Varma, J.
Heard learned counsel for the petitioner, the learned Standing Counsel for the State respondents as well as Sri Ramanand Pandey, who has appeared for the respondents 2 to 5. Although the Gram Panchayat is represented, none has appeared on its behalf even in the revised call.
This petition impugns the orders dated 7 April 1999 and 23 December 2002. In terms of the order of 7 April 1999, the Additional Commissioner has set aside the orders dated 4 December 1992 and 22 December 1995 in terms of which the petitioner was extended the benefits comprised in Section 122-B(4-F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 [hereinafter to be referred as "the Act"]. The petitioner asserting that the aforesaid order was ex parte, filed an application for recall. That recall application came to be dismissed on 23 December 2002 with the Additional Commissioner holding that he had no jurisdiction to recall a final order passed. He further observed that since the petitioners had failed to participate in the original proceedings as a consequence of which they were taken ex parte it would be open to them to establish their rights before a competent authority.
During the pendency of the present petition, the original petitioner died. His heirs were substituted in the writ petition on 25 September 2013. The essential facts which would be relevant for the purposes of disposal of the writ petition are noted hereunder.
The petitioners claim to be members of the Scheduled Castes and landless agriculturists in possession of the land in dispute since 1975. According to the case set up in the writ petition, the father of the respondents 2 to 5 instituted proceedings before the Sub Divisional Officer for recordal of his name over the land in dispute claiming rights thereon by virtue of possession. That case was contested by the original petitioner before the Sub Divisional Officer who ultimately by his order of 4 December 1992 held that the petitioner fulfilled the conditions as placed by Section 122-B(4-F) and the land in dispute consequently was liable to be settled in his favour. The Sub Divisional Officer proceeded to frame directions for recordal of his name over the land in dispute. The father of the respondents 2 to 5 is stated to have filed an application for recall and restoration. That application came to be dismissed by the Sub Divisional Officer on 22 December 1995. Aggrieved by that order, the father of the respondents preferred a revision which ultimately came to be allowed on 7 April 1999, the order impugned in the instant writ petition.
As is evident from the facts as recorded by the Sub Divisional Officer both the petitioner as well as the respondents asserted rights over the land in dispute by virtue of possession. It appears that initially the land had come to be recorded in the name of the father of the respondents 4 to 5. There were thus competing claims in respect of the land in question with both sides asserting rights thereon by virtue of possession. The Sub Divisional Officer in the order dated 22 December 1995 has noted that on due scrutiny of the revenue record it was evident that the land in question was the property of the Gaon Sabha. He further noted the assertion of the petitioner that he had been in possession of the land from prior to 30 June 1985. It was also noted that the petitioner belonged to the Scheduled Castes and was in possession of the land prior to the cut off date prescribed in Section 122 B(4F) of the Act. It was also noted that the father of the respondents could claim no rights over the land since it belonged to the Gaon Sabha. He further noted in this order that even if it were assumed that the petitioner came to possess the land after 30 June 1985, he was evidently in possession of the same from prior to 3 June 1995 [the amended cut off date prescribed in Section 122 B (4F)] and consequently there was no justification to recall the order dated 4 December 1992.
The Additional Commissioner, the first respondent herein, while allowing the revision preferred by the father of the respondents has held that that the original order of 4 December 1992 had come to be passed without the Gaon Sabha having been put to notice or made a party. According to the first respondent, the Gaon Sabha was a necessary party and since the proceedings culminating in the order of 4 December 1992 was ex parte the Gaon Sabha it was liable to be set aside. The first respondent then referring to certain decisions rendered by this Court proceeded to hold that in case the petitioner were claiming benefits of the provisions made in Section 122-B (4-F), it was incumbent upon them to establish their rights before a competent court and obtain a requisite declaration in that respect. According to the said respondent, in the absence of any such declaration existing, the petitioners could not have been extended the benefits of the provision aforementioned. He consequently, proceeded to allow the revision preferred by the respondents and further directed the revenue records to be corrected in order to reflect the position as it existed prior to 4 December 1992. He further left it open to the parties to establish their rights before a court of competent jurisdiction.
Assailing the order counsel for the petitioner has submitted that the benefit of Section 122-B (4-F) was liable to be extended to the petitioners who were landless agriculturist and belonged to the Scheduled Castes. According to the learned counsel, the benefits flowing from sub-section (4-F) were not dependent upon a declaration in that respect being obtained from a competent court. Learned counsel submitted that the language of sub-section (4-F) itself obviates the necessity of an eligible person instituting a suit for declaration of his rights.
Refuting those submissions, learned counsel for the private respondents contended that the provisions of sub-section (4-F) can have no application where competing claims on the basis of possession are raised. According to the learned counsel, the benefits of that provision cannot have automatic application in a case where two parties assert possessory rights over the land in dispute. Learned counsel would submit that the order dated 4 December 1992 had come to be passed without the concerned Gaon Sabha having been provided an opportunity to place its side and version and therefore the Additional Commissioner has correctly set aside the orders made in favour of the petitioners. Learned counsel in support of his submissions has additionally placed reliance upon a decision rendered by a learned Judge of the Court in Barendra And Another Vs. State of U.P. And 3 Others1 and particularly to the following observations as made therein:
"Having heard the learned counsel for the petitioners, learned Standing Counsel, Sri Rajesh Kumar and the learned counsel for the Gaon Sabha, I am of the considered view that when two tenure holders claim that they were in possession illegally over certain plots of land which belonged to the Gaon Sabha then Administrative Authorities had no power to adjudicate upon the matter. When a person claims to be in possession from before a certain cut off date which had been provided by the provisions of Section 122-B (4F) of the U.P.Z.A. & L.R. Act then it is to be deemed that he is a Bhumidhar with non-transferable rights as per the provisions of the Section 122-B(4F) of the U.P.Z.A. & L.R. Act. The Supreme Court in Manorey @ Manohar vs. Board of Revenue (U.P.) and others (JT 2003(3) SC 538) has stated that no formal declaration is required when the benefit of Section 122-B (4F) of the U.P.Z.A. & L.R. Act is to be extended to a person who had been in possession from before a cut off date which is provided under Section 122-B(4F) of the U.P.Z.A. & L.R. Act. That villager becomes a Bhumidhar with non-transferable rights automatically. However, when two residents of the same village begin to claim ownership over the land then under Section 122-B(4F) of the U.P.Z.A. & L.R. Act, no machinery has been provided for an adjudication as to who exactly was in possession over the property in question. In 2011 (2) ADJ 878 (Ram Das and Others vs. Munna Lal and Others) when accrual of rights under the Indian Forest Act, 1914, of various settlers/occupiers of forest land was being considered, this Hon'ble Court observed that if a right of certain occupier vis-a-vis the forest authority was concerned then the forest authorities could have looked into the matter but if two individuals claimed right over some forest land then they had to approach the proper court, either under the general law or under the relevant land law.
The relevant paragraph of the judgement and order dated 28.01.2011 is being reproduced here as under:-
"I am of the considered opinion that since there is an inter se dispute of title between two private persons over a plot of land, qua which an order under Section 11(2)(i) (2) has been passed by the Forest Settlement Officer, there can be no adjudication of title dispute on an appeal under Section 17 of the Act, 1927.
The parties have to be relegated to the remedy available under the U.P.Z.A. & L.R. Act or under the common civil law. The Act, 1927 cannot be extended to include within its ambit title dispute over the property which are excluded from the Act only because at a particular point of time a notification under Section 4 was issued qua the plots.
It may be clarified that inter se dispute of title claimed in respect of land which continues to be covered under notification under Section 4 can always be adjudicated by the Settlement Officer Consolidation and thereafter in appeal under Section 17. The judgment in the case of Hon'ble Supreme Court in the case of Mahendra Lal Jaini (supra) is applicable in such cases only.
In view of the aforesaid, this Court finds that it is not necessary to enter into the issues, as to whether a review application was maintainable or not or as to whether the first order of the Appellate Authority declaring one of the parties as Bhumidhar was legally justified or not, inasmuch as Bhumidhari rights in respect of a plot of land, which is excluded from the notification under Section 4 of the Act, 1927 vide an order under Section 11(2)(i), can only be agitated and examined by the competent revenue court under the U.P.Z.A. & L.R. Act or by the competent civil court, as the case may be.
Accordingly, this Court feels that setting aside of the order passed on review application, under challenge in the present writ petition, would have the effect of restoring another illegal order of the Appellate Authority declaring the petitioner as the Bhumidhar. Therefore, in the larger interest of justice it is provided as follows:
The petitioner and respondents are at liberty to get their rights declared over the plots by approaching the revenue court under the U.P.Z.A. & L.R. Act or the competent civil court, as they may be advised. Order passed under the Act by the Appellate Authority or for that purpose by the Forest Settlement Officer, insofar as it pertains to the inter se dispute of Bhumidhari rights over the plot in question, shall not be binding upon any of the parties.
Writ petition is disposed of subject to the observation made above."
In the instant case also when two villagers were claiming possession over Gaon Sabha land then the Administrative Authorities could not have adjudicated as to who was in possession and, therefore, the proper course open for the petitioners was to approach the Civil Court or the relevant Court under the Land Laws for getting their rights adjudicated. Thus, the petitioners cannot be given any relief by this Court and therefore the instant writ petition, so far as it concerns petitioner, is being dismissed.
Learned Standing Counsel has supported the impugned order by submitting that the benefits of sub-section (4-F) could not have been extended to the petitioners without notice to the Gaon Sabha. It is these rival submissions which fall for determination. Before proceeding further it may only be noted that although this petition has been pending on the board of this Court since 2003 and the concerned Gaon Sabha duly put to notice, counter affidavits have been filed only by the private respondents and no Affidavit has been filed by the Gaon Sabha in these proceedings.
Since the submissions addressed before this Court would have to be tested in the backdrop of the special provisions made in Section 122B (4F) of the Act, it would be apposite to extract it hereunder:
"Section 122B (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 [May 1, 2002], 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."
Sub-section (4F) firstly protects the possessory rights of an agricultural labourer belonging to the Scheduled Castes or Scheduled Tribes who may be in occupation of any land vested in the Gaon Sabha under Sections 117 of the Act. The cut off date as prescribed in sub-section (4-F) has been amended from time to time. Insofar as the present proceedings are concerned indubitably the relevant date for the purposes of considering the eligibility of an agricultural labourer was 30 June 1985. Consequently, an agricultural labourer belonging to the Scheduled Castes or Scheduled Tribes in occupation of any land vested in the Gaon Sabha from a date prior to 30 June 1985 is protected from the perils of dispossession. The provision however does not rest here. It proceeds further to confer on such an agricultural labourer bhumidhari rights albeit on a non-transferable basis. The provision, in essence fulfils the twin objectives of firstly protecting the possession of an eligible agricultural labourer and further confers on him the status of a bhumidhar with non-transferable rights. The legislative ethos underlying that provision was eloquently explained by the Supreme Court in Manorey @ Manohar Vs. Board of Revenue (U.P.) And Others2 in the following terms:
"8. First, the endeavour should be to analyze and identify the nature of the right or protection conferred by sub-section (4-F) of Section 122-B. Sub-sections (1) to (3) and the ancillary provisions upto sub-section (4-E) deal, inter alia, with the procedure for eviction of unauthorized occupants of land vested in Gaon Sabha. Sub-section (4-F) carves out an exception in favour of an agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe having land below the ceiling of 3.125 acres. Irrespective of the circumstances in which such eligible person occupied the land vested in the Gaon Sabha (other than the land mentioned in Section 132), no action to evict him shall be taken and moreover, he shall be deemed to have been admitted as a bhumidhar with non-transferable rights over the land, provided he satisfies the conditions specified in the sub-section. According to the findings of the Sub-Divisional Officer as well as the Appellate Authority, the appellant does satisfy the conditions. If so, two legal consequences follow. Such occupant of the land shall not be evicted by taking recourse to sub-sections (1) to (3) of Section 122-B. It means that the occupant of the land who satisfies the conditions under sub-section (4-F) is entitled to safeguard his possession as against the Gaon Sabha. The second and more important right which sub-section (4-F) confers on him is that he is endowed with the rights of a bhumidhar with non-transferable rights. The deeming provision has been specifically enacted as a measure of agrarian reform, with a thrust on socio-economic justice. The statutorily conferred right of bhumidhar with non-transferable rights finds its echo in clause (b) of Section 131. Any person who acquires the rights of bhumidhar under or in accordance with the provisions of the Act, is recognized under Section 131 as falling within the class of bhumidhar. The right acquired or accrued under sub-section (4-F) is one such right that falls within the purview of Section 131(b).
9. Thus, sub-section (4-F) of Section 122-B 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 V. Board of Revenue (followed by the same learned Judge in the instant case) that the bhumidhari rights of the occupant contemplated by sub-section (4-F) 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 (4-F) 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 (4-F) 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 (4-F) of Section 122-B. 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 (4-F) of Section 122-B 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 (4-F) 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 (4-F). We find no warrant to constrict the scope of the deeming provision.
10. 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 (4-F) 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 (4-F). 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 non est in the eye of law and is liable to be ignored."
In Manorey the Supreme Court explained the provisions made in sub-section (4-F) by stating that its provisions not only entitled such an agricultural labourer to safeguard his possession as against the Gaon Sabha but also conferred the more important right of being recognised as a bhumidhar with non-transferable rights of that land. It further held that the conferment of status of bhumidhar with non-transferable rights on an eligible occupant extends by way of a statutory fiction. It was held that once the eligible occupant was found to satisfy the preconditions enumerated for the applicability of sub-section (4-F), there would be no further obligation upon him to seek a declaration from any competent Court. In Manorey, the Supreme Court further held that sub-section (4-F) entitled the eligible occupant to consequently apply by way of an application to the competent authority for extension of benefits under that provision. Significantly the Supreme Court in Manorey also specifically overruled the view taken by this Court that an agricultural labourer was liable to obtain a declaration with respect to the extension of benefits conferred by Section 122B (4F).
Viewed in light of the above, it is manifest that the Additional Commissioner has clearly erred in holding that the petitioners were liable to obtain a declaration from a competent court in respect of their status or their eligibility to the benefits introduced by sub-section (4-F). The findings as returned by the Additional Commissioner on this aspect clearly run contrary to the principles enunciated by the Supreme Court in Manorey. While it may be true that the Gaon Sabha was not made a party to the proceedings which culminated in the passing of the order of 4 December 1992, it is evident that the respondents do not hold that the petitioners were otherwise ineligible to be extended the benefits of sub-section (4-F). It is not their case that the petitioners were not eligible occupants on the relevant date. Neither the fact of the petitioner belonging to the Scheduled Caste being in occupation of the land in question from prior to the cut off date nor of the land belonging to the Gaon Sabha is disputed by the respondents before this Court. In view thereof, this Court is of the considered opinion that the mere absence of the Gaon Sabha would not fundamentally detract from the right of the petitioners to be accorded the benefits of sub-section (4-F).
That only leaves the Court to consider the contention of a competing claim of the private respondents on the basis of possession. It is pertinent to note that the private respondents do not claim the benefit of sub-section (4-F). They do not assert their rights on the strength of being agricultural labourers belonging to the Scheduled Castes or Scheduled Tribes. It is in that backdrop that the objection as taken by them to the conferment of benefits of sub section (4F) must necessarily be tested. It must at the outset be noted that the Additional Commissioner himself has recorded that the land in dispute was the property of the Gaon Sabha. The private respondents have not demonstrated or established before this Court their right or status to lawfully occupy the land in dispute. The do not claim to have been admitted upon the land in dispute by virtue of a lawful settlement made in their favour under the relevant provisions of the Act. It becomes pertinent to note that the provisions of the Act lay down a detailed machinery for settlement of land vesting in the Gaon Sabha. The respondents have woefully failed to establish their possessory right either on the strength of a lawful settlement or on any other basis. The land of the Gaon Sabha cannot be occupied otherwise than in accordance with a procedure established by law. In absence of any evidence being placed or relied upon in this respect, the Court cannot possibly recognise the existence of a legal right inhering in the respondents to occupy the land.
The reliance placed by learned counsel on Barendra is also misconceived since the observations as entered there would only have application where competing claims under sub-section (4F) are placed for the consideration of the State respondents. In the absence of one of the claimants being entitled to the benefits of sub-section (4-F) and having failed to establish a lawful right to possess the land belonging to the Gaon Sabha, the principles as enunciated in Barendra would have no application. In fact and as is evident from the observations made by the learned Judge in Barendra, the necessity to obtain a formal declaration would arise only when competing sides claim to be in possession from before the cut off date prescribed in sub-section (4-F). The decision in Barendra must therefore necessarily be understood in that context.
In any case, this Court finds itself unable to extend the principles propounded therein to the facts of the present case where the private respondents neither claim the benefits of sub-section (4F) nor have they established any lawful or legal right to be in occupation of land belonging to the Gaon Sabha.
Accordingly and for the reasons aforenoted, this writ petition is allowed. The impugned orders dated 7 April 1999 and 23 December 2002, are hereby quashed and aside.
Order Date :- 21.8.2019 Arun K. Singh (Yashwant Varma, J.)