Allahabad High Court
Rajkumar vs Sub Divisional Magistrate, G.B. Nagar ... on 16 May, 2013
Author: Arvind Kumar Tripathi
Bench: Arvind Kumar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 26 Case :- WRIT - C No. - 54196 of 1999 Petitioner :- Rajkumar Respondent :- Sub Divisional Magistrate, G.B. Nagar And Others Counsel for Petitioner :- P.K.S. Paliwal Counsel for Respondent :- C.S.C.,Anuj Kumar Hon'ble Arvind Kumar Tripathi,J.
Heard learned counsel for the petitioner, learned A.G.A. and perused the record.
Both, the present writ petition no.54196 of 1999 and the Writ Petition No.52268 are related with the declaration of the right under section 122B(4F) declaring as bhumidhar with non transferable right vide order dated 7.8.97, hence both the petitions are decided jointly by common order.
By means of the writ petition, the impugned orders dated 21.7.1999 (annexure III) dated 3.12.1999 (annexure-V) and 2.12.1998 passed by the respondents have been challenged and further prayer is to issue writ of mandamus commanding the respondent no.6 to pay the petitioner compensation for wrongful dispossession from the plot in dispute.
On 22.12.1999 the interim order was passed to stay the dispossession of the petitioner from the land in dispute.
Learned counsel for the petitioner submitted that on 26.4.1997 the Assistant Collector/Tehsildar passed an order on the proceeding under section 122B of the U.P.Z.A. and & L.R. Act., regarding illegal possession of the petitioner and the proceeding was dropped with further observation that the petitioner might initiate proceeding under section 122B(4F) of the aforesaid Act. Thereafter in pursuance of the order an application was moved on behalf of the petitioner before the respondent no.1 S.D.O. Gautam Budhnagar. That application was decided by order dated 7.8.97. The claim of the petitioner was accepted and he was declared as Bhumidhar with non transferable right giving benefit under section 122B(4F) of U.P.Z.A. and L.R. Act and in pursuance of that order the name of the petitioner was recorded over the land of Khasra No.17/1 M Rakba 1-11-10. Subsequently against that order one private person namely Lalit, respondent no.5, moved an application for recall of the order which was not maintainable. However, on that application an order dated 7.8.1997 was recalled by order dated 2.12.1998 on the ground that the order was exparte. Against that revision was preferred by the petitioner which has also been dismissed by the Additional Commissioner, Administration, Meerut Divsion, Merut.
Learned counsel for the petitioner submitted that in view of the provision since the petitioner was found in possession who was schedule cast land less labourer and as such rightly the order was passed in favour of the petitioner under section 122B (4F) and petitioner was declared as Bhumidhar with non transferable right. There was no requirement of hearing on the application of Lalit, respondent no.5, however, the order was recalled. The order of S.D.O./ Additional Collector is illegal, arbitrary and even in the year 2002 provision of the filing of the suit for declaration under section 122B )4F was deleted. Now there is no requirement of seeking declaration and if schedule caste landless labourer is found in possession over the property of Gaon Sabha vested under section 117 of U.P.Z.A. & L.R. Act the order can be passed under section 122B (4F). Hence in the present case order passed in favour of the petitioner was in accordance with law and as such the subsequent order passed by the S.D.O. recalling the order and order of the revisional court are liable to be set aside. He relied judgement of the Apex Court in the case of Manorey alias Manohar vs. Board of Revenue (U.P.) and others, 2003(94) RD 538 and decision of single Judge of this Court passed in the Writ Petition No. 17713 of 1997 Jagdish Pandey vs. Additional Collector decided on 3.8.2011 in which it was held that if any person or villager has signed on the documents on behalf of the Gaon Sabha that would be inappropriate and illegal and the villager will not be authorised to sign on behalf of the Gaon Sabha hence the memo of the revision signed by the villager was not a competent revision.
Learned counsel for Gaon Sabha opposed the aforesaid prayer and submitted that in the year 1998-99 when the order was passed by the S.D.O. under section 122B (4F) at that time requirement was to seek declaration under section 229B. However, in the present case there was no such declaration in favour of the petitioner. The amendment is of the year 2002, hence rightly the order was recalled, even the counsel for the Gaon Sabha opposed that order. Subsequently the petitioner himself has written on 3.12.1994 addressing to the S.D.O. Dadri Gautam Budhnagar that he has not occupied the land of the Gaon Sabha. He was not in possession over the land of the Gaon Sabha and he tendered apology, hence no interference is required in the impugned order.
Considered the submissions of counsel for the parties. In the present case admittedly when the proceeding was initiated against the petitioner under section 122B(4F) that proceeding was dropped by the Assistant Collector/Tehsildar on 26.4.1997 and further observation was that he may initiate proceeding before the competent court to get the benefit under section 122B of U.P.Z.A. & L.R. Act. After that an application was moved on behalf of the petitioner under section 122B (4F) read with section 229B of U.P.Z.A. & L.R. Act, If agricultural landless labourer belongs to schedule caste/schedule tribe was found in occupation of any land vested in Gaon Sabha under section 117 not being the land under section 132, having occupied it from before May 13, 2007, he would be declared Bhumidhar with non transferable right. Section was amended in the year 2002 and by amendment it was clarified that no declaration was required for the benefit under section 122B(4F) because earlier though there was no provision to seeking declaration under section 229 of the said Act but the suit was required to be filed for declaration in view of the juddgment of this Court. In the present case in view of the report of Lekhpal the petitioner was in possession over the land in dispute, hence the notice was given on Form 49A and the proceeding was initiated under section 122B for ejectment and penalty. However, it was found that in view of the provision of section 122B (4F) the petitioner was entitled to be declared as Bhumidhar with non transferable right, hence the proceeding was dropped by the Assistant Collector/Tehsildar, Dadri on 26.4.1997. The application of the petitioner was under section 122B(4F) read with section 229. However, S.D.O. concerned instead of entertaining the application and initiating the proceeding under section 229B declared the petitioner as Bhumidhar with non transferable right giving benefit under section 122B(4F) because in view of the aforesaid provision and section the petitioner being schedule caste landless labourer who was in possession over the land in question, was deemed to had acquired right as bhumidhar with non transferable right over the land in question. Hence an order was passed on 7.8.1997 declaring the petitioner as bhumidhar with non transferable right with regard to Khasra No.17-M/1 measuring 1-11-10 situated in Khandera Pargana, Tehsil dadri, Gautam Budh Nagar. Thereafter an application was moved by one Lalit respondent no.5. No application was moved by Gaon Sabha disputing the claim of the petitioner. However, counsel for the Gaon Sabha appeared and on the ground that the order was exparte order, the same was set aside by order dated 2.12.1998 passed by S.D.O. Dadri Gautam Budh Nagar. Against that order revision was preferred. Revision was also dismissed and the order of S.D.O. was affirmed. By interim order dated 22.12.1999 the order with regard to dispossession of the petitioner was stayed, hence the petitioner is still in possession over the land in question. By amendment in the year 2002 (U.P. Act No.11/2002 w.e.f. 21.6.2002 it was clarified and provided that the said labourer shall be admitted as Bhumidhar with non transferable right over the land in possession under section 195 and it would not be necessary for him to institute the suit for declaring of his right as bhumidhar with non transferable right in that land. In case of Manorey alias Manohar (supra) the right of agricultural schedule caste labour was recognised under section 122B(4F) U.P.Z.A. & L.R. Act, 1951.After inquiry S.D.O. directed that the name of labourer should be recorded as bhumidhar with non transferable right deleting the name of the Gaon Sabha in the record. It was held that the S.D.O. was having right to allow the application and to direct the correction of the record. The Board of Revenue and High Court should not have set aside that order. The fact that the Land Management Committee of the Gaon Sabha had created lease holding right in favour of the respondent is of no consequence. Such lease, in the face of statutory right of the petitioner under section 122B(4F) was nonest in the eye of law and was liable to be ignored. In case of Jagdish Pandey (supra) the memo of the revision was signed by one of the villager and not by Gram Pradhan or any authorised person by the Land Management Committee and it was held that the villager was not entitled to represent the Gaon and the revision was not competent.
In the present case there was no application for restoration application of the Gaon Sabha. Apart from that even in reply to the writ petition there is no material placed by the Gaon. This fact has not been denied by the Gaon Sabha that the petitioner is schedule caste landless labourer though the counsel for the Gaon Sabha appeared in support of impugned order. Now in view of the aforesaid discussion no action has to be taken under section 122B against the petitioner and he has to be admitted as bhumidhar with non transferable rigfht. No suit for declaration of his right under section 122B is required. While passing impugned orders the revenue authorities ignored the effect of a deeming provision enacted under section 122B(4F) U.P.Z.A. & L.R. Act, with a definite social purpose providing for admission of the person of schedule caste/schedule tribe, as bhumidhar with non transferable right satisfying the requisite criteria provided under section 122B(4F).
In view of the aforesaid discussion the impugned orders dated 21.7.1999, 3.12.1999 and 2.12.1998 are illegal and against the evidence on record and fact and law. Hence the same are hereby quashed. The interim order, if any, is hereby discharged. Accordingly both the writ petitions are hereby allowed.
Order Date :- 16.5.2013 Rk