Sri Hari Narain Mal v. Sri Banwari Lal — 1956 DIGILAW 423 (ALL)

JUDGMENT Mehrotra, J. - This is an application under Article 226 of the Constitution praying that an order passed by the opposite party no. 1 Sri Banwari Lal Sub-Divisional Officer on the 25th of February 1954 be quashed. 2. The facts set out in the affidavit are, that the petitioner along with others was a tenant in cultivatory possession of plots Nos. 169 and 170 as Bhumidhar and over plot No. 171 as sirdar situate in village Kushana, Pergana Naththupur, Tehsil Ghosi, district Azamgarh. They were also in cultivatory possession over plots Nos. 85 and 644 as Bhumidhars in village Ufrauli, Pergana Naththupur, Tehsil Ghosi, district Azamgarh. Act No. XXXI of 1952 known as the U. P. Land Reforms (Supplementary) Act, 1952 was passed by the State of Uttar Pradesh and was published in the Gazette Extraordinary on the 7th of November 1952. Certain rights were conferred under this Act on persons who were in cultivatory possession in the year 1359F. Under Section 4 of the aforesaid Act the opposite party No. 1 was appointed as Special Officer for correction of records of 1359F. On the 6th of January 1954 opposite party No. 1 purporting to have received certain application under the said section from the opposite party No. 2 Sri Hari Nandan acted on that application and ordered the record of 1359F. to be corrected by entering his name over the plots mentioned above. The petitioner alleges that he was not aware of the order passed by the opposite party No. 1 on the 25th of February 1954 and consequently he took no steps to get that order set aside and the petitioner continued to be in possession. The opposite party No. 1 then went to the police station Madhuban on the 18th of March 1954 and asked the opposite party No. 2 to forcibly cut and remove the crops raised by the petitioner. The crops were removed by the opposite party No. 2 from the land on the 18th of March 1952. Then the petitioner came to know that certain corrections had been made in the revenue records. The petitioner applied for the certified copy of the orders dated the 18th of March 1952 and the 25th of February 1954 and also asked for a copy of the application made by the opposite party No. 2 on the 6th of January 1954. Then the petitioner came to know that certain corrections had been made in the revenue records. The petitioner applied for the certified copy of the orders dated the 18th of March 1952 and the 25th of February 1954 and also asked for a copy of the application made by the opposite party No. 2 on the 6th of January 1954. Thereupon this petition was filed in this Court on the 4th of May 1956. Notices were issued to the opposite parties and a counter affidavit has also been filed on behalf of the Sub-Divisional Officer in which it is stated that in early January 1954 a complaint signed by a large number of Harijans of village Ufrauli was received by him complaining about the high-handed action of certain ex-zamindars in reclaiming certain jungle land vested in the Gaon Samaj. Thereafter a large number of Harijans made individual applications before the opposite party No. 1 complaining that the ex-zamindars were threatening to dispossess them from their fields on which they had been carrying on their cultivation as halwahas of the ex-zamindars. Hari Nandan opposite party No. 2 was one of the applicants in respect of plots Nos. 169 and 171 of village Kushna and plots Nos. 85 and 644 of village Ufrauli. He had mentioned that he was the halwaha of Raghunandan, an ex-zamindar. On the receipt of the aforesaid petition the opposite party No. 1 alleges that he directed the lekhpal of the village to announce by beat of drum in the village that the opposite party No. 1 would be holding a spot enquiry regarding the application and all the persons interested were to be present there. The opposite party No. 1 went to the village and made an enquiry. About 150 to 200 persons were present and the opposite party No. 1 directed that each application should be called up. Both the sides were heard and the applications were decided. If none of the co-sharers of the land was present then the case was not taken up. But as one of the co-sharers of the petitioner's land was present he was heard and after making spot enquiry the order was passed on the 25th of February 1954. After that order had been passed some of the ex-zamindars applied for review of that order. But as one of the co-sharers of the petitioner's land was present he was heard and after making spot enquiry the order was passed on the 25th of February 1954. After that order had been passed some of the ex-zamindars applied for review of that order. One of the applicants was Raghunandan Mal who is a co-sharer of Hari Narain Mal the petitioner in the writ. The decision of the opposite party No. 1 dated the 25th of February 1954 was questioned although the decision with regard to the plots belonging to Hari Nandan was not questioned and ultimately the review application was dismissed on the 21st of July 1954. It is further denied by the opposite party No. 1 that the petitioner was in cultivatory possession of the plots in 1359F. although their entries in the revenue records are admitted. 3. As regards the contention that the opposite party No. 1 had no power to act under Section 4 (2) of the Act it is asserted that the opposite party No. 1 could act suo motu under the said section in order to make necessary corrections in the revenue records. It is asserted by the opposite party No. 1 that due information had been given to everybody concerned and at the time of enquiry a large number of persons were present and a number of ex-zamindars admitted that their halwahas were in possession. The assertion by the petitioner that thereafter the opposite party No. 1 directed the opposite party No. 2 with the police help to cut the crops is denied by the opposite party No. 1. 4. Three main contentions have been raised by the petitioner. Firstly, it is contended by him that under Section 4 of the U. P. Act XXXI of 1952 no action could be taken beyond six months from the date on which the Act came into force, i.e. the 7th of November 1952. Secondly, it is urged that the petitioner was given no opportunity to meet the allegations of the opposite party No. 2 who alleged that he was in the cultivatory possession of the plots, and the corrections were ordered by the opposite party No. 1 without giving the petitioner due opportunity to meet the allegations of the opposite party No. 2. Secondly, it is urged that the petitioner was given no opportunity to meet the allegations of the opposite party No. 2 who alleged that he was in the cultivatory possession of the plots, and the corrections were ordered by the opposite party No. 1 without giving the petitioner due opportunity to meet the allegations of the opposite party No. 2. Lastly, it was contended that the petitioner came to know of the order passed by the opposite party No. 1 on the 18th of March 1956 when at the instance of opposite party No. 1 the opposite party No. 2 removed the crops of the petitioner from the fields. 5. It has been strenuously contended by the opposite parties that the petitioner is not entitled to any relief inasmuch as the order impugned was passed in the year 1954 and without any reason the petitioner did not come to this Court earlier than May 1956. It is contended by the opposite parties that a large number of ex-zamindars and some of the co-sharers of the petitioner were present at the time of the spot enquiry made by the opposite party No. 1, one of the co-sharers of the petitioner Raghunandan Mal had applied for the review of the order; although no dispute was raised relating to the plots of Hari Narain Mal still the petitioner had full knowledge of the order passed in the year 1954 and is guilty of laches and his petition is thus liable to be rejected. 6. It is then urged that the petitioner has an alternative remedy available to him. He can file a suit for the enforcement of his right to the plots and any correction made by the opposite party No. 1 in the revenue records should not be disturbed by this Court in the exercise of its powers under Article 226 of the Constitution when the alternative remedy is available to the petitioner. 7. Lastly, it was contended that on the merits although a correction can be made on an application of a party aggrieved within six months of the passing of the Act there is no limitation placed on the rights of the opposite party No. 1 to make the necessary corrections suo motu. 7. Lastly, it was contended that on the merits although a correction can be made on an application of a party aggrieved within six months of the passing of the Act there is no limitation placed on the rights of the opposite party No. 1 to make the necessary corrections suo motu. Though the opposite party No. 1 had received certain complaints from the Harijans in ordering the correction the opposite party No. 1 had acted suo motu and did not act on the application made by the opposite party No. 2. 8. It has also been contended by the opposite party No. 2 that Raghunandan and 18 other co-sharers brought a suit No. 802 of 1954 for injunction against the opposite party No. 2 and 26 other persons restraining them from interfering with the possession of the plaintiffs over the plots on the allegation that the order dated the 25th of February 1954 was untenable in law. The plots in dispute in the present petition were included in that suit. A temporary injunction was refused by the Munsif on the 15th of October 1954. On appeal an ex parte order issuing temporary injunction was passed by the District Judge but it was vacated the same day. The appeal however and the suit are still pending. Although the petitioner was not one of the plaintiffs but the interest of the petitioner was common with that of the other plaintiffs of that suit and the issues which have been raised in the present petition are the subject-matter of decision in that suit also. 9. Lastly it was contended by the opposite party No. 2 that the petitioner has availed of another alternative remedy and is therefore not entitled to any relief in the present petition. 10. On the 6th of January 1954 an application was made by the opposite party No. 2 pointing out to the Sub-Divisional Officer the fact that the opposite party No. 2 and others were in cultivatory possession of certain plots but they were being harassed by ex-zamindars and necessary action should be taken. In 1952 an Act to supplement the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950 for certain purposes was passed by the U. P. Legislature. Under Section 3 of that Act it was provided that: "3 (1). In 1952 an Act to supplement the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950 for certain purposes was passed by the U. P. Legislature. Under Section 3 of that Act it was provided that: "3 (1). Every person who was in cultivatory possession of any land during the year 1359 fasli but is not a person who as a consequence of vesting under Section 4 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act I of 1951), (hereinafter referred to as the said Act) has become a bhumidhar, sirdar, adhivasi or asami under Sections 18 to 24 of the said Act shall be and is hereby declared to be, with effect from the appointed date- (a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidhars or sirdars, all of them were, on the appointed date person or persons referred to in items (i) to (vi) of sub-Section (2) of Section 10 of the said Act, an asami from year to year, or (b) if the bhumidhar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act. Explanation:-A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or asami concerned in the actual performance of agricultural operations. Explanation:-A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or asami concerned in the actual performance of agricultural operations. (2) Where an adhivasi or asami declared under sub-section (1) has been dispossessed otherwise than in due 'course of law, he or any person claiming through him may apply within six months of the date of making the entry referred to in sub-Section (2) of Section 4 to the Assistant Collector, incharge of the Sub-Division for putting him in possession of the land and the provisions of Section 232 of the said Act shall, in so far as may be, apply to and the order of the Assistant Collector shall executable in the same manner as an order under sub-Section (4) of the said section." Section 4 of the said Act provides that: "4(1) With a view to ascertain whether any person referred to in sub-Section (1) of Section 3 was in cultivatory possession of the land during 1359 fasli, the State Government may, as soon as may be, after the commencement of this Act, appoint an officer, not lower in rank than an Assistant Collector of the second class, for the correction of the record of rights for 1359 fasli in any area. "(2) It shall be the duty of such, officer either suo motu or on the application of any person presented to him within six months of the date of commencement of this Act, after such local investigation as he may consider necessary, to enter the name of every such person as occupant of the land in the record of rights for the year 1359 fasli, any law to the contrary notwithstanding." Section 5 of the said Act provides that: "The entry made in the record of rights in pursuance of Section 4 shall be deemed to be correct unless the party challenging proves it to be wrong." 11. The main contention raised by the petitioner in this case was that the proceedings under Section 4 were initiated on the application of the opposite party No. 2 and such an application could not be made after the expiry of six months of the date of the commencement of the Act. The main contention raised by the petitioner in this case was that the proceedings under Section 4 were initiated on the application of the opposite party No. 2 and such an application could not be made after the expiry of six months of the date of the commencement of the Act. The Act came into force in the year 1952. This application was admittedly filed in the year 1954. Under Section 4 the power has been given to the Special Officer appointed by the State Government to order certain corrections in the record of rights after making local investigation as he considers necessary. That power can be exercised by the Special Officer either suo motu or on an application presented to him within six months from the date of the commencement of the Act. To my mind the limitation placed on the rights of persons to apply within six months does not apply to the exercise of the powers by the officer suo motu, What Section 4 lays down is that any person cannot insist on the correction of the revenue records if he approaches the officer by an application presented beyond six months of the commencement of the Act. But that does not take away the right of the officer if on an enquiry he finds that the entry is incorrect and requires correction to order correction suo motu. In cases where the officer acts suo motu even then certain facts may be brought to his notice by the persons who claim to be in cultivatory possession of the plot but nonetheless the Special Officer would be acting suo motu within the meaning of Section 4 of the Act. In the present case the opposite party No. 2 and other persons of the village had brought certain facts to the notice of the Special Officer and on those facts having been brought to his notice it has been stated in the counter affidavit that the Special Officer made a spot investigation after notifying to the people by beat of drum and thereafter ordered the entries to be corrected. The fact that certain facts were brought to the notice of the Special Officer by the opposite party No. 2 does not take away the right of the Special Officer to order the correction acting suo motu under Section 4 of the Act. The fact that certain facts were brought to the notice of the Special Officer by the opposite party No. 2 does not take away the right of the Special Officer to order the correction acting suo motu under Section 4 of the Act. In the application filed by the opposite party No. 2 there was no specific prayer to the effect that the correction should be made in the revenue records. It cannot therefore be argued that the application made by the opposite party No. 2 necessarily leads to the inference that in the present case the Special Officer did not act suo motu under Section 4 (2) of the Act. 12. It was then urged by the petitioner that in any case the petitioner was entitled to notice and it was a violation of the principles of natural justice that the records were ordered to be corrected without giving due notice to the petitioner. Under the Act there is no specific provision to the effect that individual notice is to be given to the persons who are likely to be affected by the order of correction. But Section 4(2) provides that the correction can be ordered after such local investigation as the officer may consider necessary. In the present case it has been stated in the counter-affidavit that on the matters being brought to the notice of the Special Officer he went to the spot, made a local investigation and before doing so he had directed the lekhpal to announce by beat of drum that the officer was going to the spot on a particular day to make an investigation. It was urged by the petitioner's counsel that no affidavit has been filed on behalf of the lekhpal who could have deposed by personal knowledge whether any announcement had been made by beat of drum or not, and in the absence of any such evidence no presumption can be raised that the proper announcement had been made. It is clear from the counter-affidavit that a large number of co-sharers were present at the time of the investigation. Section 4 (2) clearly lays down that the local investigation is to be made by the officer as he may consider necessary. It is clear from the counter-affidavit that a large number of co-sharers were present at the time of the investigation. Section 4 (2) clearly lays down that the local investigation is to be made by the officer as he may consider necessary. In the order of the 25th of February 1954 it has been specifically laid down that the officer had made enquiries locally into this application, and the ex-zamindars had admitted that the opposite party No. 2 and other Harijans had been their halwaha since many years. In the counter-affidavit it has also been stated that a large number of co-sharers were present at the enquiry. Under these circumstances it cannot be said that the provisions of Section 4 (2) were not complied with. Apart from this, the order was passed so far back as the year 1954 and the petitioner came to this Court in the year 1956 long after the order had been passed. The order only directed the correction of the entries in the revenue records. Under these circumstances this Court will not exercise its discretion under Article 226 of the Constitution. 13. It was urged by the petitioner that he had no knowledge of the order as it had been passed behind his back. It was only in March 1956 when at the instance of the opposite party No. 1 the opposite party No. 2 removed the crops from the land of the petitioner that he came to know about the corrections. Admittedly review applications were filed by a large number of persons which were rejected. A suit was also filed by a number of co-sharers in which the present plots were also included. It cannot therefore be accepted that the petitioner had no knowledge earlier than the 18th of March 1956 of the order passed by the opposite party No.1. 14. Lastly, it should also be considered that the effect of the entry is that it shall be deemed to be correct unless the party challenging proves it to be wrong. It therefore gives a right to the petitioner in proper proceedings to challenge the correctness of the entry and it is not a case where under the Act the entry had been made conclusive. It therefore gives a right to the petitioner in proper proceedings to challenge the correctness of the entry and it is not a case where under the Act the entry had been made conclusive. The petitioner states that he has been in cultivatory possession all along and as there has been no interruption in his possession he never came to know of the order passed by the opposite party No. 1. If that is so whenever an attempt is made by proper proceedings to dispossess the petitioner it is open to him to prove that the entry as corrected by the opposite party No. 1 was wrong and this Court in these circumstances would not exercise its powers under Article 226 of the Constitution at this stage. 15. In my opinion there is therefore no force in this petition and it is rejected; but in the circumstances of the case I make no orders as to costs.