JUDGMENT Hon’ble Pradeep Kant, J.—Heard the learned Counsel for the petitioners Sri Anil Kumar Misra and Sri Bhola Nath Yadav for the State. List has been revised but the Counsel for the Land Management Committee did not turn up. 2. This writ petition under Article 226 of the Constitution has been filed against the order passed by the Commissioner, Vindhyachal Region, Mirzapur dated 7.12.2001 by means of which the Commissioner had upset the order dated 9th September, 1998 passed by the Sub Divisional Magistrate, Lalganj, Mirzapur. 3. The facts necessary for the purpose are that the petitioners claim that they belong to scheduled caste and are land less agricultural labourers and are in possession of the Gaon Sabha land since before May 1, 2002, and in fact they are in possession since 1995, therefore, the land has settled with them and they had become bhumidhar with non-transferable rights. The petitioners moved application to this effect before the Tehsildar on 14.2.1997 for declaring/treating them bhumidhar with non-transferable rights. On this application a report was called for and the Sub Divisional Magistrate on the basis of some statement/report by some revenue official accepted the plea of the petitioners acknowledging their right of holding the aforesaid land in view of Section 122-B(4-F) of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) as bhumidhar with non-transferable rights. 4. Three revisions were filed by the Gaon Sabha as the order passed by the Sub Divisional Magistrate related to the three petitioners, challenging the aforesaid order of the Sub-Divisional Magistrate before the Commissioner. The Commissioner after considering the plea raised by the parties allowed the revisions holding that Section 122-B(4-F) of the Act is not a provision where declaration of any rights can be made over the Gaon Sabha land and that since in the instant case the proceedings were initiated on the application of the petitioners themselves seeking declaration of their rights as bhumidhar with non-transferable rights over the Gaon Sabha land, the proceedings were not in accordance with law nor were within the jurisdiction of the Sub-Divisional Magistrate. 5. 5. Apart from the aforesaid plea, the Commissioner also entered into factual and procedural aspect of the matter and observed that the proceedings were initiated on the application of the petitioner on 14.2.1997 The order sheet (Fardehkam) dated 20.6.1998 though says that Pradhan and Lekhpal were summoned for recording their statements but the file did not show that any notice was ever issued to them. There is a notice for 3rd July, 1998 which is said to have been issued for summoning the Pradhan and Lekhpal but in the file the statement of Shiv Raj Singh, Up Pradhan was available but even this statement did not contain any date nor the signatures of the Presiding Officer. 6. Gaon Sabha had also filed objections on 15.7.1998 against the aforesaid application but those objections were not considered nor disposed of nor the Gaon Sabha was afforded any opportunity to produce evidence. In the proforma Tehsildar mentioned the date of spot inspection as 3rd May, 1998 but no spot memo was prepared. Again no spot memo was prepared on 30.7.1998 nor the said inspection said to have been made. The orders passed by the Sub Divisional Magistrate were not speaking and no evidence regarding the possession of the petitioners from the proclaimed date including Khasra was ever filed. 7. On the consideration of the aforesaid facts and the serious illegality committed by the Revenue Officer/Official, the Commissioner cancelled/set aside the order passed by the Sub-Divisional Magistrate dated 9.9.1998 and also directed for initiating enquiry against the officer/officials including the Sub-Divisional Magistrate in the matter. The Commissioner relied upon various decisions of this Court and on consideration of the provision of Section 122-B(4-F) of the Act, held that the aforesaid provision is not a provision to seek declaration, right or title over Gaon Sabha land. The Commissioner relied upon various decisions of this Court and on consideration of the provision of Section 122-B(4-F) of the Act, held that the aforesaid provision is not a provision to seek declaration, right or title over Gaon Sabha land. Section 122-B(4-F) reads as under : “Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribes is in occupation of any land vested in a Gram 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 right as bhumidhar with non-transferable rights of that land”). The aforesaid Section starts with a non-obstante clause. In fact the said provision is an exception to the normal rule that Gaon Sabha land cannot be settled nor can be allotted otherwise than in accordance with the relevant provisions of law nor can be allowed to remain in possession or occupation of any person unless it is allotted by means of lease/Patta of the land, granted under the provisions of the Act and the Rules framed thereunder. 8. Section 195 confers power upon the Land Management Committee to admit any person as bhumidhar with non-transferable right to any land (other than the land falling in any of the clauses of Sections 132 of the Act) with the previous approval of the Tehsildar where (a) the land is vacant, (b) the land is vested in the Gram Sabha under Section 117, or (c) the land has come into the possession of Land Management Committee under Section 194 or under any other provisions of this Act. 9. 9. Section 197 of the Act gives power to the Land Management Committee to admit any person as an asami over the land as described therein with the previous approval of the Tehsildar whereas Section 198 gives the order of preference in admitting persons to land under Sections 195 and 197 wherein after giving the order of preference with respect to the eligible person for allotment of land it also gives power of cancellation of Patta under sub-section (4) with power of revision or review under Section 4(A). 10. Section 122-B(4-F) is placed in part II Chapter VII which has the heading “Gaon Sabha”. In this very Chapter the provisions of Sections 117, 117-A and 119 regarding vesting of certain land etc. in Gaon Sabha and other local authority only with the provision for exercise of further extra territorial jurisdiction by Gaon Sabha or other local authority and vesting of certain hats, bazars, melas and private ferries etc. in the Zila Parishad or other authority also find their place. Section 122-A speaks about superintendence, management and control of land etc. by the Land Management Committee. 11. Section 122-B under the scheme of which sub-section (4-F) has also been inserted with a non-obstante clause, in fact, obligates the Land Management Committee and provides a mechanism to save Gaon Sabha land from encroachment or unauthorized possession and for that matter information has to be sent by the Committee to the Assistant Collector concerned in the manner prescribed. A detailed procedure has been provided under sub-clause 2,3 and 4 regarding the manner in which such a report is to be dealt with by the Assistant Collector and if any person is aggrieved by the order of Collector he has been given right of revision before the Collector under sub-section (4-A). The said provision of Section 122-B enjoins responsibility upon the Land Management Committee to keep a vigil upon unauthorized occupation of Gaon Sabha land and if it finds that the said land has been occupied or is in possession otherwise than in accordance with the provisions of the Act, immediate action is to be taken by making a report to the Assistant Collector concerned who would issue notice and lake appropriate action and shall pass orders accordingly. This has been done with a view to protect the Gaon Sabha land from encroachers and from misuse and mis-utilization of the Gaon Sabha land. 12. This has been done with a view to protect the Gaon Sabha land from encroachers and from misuse and mis-utilization of the Gaon Sabha land. 12. Sub-section (4-F) of Section 122-B of the Act carves out an exception which permits the occupation over the Gaon Sabha land by certain class of persons namely Scheduled Caste/Scheduled Tribe, if he/she is an agricultural labourer and has been in possession over the said land since before May 1, 2002. This provision appears to have been made looking to the interest of the scheduled caste or scheduled tribe persons, who are agricultural labourer. 13. The occupation or unauthorized possession even of an agricultural labourer belonging to Scheduled caste/Scheduled tribe would not have been legal nor such land could be settled with him/her in the absence of the aforesaid exceptional provision of sub-section (4-F) which was substituted by U.P. Act No. 24 of 1986. Thus, it is an enabling provision to protect the agricultural labourer belonging to Scheduled Caste/Scheduled tribe from being evicted from the Gaon Sabha land, if he/she fulfils the conditions enumerated therein. Under the given circumstances, the said agricultural labourer would 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. 14. U.P. Zamindari Abolition and Land Reforms Act, but for the aforesaid provision of sub-section (4-F), nowhere recognizes the rights of any person as bhumidhar with transferable or non-transferable rights, as the case may be, unless of course his name is duly recorded in the revenue records and in the absence of which, he/she seeks declaration by filing a suit under Section 229-B of the Act. It is only by virtue of sub-section (4-F) of Section 122-B that the Agricultural labourer who fulfills the conditions given therein is not required to seek declaration by filing a suit but can be admitted as bhumidhar with non-transferable rights under Section 195. 15. In the case of co-tenure holders may be a suit, under Section 176 could also be filed either with a declaratory relief or without seeking it as the law may permit. 16. 15. In the case of co-tenure holders may be a suit, under Section 176 could also be filed either with a declaratory relief or without seeking it as the law may permit. 16. On a reading of aforesaid provision of Section 122-B in its entirety with the exception carved out in sub-section (4-F), it is clear that the aforesaid sub-section (4-F) is not a provision for seeking declaration of the rights of the person who is in occupation of the Gaon Sabha land for declaring him as bhumidhar with non-transferable rights. In fact it is a right to defend, if such a person is sought to be evicted or dispossessed from the land of Gaon Sabha, may be, under die proceedings initiated under sub-section (1) of Section 122-B read with Rule 115 of the U.P. Zamindari Abolition and Land Reforms Rules or by adopting any other proceedings where such power of eviction is given to the Collector or to any other authority concerned. 17. In case an occupant of the like description as given in sub-section (4-F), is sought to be evicted from the Gaon Sabha land he would have a right to plead and establish that since his possession continued since before the cut of date, rights have precipitated in his favour and that he is a bhumidhar of the land with non-transferable rights. If such a plea is raised the same would be considered by the authority concerned before evicting that person. 18. The aforesaid sub-section says that no action under this section viz. Section 122-B shall be taken by the Committee or under the Act against such labourer namely; who fulfils the conditions enumerated therein and further he shall be admitted as bhumidhar with non-transferable rights under Section 195 of the Act and that it shall not be necessary for him to seek declaration by filing a suit for declaration. The provision is specific and clear. The Collector would have no power to evict such person and that he would also be entitled to be admitted as bhumidhar with non-transferable rights by the, Land Management Committee in accordance with the provisions of Section 195 of the Act for which no declaration need be taken by filing the suit. 19. The provision is specific and clear. The Collector would have no power to evict such person and that he would also be entitled to be admitted as bhumidhar with non-transferable rights by the, Land Management Committee in accordance with the provisions of Section 195 of the Act for which no declaration need be taken by filing the suit. 19. The right of defence given under the said provision to the agricultural labourer belonging to Scheduled caste/Scheduled tribe cannot be taken as a right of seeking declaration under the aforesaid provision. 20. The Commissioner has relied upon several decisions of the High Court wherein the High Court held that Section 122-B(4-F) cannot be taken recourse of, for recording entry in the Khatauni. 21. The Collector has also taken into consideration the view of other cases, which have been decided by the Board of Revenue taking the same view that the aforesaid provision is not a forum for seeking declaration. 22. I have gone through the aforesaid judgments and orders relied upon by the Commissioner and I am of the opinion that the view taken by the Commissioner does not suffer from any error of law. The scope of provision of Section 122-B(4-F) has rightly been considered by the Commissioner which does not require any interference. 23. It would be appropriate to put on record that the direction of the Commissioner for holding enquiry against the officials/officers has neither been challenged nor do I find any reason to interfere or do away with that direction in the facts and circumstances of the case. 24. Having said so, the subsequent development which has taken place during pendency of this writ petition is also of great significance which consider as under: 25. The petitioners had filed three suits under Section 229-B namely; Suit No. 111, 115 and 119/14 of 2000 which have been decreed on one and the same day though by separate judgments and decrees i.e. 6.12.2003 by the Assistant Collector, 1st Class/Sub-Divisional Magistrate, Lalganj, District Mirzapur declaring the petitioners as bhumidhar with non-transferable right of the land in question. The petitioners had filed three suits under Section 229-B namely; Suit No. 111, 115 and 119/14 of 2000 which have been decreed on one and the same day though by separate judgments and decrees i.e. 6.12.2003 by the Assistant Collector, 1st Class/Sub-Divisional Magistrate, Lalganj, District Mirzapur declaring the petitioners as bhumidhar with non-transferable right of the land in question. Based on the aforesaid decrees the learned Counsel for the petitioners submitted that since the declaration has been given in favour of the petitioners by the competent Court of law, the order passed by the Commissioner has become ineffective and has lost its significance as the rights of the petitioners now duly stand recognized in declaratory suit filed under Section 229-B of the Act. 26. In response Sri Yadav, the learned Counsel for the State made an unsuccessful effort to convince the Court that the aforesaid decrees passed in the aforesaid three suits were invalid and an invalid decree would not confer any right upon the petitioners. He reiterated that the whole procedure adopted by the Sub Divisional Magistrate in first declaring the petitioners as bhumidhar with non-transferable rights on their own application moved in the year 1997 and thereafter passing the decree makes the decree invalid. Further when sub-section (4-F) categorically and elucidly says that a person, who is covered by the said provision, will not have to seek declaration by filing a suit, and he would be admitted as bhumidhar with non-transferable rights under Section 195, the suit for declaration, itself was not maintainable, and was a superfluous litigation. Certain other defects were sought to be pointed out in the decree. 27. It is not in dispute that the Regular Suits filed by the petitioners have been by the Assistant Collector, 1st Class/Sub Divisional Magistrate Lalganj, District Mirzapur on 6th December, 2002. As per the information given by the learned Counsel for the State the said decree has not been challenged in appeal and even, if any, appeal has been filed it has not resulted into the setting aside of the decree. The validity of a decree or its invalidity can neither be seen nor scrutinized in the collateral proceedings particularly when the State and the Gaon Sabha had not chosen to file any appeal against the said decree. The Court would thus not enter into the question of validity of decree. The validity of a decree or its invalidity can neither be seen nor scrutinized in the collateral proceedings particularly when the State and the Gaon Sabha had not chosen to file any appeal against the said decree. The Court would thus not enter into the question of validity of decree. It was for the State or Gaon Sabha or any other person who felt aggrieved and has locus standi to file the appeal, to challenge the decree in appropriate forum but having not done so till date, the aforesaid decrees cannot be subject matter of scrutiny in the present writ petition. 28. I find force in the argument of the learned Counsel for the petitioners that after the decree passed under Section 229-B the order of the Commissioner has last its efficacy and has become ineffective in so far it sets asides the order of the Sub Divisional Magistrate, by means of which he had declared the petitioners as bhumidhar with non-transferable rights under the provision of Section 122-B(4-F) of the Act despite the fact the application of the petitioners was not maintainable under the said Section. This does not mean that the order passed by the Sub-Divisional Magistrate, declaring the petitioners as bhumidhar under Section 122-B(4-F) remains protected but the fact of the matter is that despite setting aside the order by the Commissioner, which order is not being interfered with by this Court also, the petitioners cannot be evicted otherwise than in accordance with law in the presence of the decree passed in their favour under Section 229-B of the Act. 29. It is made clear that despite the aforesaid change of events the directive issued by the Commissioner for holding enquiry against the officers/officials guilty still remains intact and is upheld. This order would not come in the way of the concerned authority in proceeding with the enquiry as directed by the Commissioner. 30. In the facts and circumstances of the case, no further order needs be passed in the writ petition. However, the order would not come in the way of the State or the Gaon Sabha in case they chose to file any appeal or intend to challenge the decree passed under Section-229-B of the Act in appropriate forum as per law. 31. With the aforesaid direction, the writ petition stands finally disposed of. ————