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2010 DIGILAW 1208 (ALL)

RAJ KUMAR v. RAJASV PARISHAD, U. P. ALLAHABAD

2010-04-15

PRAKASH KRISHNA

body2010
JUDGMENT Hon’ble Prakash Krishna, J.—The present writ petition arises out of Suit No. 97 instituted by Lachi Devi, respondent No. 3 herein under Section 229 B of the U.P.Z.A. & L.R. Act for declaration of her right in respect of Araji No. 479 area 0.454 situate in village Maharkhan, Pargana Mahuari, Tehsil- Sakaldiha, District Chandauli on the ground that she is a landless agriculturist and is member of Scheduled Caste community. She is entitled to get the benefit as provided for under Section 122 B (4-F) of the U.P.Z.A. & L.R. Act and her name may be recorded in the revenue record and the entry of ‘Navin Parti’ be corrected accordingly. 2. The suit was contested by Gaon Sabha on the pleas inter alia that the plaintiff does not fall in the category of landless agriculturist. Her two sons are major and they are in Government service. They are jointly residing with their mother. An other suit in respect of same land being suit No. 110 of 2001 under Section 229 B read with Section 122 B (4-F) of the Act has been filed by Gulab and others which is pending before the Court. Possession of the plaintiff Lachi Devi or Gulab and others was denied by Gram Pradhan. 3. Parties led evidence in support of their respective cases. Lachi Devi in her deposition stated that her two sons are leaving separately from her and she is an agriculturist. Earlier, her husband was carrying on agricultural operations over the land in question and now, she is earning her livelihood therefrom. She also produced other witnesses in support of her case. The defence also produced evidence to show that Lachi Devi has not matured her right over the land in question and her two sons are in Police Department and she has got an Araji No. 478 area 0.866 hectare. 4. The trial Court after considering the evidence led by the respective parties, held that she does not fall in the category of landless agricultural labourer. She failed to prove her alleged possession of thirty years as she has not filed any revenue record in support thereof such as Khasra or any documentary evidence. The suit was dismissed by the order dated 30th of March, 2005. She failed to prove her alleged possession of thirty years as she has not filed any revenue record in support thereof such as Khasra or any documentary evidence. The suit was dismissed by the order dated 30th of March, 2005. The decree was challenged in appeal No. 13 of 2005 before the Additional Commissioner (Jud.), who by the order dated 16.6.2005 allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit by passing necessary direction for recording the name of Lachi Devi over the plot in question. 5. The order of the First Appellate Authority has been confirmed in second appeal No. 70 of 2004-2005 by the Board of Revenue, U.P. at Allahabad. 6. The learned counsel for the petitioners submits that both the Appellate Authorities have committed mistake in decreeing the suit of Smt. Lachi Devi on the ground that she is a widow. Merely because, the plaintiff is a widow, unless the requirements of Section 122 B (4-F) of the Act are fulfilled, no right shall accrue in her favour. None of the Appellate Authorities has found possession of Lachi Devi over the land in dispute. 7. The learned counsel for the respondents, on the other hand, supports the impugned orders. 8. Considered the respective submissions of the learned counsel for the parties and perused the record. Section 122 B(4-F) of the Act, for the sake of convenience is reproduced below : “122B (4-F). Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to 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 June 30, 1985 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 it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under Section 195.” 9. Section 122 B (4-F) of the Act provides that notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to 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 June 30, 1985 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 it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under Section 195. 10. The said provision does not give any special or additional right to a widowed agricultural labourer belonging to Scheduled Caste or Scheduled Tribe. One of the essential conditions for conferment of Bhumidhari with non transferable rights is that the claimant must be in occupation of the land in dispute on the relevant cut off date. Besides the other things, in other words, occupation of land is also one of the requirements or ingredients so far as Section 122 B (4-F) of the Act is concerned. 11. The trial Court found as a fact that the plaintiff Smt. Lachi Devi has failed to prove her possession over the land in dispute. She failed to substantiate her claim that she has been in possession of the said land for the last thirty years. No documentary evidence such as Khasra was filed to corroborate her plea regarding possession. Indisputably, the said finding recorded by the Trial Court has not been disturbed or reversed by the First Appellate Authority. A perusal of the judgment of the First Appellate Authority would show that it proceeded to allow the appeal by setting aside the judgment and decree of the Trial Court simply on the ground that the plaintiff is a widow. The order of the First Appellate Authority has been confirmed by the Second Appellate Authority. The question which falls for consideration is whether such an approach is justified or not. 12. The learned counsel for the petitioners is right in his submission that merely because the plaintiff respondent No. 3 is a widow, the law does not grant her any such concession or benefit under the aforesaid Section. The question which falls for consideration is whether such an approach is justified or not. 12. The learned counsel for the petitioners is right in his submission that merely because the plaintiff respondent No. 3 is a widow, the law does not grant her any such concession or benefit under the aforesaid Section. A person can succeed only on the fulfillment of ingredients of Section 122 B (4-F) of the Act and not otherwise. The finding recorded by the Trial Court that the plaintiff has failed to prove her possession on the relevant date over the land in question having not been reversed, it follows that the plaintiff has failed to satisfy the ingredients as provided by Section 122 B (4-F) of the Act. 13. The learned counsel for the respondents submits only this much that the plaintiff being a widow deserves sympathy of the Court. The said argument is merit-less and does not advance the case of the plaintiff respondent No. 3. 14. While considering a Statute “sympathy has no role to play”. The Apex Court has laid down that a Court cannot interpret a provision binding decisions of the Constitution Bench of this Court only by way of sympathy to the concerned person. In Maruti Udyog Ltd. v. Ram Lal, AIR 2005 SC 851 , the Apex Court has noticed its earlier judgments and held that ordinarily Court would not pass an order on the ground of sympathy which would be in contravention of Statutory provision. The relevant paragraphs are extracted below from the aforesaid judgment : “44. While construing a statute, ‘sympathy’ has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the concerned workmen. 45. In A. Umarani v. Registrar, Co-operative Societies and others (2004) 7 SCC 112 , this Court rejected a similar contention upon noticing the following judgments : AIR 2004 SC 4504 : 2004 AIR SCW 4462 : 2004 Lab IC 3206 Paras 67, 68 and 69, “In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and others (2004) 2 SCC 130 , it is stated; “We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extra-ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision. As early as in 1911, Farewell L.J. in Latham v. Richard Johnson and Nephew Ltd. 1911-13 AER reprint p.117) observed : “We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O’ the Wisp to take as a guide in the search for legal principles.” Yet again recently in Ramakrishna Kamat and others v. State of Karnataka and others (JT 2003(2) SC 88), this Court rejected a similar plea for regularization of services stating : AIR 2003 SC 1530 : 2003 AIR SCW 890 : 2003 Lab IC 1196 : 2003 AIR -Kant HCR 702 Para 7. “... We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by zilla parishads in view of the Government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment...” 15. While being sympathetic to the persons who come before the Court the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment...” 15. In my considered view, the aforesaid quoted portion from the judgment of the Apex Court is equally applicable to the facts of the present case notwithstanding the fact that the said observations were made while considering a case of workmen under the Labour Laws. Moreover, in the present case, the plea of sympathy in favour of the plaintiff respondent No. 3 is misplaced one as she has got two grown up sons who are well placed in life as they are in police service. She has, admittedly, got a piece of land in her own name. There may be other persons in the village having no land or source of income or having no earning member in their family. The two judgment and orders of the Appellate Authorities are based on irrelevant considerations and they cannot be allowed to stand. 16. In the result, the writ petition succeeds and is allowed. The suit filed by the plaintiff respondent No. 3 under Section 229 B read with Section 122 B (4-F) of the Act stands dismissed. 18. No order as to costs.