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2012 DIGILAW 135 (ALL)

SAMER DAS v. STATE OF U. P.

2012-01-13

PANKAJ MITHAL

body2012
JUDGMENT Hon’ble Pankaj Mithal, J.—The dispute is with regard to 0.430 hectare of land of Khasra No. 638 situate in village Gujarhedi, Tehsil Sadar, District Muzaffar Nagar. 2. Petitioner filed an application before the Assistant Collector (First Class) and claimed benefit of sub-section (4-F) of Section 122-B of U.P.Z.A. & L.R. Act, 1950 (hereinafter referred as Act). The said application was decided on 27.7.1998 and it was held that the land in dispute is land of public utility under Section 132 of the Act and therefore, petitioner cannot acquire any Bhumidhari rights over the said land. However, in view of his long possession, it was provided that petitioner is not liable to be evicted from the same. The aforesaid order was reviewed on 11.6.2009 and the portion of the order dated 27.7.1998 whereby it was provided that the petitioner will not be evicted from the land in dispute was ordered to be deleted. 3. The order passed on review was challenged by the petitioner in revision before the Additional Commissioner (Administration). The revision was allowed on 20.10.2009 and the order passed in review on 11.6.2009 was set aside on the ground that there was no justification for review of the order after more than 10 years and the proper remedy available was to challenge the order in the higher forum. The Additional Commissioner (Judicial) vide the impugned order dated 15.11.11 has now reviewed the order dated 20.10.2009 and has held that as the land was of public utility, no rights could have accrued on it to any person. 4. The aforesaid order dated 15.11.2011 passed in review is now under challenge in the present writ petition. Several submissions have been made assailing the aforesaid order and that the review could not have been allowed without condoning the delay. Before examining the submissions advanced, I would like to consider and explain the circumstances in which the benefit of sub-section (4-F) of Section 122-B of the Act can be extended and whether in the present case it was rightly granted. Before examining the submissions advanced, I would like to consider and explain the circumstances in which the benefit of sub-section (4-F) of Section 122-B of the Act can be extended and whether in the present case it was rightly granted. The relevant provisions of Section 122-B for convenience are quoted below : “Section 122-B. Powers of the Land Management Committee and the Collector.—(1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or local authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. (2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show-cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land. (3) If the person to whom a notice has been issued under sub-section (2) fails to show-cause within the time specified in the notice or within such extended time not exceeding [thirty days] from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. (4)......... (4-A)....... (4-B)...... (4-C)...... (4-D)........ (4-E)........ (4)......... (4-A)....... (4-B)...... (4-C)...... (4-D)........ (4-E)........ {(4-F) Notwithstanding anything in the foregoing sub-sections, 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 13, 2007] 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.]} (5)...........................” From the above it may be worthy to note that the benefit of sub-section (4-F) of Section 122-B of the Act is available only when proceedings under Section 122-B of the Act for the eviction of a person has been initiated. This is very much implicit in sub-section (4-F) of Section 122-B of the Act, which provides that where any agricultural labourer has occupied Gaon Sabha land other than land specified under Section 132 of the Act since before a particular date, no action under Section 122-B of the Act shall be taken by the L.M.C. or the Collector against him. 5. In view of the language used in sub-section (4-F) of Section 122-B of the Act, the protection of sub-section (4-F) above is only available from the eviction under Section 122-B of the Act. It has further been provided that for seeking the aforesaid protection no separate suit is required to be filed. Meaning thereby as and when proceedings under Section 122-B of the Act are initiated, the person in occupation of the land since before the cut of date can claim protection under sub-section (4-F) of the Act in the said proceedings. No separate proceedings for the purpose have been contemplated and are maintainable. 6. In view of the aforesaid legal position, the petitioner’s application for granting benefit of sub-section (4-F) of Section 122B of the Act was not independently maintainable. No separate proceedings for the purpose have been contemplated and are maintainable. 6. In view of the aforesaid legal position, the petitioner’s application for granting benefit of sub-section (4-F) of Section 122B of the Act was not independently maintainable. Therefore, the order dated 27.7.1998 passed by Assistant Collector (First Class) on application of the petitioner seeking benefit of sub-section (4-F) of Section 122-B of the Act itself was void and could not have been passed as admittedly there were no proceedings for the eviction of the petitioner under Section 122-B of the Act. The aforesaid order has given rise to the various orders including the impugned order passed in review. When the very order which forms the foundation of the subsequent orders stands vitiated, all orders passed thereafter automatically falls to the ground and their validity need not be adjudicated separately. 7. In view of the aforesaid facts and circumstances, the writ petition is disposed of observing that as the order passed by the Assistant Collector, (First Class) dated 27.7.1998 itself was bad in law and consequently all other orders passed subsequent to it are non-est. The petitioner is however, set at liberty to take the defence of sub-section (4-F) of Section 122-B of the Act as and when proceedings for his eviction from the land in dispute is undertaken under Section 122-B of the Act. Writ petition disposed of. ———————