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2015 DIGILAW 1464 (ALL)

Fulare v. State of U. P.

2015-05-29

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri H.N. Shukla learned Counsel for the petitioner learned Standing Counsel for the State respondents and Sri Diwakar Singh for the Gaon Sabha, respondent No. 4. By means of this writ petition the following relief has been prayed for "Issue a writ order or direction in the nature of mandamus commanding the respondent No. 3 and others authorities admitting the petitioner as bhumidhar in accordance with the provision under section 122-B(4-F) of U.P.Z.A. & L.R. Act and settled law of the Hon'ble Supreme Court in the interest of justice and no action be taken otherwise to it." The facts of the case briefly stated are that proceedings under section 122-B were drawn against the petitioner which gave rise to Case No. 131 of 2000-01. The Tehsildar by the order dated 30.6.2001 dropped the proceedings on the finding that the petitioner a landless agricultural labourer belonging to the scheduled caste, was in possession over the land belonging to the Gaon Sabha from prior to 30.6.1985 and therefore, entitled to the benefit of section 122-B(4-F). It was further observed that the petitioner may get his title declared by a Court of competent jurisdiction. 2. On the strength of the order aforesaid the petitioner has filed this writ petition seeking the relief noticed above. 3. It has been submitted by learned Counsel for the petitioner that there is no need for the petitioner to initiate any legal proceedings for declaration of his rights. All the ingredients stand established by the order dated 30.6.2001 passed by the Tehsildar and therefore, in view of the deeming clause the petitioner is liable to be declared bhumidhar of the land of the Gaon Sabha in his possession. He has placed reliance upon a decision of the Apex Court in the case of Monorey @ Manohar v. Board of Revenue (U.P.) and others 2003 (94) RD 538, in support of his contention. He submits that the provisions of section 122-B(4-F)are a piece of welfare legislation and therefore, the relief prayed for is liable to be granted. 4. Learned Counsel for the Gaon Sabha has refuted the submissions made by learned Counsel for the petitioner and has contended that the mandamus prayed for cannot be issued. He submits that the provisions of section 122-B(4-F)are a piece of welfare legislation and therefore, the relief prayed for is liable to be granted. 4. Learned Counsel for the Gaon Sabha has refuted the submissions made by learned Counsel for the petitioner and has contended that the mandamus prayed for cannot be issued. He has further stated that existence of the deeming clause, exists at the relevant point of time, namely 30.6.2001 the only remedy available to the petitioner was by means of a suit for declaration of his rights. This is precisely what was observed in the order passed by the Tehsildar. This order has become final between the parties and therefore now the petitioner cannot take a contrary stand and is bound by the directions contained in this order. It is further submitted that it is true that as on date, the provision has been amended w.e.f. 21.6.2002 and the necessity of filing a suit has been done away with, yet, at the relevant point of time the suit was the proper remedy and therefore the petitioner is bound to take recourse to such remedy. The claim of the petitioner is based upon the findings contained in the order of the Tehsildar. 5. I have considered the subdivisions made by learned Counsel for the parties and perused the record. 6. It is clear that the proceedings under section 122-B had been initiated against the petitioner and had attained finality vide order dated 30.6.2001. These proceedings were initiated prior to the amendment made in the year 2002. 5. I have considered the subdivisions made by learned Counsel for the parties and perused the record. 6. It is clear that the proceedings under section 122-B had been initiated against the petitioner and had attained finality vide order dated 30.6.2001. These proceedings were initiated prior to the amendment made in the year 2002. The relevant provision namely section 122-B(4-F) prior to the amendment reads as follows "(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 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 nontransferable rights of that land under section 195." Further sub-sections (4-D) and (4-E) read as follows "(4-D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a Court of competent jurisdiction to establish the right claimed by him in such property." (4-E) "No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A)." 7. In view of the above extracted provisions, it is established that the order dated 30.6.2001 was rightly passed and was a perfectly valid and legal order. The petitioner by means of this writ petition seeks benefit of this very same order but without complying with the directions contained therein. 8. Insofar as, the judgment relied upon by learned Counsel for the petitioner is concerned, it is true that it has been held therein, that there is no bar against an application being made by the eligible person coming within the four corners of sub-section (4-F) to effect necessary changes in the revenue record. 8. Insofar as, the judgment relied upon by learned Counsel for the petitioner is concerned, it is true that it has been held therein, that there is no bar against an application being made by the eligible person coming within the four corners of sub-section (4-F) to effect necessary changes in the revenue record. The relevant paragraph of the said judgment is quoted here under "That being the legal position, there is no bar against an application being made by the eligible person coming within the four corners of sub-section (4-F) to effect necessary changes in the revenue record. When once the claim of the applicant is accepted, it is the bounden duty of the concerned revenue authorities to make necessary entries in revenue records to give effect to the statutory mandate." 9. However, the Apex Court has considered the import of the amended section 122B(4-F). The order of the Tehsildar which is the basis of the petitioners claim was passed on the basis of section 122-B(4F) prior to its amendment which came into effect from 21.6.2002. After the amendment the necessity of filing a suit for declaration as a bhumidhar with non-transferable rights was done away with. Therefore, the reliance upon the judgment of the Apex Court is not justified. 10. Despite the observations made in the judgment of the Apex Court, the same would not be attracted in the instant case for another reason. It has nowhere been alleged by the petitioner that he has filed any application for getting his name recorded over the land in question. A writ of mandamus can issue only when it has been established that a statutory duty exists which has not been performed despite a request in writing in this regard. 11. In fact, the petitioner is seeking a declaration from the writ Court without having made any application in this regard and also without having instituted any suit for declaration of his rights as provided by law as it existed at the relevant point of time and as was rightly directed by the order dated 30-6.2001 which is also the basis of his claim. 12. Since there is no material on record to show that the petitioner has made any such application seeking benefit of the deeming clause as contained in section122-B(4-F), no mandamus can be issued and for this reason alone the writ petition is liable to be dismissed. 12. Since there is no material on record to show that the petitioner has made any such application seeking benefit of the deeming clause as contained in section122-B(4-F), no mandamus can be issued and for this reason alone the writ petition is liable to be dismissed. The writ petition is therefore dismissed with the observation that the petitioners may file a suit for declaration of his rights, if any, in the land in question.