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2016 DIGILAW 2307 (ALL)

Baijanath (Dead) v. State of U. P.

2016-07-05

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. – Heard learned counsel for the petitioners and Sri Manoj Kumar Yadav for the Gaon Sabha as also learned Standing counsel for the State-respondents. 2. This writ petition challenges the order dated 16.08.2004 passed by the Sub Divisional Magistrate, Saidpur District Ghazipur, respondent no.3 passed in Case No.14 under Section 122-B/1765 (actually Rule 176-A) of the U.P. Zamindari Abolition and Land Reforms Act and the rules framed thereunder as also the order dated 27.06.2015, whereby the revision of the petitioners against the order aforesaid has been dismissed. 3. The submission of the learned counsel for the petitioners is that Baijnath (since deceased) had been allotted a lease of plot no.578 area 2 Bigha, 1 Biswa and 1 Biswansi of village Barwan Kalan, Pargana and Tehsil Saidpur, District Ghazipur by the erstwhile Zamindar for growing Singhara. 4. The petitioner continued to be recorded as Asami over this plot upon abolition of Zamindari and even during consolidation and after consolidation operations. 5. It appears that upon a report of the Lekhpal dated 20.02.2004 that the Pokhari, recorded in the name of the petitioners father, be entered in the name of the Gaon Sabha, notice was issued which was duly replied. 6. Thereafter on 16.08.2004, an order was passed by the respondent no.3 directing that the name of the Baijnath (deceased) be expunged and the plot be recorded as Pokhari of the Gaon Sabha. 7. Aggrieved by this order, the petitioners filed a revision under Section 333 of the Act alleging that the respondent no.3 had no jurisdiction to pass the order under Section 122-B of the Act. It was also contended that a long standing entry could not be corrected by means of the summary proceedings under Section 122-B, the proceedings were alleged to be barred by Section 49 of the Consolidation of Holdings Act and that the order was passed without affording opportunity of the petitioner to adduce evidence and without hearing them. 8. The Additional Collector (2nd) Varanasi Region, Varanasi by his order dated 27.06.2016 holding that since the plot in question was recorded as Pokhari, wherein, no rights could accrue in favour of the petitioners, dismissed the revision. Hence this writ petition. 9. The contention of learned counsel for the petitioners is that a long standing entry could not be corrected by means of the summary proceedings under Section 122-B of the Act. Hence this writ petition. 9. The contention of learned counsel for the petitioners is that a long standing entry could not be corrected by means of the summary proceedings under Section 122-B of the Act. The petitioners being Asamis of the plot in question, Section 122-B could not be invoked for cancelling the Asami lease. The order impugned is therefore without jurisdiction. The other grounds taken before the Revisional Court have also been impressed. 10. Learned Standing Counsel as also the counsel appearing for the Gaon Sabha have supported the impugned orders. They have submitted that admittedly the plot in question is a Pokhari and therefore the orders impugned have rightly been passed and the same call for no interference. 11. I have considered the submissions made by the parties and I have perused the record. 12. The fact that Baijnath (since deceased), father of the other petitioners was recorded as Asami over the plot in question. It is equally true that an Asami lease cannot be determined in proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act which provision is meant for eviction of unauthorized occupants. A person recorded as an Asami cannot be said to be an unauthorized occupant especially when the entry is not alleged to be a forged or fraudulent entry. 13. There are only two provisions for eviction of an Asami. The first is under Section 202 of the U.P.Z.A. and L.R. Act and second provision is Rule 176-A (2) of the Rules framed under the Act which empowers the Assistant Collector incharge of the Sub Division to determine an Asami lease at any time. 14. The certified copy of the order that have been passed by the Sub Divisional Officer indicates that it has been passed in proceedings under Section 122-B/1765. This provision namely 1765 appears to be a typographical error and the same in my considered opinion refers to Rule 176-A of the Rules framed under the Act. Merely because a wrong Section has been mentioned, in my considered opinion, the same would not, by itself, vitiate the order passed by the Sub Divisional Magistrate. 15. In my considered opinion, the proceedings were not under Section 122-B of the Act, even though this Section is mentioned in the certified copy of the order impugned passed by the Sub Divisional Officer. 15. In my considered opinion, the proceedings were not under Section 122-B of the Act, even though this Section is mentioned in the certified copy of the order impugned passed by the Sub Divisional Officer. This is so because the order impugned has been passed by the Sub Divisional Officer or the Assistant Collector, Incharge of a Sub Division. The orders under Section 122-B can be passed by an Assistant Collector. The Court competent to pass an order under Rule 176-A(2) of the Act is the Assistant Collector, incharge of a Sub Division. It therefore necessarily follows that the powers conferred by Rule 1761) have, in fact, been exercised in this case by the Authority competent to exercise such powers and for this reason alone merely because Section 122-B has also been mentioned, it cannot be said that in fact, the order has been passed in proceedings under Section 122-B of the Act. 16. Rule 176-A(1) of the Act provides that no lease shall be made to an Asami for a period exceeding five years. Sub Rule 2 provides that "it shall be lawful for the Assistant Collector incharge of the Sub Division to determine at any time, the lease in favour of an Asami and upon such determination, the Asami shall not be entitled for any compensation." 17. The order dated 16.08.2004 has been passed while exercising powers conferred under this Rules and in consequence thereof. The same, in my considered opinion, suffers from no illegality. 18. There is yet another reason for holding that the proceedings wherein the order impugned has been passed were under Rule 176-A(2) not under Section 122-B. The order of the Sub Divisional Officer has been challenged by means of a revision under Section 333 of the Act. In case, the order had been passed in proceedings under Section 122-B of the Act, the revision would have been filed under Section 122-B (4A) before the Collector. This has not been done. The petitioner was therefore aware that the proceedings, were in fact, under Rule 176-A(2) of the Act and therefore it is not open for him to claim to the contrary in this petition. On the strengh of a wrong section having been mentioned in the cause title of the order. 19. The other contention that the proceedings were barred by Section 49 of the Consolidation of Holdings Act is also without substance. On the strengh of a wrong section having been mentioned in the cause title of the order. 19. The other contention that the proceedings were barred by Section 49 of the Consolidation of Holdings Act is also without substance. Admittedly, Baijnath was recorded as an Asami and this entry continued even after consolidation operations. As already noticed above an Asami lease can be determined at any time under Rule 176-A(2) and this is precisely what has been done by the order impugned. 20. There is no law which provides that an Asami lease cannot be determined once consolidation operations have intervened. The submission of learned counsel for the petitioner is therefore without merit. 21. Accordingly and in view of the above discussion, I do not find any ground either in the writ petition or in the submissions raised on behalf of the petitioner, warranting interference. 22. The writ petition is therefore dismissed. Petition Dismissed.