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2018 DIGILAW 580 (ALL)

KAILASH v. A. D. M. (F & R)

2018-03-09

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—Initially proceedings under Section 122 (B) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called the Act of 1950) were initiated against the petitioner and were dropped on 22.6.1996 after finding that the possession of the petitioner was lawful. On 20.8.1997, a restoration application for recalling the order by which proceedings under Section 122B were dropped as was filed by the Gaon Sabha was also dismissed. However, one Ram Nageshar Das who has been impleaded as respondent No. 3 in the instant case again filed an application for restoration of the proceedings. This application was allowed on 30.5.1998. The Revision against the order dated 30.5.1998 filed by the petitioner was dismissed on 4.4.2003 and the application filed by him for reviewing the order dated 4.4.2003 was also dismissed on 14.6.2005. Aggrieved thereof, the petitioner had filed a writ petition which was numbered as Writ Petition No. 51558 of 2006. The writ petition was however, got dismissed by an order dated 10.4.2009 which is being reproduced here as under: “Learned counsel for the petitioner states that he does not want to press this writ petition. It is hereby dismissed as not pressed.” Dismissal of the writ petition meant that the proceedings as were got restored by Ram Nageshar Das now stood restored. 2. In the meantime, however, the petitioner who had matured rights as a Bhumidhar had also filed an application under Section 122 (B) 4-F of the Act of 1950 stating that as he was in possession over the land in question from before 1975 he be deemed to be a Bhumidhar of the land in question. After the filing of the application under Section 122(B)4-F, proceedings under Section 122 (B) and the application under Section 122(B)4-F were amalgamated and were decided together on 16.8.2010. On that date, relying on a spot inspection, the Tehsildar found that the petitioner was in possession over .085 hectares (out of 0.162 hectares) of plot No. 49 M and over the rest of the area there were temples, which included a temple of Chhath Mata, existing. Thereafter, a Revision was filed by the Gaon Saba in which Ram Nageshar Das also got himself impleaded and tried to contest the Revision as was filed by the Gaon Sabha. When the Revision was allowed on 24.9.2012, the instant writ petition was filed. 3. Thereafter, a Revision was filed by the Gaon Saba in which Ram Nageshar Das also got himself impleaded and tried to contest the Revision as was filed by the Gaon Sabha. When the Revision was allowed on 24.9.2012, the instant writ petition was filed. 3. Learned counsel for the petitioner Sri R.C. Singh has submitted that the Revisional Court had decided the Revision on a wrong premise. It had, he states, wrongly noted that the application which was filed by the petitioner under Section 122 (B) 4-F had already attained finality when the Writ Petition No. 51558 of 2006 was dismissed on 10.4.2009. He has submitted that the Revisional order was passed oblivious of the fact that the application under Section 122(B) 4-F was filed after the dismissal of the writ petition on 10.4.2009 and, therefore, the observation as had been made by the Revisional Court could not have been made at all. Learned counsel for the petitioner has further submitted, relying upon the decision of this Court in Babu Ram Verma v. Sub-Divisional Officer, District- Faizabad and others, 1996 (3) UPLBEC 2028 , that a private party who had no authorization from the Gaon Sabha could not contest the Revision which was filed by the Gaon Sabha. In the end, learned counsel for the petitioner submitted that rights which accrue under Section 122(B)4-F require no declaration. They accrue because of the provisions of law as have been enunciated under Section 122(B)4-F. There is no declaration required if a person is found in possession from before the date which has been given out in Section 122(B)4-F and he automatically becomes a Bhumidhar and no declaration is required. To bolster his submission the learned counsel for the petitioner relied upon a decision of the Supreme Court in Manorey alias Manohar v. Board of Revenue (U.P.) and others, AIR 2003 SC 4102 . Since the learned counsel for the petitioner read out paragraphs 8, 9 and 10 of the judgment, the same are being reproduced here as under: “8.First, the endeavour should be to analyze and identify the nature of the right or protection conferred by sub-Section (4F) of Section 122B. Sub-Sections (1) to (3) and the ancillary provisions upto sub-Section (4E) deal inter alia with the procedure for eviction of unauthorized occupants of land vested in Gaon Sabha. Sub-Sections (1) to (3) and the ancillary provisions upto sub-Section (4E) deal inter alia with the procedure for eviction of unauthorized occupants of land vested in Gaon Sabha. Sub- Section (4F) carves out an exception in favour of an agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe having land below the ceiling of 3.125 acres. Irrespective of the circumstances in which such eligible person occupied the land vested in Gaon Sabha (other than the land mentioned in Section132), no action to evict him shall be taken and moreover, he shall be deemed to have been admitted as a Bhumidhar with non transferable rights over the land, provided he satisfies the conditions specified in the sub-Section. According to the findings of the Sub- Divisional Officer as well as the appellate authority, the appellant does satisfy the conditions. If so, two legal consequences follow. Such occupant of the land shall not be evicted by taking recourse to sub-Section (1) to (3) of Section 122B. It means that the occupant of the land who satisfies the conditions under sub-Section (4F) is entitled to safeguard his possession as against the Gaon Sabha. The second and more important right which sub-Section (4F) confers on him is that he is endowed with the rights of a Bhumidhar with non transferable rights. The deeming provision has been specifically enacted as a measure of agrarian reform, with a thrust on socio-economic justice. The statutorily conferred right of Bhumidhar with non-transferable rights finds its echo in clause (b) of Section 131. Any person who acquires the rights of Bhumidhar under or in accordance with the provisions of the Act is recognized under Section 131 as falling within the class of Bhumidhar. The right acquired or accrued under sub-Section (4F) is one such right that falls within the purview of Section 131(b). 9. Thus, sub-Section (4F) of Section 122B not merely provides a shield to protect the possession as opined by the High Court, but it also confers a positive right of Bhumidhar on the occupant of the land satisfying the criteria laid down in that sub-Section. 9. Thus, sub-Section (4F) of Section 122B not merely provides a shield to protect the possession as opined by the High Court, but it also confers a positive right of Bhumidhar on the occupant of the land satisfying the criteria laid down in that sub-Section. Notwithstanding the clear language in which the deeming provision is couched and the ameliorative purpose of the legislation, the learned single Judge of the High Court had taken the view in Ramdin v. Board of Revenue (supra) (followed by the same learned Judge in the instant case) that the Bhumidhari rights of the occupant contemplated by sub-Section (4F) can only blossom out when there is a specific allotment order by the Land Management Committee under Section 198. According to the High Court, the deeming provision contained in sub-Section (4F) cannot be overstretched to supersede the other provisions in the Act dealing specifically with the creation of the right of Bhumidhar. In other words, the view of the High Court was that a person covered by the beneficial provision contained in sub-Section (4F) will have to still go through the process of allotment under Section 198 even though he is not liable for eviction. As a corollary to this view, it was held that the occupant was not entitled to seek correction of revenue records, even if his case falls under sub-Section (4F) of Section 122B. We hold that the view of the High Court is clearly unsustainable. It amounts to ignoring the effect of a deeming provision enacted with a definite social purpose. When once the deeming provision unequivocally provides for the admission of the person satisfying the requisite criteria laid down in the provision as Bhumidhar with non-transferable rights under Section 195, full effect must be given to it. Section 195 lays down that the Land Management Committee, with the previous approval of the Assistant Collector in-charge of the Sub Division, shall have the right to admit any person as Bhumidhar with non-transferable rights to any vacant land (other than the land falling under Section 132) vested in the Gaon Sabha. Section 198 prescribes “the order of preference in admitting persons to land under Sections 195 and 197”. Section 198 prescribes “the order of preference in admitting persons to land under Sections 195 and 197”. The last part of sub-Section (4F) of Section 122B confers by a statutory fiction the status of Bhumidhar with non transferable rights on the eligible occupant of the land as if he has been admitted as such under Section 195. In substance and in effect, the deeming provision declares that the statutorily recognized Bhumidhar should be as good as a person admitted to Bhumidhari rights under Section 195 read with other provisions. In a way, sub-Section (4F) supplements Section 195 by specifically granting the same benefit to a person coming within the protective umbrella of that............. sub-Section. The need to approach the Gaon Sabha under Section 195 read with Section 198 is obviated by the deeming provision contained in sub-Section (4F). We find no warrant to constrict the scope of deeming provision. 10. 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 (4F) 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. The obligation to do so arises by necessary implication by reason of the statutory right vested in the person coming within the ambit of sub-Section (4F). The lack of specific provision for making an application under the Act is no ground to dismiss the application as not maintainable. The revenue records should naturally fall in line with the rights statutorily recognized. The Sub-Divisional Officer was therefore within his rights to allow the application and direct the correction of the records. The Board of Revenue and the High Court should not have set aside that order. The fact that the Land Management Committee of Gaon Sabha had created lease hold rights in favour of the respondents herein is of no consequence. Such lease, in the face of the statutory right of the appellant, is nonest in the eye of law and is liable to be ignored” 4. The fact that the Land Management Committee of Gaon Sabha had created lease hold rights in favour of the respondents herein is of no consequence. Such lease, in the face of the statutory right of the appellant, is nonest in the eye of law and is liable to be ignored” 4. The only action which was now required from the side of the State respondents, therefore was, as per the counsel for the petitioner, that the petitioner after having become a Bhumidhar over the land in question under Section 122(B)4-F by operation of law had to be entered as such in the Revenue Records. 5. Learned counsel for the respondent No. 3, Sri Rishikesh Pati Tripathi who has filed a counter-affidavit is not present today even in the revised call. 6. His only contention in the counter-affidavit appears to be that he also was in possession over a portion of the plot No. 49. 7. However, there is no denial of the fact that a spot inspection as was done by the Tehsildar after which under Section 122(B)4-F on 17.7.2010 the application under Section 122(B)4-F was allowed. 8. No one has also appeared for the Gaon Sabha. 9. However, the learned Standing Counsel very vehemently argued that the advantage under Section 122(B)4-F could enure to a tenure holder only if a suit for declaration under Section 229(B) was filed. Without a declaration nothing would be bestowed upon the petitioner automatically. 10. Having heard the learned counsel for the petitioner and the learned Standing Counsel, I am of the view that the order dated 24.9.2012 cannot be sustained. Firstly it has been decided on a wrong premise that the application under Section 122(B)4-F had attained finality because of the dismissal of the earlier Writ Petition No. 51558 of 2006 on 10.4.2009 as the application itself as has been stated in the paragraph-12 of the writ petition was filed subsequent to the dismissal of the writ petition. Further, I hold that once when the Tehsildar had found that the petitioner was in possession from before 30.6.1975 no declaration was required by the petitioner. Further, I hold that once when the Tehsildar had found that the petitioner was in possession from before 30.6.1975 no declaration was required by the petitioner. In fact, rights were bestowed upon the petitioner by virtue of the provisions of Section 122(B)4-F. Here the reproduction of Section 122(B)4-F which applied in the instant case would be beneficial: “(4-F) Notwithstanding anything in the foregoing sub-sections, wehre any agricultural labourer beloging to a Schedule Caste or Schedule Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 137) having occupied it from before June 30, 1975 and the land so occupied together with land, if any, held by him from befoe the said date as bhumidhar, sirdar or asami does not exceed 1.26 hectares (1.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and shall be deemed that he has been admitted as sirdar of that land under Section 195.” 11. As the mere reading of Section makes it clear that the petitioner had to be in possession from before the cut off date of 30.4.1975 and in fact he was found to be in pessession from before that date the rights as flowed from the provisions of the Section would be deemed to have accrued to the petitioner. 12. Under such circumstances, the writ petition is allowed. The order dated 24.9.2012 is quashed.