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2018 DIGILAW 663 (ALL)

MITHAI LAL v. D. D. C. GHAZIPUR

2018-03-19

SALIL KUMAR

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Sri R.P. Singh, Counsel for the petitioner and Standing Counsel representing respondent No. 1 as well as the Counsel for respondent No. 2. Plot No. 400 (area 1-10-0) as well as Plot No. 460 (area 1-0-0) were recorded in the name of Gaon Sabha in the basic year khatauni. During the consolidation operations held in the village, the petitioner filed objections under section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') claiming that, as he was a Scheduled Caste and an agricultural labour and was in possession of the said plots before 30.6.1985, therefore, under section 122(B-4) of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereafter referred to as, 'U.P.Z.A. & L.R. Act, 1950'), he shall be deemed to be a Bhumidhar with non-transferable rights and that revenue records showing the petitioner to be a Class-IV holder of the disputed plots be accordingly corrected. After considering the records of the case as well as oral and documentary evidence submitted by the petitioner and the report of the Assistant Consolidation Officer, the Consolidation officer vide his order dated 30.1.1992 recorded a finding that the petitioner was a landless agricultural labour and was in possession of the disputed plots from before 30.6.1985 and was also a scheduled caste and did not have more than 1.26 hect. of land and therefore held that under section 122(B-4) of the U.P.Z.A. & L.R. Act, 1950, the petitioner shall be deemed to be a Bhumidhar with transferable rights. Consequently, the Consolidation Officer vide his aforesaid order directed that the revenue records be corrected by deleting the name of Gaon Sabha and petitioner be recorded as Bhumidhar with non-transferable rights. The aforesaid order was never challenged by the Gaon Sabha. It is also pertinent to state here that, as evident from the order dated 30.1.1992 passed by the Consolidation Officer, the Gaon Sabha or the State of Uttar Pradesh never contested the claim of the petitioner before the Consolidation Officer despite notices having been issued to them. It appears that during the preparation of provisional consolidation scheme, there was some confusion regarding valuation of different plots including the disputed plots and therefore a reference was made to the Deputy Director of Consolidation regarding valuation of certain plots. It appears that during the preparation of provisional consolidation scheme, there was some confusion regarding valuation of different plots including the disputed plots and therefore a reference was made to the Deputy Director of Consolidation regarding valuation of certain plots. On the aforesaid reference, the Deputy Director of Consolidation took cognizance of the matter and passed the impugned order dated 17.5.2002 setting-aside the order dated 30.1.1992 passed by the Consolidation Officer. From the order dated 17.5.2002, it appears that the Deputy Director of Consolidation had summoned the petitioner and recorded his evidence wherein the petitioner allegedly stated that for the last 7-8 years, he did not work as an agricultural labour and was working as an electrician. Relying on the aforesaid statement, the Deputy Director of Consolidation held that the petitioner was not eligible to be declared as a Bhumidhar with transferable rights under section 122-B (4-F) of the U.P.Z.A. & L.R. Act, 1950. The judgment and order dated 17.5.2002 passed by the Deputy Director of Consolidation is under challenge in the present writ petition. 2. It has been argued by Counsel for the petitioner that the order dated 17.5.2002 has been passed by the Deputy Director of Consolidation in Reference No. 494 which was registered under section 48(3) of the Act, 1953 and under the aforesaid provision, the Deputy Director of Consolidation was not empowered to take suo-motu cognizance and examine the record of any case or proceedings of any sub-ordinate authority for the purposes of satisfying himself as to the correctness, legality or appropriateness of any order passed by such authority and therefore the order dated 17.5.2002 passed by the Deputy Director of Consolidation was without jurisdiction. It has been further argued by Counsel for the petitioner that the order dated 30.1.1992 was never challenged by any authority or any person and the Deputy Director of Consolidation had erred in law and acted without jurisdiction by entering into the merits of the aforesaid order in a reference, which was not made against the said order as the order dated 30.1.1992 had attained finality and thus could not have been a subject of challenge or scrutiny. Rebutting the arguments of Counsel for the petitioner, Counsel for respondent No. 2 has argued that the consolidation authorities had no jurisdiction to pass any orders under section 122-B (4-F) of the U.P.Z.A. & L.R. Act, 1950 and therefore the order dated 30.1.1992 passed by the Consolidation Officer was without jurisdiction and was rightly set-aside by the Deputy Director of Consolidation vide his order dated 17.5.2002. It has been further argued by Counsel for respondent No. 2 that under section 122-B (4-F) of the U.P.Z.A. & L.R. Act, 1950, order can be passed only in proceedings instituted under section 122-B and the said provisions do not entitle any person to institute independent proceedings for getting himself declared as a Bhumidhar with non-transferable rights. It has been further argued by Counsel for respondent No. 2 that for the aforesaid reason also, the order dated 30.1.1992 passed by the Consolidation Officer was without jurisdiction and therefore it was not a fit case for interference under Article 226 of the Constitution of India as, assuming that there was some illegality in the order dated 17.5.2002 passed by the Deputy Director of Consolidation, any interference by this Court in favour of the petitioner would amount to restoring an illegal order passed by the Consolidation Officer. Counsel for respondent No. 2 has argued that for the aforesaid reason, the writ petition is liable to be dismissed. 3. Considered the rival submissions of Counsel for the parties and perused the record. 4. The Supreme Court has held in the case of Manorey @ Manohar v. Board of Revenue (U.P.) and others, (2003) 94 RevDec 538 that section 122-B (4-F) of the U.P.Z.A. & L.R. Act, 1950 is not merely a shield to protect the possession of any person but it also confers a positive right of Bhumidhar on the occupant of the land and therefore there was 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. In the aforesaid case, the Supreme Court held that lack of specific provision for making an application under the Act was no ground to dismiss the application as not maintainable. The relevant extract of paragraph No. 10 of the aforesaid judgment are reproduced below: "10. In the aforesaid case, the Supreme Court held that lack of specific provision for making an application under the Act was no ground to dismiss the application as not maintainable. The relevant extract of paragraph No. 10 of the aforesaid judgment are reproduced below: "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 (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. 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 statutory recognized." 5. In view of the aforesaid law laid down by the Supreme Court, the argument of Counsel for respondent No. 2 that order dated 30.1.1992 passed by the Consolidation Officer was without jurisdiction is not acceptable and is rejected. 6. A perusal of the judgment and order dated 17.5.2002 passed by the Deputy Director of Consolidation clearly shows that while passing the aforesaid order, the Deputy Director of Consolidation relied on the statement of the petitioner evidently given before him on 4.5.2002 wherein he had stated that for the last 7-8 years, he was working as an electrician and not as an agricultural labour. In proceedings under section 122-B(4-F) of the U.P.Z.A. & L.R. Act, 1950, the eligibility of any occupant for an order should exist on the date the order under the aforesaid provision is passed by the competent authority. There is no finding on record by any consolidation authority, including the Deputy Director of Consolidation, that agricultural labour was not the main source of livelihood of the petitioner on 30.1.1992. Further, the fact that the petitioner after 30.1.1992 may have also trained himself and started to work as an electrician is not relevant to adjudge the legality of the order dated 30.1.1992. Further, the fact that the petitioner after 30.1.1992 may have also trained himself and started to work as an electrician is not relevant to adjudge the legality of the order dated 30.1.1992. It was recorded by the Consolidation Officer in his order dated 30.1.1992 that the petitioner was a scheduled caste, was in possession of the disputed plots since before 30.6.1985, was a landless agricultural labour on the said date and the total area of the plots in his possession was less than 1.26 hect. The aforesaid facts were recorded on the basis of oral as well as documentary evidence on record and the report of the Assistant Consolidation Officer. The aforesaid findings recorded by the Consolidation Officer have not been reversed by the Deputy Director of Consolidation. Thus, the order dated 17.5.2002 passed by the Deputy Director of Consolidation is patently illegal and contrary to section 122-B(4-F) of the U.P.Z.A. & L.R. Act, 1950 and is hereby set-aside. Consequently, the order dated 30.1.1992 passed by the Consolidation Officer is restored. For the aforesaid reason, the writ petition is allowed.