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2023 DIGILAW 1155 (ALL)

Rampati v. State of U. P.

2023-04-26

JAYANT BANERJI

body2023
JUDGMENT Jayant Banerji, J. Heard Sri Vijay Kumar, learned counsel for the petitioner. Learned Standing Counsel appears for respondent nos. 1, 2, 3 and 4. The respondent no.5-Gaon Sabha is represented by Sri Sudhir Bharti, learned counsel. 2. This writ petition has been filed with the following prayers:- "1. issue a writ or direction in the nature of certiorari quashing the order dated 24.11.2022 passed by Board of Revenue, U.P. at Prayagraj in Revision No. REV/2909/2022/Gorakhpur, Computerized Case No. AL202220531002909 (Ram Pati v. State of U.P. and others) under section 333 of U.P.Z.A. and L.R. Act and also further prayed to dismiss the appeal No. C202205000001486 (Gaon Sabha v. Rampati and others) now pending before the respondent no.2 after remand by the Board of Revenue (Annexure No. 125 and 12 to this writ petition respectively)." 3. It appears from perusal of the writ petition that the petitioner filed a suit under Section 229-B of the U.P.Z.A. and L.R. Act, 1950 for declaration that he be declared as Bhumidhar with non-transferable right in respect of the property in question which is plot No. 228 area 0.093 hectare claiming that he is a member of scheduled caste. By an order dated 23.5.1999, the Sub Divisional Officer, Basgaon, district Gorakhpur directed that the name of the petitioner/plaintiff be recorded as a Bhumidhar with non-transferable rights and the revenue record be accordingly amended. It is stated that some villagers, who were not parties to the case, filed an appeal before the Commissioner, Gorakhpur Division, but the appeal was dismissed in default on 13.3.2003 and against which no recall application was filed by the Gaon Sabha nor any appeal or revision was filed before the competent court. It is stated that thereafter, on 31.3.2003, the Sub Divisional Officer passed an order declaring the petitioner to be Bhumidhar with transferable rights. It is stated that the petitioner has fulfilled the criteria of sub-section (4F) of Section 122-B of the Act, 1950. It is stated that thereafter, the petitioner is cultivating the said plot, but after 15 years, a third person, namely, Rakesh Yadav and others filed an application dated 22.12.2014 before the Sub-Divisional Officer against the order dated 23.5.1999 without any delay condonation application and by order dated 9.3.2015, the Sub-Divisional Officer set aside the order dated 23.5.1999 without any show cause notice or opportunity of hearing to the petitioner. 4. 4. Feeling aggrieved by the order dated 9.3.2015, passed by the Sub Divisional Officer, the petitioner filed an appeal before the Commissioner, Gorakhpur Division, who by order dated 19.10.2015 set aside the order dated 9.3.2015 passed by the Sub Divisional Officer and remanded the matter back for hearing. It is stated that thereafter, the petitioner moved an application dated 21.12.2015 before the Sub Divisional Officer for getting his name recorded in the revenue record, but the application was rejected on 16.1.2017, against which the petitioner filed a writ petition bearing Writ-C No. 51705 of 2017. The said writ petition was disposed of by an order dated 7.11.2017 directing the respondent no.4 therein to decide the application dated 22.12.2014 after affording opportunity of hearing and considering the relevant provisions of Section 122-B(4-F) of the Act, 1950. It is stated that pursuant to order of this Court dated 7.11.2017 passed in the said writ petition, the order dated 23.5.1999 passed in favour of the petitioner was affirmed by means of an order dated 17.3.2020. It is stated that after more than two and half years, the Gaon Sabha has preferred an appeal against the order dated 17.3.2020 before the Commissioner, Gorakhpur Division without any delay condonation application and without affidavit. It is stated that thereafter, on an application filed by the Gaon Sabha, an order was passed on 20.9.2022 holding the appeal maintainable and directing that status quo at the site be maintained. 5. Aggrieved against the order dated 20.9.2022, the petitioner filed a revision before the Board of Revenue. It is stated that by the order impugned dated 24.11.2022, the matter has been remanded to the court of Additional Commissioner to hear the revision on maintainability and on the application for stay within one month. It is stated that the order passed by the Board is unwarranted inasmuch as, the appeal that was filed before the Additional Commissioner was itself not maintainable. 6. Learned counsel for the Gaon Sabha and the learned Standing Counsel appearing for the State-respondents have opposed the writ petition stating that the petitioner cannot have any objection to the order passed by the Board of Revenue inasmuch as, the relief that was sought for in the revision has been granted to the petitioner by setting aside the order dated 20.9.2022 and directing that issue regarding maintainability and stay application be considered within one month. 7. 7. Having perusal of the record, it appears that by order dated 23.5.1999, the suit filed by the petitioner under Section 229-B of the Act, 1950 was decreed exparte and the petitioner was declared as a bhumidhar with non transferable rights. 8. By order dated 17.3.2020 of the Sub Divisional Officer the order dated 23.5.1999 was maintained, against which an appeal was filed before the Commissioner, Gorakhpur Division, Gorakhpur under Section 331 of the Act, 1950 being Appeal No.C202205000001486 of 2022 (Gaon Sabha v. Rampati and others). Against the order of the Commissioner dated 20.9.2022, whereby the appeal was admitted and was held to be maintainable and order of status quo was passed, the petitioner filed a revision before the Board of Revenue. By order dated 24.11.2022, the revision of the petitioner was partly allowed and the order of the Additional Commissioner dated 20.9.2022 was set aside. While remanding the case, the appellate court was directed to afford an opportunity of hearing to the parties and to decide the issue of maintainability and the application for stay, within one month. 9. Learned counsel for the petitioner has not been able to point out any averment in the writ petition to demonstrate that what transpired within one month of the order dated 24.11.2022 passed by the Board. This writ petition has been filed on 6.4.2023 without any such averment. 10. Learned counsel for the petitioner has relied upon a judgement of the Supreme Court in Manorey v. Board of Revenue, 2003 (5) SCC 521 and has relied upon paragraph nos. 9,10 and 11 thereof. The aforesaid judgement is of no assistance to the petitioner in the facts and circumstances of the present case. It is settled by the Supreme Court that the legal fiction created in sub-section (4F) of Section 122-B of the Act, 1950, in substance and effect, 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 (4-F) of Section 122-B supplements Section 195 by specifically granting the same benefit to a person coming within the protective umbrella of that subsection. The need to approach the Gaon Sabha under Section 195 read with Section 198 is obviated by the deeming provision contained in subsection (4-F). 11. In a way, sub-section (4-F) of Section 122-B supplements Section 195 by specifically granting the same benefit to a person coming within the protective umbrella of that subsection. The need to approach the Gaon Sabha under Section 195 read with Section 198 is obviated by the deeming provision contained in subsection (4-F). 11. It is for the petitioner to raise all available grounds in the appeal that has been filed by the Gaon Sabha which is stated to be pending before the Additional Commissioner, Gorakhpur Division. 12. For the reasons aforesaid, this is not a fit case for interference in writ jurisdiction. This writ petition is, accordingly, dismissed.