Manorey
Alias Manohar Vs. Board of Revenue (U.P.) & Ors [2003] Insc 209 (2 April 2003)
K.G.
Balakrishnan & P. Venkatarama Reddi P.Venkatarama Reddi, J.
Aggrieved
by the following order of the Board of Revenue, U.P., the appellant herein
preferred Writ Petition under Article 226 of the Constitution in the High Court
at Allahabad:
"The
proceedings began on an application dt. 20-12-1990 moved by Manorey for
declaration of rights u/s 122-B (4-F) Z.A. Act. Two courts have allowed.
No
application is supportable under this Section.
Revision
is allowed. Orders of two courts below is set aside. Application is
dismissed." The High Court upheld the view of the Board of Revenue and
dismissed the Writ Petition. In doing so, the High Court followed its Revenue
Decisions, Page 388]. The present appeal is directed against that order of the
High Court.
Going
by the orders of the Board of Revenue and the High Court, the maintainability
of an application seeking recognition of right under Section 122B(4F) of U.P. Zamindari
Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act') is
the issue that loomed large before the Board and the High Court. We are of the
view that it would be travesty of justice to deny relief to the appellant who
is a Scheduled caste agricultural labourer and relegate him to an unfortunate
situation of being left without remedy though he has a statutory right to
continue in possession and enjoyment of the land. The High Court seems to have
taken a narrow view of the rights and remedies of the appellant, leaving him to
pursue a tortuous course of litigation to safeguard his rights.
The
brief facts are these: The appellant who is a landless labourer belonging to
scheduled caste filed an application before the S.D.O., Konch on 20.12.1990
stating that he had been cultivating the land admeasuring 2.45 acres since
14-15 years and that the said land was leased out to others (respondents
herein) in the year 1990 by the Gaon Sabha of Torna village treating it as
fallow land. The said allotment was approved by the S.D.O., Konch on
14.11.1990. Apprehending that the appellant will be evicted, he filed an
application on 20.12.1990 before the S.D.O., Konch for protection of his right
under sub-Section (4F) of Section 122B of the Act and to direct necessary
amendments to be made in the revenue records. It appears that in the relevant
record, the Gaon Sabha was shown to be holding the land in question which got
vested in it under Section 117-(1)(i) of the Act, on the publication of a
Notification under Section 4. The S.D.O. on inquiry held that the petitioner
was continuously in possession prior to 30th June, 1975 (it is not clear whether the
correct year is 1975 or 1985) and continued to be so even on the date of
allotment of the land to a third party. He referred to sub-Section 4F of
Section 122B and held that rights over the land accrued to him under the said
provision. He therefore directed that the name of the appellant should be
recorded as bhumidhar with non transferable right by deleting the name of Gaon Sabha
in the records. On appeal preferred by the State of U.P., the Gaon Sabha and
the allottees of land (R-2 to R-5 herein) the appellate authority i.e.,
Additional Commissioner (Judicial), Jhansi Division agreed with the findings of
the S.D.O. that the respondent (appellant herein) had been in continuous
possession prior to and after 30th June, 1985 and as he is a member of
Scheduled caste, his right under Section 122B(4F) was established. The
appellate authority also observed that the land was not vacant at the time of
grant of lease by the Gaon Sabha. Both the authorities referred to entries in khasras
for the crop years 1389-1391 faslis (corresponding to 1979-1981) and irrigation
receipts pertaining to 1393-1397 faslis.
Though
all the respondents were served, none of them entered appearance and therefore
the appeal has been considered ex-parte.
To
appreciate the issue, the reference to Section 122B is necessary. The said
Section prescribes the procedure for eviction of a person wrongfully occupying
or damaging or misappropriating the property vested in a gaon sabha or a local
authority. The Land Management committee or local authority, as the case may
be, shall inform the Assistant Collector and thereupon the Assistant Collector
should issue notice to the person concerned to show cause. If the Assistant
Collector is not satisfied with the explanation, he may direct eviction by
using force if necessary and may further direct that compensation be recovered
from such person as arrears of land revenue. The person aggrieved has a right
of revision to the Collector and he can also file a suit to establish his
right. Sub- Section (4F) is the crucial provision which at the relevant time
reads as follows:
"[4F]
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 non-transferable rights of that land under Section 195.]" It is true
that the application of the nature filed by the appellant does not fall within
the four corners of Section 122B. Sub-Sections (1), (2) & (3) of Section
122B only empower the Assistant Collector to initiate action on the basis of
information received by him to put an end to misuse or unauthorized occupation
of the property belonging to Gaon Sabha or a local authority. It does not
specifically provide for the entertainment of an application by a person who
seeks protection of his rights under sub-Section (4F).
But,
that is of no material consequence in view of what emerges from the discussion
that follows.
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- 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
Section 132), 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).
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 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". 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.
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.
It is
surprising that the State of U.P. had
chosen to file an appeal against the order of the S.D.O., in tandem with the Gaon
Sabha. It seems to be a clear case of non-application of mind on the part of
the concerned authorities of the State who are supposed to effectuate the
socio-economic objective of the legislation.
The
appeal is allowed. The orders of the Board of Revenue and the High Court are
set aside. The S.D.O's order is restored. No costs.
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