Ram Kishore And Anr. vs Member Judicial Board Of Revenue ...
2015 Latest Caselaw 181 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 18
 

 
Case :- WRIT - B No. - 6783 of 2015
 
Petitioner :- Ram Kishore And Anr.
 
Respondent :- Member Judicial Board Of Revenue And 5 Others
 
Counsel for Petitioner :- A.K. Rai,Vishnu Kr. Singh
 
Counsel for Respondent :- C.S.C.,Brij Kumar Yadav,Shivam Yadav
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard Sri V.K. Singh learned counsel for the petitioners , Sri Brij Kumar Yadav for the respondent no. 6 Gaon Sabha and Sri Shivam Yadav for Kanpur Development Authority (respondent no. 4) and also learned Standing Counsel for the State respondents.

This writ petition arises out of suit under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act filed by the petitioner seeking to be declared Bhumidhar of Plot no. 2611 area 0.993 hectare situated in village Sarsaul, Pargana and District Kanpur Nagar.

The case of the plaintiff petitioner in the suit was that he had been granted a plantation lease for planting trees over the plot in question belonging to the Gaon Sabha. He had therefore, planted several trees thereon and had also started cultivating the land. Since he belonged to the scheduled caste and was in continuous possession of the land of the Gaon Sabha recorded as Naveen Parti, since 11.08.1974, he was entitled to the benefit of Section 122-B (4F) of the Act.

The Trial Court by its judgment dated 27.01.1998, decreed the suit on the finding that the petitioner plaintiff was in possession over the land in dispute from before 30.06.1975, prior to its transfer to the Kanpur Development Authority.

Aggrieved by the judgment and decree of the Trial Court, the Kanpur Development Authority preferred an appeal which was dismissed by the Additional Commissioner, Kanpur Division, Kanpur by the judgment and order dated 25.05.2000. The Kanpur Development Authority preferred a second appeal no. 65 of 1999-00. This second appeal has been allowed by the judgment and decree dated 17.11.2014, the judgments and decrees of the two courts below have been set aside and the suit of the plaintiff petitioner has been dismissed. It is this judgment passed by the Board of Revenue which is impugned in the writ petition.

It has been submitted by learned counsel for the petitioner that the plaintiff was in possession of the land in question recorded as Naveen Parti since prior to the cut off date and was therefore fully entitled to the benefit of sub section 4F of Section 122-B as he belonged to the scheduled caste. The Trial Court as also the Appellate Court had rightly held in favour of the petitioner but the Board of Revenue has committed a manifest illegality in reversing such judgments. He has also submitted that the petitioner had perfected his rights as a bhumidhar with non transferable rights on the basis of his long standing possession, long before the land was transferred to the Kanpur Development Authority.

Learned counsel for the respondents have refuted the submissions made by learned counsel for the petitioners. Their primary contention is that the possession of the petitioner is legal and therefore the petitioners were not entitled to the benefit of sub section 4 F of Section 122-B. Merely, by planting some trees over land belonging to the Gaon Sabha, the petitioner could not become the owner of the said land.

Sri Shivam Yadav has additionally submitted that the benefit of sub section 4 F of the Act is available only against the Gaon Sabha. Since admittedly, the land now vests in the Kanpur Development Authority, the petitioner cannot get any benefit of the said sub-section.

I have considered the submissions made by learned counsel for the parties and have perused the record.

The sole point that arises for consideration in the instant case is as to whether a person who has been granted a plantation lease of land belonging to the Gaon Sabha for the purpose of planting trees thereupon and who has planted such trees in pursuance of the lease, is entitled to the benefit provided by Section 122-B (4F) of the U.P. Zamindari Abolition & Land Reforms Act. It therefore appears appropriate to notice the relevant provision which is extracted below:-

"122B. Powers of the Land Management Committee and the Collector.-- [(1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.

(2) Where from the information received under Sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in Sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be why he should not be evicted from such land.

(3) If the person to whom a notice has been issued under Sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding three months from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue.

(4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under Sub-section (2) he shall discharge the notice.

(4-A) Any person aggrieved by the order of the Assistant Collector under Sub-section (3) or Sub-section (4) may, within thirty days from the date of such order prefer, a revision before the Collector on the grounds mentioned in Clauses (a) to (e) of Section 333.

(4-B) The procedure to be followed in any action taken under this section shall be such as may be prescribed.

(4-C) Notwithstanding anything contained in Section 333 or Section 333A, but subject to the provisions of this section ;

(i) every order of the Assistant Collector under this section shall, subject to the provisions of Sub-sections (4A) and (4D), be final.

(ii) every order of the Collector under this section shall, subject to the provisions of Sub-section (4D), be final.

(4-D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a court of competent jurisdiction to establish the right claimed by him in such property,

(4-E) No such suit as is referred to in Sub-section (4D) shall lie against an order of the Assistant Collector is a revision is preferred to the Collector under Sub-section (4A).

Explanation. -- For the purposes of this section, the expression 'Collector' means the officer appointed as Collector under the provisions of the U. P. Land Revenue Act, 1901 and includes an Additional Collector.]

(4-F) Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Schedule 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 May 13, 2007 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.

(5)........................

Section 122-B of the Act provides the mode and the procedure for taking action where property vested in the Gaon Sabha is damaged or misappropriated and the various sub sections provided the procedure and the remedy as regards the action and therefore the entire provision has to be read as a whole. Sub Section 1 provides that where property vested in the Gaon Sabha is damaged or misappropriated and such land is 'occupied otherwise than in accordance with the provisions of this Act', the Assistant Collector concerned is required to be informed of such damage, misappropriation or occupation otherwise than in accordance with the provisions of the Act.

It is therefore, clear that for the provisions of Section 122-B to be attracted the following ingredients must exist:-

(i) there must be damage or misappropriation of property vested in the Gaon Sabha or local authority,

(ii) the land must be occupied except in accordance with the provisions of the Act or the Gaon Sabha or local authority is entitled to take and retain possession thereof under the Act,

It therefore logically follows that the provisions of this section will come into play only when the aforesaid two conditions are fulfilled.

In the instant case, it is admitted that the plaintiff petitioner entered into possession on the basis of a lease granted in his favour for planting trees and for this reason alone it must be held that the possession of the petitioner, if any, was not unauthorised or contrary to law. Admittedly, the lease had been granted to the petitioner or their predecessor in interest and therefore, their possession was permissive and not unauthorised or contrary to law or contrary to the provisions of the Act.

Secondly, the lease had been granted for planting trees which has admittedly been done by the petitioners as also their predecessors in interest. The property in question having been used for the purpose for which the lease had been granted the same cannot be termed as misappropriation or causing damage to the land in question.

It is therefore clear, that none of the necessary ingredients provided in sub section 1 of Section 122-B exists and therefore, in my considered opinion the Section 122-B as a whole is not attracted and therefore reliance upon sub section 4 F is not tenable. The petitioner would be entitled to seek benefit of sub section 4 F only in case they were in unauthorised occupation and had caused damage or had misappropriated the land.

The same view has been taken by this court in the case of Brahmi Vs District Magistrate/D.D.C., Muzaffarnagar and others.1 In paragraph 13 of this judgment it has been held that where possession of a person is not unauthorised, there is no question of applicability of Section 122-B (4 F). This has been so held relying upon the judgment of the Apex Court in Kalawatibai Vs Soiryabai and others2 wherein the Apex Court while interpreting the provisions contained in Section 122-B and it sub sections held "that a section has to be read in its entirety as one composite unit without bifurcating it or ignoring any part of it. Viewed from this perspective the section, undoubtedly, comprises two parts, one descriptive, specifying the essential requirements for applicability of the section, other consequences arising out of it. One cannot operate without the other. Neither can be read in isolation. Both are integral parts of the section........."

In the case of Sanjay Kumar vs Collector/ District Magistrate, Kanpur Dehat and others3 this court had held that the benefit under Section 4 F is liable to be given only to those members of the scheduled caste whose possession is entered in the revenue records prior to the cut off date or eviction proceedings are pending against them since before the

said date. This is not the position in the case at hard. The land in question is admittedly recorded as Naveen Parti and therefore also the petitioners are not entitled to the benefit of sub section 4 F.

The Board of Revenue in the impugned order has recorded that the plaintiff petitioner had title only to the trees and the entries of title over the trees will not give any substantive right to the petitioner over the land. It was further observed, that no documentary proof has been furnished by the plaintiff petitioner and only the trees are recorded in the Khasra 1401 Fasli. A specific finding has also been recorded that the petitioners' possession is not recorded in any document available on record.

In view of the above discussion, I see no illegality in the impugned order. It is inconsonance with the view taken by this court in the case of Sanjay Kumar and specially in Brahmi (supra), which in turn is based on the judgment of the Apex Court in the case of Kalawatibai Vs Soiryabai and others.

The writ petition therefore lacks substance and is accordingly dismissed.

Order Date :- 28.04.2015

Pravin