Samundra Devi vs Commissioner And 5 Ors.
2015 Latest Caselaw 1739 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
 Court No. - 38
 

 
Case :- WRIT - C No. - 11353 of 2014
 

 
Petitioner :- Samundra Devi
 
Respondent :- Commissioner And 5 Ors.
 
Counsel for Petitioner :- A.P. Singh
 
Counsel for Respondent :- C.S.C.,P.C.Srivastav,R.C. Upadhyay,S.U. Singh
 

 
Hon'ble Pankaj Mithal,J.

Heard Learned counsel for the petitioner, learned Standing Counsel for the State of U.P. and Sri P.C. Srivastava, learned counsel appearing for respondent no. 5.

The dispute in this petition is in regard to plot No. 207 area 0.317 hectare which was recorded as banjar land of the Gaon Sabha.

The Lekhpal submitted a report on 12.09.2007 which was accepted by the Sub Divisional Officer on 22.10.2007, whereupon a portion of the said land was recorded as the bhumidhari of the petitioner by extending the benefit of Section 122-B (4F) of the U.P.Z.A. And L.R. Act.

Subsequently, three applications were moved in 2011 for recall of the above order of Sub Divisional Officer, whereby the report of the Lekhpal was accepted. These applications were moved; one by Gaon Sabha through its penal lawyer, the other by Gram Pradhan and third by the private respondent no. 5.

On these applications, the Sub Divisional Officer on 20.02.2013 ordered for recalling the order dated 22.10.2007. A revision preferred by the petitioner against the recall order has been dismissed on 17.01.2014 by the Commissioner Azamgarh Division, Azamgarh.

The above two orders having effect of recalling the order dated 22.10.2007 have been impugned by the petitioner by means of this writ petition.

The basic argument of learned counsel for the petitioner is that the applications moved by the Gaon Sabha, the Gram Pradhan and the respondent no. 5 were not maintainable. The Gaon Sabha or the Gram Pradhan had no right to move the application without the leave of the Collector as envisaged in paragraph 114 of the Gaon Sabha Manual. The respondent no. 4 at the same time, had no locus to apply for the recall of the order of the Sub Divisional Officer.

Notwithstanding the submissions as raised by the learned counsel for the petitioner, it would be important to first have a glance at Section 122-B (4F) of the Act itself. The aforesaid provision has to be read in the light of Section 122-B of the Act which provides for initiation of proceedings for eviction of unauthorised occupants of the Gaon Sabha land.

The careful reading of the aforesaid provision, would reveal that sub Section (4F) of Section 122-B of the Act contemplates that where any agricultural labourer belonging to a Scheduled Caste or Schedule Tribe is in occupation of the Gaon Sabha land, no action under Section 122-B shall be taken by the Land Management Committee or the Collector against such a labourer and it shall not be necessery for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land if he has so acquired such rights.

The aforesaid provision does not give any right to any authority to make a declaration that such an agricultural labourer as mentioned in the above section is a bhumidhar with non-transferable rights of the said land. Such a declaration, if any, is inherent provided the labourer satisfies the conditions as laid down therein.

Section 331 of the Act provides that Court as mentioned in Schedule II of the Act alone shall take cognizance of the suits, applications or proceedings under the various provisions of the Act. The schedule does not provide for any independent proceedings before any court either by way of suit or application under Sub-Section (4-F) of Section 122-B of the Act.

Sub-Section (4-F) of Section 122-B of the Act itself provides that it shall not be necessary for any person claiming benefit of it to institute a suit for declaration of his rights as Bhumidhar with non-transferable right of the land in question. Therefore, separate proceedings in this regard are not maintainable.

In short, a plain and conjoint reading of the relevant provisions of the Act would reveal that a declaration with regard to the rights, if any, accrued to a party under sub Section (4F) of Section 122-B of the Act is not necessary by any independent proceedings or action. It is only on the initiation of proceedings under Section 122-B of the Act for eviction that such a person can take a defence of sub-section (4F) of Section 122-B of the Act whereupon the authority concerned would proceed to adjudicate the same and not otherwise.

In the event such a declaration of rights in any Goan Sabha land at the level of the Sub Divisional Officer is permitted the possibility of entire Gaon Sabha land be ousted through such declaration without the resolution of the L.M.C. or the intervention of the court can not be ruled out. Therefore, to curb such menace or misuse of power the view taken above appears to be more congenial to the object of Section 122-B (4-F) of the Act and in scheme of the Act . .

In the instant case the Lekhpal had submitted a report on the application of the petitioner that she is a landless labourer belong to a Scheduled Caste who is living in village/Teshil having possession over the aforesaid land and, therefore, the land in her possession be recorded in her name. The said report has been accepted by the Sub Divisional Officer by simply stating 'accepted' vide order dated 22.10.2007. The Sub Divisional Officer has not applied his independent mind with regard to the fulfilment of conditions as contained in Sub Section (4F) of Section 122-B of the Act in accepting above report. The acceptance of of the above report as such is by a non-speaking and unreasoned order. The mere acceptance of such a report by the Sub Divisional Officer is not a declaration of the rights of the petitioner of the said land as Bhumidhar with transferable rights.

This apart as discussed earlier, no authority under the Act has been conferred with any power to make a declaration under Section 122-B (4F) of the Act independent of any proceedings other than under Section 122-B of the Act.

The order of the Sub Divisional Officer dated 22.10.2007 is apparently without jurisdiction and is bad in law. In such circumstances, if the said order has been recalled by the impugned order, no illegality has been committed which may effect the right of the petitioner. It is well settled in law that an illegal order which may give rise to another illegal order should not ordinarily be disturbed by the Court in exercise of inherent jurisdiction.

It is pertinent to mention here that so far no proceedings under Section 122-B of the Act have been initiated against the petitioner for her eviction from the land in question. It is, therefore, open for the petitioner to take defence/benefit of Sub Section (4F) of Section 122-B of the Act, whenever, such proceedings are drawn against her.

In view of the aforesaid facts and circumstances, I do not consider it necessary to exercise my inherent jurisdiction under Article 226 of the Constitution of India so as to interfere with the orders impugned.

The writ petition is accordingly, dismissed with the above observation.

Order Date :- 10.8.2015

v.k.updh.