Allahabad High Court

Nand Lal @ Nand Kumar And Anr. vs State Of U.P. And 5 Others on 22 November, 2018

Bench: Siddhartha Varma




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.37
 

 
Case :- WRIT - C No. - 27204 of 2018
 

 
Petitioner :- Nand Lal @ Nand Kumar And Anr.
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Bijay Kumar Srivastava,Bhagwan Dutt Pandey
 
Counsel for Respondent :- C.S.C.,Ram Babu Yadav
 

 
Hon'ble Siddhartha Varma, J.

This writ petition has been filed challenging the order dated 10.7.2018 by which the petitioners' application seeking the recall of the order dated 18.1.2000 had been rejected.

By the order dated 18.1.2000, the Sub-Divisional Magistrate, Tehsil Sadar, District Mirzapur had, under section 122-B(4F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act'), extended the benefit which flowed from section 122-B(4F) of the Act, to respondent no.6 on the basis of the latter's possession over Plot Nos.723, 724 and 727.

Learned counsel for the petitioners has submitted that after the land was settled over respondent no.6 by respondent no.3-the Sub-Divisional Magistrate, Tehsil Sadar, District Mirzapur, the petitioners had not known about it. Only in the month of March-April 2016, when the petitioners came to know about the order passed on 18.1.2000 that the petitioners sought a recall of it. However, when the Recall Application was rejected on 10.7.2018, the instant writ petition has been filed.

Learned counsel for the petitioners relying upon a decision reported in 2015 (6) AWC 5960 (Sushila & Ors. Vs. State of U.P. & Ors.) submitted that no Revision lay against the orders passed in proceedings under section 122-B(4F) of the Act and, therefore, the writ petition was very much maintainable.

Learned Standing Counsel, however, in reply, had submitted that the petitioners had an alternative remedy of filing a Revision and also submitted that since disputed questions of fact were involved, the petitioners should have approached the relevant Civil Court for a declaration instead of making futile attempts of getting the order dated 18.1.2000 recalled. He further submitted that when two residents of the same village began to claim ownership over a piece of land, then under section 122-B(4F) of the Act no machinery had been provided for a declaration as to who exactly was in actual possession over the plot in question. Learned Standing Counsel relied upon 2011 (2) ADJ 878 (Ram Das and Others vs. Munna Lal and Others) where accrual of rights under the Indian Forest Act, 1914, of various settlers/occupiers of forest land was being considered. Therein, this Hon'ble Court had observed that if a right of a certain occupier vis-a-vis the forest authority was to be ascertained then the forest authorities could have looked into the matter as per the machinery provided under the Forest Act but if two individuals claimed right over some forest land then they had to approach the proper court, either under the general law or under the relevant land law for getting their rights declared.

The relevant paragraph of the judgement and order dated 28.01.2011 reported in 2011 (2) ADJ 878 is being reproduced here as under:-

"I am of the considered opinion that since there is an inter se dispute of title between two private persons over a plot of land, qua which an order under Section 11(2)(i) (2) has been passed by the Forest Settlement Officer, there can be no adjudication of title dispute on an appeal under Section 17 of the Act, 1927.

The parties have to be relegated to the remedy available under the U.P.Z.A. & L.R. Act or under the common civil law. The Act, 1927 cannot be extended to include within its ambit title dispute over the property which are excluded from the Act only because at a particular point of time a notification under Section 4 was issued qua the plots.

It may be clarified that inter se dispute of title claimed in respect of land which continues to be covered under notification under Section 4 can always be adjudicated by the Settlement Officer Consolidation and thereafter in appeal under Section 17. The judgment in the case of Hon'ble Supreme Court in the case of Mahendra Lal Jaini (supra) is applicable in such cases only.

In view of the aforesaid, this Court finds that it is not necessary to enter into the issues, as to whether a review application was maintainable or not or as to whether the first order of the Appellate Authority declaring one of the parties as Bhumidhar was legally justified or not, inasmuch as Bhumidhari rights in respect of a plot of land, which is excluded from the notification under Section 4 of the Act, 1927 vide an order under Section 11(2)(i), can only be agitated and examined by the competent revenue court under the U.P.Z.A. & L.R. Act or by the competent civil court, as the case may be.

Accordingly, this Court feels that setting aside of the order passed on review application, under challenge in the present writ petition, would have the effect of restoring another illegal order of the Appellate Authority declaring the petitioner as the Bhumidhar. Therefore, in the larger interest of justice it is provided as follows:

The petitioner and respondents are at liberty to get their rights declared over the plots by approaching the revenue court under the U.P.Z.A. & L.R. Act or the competent civil court, as they may be advised. Order passed under the Act by the Appellate Authority or for that purpose by the Forest Settlement Officer, insofar as it pertains to the inter se dispute of Bhumidhari rights over the plot in question, shall not be binding upon any of the parties.

Writ petition is disposed of subject to the observation made above. "

(emphasis supplied)

Learned Standing Counsel further submitted that in the instant case when the petitioners were submitting that in fact the respondent no.6 was not in possession over the plots which were settled on him under section 122-B(4F), then no Administrative Authority could have adjudicated as to who was in possession and, therefore, the appropriate course open to the petitioners was to approach the Civil Court or the relevant Court under the land laws for getting their rights adjudicated.

Learned Standing Counsel further submitted that when the Division Bench was deciding the Special Appeal No.478 of 2015, reported in 2015 (6) AWC 5960 (Sushila & Ors. Vs. State of U.P. & Ors.), which had been relied upon by the counsel for the petitioners to submit that a Revision was not maintainable, it had relied upon an incorrectly printed section 333 and pointed out that in paragraph 13 of the judgment, section 333 had been printed in the following manner :

"333. Power to call for cases.--(1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding other than proceeding under sub-section (4-A) of Section 198 decided by any court subordinate to him in which appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate court appears to have;

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction so vested; or

the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.

(2) If an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no further application by the same person shall be entertained by any other of them."

Learned Standing Counsel thereafter read the correct text of section 333 of the Act which is reproduced here as under :

"333. Power to call for cases.--(1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding other than proceeding under sub-section (4A) of Section 198 decided by any court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding, and if such subordinate court appears to have;

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction so vested; or

the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.

(emphasis supplied)

He pointed out that the incorrect text of section 333 in the Special Appeal virtually stated that a Revision would lie where an Appeal lay, whereas in fact a perusal of the correct text of section 333 showed that a Revision would lie where no Appeal lay and, therefore, he submitted that when no Appeal lay against an order passed under section 122-B(4F), then a Revision definitely was maintainable.

Having heard learned counsel for the parties, I am of the view that in the instant case neither a Revision would be of any help to the parties nor a writ petition. I definitely feel that learned Standing Counsel is correct in saying that the petitioners should have approached the relevant Civil Court either under the general laws or under the land laws for seeking redressal of their grievance.

Under such circumstances, I am of the firm view that the petitioners cannot be benefitted by filing either a writ petition or a Revision. To get their rights declared, they will have to approach the appropriate Court for getting a declaration.

The writ petition is, therefore, dismissed.

However, since it has been noticed that whenever a Revenue Authority passes order under section 122-B(4F) of the Act, it relies not upon revenue entries, but on reports, it, therefore, becomes essential that certain directions be issued to the Revenue Authorities. In the instant case, the petitioners have not assailed the order by submitting that the orders were based on wrong revenue entries. What the learned counsel for the petitioners has submitted is that the order passed in the year 2000 was based on a wrong report. Further his submission is that the respondent no.6 was not a resident of the village and, therefore, submitted that the respondent no.6 was never in occupation over the plots in question. I definitely feel that Revenue Authorities whenever are giving any advantage to any villager or a tenure holder on the basis of possession then recourse should be taken to entries in Khasras and Khataunis which are prepared as per the Land Record Manual.

The arbitrary actions of the Revenue Authorities can only be minimized and curtailed if the revenue entries as per the U.P. Land Record Manual are correctly filled in the Khasras and Khataunis regularly.

If benefits of the provisions of Section 122-B(4F) of the U.P.Z.A. & L.R. Act, and of Section 67A of the U.P. Revenue Code are given on the basis of Reports of the Revenue Authorities then the Revenue Authorities shall continue to give reports arbitrarily and shall give favourable reports to villagers who are their favourites. I am, therefore, convinced that Revenue entries in khasras & khataunis should be filled up regularly as per the provisions of the U.P. Land Record Manual. Paragraphs A-55 to A-62 of Chapter A-V of the Land Record Manual are a complete guide as to how Maps are to be corrected and how khasras are to be filled. They are being reproduced here as under:-

A-55 Inspection Tours. - The maintenance of the map and the khasra is prescribed by Section 28 of the U.P. Land Revenue Act, 1901. In order to maintain the map and the khasra, which is a field book, the Lekhpal shall make thrice field to field inspections every year of every village in his halka. The tours shall begin respectively on 10th August, 1st January and 15th May. The first, second and third tours shall be completed on 25th September, 15th February and 31st May respectively.

A-56 Copy of map for correction. - The Lekhpal shall not record any changes on the copy of the map supplied to him at the last survey or after consolidation of holdings. He shall ordinarily make a tracing from this map for the purpose of recording changes, but where the map have been printed, he may obtain a printed copy for this purpose. The map for recording changes may be used year after year until it becomes unserviceable, either through wear and tear, or through a large number of alterations. When it has become unserviceable, the Lekhpal shall, under the orders of the [Bhulekh Nirikshak] prepare from it a new map showing the field boundaries as they exist and omitting those that have disappeared. The old map shall be deposited by the Lekhpal with the Registrar Kanungo after the [Bhulekh Nirikshak] has signed the new map in token of his test.

A-57. Correction of Map. - (i) During each inspection tour the Lekhpal shall compare the field one by one with his map and shall note thereon or changes in field boundaries and other alterations after making necessary measurements. Changes may be shown in the field in pencil but must afterwards be made in red ink. When a field is found to have been divided into two or more portions, he shall give a separate number to each portion, writing the original number as numerator and the fractional number as denominator; but if these portions are in the cultivatory possession of one and the same person under the same class of tenure they need not be given separate numbers, the divisions being shown in this case by dotted lines only. If field bearing fractional numbers are against united so as to form a plot as it existed at the last survey or consolidation operations the fractional number will be omitted and the original number of the field restored.

(ii) If extensive survey operations are required at any time in order to correct the map in any village, the Lekhpal shall apply to the [Bhulekh Nirikshak] for the use of the necessary instrument, and for such assistance as may be required. Such applications should be made not later than 31st October, in the year when the necessity arises. In carrying out survey instructions given in the " Rules and Instructions for Survey of Villages should mutatis mutandis be followed.

Note. - The Collector may dispense with the annual correction of field maps in the case of any alluvial portion of a village, if satisfied the extent and character of the changes annually recurring making the strict observance of the rule unduly burdensome. In such cases an entirely new map and khasra must be prepared once in eight years.

A-58 Lekhpal's knowledge of survey. - All Lekhpals must keep up their knowledge of survey. If any Lekhpal is reported to be deficient in that knowledge by any officer not below the rank of a Tahsildar he may be required to pass a test in the subject, after being allowed such period of grace as the Collector may think fit.

A-59. Date of completing map. - (i) The correction of map shall be completed and the alterations inked by 30th April.

(ii) In villages where the shape and position of the field boundaries are liable to frequent changes, the Collector may dispense with the inking of the changes shown on the map.

A-60. Preparation of khasra. - (i) The khasra shall be prepared in Form No. P-A-3 given below:

(ii) Columns 1 to 5 shall be written up before the first tour; 7 to 9 during the first; 10 to 12 during the second tour; 13 to 15 during the third tour; entries in column 6 shall be made during each of the three tours as conditions may require; the rest of the columns shall be written up as early as possible after the third tour.

(iii) The Lekhpal is responsible for the accuracy of all entries and must satisfy himself of the facts by inquiry from the persons concerned, as well as by field inspections.

(iv) The khasra shall be completed by 30th April. It shall be bound in volumes containing each about 100 leaves. After compilation of the khasra the Lekhpal shall cross out columns 4, 5, 20 and 21 against all the fields where they have remained blank. The khasra shall be retained by the Lekhpal for one year, and it shall be filled with Registrar Kanungo on or before 31st July of the following year.

A-61 One or more khasras for a village. - (i) There will be a separate khasra for each village. When there are two or more Lekhpals using one map, a copy shall be applied to each, who shall write up a separate khasra for the numbers assigned to him. Where in alluvial villages the alluvial portion has been numbered separately from the rest, a separate khasra shall be prepared for the alluvial portion.

(ii)If there is any area in the village to which U.P. Zamindari Abolition and Land Reforms Act, 1950, does not apply, a separate khasra shall be prepared for such area according to the rules contained in Chapter V. Against each field included in such area columns 2 to 10 shall remain blank; in the column for remarks it shall be noted that the Zamindari Abolition and Land Reforms Act, does not apply to it. Where there are several successive fields to which the Act does not apply, it is sufficient to record them in one entry in column 1,e.g., 53. A separate line for each field need not be given.

(iii) Occasionally "intermixed village" are met with, that is, two or more villages of which the lands are so intermixed that the whole area is to be included within the hadbast. The lands, however, or each village constitute a separate village and there may be more than one lekhpal for such villages. In such cases each Lekhpal should have a copy on the map of the whole hadbast area, but should maintain it and a khasra only in respect of the field belonging to his village. The Khatuani, and other records should be confined to the lands included in each village.

A-62. Entries how to be made. - Entries in the khasra shall be made in accordance with the actual facts according to the instruction contained in the following paragraph.

A direction is, therefore, being issued to the State Government that Khasra entries should be regularly and religiously filled in by the Revenue Authorities, namely, the Lekhpals and the Tehsildars thrice every year. The Maps shall also be corrected as per the changes. If entries are made properly in the Revenue Records then there would be absolutely no occasion for any villager to say that he had been in possession over the Gaon Sabha land before a certain cut off date and not somebody else.

Further more, if in any particular Fasli year wrongful possession is found then the Gaon Sabha and the State Authorities should take action under Section 67 of the U.P. Revenue Code immediately, unless, of course, they want the illegal occupant to continue. If they allow the down trodden villager to continue to live on their own land then it is a different matter. But this much, the State Authorities should ensure that the correction of Maps, khasra entries and entries in the khataunis are done regularly. If any objection is made to any entry then it should also be addressed.

Let a copy of this order be sent to the Chief Secretary, Revenue Secretary and all the District Magistrates of all the Districts of Uttar Pradesh through the Registrar General of the High court so that a direction may be issued to all the Lekhpals and the Tehsildars that they may fill the khasras and the khatuanis regularly as per the provisions of the U.P. Land Record Manual. The Maps may also be rectified from time to time.

With these observations, let this writ petition be consigned to record.

Order Date :- 22.11.2018

(Siddhartha Varma, J.)