Ram Dhani vs State Of U P And 4 Others
2018 Latest Caselaw 3882 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.37
 

 
Case :- WRIT - C No. - 22756 of 2018
 

 
Petitioner :- Ram Dhani
 
Respondent :- State Of U P And 4 Others
 
Counsel for Petitioner :- Dinesh Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Madan Mohan Srivastava,Ramesh Chandra Upadhyay
 

 
Hon'ble Siddhartha Varma, J.

This writ petition has been filed by the petitioner challenging the order dated 2.5.2018 passed by the Additional Commissioner (Judicial), Azamgarh Region, Azamgarh in Revision No.47/49/70/84/94/A (Computerised No.C-2014150000419) and the order dated 26.12.2013 passed by the Up-Ziladhikari, Meh Nagar, District Azamgarh under section 123(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act').

Plot No.744 area .0390 situate in village Sardarganj, Tehsil Meh Nagar, District Azamgarh became the bone of contention between the petitioner and respondent no.5 when on 26.12.2013 an order was passed by the Revenue Authorities settling the abovementioned plot on the respondent no.5. The petitioner filed a Revision which was numbered as 94-A of 2014. This revision was decided on the basis of a report dated 5.8.2015.

Learned counsel for the petitioner submitted that when the petitioner was in possession over the plot in question, then the same could not have been settled upon respondent no.5 and, therefore, the impugned orders were wrongly passed. He submitted that all the reports submitted by the Revenue Authorities went to indicate only one fact and that was that the petitioner was in possession over the plot in question.

Learned Standing Counsel, however, in reply, submitted that the report as was submitted by the Revenue Authorities went to indicate that the private respondent no.5 alone was in possession and, therefore, the orders were correctly passed.

Having heard learned counsel for the parties, I am of the view that in the Act, the only machinery provided for concluding as to whether a person is in possession over an agricultural plot either of a Bhumidhar or of the Gaon Sabha, was by looking into the entries made under the U.P. Land Record Manual and, therefore, no machinery has been provided for adjudication without taking the help of the Khasra entries as to who exactly was in possession over the property in question.

In 2011 (2) ADJ 878 (Ram Das and Others vs. Munna Lal and Others) when accrual of rights under the Indian Forest Act, 1914, of various settlers/occupiers of forest land was being considered, this Hon'ble Court observed that if a right of certain occupier vis-a-vis the forest authority was concerned then the forest authorities could have looked into the matter but if two individuals claimed right over some forest land then they had to approach the proper court for declaration of their rights and title, either under the general law or under the relevant land law.

The relevant paragraph of the judgement and order dated 28.01.2011 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)

In the instant case also when two villagers were claiming possession over Gaon Sabha land then the Administrative Authorities could not have adjudicated as to who was in possession in the absence of Khasra entries and, therefore, the proper course open for the petitioners was to approach the Civil Court or the relevant Court under the Land Laws for getting their rights adjudicated. Thus, the petitioners cannot be given any relief by this Court. The writ petition is thus, accordingly, dismissed.

However, before parting, this Court is definitely of the view that certain directions should be issued to the Revenue Authorities with regard to the maintenance of Revenue Records as it feels that without the Revenue Records, the Revenue Authorities cannot provide the benefits which accrue to various villagers on account of possession. Administrative Authorities pass orders with regard to possession either under section 123 or under section 122-B (4F) of the Act or under the various provisions contained in the U.P. Revenue Code, 2006, without relying on entries made in the Khasras. In fact conclusions with regard to possession are being drawn on the basis of reports submitted by various Authorities. This is patently a wrong approach, specially when the State of Uttar Pradesh has the Land Record Manual which guides as to how Khasras and Khataunis are to re prepared.

In Paragraphs A-55 to A-62 of Chapter A-V of the Land Record Manual, a complete guide as to how Maps are to be corrected and how khasras are to be filled has been provided. 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.

Under such circumstances, I feel that no Court can adjudicate as to who was in possession over any property whatsoever. The Revenue Authorities, whose orders are under challenge, also ought to have relied only upon the revenue entries in the Khasras and should not have relied upon various reports give by various Revenue Authorities.

Under such circumstances, I am of the definite view that the petitioner cannot be given any relief by this Court. He will have to avail the remedy of filing a declaratory Suit before the Civil Court or the relevant Court under the land laws for redressal of his grievance. I, therefore, do not propose to interfere in this writ petition. However, a direction is 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 should also be corrected by incorporating any change whatsoever. 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 as and when there are changes.

The writ petition is, accordingly, consigned to the record.

Order Date :- 22.11.2018

GS

(Siddhartha Varma, J.)