Rohtash vs State Of U P And 3 Others
2018 Latest Caselaw 3267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 30
 

 
Case :- WRIT - C No. - 34451 of 2018
 

 
Petitioner :- Rohtash
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Santosh Kumar Dubey
 
Counsel for Respondent :- C.S.C.,Mahesh Narain Singh
 

 
Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents 1 to 3 and Sri Mahesh Narain Singh, learned counsel appearing for the respondent no. 4.

Present writ petition has been filed seeking quashing of the impugned order dated 18.9.2018 passed by the Additional Commissioner, Meerut Mandal, Meerut in Case No. 01615/2018 under Section 333 of U.P.Z.A. & L.R. Act as well as to stay the order dated 18.8.2017 passed by the Sub-Divisional Magistrate, Modinagar, district Ghaziabad in Case No. 6/2010-11 under Section 122B (4F) of U.P.Z.A. & L.R. Act filed as Annexures 5 and 7 respectively to the writ petition. A further prayer in the nature of mandamus directing and commanding the respondent authorities not to interfere in peaceful possession of the petitioner over Khasara no. 358 situated in Village Rori Pargana Jalalabad Tehsil Modinagar district Ghaziabad has also been made.

Petitioner filed Case No. 6 of 2010-11 under Section 122-B (4F) of U.P. Z.A. & L.R. Act, 1950 claiming benefit of Sub-section (4F) of Khasra no. 358 Rakba 0.885 Hectare out of 0.404 Hectare that he is in possession for more than 20 years and as such being a member of scheduled caste he is entitled for the benefit of Section 122-B (4F) of the Act. Reliance was placed by the petitioner on an order dated 29.11.1997 whereby notice 49Ka was issued against the petitioner under Section 122-B of the Act was dropped. The petitioner has also filed a copy of the order dated 17.9.2003 passed under Section 198 (4) of the Act, Rohtas Vs. Rajendra and others whereby proposal for allotment dated 20.9.1997 of the aforesaid Arazi in favour of some other person was dropped. The benefit under Section 122-B(4F) of the Act was rejected by the impugned order dated 18.8.2017 on the ground that the petitioner has filed only photo copies of aforesaid orders which are not admissible and even otherwise he has failed to produce any evidence to prove his possession, which is stated to be 20-25 years old. The revision filed against the same was also dismissed.

Submission of learned counsel for the petitioner is that the impugned orders are wholly illegal and are not sustainable in the eye of law inasmuch as a report in favour of the petitioner was given by the Tehsildar and two orders were also filed which is indicative of the fact that nothing further was required.

Per-contra, Sri Mahesh Narain Singh, learned counsel appearing for the respondent no. 4 places reliance on judgment of this Court in the case of Shambhoo Nath and others Vs. Commissioner, Vindhyachal Region, Mirzapur and others 2007 (1) ADJ 247 to submit that no independent proceeding for declaration under Section 122-B (4F) of U.P. Z.A. & L.R. Act, 1950 can be initiated and it is only a right of defence given to the agricultural labourer belonging to scheduled caste/scheduled tribe and no such declaration can be claimed by the petitioner in a case. He has also placed reliance on judgment of this Court in the case of Sanjai Kumar Vs. Collector/District Magistrate, Kanpur Dehat and others 2005 (98) RD 454 to submit that mere dropping of the proceedings under Section 122-B does not determine any substantive right of a person who is claiming benefit under Section (4F) of the Act.

Paragraphs 16, 17, 18 and 19 of the judgment in the case of Shambhoo Nath (Supra) are quoted as under:

16. On a reading of aforesaid provision of Section 122-B in its entirety with the exception carved out in Sub-section (4-F), it is clear that the aforesaid Sub-section (4-F) is not a provision for seeking declaration of the rights of the person who is in occupation of the Gaon Sabha land for declaring him as bhumidhar with non-transferable rights. In fact it is a right to defend, if such a person is sought to be evicted or dispossessed from the land of Gaon Sabha, may be, under the proceedings initiated under Sub-section (1) of Section 122-B read with Rule 115 of the U.P. Zamindari Abolition and Land Reforms Rules or by adopting any other proceedings where such power of eviction is given to the Collector or to any other authority concerned.

17. In case an occupant of the like description as given in Sub-section (4-F), is sought to be evicted from the Gaon Sabha land he would have a right to plead and establish that since his possession continued since before the cut of date, rights have precipitated in his favour and that he is a bhumidhar of the land with non-transferable rights. If such a plea is raised the same would be considered by the authority concerned before evicting that person.

18. The aforesaid Sub-section says that no action under this section viz; Section 122-B shall be taken by the Committee or under the Act against such labourer namely; who fulfills the conditions enumerated therein and further he shall be admitted as bhumidhar with non-transferable rights under Section 195 of the Act and that it shall not be necessary for him to seek declaration by filing a suit for declaration. The provision is specific and clear. The Collector would have no power to evict such person and that he would also be entitled to be admitted as bhumidhar with non-transferable rights by the Land Management Committee in accordance with the provisions of Section 195 of the Act for which no declaration need be taken by filing the suit.

19. The right of defence given under the said provision to the agricultural labourer belonging to scheduled caste/Scheduled tribe cannot be taken as a right of seeking declaration under the aforesaid provision.

Paragraphs 3 and 7 of the judgment in the case of Sanjai Kumar (Supra) are quoted as under:

"3. Whenever a new cut off date for conferring benefit of Section 122-B(4-F) of the Act is provided, people belonging to scheduled caste start claiming benefit of the said Section by creating evidence of prior possession. In view of this rampant mal-practice it is most essential that whenever benefit of aforesaid Sub-section (4-F) is claimed the claimant must show that he is in unauthorized possession over Gaon Sabha land and his name is recorded in the revenue records prior to the cut off date or the proceedings for his ejectment must be pending since before the cut off date. If it is not so then no amount of evidence can be looked into in that regard. In most of the cases like the present ones Pradhans, Lekhpals and other Revenue authorities in collusion with claimants give wrong reports of possession of the claimants prior to the cut off date. Absolutely no reliance can be placed upon such reports. On the contrary disciplinary proceedings must be initiated against those Lekhpals and other revenue authorities who give such reports. Whenever any Lekhpal or any other revenue authority gives a report that a person is in unauthorized possession of Gaon Sabha land since long before the cut off date then action must be taken against him for his negligence to report the unauthorized occupation and initiate proceedings of eviction of that person before cut off date. Lekhpal is bound to give report of unauthorized occupation of any person over Gaon Sabha land promptly.

7. The experience of the court is that provision of Section 122-B(4-F) of the Act are utterly misused. The real benefit of the said Section does not go to the weakest and meekest among scheduled cast. Firstly, really weak and poor people of scheduled caste do not encroach upon the Gaon Sabha land and only strong and influential persons of scheduled caste (which may be described as creamy layer) can forcibly occupy Gaon Sabha land. Secondly, whenever a new cut off date is provided (the latest being 1.5.2002), unscrupulous and influential persons of scheduled cast manufacture evidence of their prior possession and in this regard Lekhpals and Pradhans some times provide full support to them. This utter misuse can sufficiently be checked if benefit of the said sub Section (4-F) is given only and only to those members of scheduled caste whose possession is entered in the revenue records prior to cut off date or eviction proceedings are pending against them since before the said date. It appears that after May, 2002 huge tracts of land of Gaon Sabha have been settled in favour of those scheduled caste persons who were not really in occupation before May, 2002 but somehow managed to get favourable reports of their prior possession either by Pradhan, Lekhpal or other revenue officials. Collectors of all the Districts of Uttar Pradesh shall call the reports of all such cases in which benefit of the aforesaid Sub-section (4-F) has been conferred without there being any entry of possession of the claimant in the revenue record prior to 1.5.2002 or pendency of eviction proceedings prior to that date. All such entries must be reversed but only after issuing notice and hearing the persons whose names have been so entered. Gaon Sabha is also entitled to apply for such correction of entry either before Deputy Collector or Collector. These cases must also be decided on top priority basis but only after issuing notice and hearing affected persons. The court may in some future case require the Collectors to submit compliance report in pursuance of this order."

Admittedly, the respondent no. 3, the Sub-Divisional Magistrate, Modinagar, district Ghaziabad has categorically recorded that only photo copies of the earlier proceedings were filed and the certified copies of the documents were not filed even before the revisional court although undisutedly such documents are public documents. Apart from that in view of the law as discussed above, the proceedings for declaration of right under Section 122-B (4F) of U.P. Z.A. & L.R. Act, 1950 was not maintainable as it is only a defence that can be taken in proceedings initiated against a person under Section 122-B of the Act.

Moreover, now this provision made under sub-rules (4-F) of Section 122-B of the Act has not been included in the U.P. Revenue Code,2006.

In such view of the matter, I do not find any legal infirmity in the orders impugned herein.

This writ petition is devoid of merit and is, accordingly, dismissed. No order as to costs.

Order Date :- 22.10.2018

p.s.