Manik Rai vs State Of U.P. And 3 Ors.
2019 Latest Caselaw 2553 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 15
 
Case :- WRIT - C No. - 11206 of 2014
 
Petitioner :- Manik Rai
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Satayendra Narayan Singh
 
Counsel for Respondent :- C.S.C.,Ajay Kumar Singh,Ashish Kr. Singh
 

 
Hon'ble Vivek Varma,J.

1. The present writ petition has been filed against the order dated 28.11.2013, whereby revision filed by the petitioner had been dismissed affirming the order dated 23.02.2013, by which the restoration application filed by the respondent no.4 for recalling the order dated 08.03.1999 was allowed in the proceedings under Section 122-B of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the 'Act').

2. The case of the petitioner is that the proceedings under Section 122-B of the Act were initiated against him by issuing notice under the ZA Form 49-A stating therein that he had illegally occupied the Arazi No. 241 area 0.121 hectare belonging to the Gaon Sabha situated in Mauza Harhua, Pargana Athgavan, Tehsil Pindara, District Varanasi.

3. Reply of the notice was submitted by the petitioner on 25.08.1998, in which he claimed that his ancestors were in possession of the aforesaid Arazi before enforcement of the Act. Trees have been planted by the ancestors which have grown up and are standing, the said plot has been developed as a grove.

4. The Tehsildar by order dated 08.03.1999 discharged the notice under the ZA Form 49-A stating that the said plot is in the nature of grove, the Gaon Sabha shall continue to be the owner of the plot in dispute. So far as the standing trees are concerned, the petitioner will have a right over the same.

5. According to the petitioner, when some private persons started interfering in the said plot, he filed a Original Suit No. 311 of 2011 (Manik Rai Vs. State of U.P. & others), which was transferred in the Court of Judge, Small Causes Court, Varanasi, the learned Judge passed an interim injunction pertaining to trees only. Aggrieved against the same, he preferred an appeal before the District Judge, Varanasi, which was dismissed. However, in the writ petition preferred against the appellate order, this Court on 03.04.2012 passed an order to maintain status quo with regard to the property in dispute. The aforesaid order was extended on 07.09.2012 and the same is operative till today.

6. The respondent no.4, who claims to be the real brother of the petitioner, on 01.12.2012 filed a restoration application for recalling the order dated 08.03.1999 claiming that he may also be given rights over the trees standing on the plot in dispute. The respondent no.3 on 23.02.2013 recalled the order dated 08.03.1999 and directed the parties to appear before him. The revision against the order dated 23.02.2013 was also dismissed on 28.11.2013.

7. Heard Sri Sanjay Mani Tripathi holding brief of Sri Rajesh Kumar Tiwari, learned counsel for the petitioner; Sri Ajay Kumar Singh, learned counsel for the respondent no.4; and learned Standing Counsel for the respondent nos. 1, 2 and 3.

8. Learned counsel for the petitioner submitted that since the petitioner had filed Original Suit No. 311 of 2011 (Manik Rai Vs. State of U.P. & others) in the Court of Judge Small Causes Court to establish his rights over the said property and this Hon'ble Court in Writ-C No. 16172 of 2012 (Manik Rai Vs. State of U.P. through Collector and others) had passed an interim order dated 03.04.2012 which was extended on 07.09.2012 directing the parties to maintain status-quo with regard to the property in question and the aforesaid fact was admittedly in the knowledge of the respondent no.4 and as such there is no occasion for him to file a restoration application and further the respondent no.2 at the behest of the stranger after 14 years has recalled the order dated 08.03.1999.

9. On the other hand Sri Ajay Kumar Singh has submitted that the petitioner and the respondent no.4 are real brothers and as such both have rights over the standing trees and the petitioner in the garb of order of the Tehsildar dated 08.03.1999 is claiming sole rights over whole land in dispute.

10. Learned Standing Counsel has submitted that the order dated 08.03.1999 had been passed after giving notice and adequate opportunity to both the parties, the petitioner may contest the proceedings before the Tehsildar. The revisional court had rightly dismissed the revision preferred by the petitioner. The writ petition is devoid of merits and is liable to be dismissed.

11. I have considered the rival submissions raised by learned counsel for the parties and perused the record.

12. The sole ground on which the order dated 23.02.2013 was passed by the respondent no.3 is that the trees standing on the plot in dispute was stated to have been planted by the ancestors of the petitioner and since the petitioner and the respondent no.4 are real brothers, as such the earlier proceedings under Section 122-B of the Act drawn against the petitioner and granting him exclusive rights vide order dated 08.03.1999, over the trees, needs to be recalled and respondent no.4 is to be heard. The revision filed against the order dated 23.02.2013 was also dismissed with a direction to the parties to appear before the Tehsildar and an order be passed on merits after hearing the parties and adducing of evidence.

13. The fact that the petitioner and the respondent no.4 are real brothers has not been denied in the entire writ petition. In the restoration application dated 01.12.2012 annexed as Annexure-4 to the writ petition, in paragraph 2 thereof, the family tree has been given which shows that petitioner had four brothers, out of which two died, details of the other legal heirs have not been disclosed and further in paragraph no. 3 of the said application, the respondent no.4 averred that the Arazi in dispute is Banjar and as such it is a Gaon Sabha land. It was also stated that in the proceedings under Section 122-B of the Act, the objections in pursuance to the notice in ZA Form 49-A was submitted after due deliberation and with consent of all the co-sharers and thereafter the order dated 08.03.1999 was passed by the Tehsildar, wherein it was recorded that the land belongs to Gaon Sabha. It was also stated in the application filed by the respondent no.4 that after passing of the order dated 08.03.1999 the petitioner and the other co-sharers have been enjoying the fruits of the trees planted by the ancestors. It was further stated in subsequent paragraphs that the petitioner had filed original suit without impleading the respondent no.4 as such an impleadment application has been filed in the Court on 12.10.2011.

14. The aforesaid assertions made by the respondent no.4 in the restoration application clearly indicates that he had full knowledge about the proceedings pending before the Tehsildar, which resulted in order dated 08.03.1999, further the admission of the respondent no.4 in the restoration application that the land in dispute is banjar belonging to the Gaon Sabha and after the death of the father of the petitioner and respondent no.4, the entire property devolved on five sons or their legal heirs, this fact ought to have been considered by the Tehsildar or by the revisional authority, while passing the order dated 23.02.2013 and 28.11.2013.

15. Section 122-B of the Act provides a summary procedure for ejectment of unauthorized occupants of the land vested in Gaon Sabha and local authority and realization of damages for use and occupation and misappropriation of such property. Rules 115C to 115 D has also been framed providing a detail procedure for initiation and deciding the proceeding under Section 122-B of the Act.

16. At this stage, it is also pertinent to appreciate the provisions contained under Section 122-B of the Act, which reads as under:-

"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 [thirty days] 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 333-A, 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 (4-A) and (4-D), be final,

(ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4-D), 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 (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A).

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 Scheduled 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 [he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land.]]

[(5) Rules 115-C to 115-H of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, shall be and be always deemed to have been made under the U.P. Zamindari Abolition and Land Reforms Act, 1950 as amended by the Uttar Pradesh Land Laws (Second Amendment) Act, 1961, as if this section has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with the provisions of this Act.]"

17. From bare perusal of the provisions contained in proviso (4-D) to Section 122-B of the Act, it is apparent that 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.

18. It is not disputed that the petitioner had filed a suit for declaration of his rights over the land in dispute and the respondent no.4 is contesting the proceedings in the said suit and an injunction has been granted in favour of the petitioner, which is still operative.

19. The dispute between the petitioner and respondent no.4 with regard to the rights over the standing trees cannot be decided in the proceedings under Section 122-B of the Act.

20. Thus, in my opinion no useful purpose would be served by directing the parties to appear before the Tehsildar for fresh hearing. The provisions of Section 122-B of the Act are meant only for protection of property vested in the Gaon Sabha and the local authority. A quick remedy has been provided to get possession of public property from unauthorized occupation. This forum cannot be directed to be used for resolving the dispute of private parties. If such disputes are allowed to be raised and considered, the very purpose and object behind enacting Section 122-B of the Act will be defeated. The proceedings under this section are summary in nature and are tried by the Tehsildar. There could be no declaration of title of any person in these proceedings.

21. In view of the above, the order dated 28.11.2013 passed by the respondent no. 2 - Chief Revenue Officer, Varanasi and order dated 23.02.2013 passed by the respondent no. 3 - Tehsildar, Tehsil Pindra, District Varanasi, are hereby quashed. The writ petition is, accordingly, allowed.

22. There is no order as to costs.

Order Date :- 05.04.2019

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