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Ramadhar v. Tehsildar - WRIT - C No. 16594 of 1989 [2004] RD-AH 1537 (29 November 2004)


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Court No.51

Civil Misc. Writ Petition No. 16594 of 1989

Ramadhar Versus Tehsildar and another


Hon'ble V.C. Misra, J.

Sri S.K. Chaturvedi, learned counsel for the petitioner and the learned Standing Counsel on behalf of the respondent nos.1 and 2 are present. Nobody is present on behalf of the respondent no.3. Counter affidavit has been filed on behalf of the Gaon Sabha respondent no.3.

This writ petition arises out of the proceedings under Section 122-B of the U.P.Z.A. & L.R. Act, 1951, hereinafter referred to as the Act.

The facts of the case in brief are that a notice in Form 49-A under the Act was issued to the respondent no.4 with regard to his unauthorized possession over Plot No.713 admeasuring an area of 1 acre and 31 Decimal. In pursuance of the said notice a case Under Section 122-B of the Act was registered and in proceedings before the respondent no.1 it was found that Bala Ram respondent no.4 father of the petitioner against whom the said notice had been issued was not in possession or occupation of the plot in question, rather the petitioner was found to be in lawful and valid possession and occupation on the basis of a Patta of the said land granted in his favour by the Gaon Sabha on the basis of a resolution dated 16.7.1984 passed by the concerned Gaon Sabha respondent no.3 in his favour, and after the execution of the lease the name of the petitioner was recorded in the revenue record.  Respondent no.1 vide its order dated 31.12.1987 (Annexure 1 to the writ petition), after going through the record of the case quashed the notice under Section 49-A and sent a recommendation in favour of the petitioner to the Sub Divisional Officer to declare him as Bhumidhar with non transferable rights,  and also to fix the land revenue of the said plot. It also held that the petitioner was entitled to the benefits of the provisions laid down under Section 122-B (4-F) of the Act, as it stood on the date of proceedings and since the petitioner was not in possession and occupation over the land more than 4.67 acres no case could be instituted against the petitioner, neither the land in question had been reserved for public purpose and utility and the same was recorded as Banjar in Clause 5 of the Land Record Manual.

In pursuance of the order dated 31.12.87 the Sub-Divisional Officer after hearing the parties declared the petitioner as Bhumidhar with non-transferable rights of the plot in dispute vide its order dated 7.1.88, copy of which has been annexed as Annexure 2 to the writ petition. A time barred revision was filed on behalf of the Gaon Sabha without seeking any prayer for condonation of delay before the respondent no.2 on the ground that the court below had erred in discharging the notice in favour of the petitioner inspite of the fact that the notice had been sent in the name of Bala Ram respondent no.4 the father of the petitioner, and Ramadhar had been wrongly and illegally declared as Bhumidhar. Objections were filed on behalf of the petitioner. The respondent no.2 vide its order dated 1.6.89 allowed the revision and remanded the case back before the court below on the ground that the notice under Form 49-Ka had been issued to Bala Ram and the orders should have been passed considering him only because Ramadhar the petitioner was not a party to the proceedings neither any dispute regarding him was being considered nor the Gaon Sabha had been issued any notice in this respect. Therefore, on this ground the order passed in respect of Ramadhar was wrong, illegal and liable to be interfered in the revision.

The learned counsel for the petitioner in support of his case, has relied upon the case of Manorey @ Manohar Vs. Board of Revenue U.P. and others, reported in 2003 Vol. 1, R.D. Page 538, para 9 of the said judgment reads as under:-

9. Thus, sub-section (4-F) of section 122-B not merely provides a shield to protect the possession as opined by the High Court, but it also confer a positive right of Bhumidhar on the occupant of the land satisfying the criteria laid down in that sub section. Notwithstanding the clear language in which the deeming provision is couched and the ameliorative purpose of the legislation, the learned Single  Judge of the High Court had taken the view in Ramdin Vs. Board of Revenue (supra) (followed by the same learned Judge in the instant case) that the Bhumidhari rights of the occupant contemplated by sub-section (4-F) can only blossom out when there is a specific allotment order by the Land Management Committee under Section 198. According to the High Court, the deeming provision contained in sub-section (4-F) cannot be overstretched to supersede the other provisions in the Act dealing specifically with the creation of the right of Bhumidhar. In other words, the view of the High Court was that a person covered by the beneficial provision contained in sub-section (4-F) will have to still go through the process of allotment under section 198 even though he is not liable to eviction. As a corollary to this view, it was held that the occupant was not entitled to seek correction of revenue records, even if his case falls under sub-section (4-F) of Section 122-B. We hold that the view of the High Court is clearly unsustainable. It amounts to ignoring the effect of a deeming provision enacted with a definite social purpose. When once the deeming provision unequivocally provides for the admission of the person satisfying the requisite criteria laid down in the provision as Bhumidhar with non-transferable rights under section 195, full effect must be given to it. Section 195 lays down that the Land Management Committee, with the previous approval of the Assistant Collector in-charge of the Sub-Division, shall have the right to admit any person as Bhumidhar with non-transferable rights to any vacant land ( other than the land falling under section 132 ) vested in the Gaon Sabha. Section 198 prescribes "the order of preference in admitting persons to land under section 195 and 197". The last part of sub-section (4-F) of section 122-B confers by a statutory fiction the status of Bhumidhar with non-transferable rights on the eligible occupant of the land as if he has been admitted as such under section 195. In substance and in effect the deeming provision declares that the statutorily recognized Bhumidhar should be as good as a person admitted to Bhumidhari rights under section 195 read with other provisions. In a way, sub-section (4-F) supplements section 195 by specifically grating the same benefit to a person coming with the protective umbrella of that sub-section. The need to approach the Gaon Sabha under section 195 read with section 198 is obviated by the deeming provision contained in sub-section (4-F). We find no warrant to constrict the scope of deeming provision."

I have looked into the record of the case and heard learned counsel present for parties at length, and find that the decision in the case of Manorey @ Manohar (Supra) is fully applicable to the present case.  The respondent no.1 had admitted that the petitioner was in legal and valid possession and occupation of the land in question and he along with the Gaon Sabha was heard and permitted to adduce evidence and the petitioner was rightly given the benefit under section 122-B (4-F) of the Act. More so, since the Sub Divisional Officer after hearing the parties in pursuance of the order dated 31.12.1987 of the Tehsildar-respondent no.1 had vide its order dated 7.1.19888 declared the petitioner as Bhumidhar which order was never challenged by any party and became final. It was thus also not necessary for the petitioner to institute a suit for declaration of his rights as Bhumidhar with non-transferable rights in the land in view of the provision of Section 122-B (4-F) of the Act. The decision of the above said case cited by the petitioner applies to the present case. The revisional Court respondent no.2 has exceeded in exercising its authority and jurisdiction, and committed material irregularity in passing the impugned order dated 1.6.1989 (annexure-5 to the writ petition), which is wrong, bad, illegal and is hereby quashed.

In the above facts and circumstances of the case and the observations made hereinabove the writ petition is allowed. No order as to costs.

Dt. 29.11.2004



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