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BAJRANGI AND ORS. versus CHIEF REVENUE OFFICER MAU AND ORS.

High Court of Judicature at Allahabad

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Bajrangi And Ors. v. Chief Revenue Officer Mau And Ors. - WRIT - C No. 40485 of 2000 [2005] RD-AH 6318 (24 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

Civil Misc.Writ Petition No. 40485 of 2000

Bajrangi and others

Versus

Chief Revenue Officer Mau and others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order dated 23.8.2000 (Annexure 1 to the writ petition) and the approval order dated 2.5.1993 passed by the respondent No.3 (Annexure 2 to the writ petition) a further prayer in the nature of mandamus directing the respondents to decide the case as a fresh and not to interfere in the peaceful possession of the petitioners.

The fact arising out of the writ petition is that the petitioners belong to scheduled caste community filed an application for cancellation of farzi and fictitious patta proposed by Land Management Committee on 15.3.1992 and approved by the Sub Divisional Officer dated 2.5.1993 in favour of the respondent Nos. 6 to 11 regarding plot of Khasra Nos. 4 area 72 acres situated in village Dhekwara, Pargana Ghosi District Mau.  It has been pleaded that no munadi and meeting were held for the allotment of the said patta neither the allottee came under the category of allotment as they possessed land and house etc in the village.  Petitioners filed an application supported by an affidavit. In Paragraph 8 of the said complaint it has been pleaded that land in dispute is not vacant because the petitioners are using the said land as abadi and sahan before the proposal of alleged patta.  In support of his case, the petitioners filed Khasra of the area 1386 Fasli.  It is submitted that total area of plot No.4 was 265 acre out of which 170 acre was recorded as abadi in which the house of the petitioners were situated and remaining land were being used as Sahan. In support of his case, the petitioners have filed an affidavit by one Bajrangi S/o Bharpu.  The opposite party filed an objection on 10.3.1996 and the petitioners have also filed the reply to the objection filed on behalf of the respondents.  The petitioners adduced to documentary evidence as well as oral evidence but the same has not been discussed and the respondents have passed an order-dated 3.8.2000 on the irrelevant grounds.  The respondent No.1 has wrongly rejected the application filed by the petitioners.  The order passed by the respondents suffers from manifest error of law apparent on the face of record.  The petitioners are in possession of the land in dispute, therefore, they became the owner of the land in dispute under section 123 of the UPZA & L.R. Act because the petitioners' house is situated in the land in dispute and they are using the said land as abadi and sahan.  

It has been contended on behalf of the petitioners that petitioners are aggrieved persons as they are using the said land as abadi and the same cannot be allotted to any other person.  The petitioners are poor landless scheduled castes and they have no other house except the house situated on the said land.  As no proper procedure has been followed, therefore, the allotment of patta in favour or the respondents No.6 to 111 are illegal.  The petitioners are in possession of the said land and the same is being used as abadi land and sahan land of the petitioners.

Aggrieved by the aforesaid order the petitioners have approached this Court.

It has been submitted on behalf of the petitioners that in view of the Section 123 of the U.P. Zamindari and Land Reforms Act, the petitioners house is situated therefore, it cannot be said that the petitioners are trace-passers.  It has further been submitted on behalf of the petitioners that according to Section 122 B(4)-F it clearly provides that if any agriculture labourer belonging to  a scheduled castes or scheduled tribes is in possession of any land vested in a Gaon Sabha under section 117 (Not being land mentioned in Section 132) having occupied it from before 30th June 1985 and the land so occupied together with land, if any, hold by him from before the said date as Bhumidhar, Sirdar, and Assami does not exceed 1.25 hectares (3.1215 Acres) then no action under this  section has been taken by the Land Management committee or Collector against  such labourer and it shall be deemed that he has been admitted as Bhumidar with non transferable rights of that Land under Section 195.  

The further submission of the petitioners is that both the authorities while considering has not considered the said aspect of the matter that the petitioners are still in possession of the land in dispute and the same has been proved by filing the Khasra of 13.8 fasti, therefore, the order of allotment of patta be cancelled and the same may be allotted in favour of the petitioners.

The notices were issued and by order dated 11.9.2000 the order of status quo was directed to be made.  A counter affidvit has been filed.

The petitioners have placed reliance upon a judgment of the Apex Court in Manorey @ Manohar Vs. Board of Revenue (U.P.) and others Judgment Today 2003 (3) Supreme Court, 538 and has placed reliance upon Para 8 of the said judgment.  The same is being reproduced below:-

     "8. First, the endeavour should be to analyse and identify the nature of the right or protection conferred by sub-section (4F) of section 122B.  Sub-sections (1) to (3) and the ancillary provisions upto sub-section (4E) deal, inter alia, with the procedure for eviction of unauthorized occupants of land vested in gaon sabha.  Sub-section (4F) carves out an exception in favour of an agricultural labourer belonging to a scheduled caste or scheduled tribe having land below the ceiling of 3.125 acres.   Irrespective of the circumstances in which such eligible person occupied the land vested in gaon sabha (other than the land mentioned in section 132), no action to evict him shall be taken and moreover, he shall be deemed to have been admitted as a bhumidhar with non transferable rights over the land, provided he satisfies the conditions specified in the sub-section.  According to the findings of the sub-divisional officer as well as the appellate authority, the appellant does satisfy the conditions.  If so, two legal consequences follow. Such occupant of the land shall not be evicted by taking recourse to sub-section (1) to (3) of section 122B. It means that the occupant of the land who satisfies the conditions under sub-section (4F) is entitled to safeguard his possession as against the gaon sabha.  The second and more important right which sub-section (4F) confers on him is that he is endowed with the rights of a bhumidhar with non-transferable rights.  The deeming provision has been specifically enacted as a measure of agrarian reform, with a thrust on socio-economic justice.  The statutorily conferred right of Bhumidhar with nontransferable rights finds its echo in clause (b) of section 131.  Any person, who acquires the rights of bhumidhar under or in accordance with the provisions of the Act is recognized under section 131 as falling within the class of bhumidhar.  The right acquired or accrued under sub-section (4F) is one such right that falls within the perview of section 131 (b)."

         It has been submitted that if the occupant of land, who satisfies the conditions under sub-section (4F) is entitled to safeguard his possession as against the gaon sabha.  The second and more important right which sub-section (4F) confers on him is that he is endowed with the rights of a bhumidhar with non-transferable rights.  The deeming provision has been specifically enacted as a measure of agrarian reform, with a thrust on socio-economic justice. As such, the petitioners submit that they are entitled for the relief and both the authorities have not considered the same.

On the other hand, a counter affidavit has been filed and a preliminary objection placing reliance upon a judgment in Janab and others Vs. State of U.P. and others reported in 2001(92) Revenue Decision, Page 533  and has submitted that the orders passed by the Collector under Section 122-C of the Act shall be subject to the revisional jurisdiction.  The writ petition should not be ordinarily entertained.

The further contention raised on behalf of the respondents is that the petitioners in nowhere in the application or from the record, it was proved that they were in possession of the land in dispute much before 30.6.1985 the cut of date mentioned under section 122-B (4F) of the Zaminidari Abolition and Land Reforms Act.  As such, Section 23 of the Act is not attracted in the present case.  It has further been stated that unless and until the person who claims to be in possession of the Gaon Sabba land has to prove by documentary evidence to show that they were in possession prior to 30th June, 1985, mere filing a khasra of 1386 fasli will not accrued a right to a person for allotment of gaon sabba in their favour.  As such, the respondents submit that both the authorities have considered the submissions and perused the document and have come to the conclusion that the petitioners have failed to prove their rights and have rightly rejected the claim of the petitioners.  The finding incorporated by the courts below are finding of fact and needs no interference by this Court under Article 226 of the Constitution of India.

I have heard the learned counsel for the petitioners and counsel for the respondents and have perused the record.

The Court has perused the application, which was filed before the authority concerned.  There is no mention or averment that the petitioners are in possession of the land in dispute prior to 30th June, 1985.  In various places averment have been made that they are in possession prior to  allotment of patta in favour of the respondents.  The Apex Court judgment (Supra) is not applicable in the case of the petitioners as the Apex Court has clearly held that there must be compliance on prove of the provisions of Section 122 B (4F) of the Zamindari Abolition and Land Reforms Act.  The Apex Court has clearly held that the occupant of the land has to satisfy the condition under sub-section 4F and if on the basis of relevant record, the same is satisfied, he is entitled for the relief and he will not be evicted from the land in dispute. In the present case, from the perusal of the application as well as from the finding recorded by both the authorities below, it is clear that the petitioners have failed to prove that they were in possession of the land in dispute prior to 30th June, 1985 and the petitioners have fulfilled the condition laid down in the provisions of the Act.  A finding has been recorded by the Court below that the petitioners are not the residence of the village.  They lives at the place of their in laws and they are not effected person and do not fulfilled the requirement as provided, therefore, they are not entitle to remain in possession of the land in dispute.

In view of the aforesaid fact, I am of the view that the finding recorded by the Court below is a finding of fact and based on consideration of the relevant documents and provisions of law, as such, it needs no interference by this Court under Article 226 of the Constitution of India.   The writ petition is devoid of merits and is hereby dismissed.

                  There shall be no order as to costs.

24.11.2005

SKD              


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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