Allowed

Prem Singh and Others v. Commissioner Agra Division and Others

Allahabad HC22 Aug 2019WRIC/59595/2007

Case brief

AI extract

What is this about?

The Court held that Section 122-B(4-F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, confers non-transferable bhumidhari rights on eligible SC/ST agricultural labourers in possession of land, superseding procedural allotment requirements. The ex parte order cancelling the petitioners' rights was quashed due to procedural impropriety and legal error.

What did the court decide?

The impugned orders dated 18 November 1998 and 31 May 2007 were quashed.

Prem Singh and Others Vs Commissioner Agra… — Pension and Retirement Benefits | Allahabad HC (2019)

AFR

Court No. - 6

Case :- WRIT - C No. - 59595 of 2007

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Petitioner :- Prem Singh And Others Respondent :- Commissioner Agra Division And Others Counsel for Petitioner :- Satyendra Kumar Singh,Radhey Shyam Yadav,Suresh Chandra Varma Counsel for Respondent :- C.S.C.,V.K. Singh

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Hon'ble Yashwant Varma,J.

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Heard learned counsel for the petitioners, learned Standing Counsel and Sri Ashish Kumar Srivastava for the fourth respondent. Despite notices having been issued to the fifth respondent on 02 January 2008, none has appeared on his behalf. In any case and bearing in mind the fact that the fifth respondent was only a complainant, the Court finds no justification to defer final disposal of the instant writ petition on that score.

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The petitioners belonging to the Scheduled Castes were landless labourers in possession of the plots in question. They claimed the benefits conferred by Section 122-B(4-F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 [“the Act”] in terms of which it was asserted that since they were in possession on the relevant date they were entitled to be declared as Bhumidhars with non transferable rights. The provisions of Section 122-B(4-F) is in the following terms:-

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“Section 122B (4F) :- Notwithstanding anything in the foregoing sub-section, 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

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non-transferable rights in that land." (emphasis supplied)

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It appears that the fifth respondent made a complaint on 22 August 1997 alleging that the petitioners had been extended the benefits of that provision even though they were not entitled. By an ex parte order of 18 November 1998, the SDM cancelled the earlier orders by which the benefits of the aforementioned provision had been extended to the petitioners. While passing the order impugned the SDM placed reliance upon various decisions including that rendered by the Court in Ramdin v. Board of Revenue¹ to observe that the provisions of sub-section (4-F) was only confined to protection of possession and could not be viewed as conferring title on the petitioners. It becomes significant to note that apart from a reproduction of the allegations made by the fifth respondent, no other independent findings have been returned by the SDM in respect of the alleged ineligibility of the petitioners to the benefits of Section 122B(4-F). Although a report of the Lekhpal is alluded to, it becomes pertinent to note that the said report has neither been brought on the record by the respondents nor has any other evidence been filed to establish that the petitioners were not in possession of the land in question on the relevant date or otherwise ineligible to be extended the benefit of that provision.

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Aggrieved by the ex parte order passed by the SDM, the petitioners preferred separate revisions before the Commissioner who connected the same and transferred to the Additional Commissioner for adjudication. That revision came to be dismissed with the Additional Commissioner holding that if it be the case of the petitioners that the order of 18 November 1998 was ex parte, the only remedy available to them was to approach the concerned SDM and apply for recall. The Additional Commissioner non suited the petitioners also on the ground that they had failed to place on the 1 1994 RD 393

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record a certified copy of the order passed by the SDM.

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Dealing firstly with the correctness of the view taken by the Additional Commissioner, this Court is constrained to observe that the same clearly rests on reasons which can neither be countenanced nor accorded judicial approval. Notwithstanding the fact that the original order was rendered ex parte, it was legally permissible for the petitioners to either apply for recall/restoration or to assail the order on merits in revision. In the considered view of this Court, both avenues were consequently open to be pursued by the petitioners. The Additional Commissioner in failing to consider the revision on merits has clearly committed not only a manifest illegality but failed to exercise jurisdiction otherwise conferred without justifiable cause.

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Insofar as the non filing of a certified copy is concerned, before this Court it is conceded by learned Standing Counsel that in revenue proceedings taken before statutory authorities, the records of the subordinate courts are always summoned for the purposes of facilitating a final disposal. Viewed in that light, it is evident that since the original record of proceedings taken before the SDM was present, the need for the petitioners to additionally file a certified copy of that order was clearly obviated. In any case the revision could not have been dismissed on this specious ground since the defect, if at all was curable.

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That then takes the Court to deal with the order passed by the SDM. Quite apart from the fact that the order was rendered ex parte and without notice to the petitioners, this Court finds itself unable to sustain that order on merits either. As noted above, the SDM placing reliance upon the judgment of this Court rendered in Ramdin has erroneously proceeded to observe and hold that Section 122-B(4-F) does not vest title on landless SC/ST agricultural labourers. It becomes pertinent to note that the decision in Ramdin was specifically noticed by the Supreme Court in Manorey alias Manohar v. Board of

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Revenue (U.P.) And Others² and overruled. The decision in Manorey eloquently explains the basic and underlying legislative ethos of Section 122-B(4-F). The Court deems it apposite to extract the following observations as entered by the Supreme Court in Manorey:-

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" 8. First, the endeavour should be to analyze and identify the nature of the right or protection conferred by sub-section (4F) of Section 122-B. Sub-sections (1) to (3) and the ancillary provisions upto sub-section (4-E) deal, inter alia, with the procedure for eviction of unauthorized occupants of land vested in Gaon Sabha. Sub-section (4-F) 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 the 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 subsection. 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 subsections (1) to (3) of Section 122-B. It means that the occupant of the land who satisfies the conditions under sub-section (4-F) is entitled to safeguard his possession as against the Gaon Sabha. The second and more important right which sub-section (4-F) 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 non-transferable 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 (4-F) is one such right that falls within the purview of Section 131(b ).

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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 confers a positive right of bhumidhar on the occupant of the land satisfying the criteria laid down in that subsection. 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 V. Board of Revenue (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

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2 (2003) 5 SCC 521

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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 subsection (4-F) will have to still go through the process of allotment under Section 198 even though he is not liable for 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 nontransferable 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 Sections 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 granting the same benefit to a person coming within 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 the deeming provision.

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That being the legal position, there is no bar against an application being made by the eligible person coming within the four corners of sub-section (4-F) to effect necessary changes in the revenue record. When once the claim of the applicant is accepted, it is the bounden duty of the concerned Revenue Authorities to make necessary entries in revenue records to give effect to the statutory mandate. The obligation to do so arises by necessary implication by reason of the statutory right vested in the person coming within the ambit of sub-section (4-F). The lack of specific provision for making an application under the Act is no ground to dismiss the application as not maintainable. The revenue records should naturally fall in line with the rights statutorily recognized. The Sub-Divisional Officer was therefore within his rights to allow the application and direct the correction of the records. The Board of Revenue and the High Court should not have set aside that order. The fact that the Land Management Committee of Gaon Sabha had created lease hold

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rights in favour of the respondents herein is of no consequence. Such lease, in the face of the statutory right of the appellant, is non est in the eye of law and is liable to be ignored."

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On a consideration of the principles so enunciated, it is manifest that sub-section (4-F) not only protects the possession of an agriculturual labourer belonging to the SC/ST category, it also confers non-transferable bhumidhari rights on eligible occupants. It is thus a provision which not only enables the agricultural labourer belonging to the SC/ST category to protect his possession over the land, but to also claim title over the same by virtue of the provisions made in that section. An agriculturual labourer, otherwise satisfying the requirements of sub-section (4-F) and being eligible, is neither obliged nor can be compelled to obtain a declaration with regard to these rights which are granted and conferred by the statute itself. Manorey further commands the revenue authorities to ensure that the revenue records are brought in line and in tune with the rights so conferred in order to give effect to the legislative mandate. The SDM was consequently incorrect in holding that no title stood vested in the petitioners.

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It would be apposite to reiterate that the SDM also does not allude to any evidence which may have established that the petitioners were not in possession of the land in question on the relevant date or were otherwise ineligible. On an overall conspectus of the aforesaid facts, this Court finds itself unable to sustain the orders impugned.

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The writ petition is accordingly allowed . The impugned orders dated 18 November 1998 and 31 May 2007 are consequently quashed. Order Date :- 22.8.2019 faraz

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(Yashwant Varma, J.)

Prem Singh and Others v. Commissioner Agra Division and Others

Case brief

What is this about?

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Prem Singh and Others v. Commissioner Agra Division and Others

Case brief

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