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HIGH COURT OF ALLAHABAD
S.P.Srivastava
RAMDIN
Versus
BOARD OF REVENUES
Decided On : 10 May 1994
C. M. W. P. No. 15388 of 1994
LAND REFORMS - U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950 - SECTION 122-B (4-F) - LEGAL FICTION - APPLICABILITY - RESTRICTED TO PROCEEDINGS UNDER SECTION 122-B - CANNOT OVERRIDE OTHER PROVISIONS OF THE ACT DEALING WITH CREATION/CONFERMENT OF BHUMIDHARI RIGHTS - DOES NOT CREATE A TITLE IN THE OCCUPANT - MERELY OPERATES AS A BAR TO EJECTMENT OR RECOVERY OF COMPENSATION BY GAON SABHA OR LOCAL AUTHORITY.
Fact of the Case:
Petitioners, claiming to be of Scheduled Caste and in occupation of a plot vested in the Gaon Sabha for 15 years, applied under Section 122-B (4-F) of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (the Act) for recording their names as Bhumidhars with non-transferable rights. The application was allowed by the Sub-Divisional Officer, but on revision, the Board of Revenue set aside the order. The petitioners challenged the order of the Board of Revenue.
Finding of the Court:
The Court held that the legal fiction under Section 122-B (4-F) of the Act was limited in its operation to proceedings initiated by the Gaon Sabha or local authority under Section 122-B of the Act. It could not override other provisions of the Act dealing with the creation or conferment of Bhumidhari rights with non-transferable rights. The fiction merely operated as a bar to the Gaon Sabha or local authority from taking action against the occupant under Section 122-B, but it did not create a title in the occupant. The occupant could only get a right to protect his possession, which could be regularized on the grant of a lease under Section 198 of the Act.
Issues: Whether the legal fiction under Section 122-B (4-F) of the U. P. Zamindari Abolition and Land Reforms Act, 1950, could override other provisions of the Act dealing with the creation or conferment of Bhumidhari rights with non-transferable rights.
Ratio Decidendi: The Court interpreted Section 122-B (4-F) of the Act in light of the scheme and policy underlying the various provisions of the Act. It held that the legal fiction under Section 122-B (4-F) was a specific provision intended to protect unauthorized occupants from eviction or recovery of compensation under Section 122-B. It was not intended to override other provisions of the Act dealing with the creation or conferment of Bhumidhari rights, which were subject to specific restrictions and limitations. The Court also emphasized that the fiction could not be extended beyond its legitimate purpose and could not be used to create a title in the occupant.
Final Decision: The Court dismissed the writ petition, holding that the application filed by the petitioners under Section 122-B (4-F) of the Act was not maintainable and that the impugned order of the Board of Revenue was justified.
The petitioner claiming to be of Scheduled Caste and asserting that they were continuing to be in the occupation for a period of 15 years of plot No. 653 which vested in the Gaon Sabha, submitted an application on 26-12-1990 before the Sub-Divisional Officer, requesting that since the plot in dispute was in their occupation from before 30th June, 1985, their names be recorded as Bhumidhars with non- transferable rights under Section 122-B (4-F) of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as Act ). This application was shown to be an application under Section 122-B (4- F) of the Act.
2. On the basis of the aforesaid application, the Sub-Divisional Officer appears to have called for a report wherein the Lekhpal reported on 12-1-1991 that the plot in dispute was the property of the Gaon Sabha which was continuing to be in the occupation of the applicants for about 12 years. In his report the Lekhpal pointed but that five different sub-divisions of the plot were in occupation of the applicants separately. Lekhpal recommended for extending to the applicants benefits available under Section 122- B (4-F) of the Act and for the recording of their names as bhumidhars with non-transferable rights in respect of the different sub-divisions indicated in the report. The report was endorsed even by the Naib- Tehsildar on 16-9-1991 on the ground that the applicants were continuing to be in possession over the land in dispute for about 12 years and were eligible for the extension of the benefits to them, contemplated under the aforesaid provision. The Naib-Tehsildar further endorsed the report that the orders may be issued for recording the applicants as Bhumidhars with non-transferable rights over the different sub- divisions of plot No. 653 which were in their independent possession. The Sub-Divisional Officer vide the order dated 23-1-1991 accepting the. proposal, issued the direction as prayed for.
3. The State of U. P. feeling aggrieved by the order of the Sub-Divisional Officer preferred a revision. The Additional Commissioner vide his order dated 24-9-1993 made a reference to the Board of Revenue for accepting the revision and setting aside me order passed by the Sub-Divisional Officer. The Additional Commissioner noticed that the Land Management Committee vide its resolution dated 11-11-1990 had resolved to allot the land in dispute to eligible persons other than the petitioners and the proposal contained in the resolution had been sent for approval of the Sub-Divisional Officer, Sadar. It was further noticed that in the mean time, the application dated 26-12-1990 was filed by the applicants claiming to be Bhumidhars with non-transferable right and seeking an order that they be so recorded in the revenue records. The Additional Commissioner on an appraisal of evidence on record came to the conclusion that the application in question and the recommendations of the Lekhpal made thereon were collusive and based on incorrect facts. It was also indicated that the order passed by the Sub-Divisional Officer was illegal and liable to be set aside.
4. The Board of Revenue, respondent No. 1 held that the cryptic order, passed by the Sub-Divisional Officer which was merely to the effect that accepted as proposed could not be deemed to be in accordance with law. The Board of Revenue also endorsed the view of the Additional Commissioner that the entire proceeding culminating in the order of the. Sub-Divisional Officer in question was collusive. The Board also expressed the view that there was no finding as to the exact duration of possession of the applicants and the Lekhpal had expressed total ignorance of the fact as to when the applicants had entered into possession of the land in dispute.
The Board of Revenue accordingly accepted the reference and quashed the order passed by the Sub- Divisional Officer.
5. Feeling aggrieved the petitioners have now approached this. Court by means of
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