Division bench headed by chief justice revoked the verdict passed by single bench of High court.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 
Chief
Justice’s Court AFR 
Case :-
SPECIAL APPEAL No. – 479 of 2015 
Appellant
:- Sushila and Another 4794(M/S)2015 
Respondent
:- State Of U.P.Thru Collector Faizabad And Ors. 
Counsel
for Appellant :- Rajeiu Kumar Tripathi 
Counsel
for Respondent :- C.S.C.,Azad Khan 
Hon’ble
Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice 
Hon’ble
Shri Narayan Shukla,J. 
(Per : Dr
D Y Chandrachud, CJ) 
This
appeal has arisen from a judgment and order of the learned Single Judge dated
25 August 2015 by which a writ petition filed by the appellants to question the
legality of orders passed by the Sub Divisional Officer1, Rudauli, district
Faizabad on 26 February 2014 and 13 January 2015 has been dismissed. The view
of the learned Single Judge is a remedy of a revision would be available under
sub-section (4A) of Section 122B of the U.P. Zamindari Abolition and Land
Reforms Act, 19502 against an order passed under sub-section (4F). Hence, the
writ petition was not entertained on the ground of the availability of
alternate statutory remedy. 
The
appellants claim to be in cultivatory possession and to be entitled to the
benefit of Section 122B (4F). They claim to be in possession prior to 13 May
2007 which is the cut off date prescribed under Section 122B (4F). On 29
January 2013, the SDO granted to the appellants the benefit of the provisions
of Section 122B (4F) and directed the revenue authorities to make consequential
entries in the revenue record. The names of the appellants were entered in the
revenue record as Bhumidhar with non transferable rights. Subsequently, an
application was filed for recall of the order dated 29 January 2013. The SDO
initially kept the order dated 29 January 2013 in abeyance, by an order dated
26 February 2014 and eventually by a final order dated 13 January 2015 set
aside the earlier order. The SDO directed that the land in question be recorded
as Banjar land in favour of the Gram Sabha. Aggrieved, the appellants filed a
writ petition under Article 226 to challenge the orders passed by the SDO on 26
February 2014 and 13 January 2015. 
The
learned Single Judge dismissed the writ petition on the ground that a remedy of
a revision was available under Section 122B (4A). 
Sub-sections
(1), (2), (3), (4) and (4-A) of Section 122B of the Act read as follows: 
“(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.” 
Sub-section
(4F) of Section 122B is in the following terms: 
“(4F)
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”. 
Explanation.–
The expression “agricultural labourer” shall have the meaning
assigned to it in Section 198.” 
Sub-section
(4F) of Section 122B has been construed and interpreted in a judgment of the
Hon’ble Supreme Court in Manorey alias Manohar vs. Board of Revenue (U.P.) and
Ors.3. The Supreme Court held that sub-section (4F) carves out an exception
from the provisions of sub-sections (1), (2) & (3) under which a procedure
for eviction of unauthorized occupants of land vested in the Gram Sabha is
provided. The exception which is carved out by sub-section (4F) is in favour of
agricultural labourers belonging to Scheduled Castes and Schedule Tribes having
land below the stipulated ceiling of 3.125 acres. Where the conditions of
sub-section (4F) are fulfilled, the legislature has provided that no action to
evict such person shall be taken and he shall be deemed to have been admitted
as Bhumidhar with non transferable rights over the land. 
The
Supreme Court has held thus: 
“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 (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 no-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 (4F) is one
such right that falls within the purview of Section 131(b).” 
The
Supreme Court also held that sub-section (4F) is not merely a shield to protect
the possession of a person who fulfills the conditions in sub-section (4F) but
it also confers a positive right of being recognized as Bhumidhar on the
occupant satisfying the conditions and criteria laid down in the
sub-section. 
The
Supreme Court has held thus: 
“Thus,
sub-section (4F) 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
sub-Section. …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 Sections 195 and 197″.
The last part of sub-section (4F) 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 (4F)
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 (4F). We find no warrant to
constrict the scope of deeming provision.” 
Sub-section
(4A) of Section 122B provides a remedy of revision where an order has been
passed by the Assistant Collector under sub-sections (3) or (4) of Section
122B. Sub-section (3) envisages an order of eviction by the Assistant Collector
where the person to whom a notice has been issued under sub-section (2) has
failed to show cause or if the cause shown is found to be insufficient.
Sub-section (3) also provides for a direction that compensation be awarded in
respect of any damage, misappropriation or wrongful occupation; the amount
being recoverable as arrears of land revenue. Sub-section (4) provides for the
discharge of a notice issued under sub-section (2) where the Assistant
Collector is of the opinion that the person showing cause is not guilty of
causing damage, misappropriation or wrongful occupation. The remedy of a
revision under sub-section (4A) of Section 122B is available only in respect of
an order which is passed under sub-sections (3) or (4). Sub-section (4F) of
Section 122B is an independent provision by which an exception has been carved
out in favour of agricultural labourers belonging to Scheduled Castes or
Scheduled Tribes subject to the satisfaction of the conditions which have been
imposed by the statute. No remedy of a revision is provided in respect of an
order under Section 122B (4F). 
The
learned Single Judge was, with respect, in error in coming to the conclusion
that the remedy of a revision is available in respect of an order which has
been passed by the Assistant Collector under Section 122B (4F). By the plain
terms of the statutory provision made in sub-section (4A), such a remedy has
been made available only in respect of an order under sub-sections (3) or (4).
The remedy of a revision is a creature of the statute. The revisional authority
cannot expand its own jurisdiction where a statutory provision has not provided
such a recourse. 
The matter
can be looked at from an additional perspective as well. Section 333 provides
for the power of the Board of Revenue or Commissioner or the Additional
Commissioner to call for the record of any suit or proceeding decided by any
court subordinate. 
Section
333 provides as follows: 
“333.
Power to call for cases.–(1) The Board or the Commissioner or the Additional
Commissioner may call for the record of any suit or proceeding other than
proceeding under sub-section (4-A) of Section 198 decided by any court
subordinate to him in which appeal lies or where an appeal lies but has not
been preferred, for the purpose of satisfying himself as to the legality or
propriety of any order passed in such suit or proceeding and if such
subordinate court appears to have; 
(a)
exercised a jurisdiction not vested in it by law; or 
(b) failed
to exercise a jurisdiction so vested; or 
(c) acted
in the exercise of jurisdiction illegally or with material irregularity; 
the Board
or the Commissioner or the Additional Commissioner, as the case may be, may
pass such order in the case as he thinks fit. 
(2) If an
application under this section has been moved by any person either to the Board
or to the Commissioner or to the Additional Commissioner, no further
application by the same person shall be entertained by any other of
them.” 
The remedy
of a revision under Section 333 is available in a matter which is decided by a
court subordinate to the Board, Commissioner or Additional Commissioner in
which an appeal lies or where an appeal lies but has not been preferred. 
Section
331 is in the following terms: 
“331.
Cognizance of suits, etc. under this Act.–(1) Except as provided by or as
under this Act no court other than a court mentioned in Column 4 of Schedule II
shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V
of 1908), take cognizance of any suit, application or proceedings mentioned in
Column 3 thereof or of a suit, application or proceedings based on a cause of
action in respect of which any relief could be obtained by means of any such
suit or application: 
Provided
that where a declaration has been made under Section 143 in respect of any
holding or part thereof, the provisions of Schedule II insofar as they relate
to suits, applications or proceedings under Chapter VIII shall not apply to
such holding or part thereof. 
Explanation.–If
the cause of action is one in respect of which relief may be granted by the
revenue court, it is immaterial that the relief asked for from the civil court
may not be identical to that which the revenue court would have granted. 
(1-A)
Notwithstanding anything in sub-section (i), an objection, that a court
mentioned in Column 4 of Schedule II, or, as the case may be, a civil court,
which had no jurisdiction with respect to the suit, application or, proceeding,
exercised jurisdiction with respect thereto shall not be entertained by any
appellate or revisional court unless the objection was taken in the court of
first instance at the earliest possible opportunity and in all cases where
issues are settled, at or before such settlement, and unless there has been a
consequent failure of justice. 
(2) Except
as hereinafter provided no appeal shall lie from an order or decree passed
under any of the proceedings mentioned in Column 3 of the Schedule
aforesaid: 
(3) An
appeal shall lie from any decree or from an order passed under Section 47 or an
order of the nature mentioned in Section 104 of the Code of Civil Procedure,
1908 (V of 1908) or in Order 43, Rule 1 of the First Schedule to that Code
passed by a court mentioned in Column No. 4 of Schedule II to this Act in
proceedings mentioned in Column 3 thereof to the court or authority mentioned
in Column No. 5 thereof. 
(4) A
second appeal shall lie on any of the grounds specified in Section 100 of the
Code of Civil Procedure, 1908 (V of 1908) from the final order or decree,
passed in an appeal under sub-section (3), to the authority, if any, mentioned
against it in Column 6 of the Schedule aforesaid.” 
The second
schedule provides inter alia sections, a description of proceedings, courts of
original jurisdiction and courts of first and second appeal. No appeal is
provided in respect of an order passed under Section 122B, including against an
order under Section 122B (4F). Consequently, it is clear beyond the shadow of a
doubt that a remedy of a revision would not be available under Section 333
against an order which has been passed under sub-section (4F) of Section
122B. 
For these
reasons, we are of the view that the learned Single Judge was in error in
dismissing the writ petition on the ground of alternate remedy. 
We, accordingly, allow the special appeal and set aside the
impugned judgment of the learned Single Judge dated 25 August 2015. Writ
Petition No. 4794 (M/S) of 2015 shall, accordingly, stand restored to the file
of the learned Single Judge for disposal afresh on merits. 
The special appeal is, accordingly, disposed of. There shall be no
order as to costs. 
Order Date :- 29.9.2015 
RK (Dr D Y Chandrachud, CJ) 

(S N Shukla, J) 

2 comments on Division bench headed by chief justice revoked the verdict passed by single bench of High court.

  1. "(4F) 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".

  2. Without well considered opinion, a judge reached on the conclusion that case concerned is not amenable before the high court of judicature at Allahabad is really surprising. Every one knows that there is rampant corruption in lower judiciary and if such practice was followed then high court will keep itself aloof in the matters in the grass miscarriage of justice which will increase the tyranny in the lower judiciary.

Leave a Reply

%d bloggers like this: