# Baboo Ram & Anr v. The Commissioner, Basti Division, Basti & Ors

- **Citation:** WRIT-C No. 41708 of 2001
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-24
- **Case number:** WRIT-C No. 41708 of 2001
- **Bench:** Mrs. Sunita Agarwal, Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baboo-ram-anr-v-the-commissioner-basti-division-basti-ors-46244
- **Pages:** 13

## Headnote

A. Civil Law-U.P. Zamindari Abolition and
Land Reform Act, 1950 - Section 122-B
(5-F) and 132 - Pasture Land - Significance -
Preservation of Environment - Village Economy
- The Pasture Land in a Village area is lifeline of
the village people as they need a ground for
grazing by their cattles. Every agricultural
activity in the village is dependent upon the
Cattles which are used for ploughing the fields
and other related activities by the agriculturist -
The Village economy is largely dependent upon
the
agricultural
activities
and
even
for
Vegetarian
urban
population,
agricultural
produces are coming from the Villages - Over
the period of years, with the increase in
population,
public
spaces
are
being
compromised which has resulted in ecological
disasters. We cannot be oblivious of the
imminent need to preserve our environment by
restoring and maintaining public spaces both in
rural and urban areas. (Para 15 and 26)

B. Civil law-U.P.Z.A.&L.R. Act, 1950 -
Section 132 - Public Utility Land - Claim of
Bhumidhari rights - Scope - In rural areas,
public spaces such as ponds, pasture lands,
lands in river bed and the lands used for casual
or occasional cultivation described under Section
132 have to be preserved and protected by the
Revenue Authorities who have been conferred
with the ample powers to undo the wrong - No
Bhumidhari rights could be granted in the Public
Utility land kept aside for 'Charagah' (Pasture
Land) - It cannot be settled in favour of an
agricultural labour even belonging to Scheduled
Caste or Scheduled Tribes by taking recourse to
the proceedings under Section 122-B (4-F) of
the Act. (Para 24, 26 and 31)
C. Public Utility Land - Illegal Encroachment
- Duty of State and Revenue authorities - It is
the duty of the State and the appropriate Local
authority to take necessary measures at the
grassroot level. The Revenue Authorities are
required to keep a strict vigil in the area of their
jurisdiction so as to ensure that the public
spaces are not illegally occupied or encroached
by the Villagers or outsiders - Appropriate
1894 INDIAN LAW REPORTS ALLAHABAD SERIES
timely action is the need of the hour. In each
case of such illegal encroachment coming before
the Revenue Authorities, action in accordance
with the statutory provisions has to be taken.
(Para 27)
D. Civil Law-U.P.Z.A.&L.R. Act, 1950 -
Section 333 - Supervisory Power - Objects
and Scope - The Board or the Commissioner
can make an enquiry into an order passed by
the Subordinate Court by summoning the record
of the suit or proceedings conducted by it,
either on its own motion, i.e. suo motu or an
application moved by any person bringing the
said fact to its knowledge - The enquiry is
limited to the question of failure in exercise of
jurisdiction vested in the court concerned, or
exercise of the jurisdiction not vested in or if it
has acted in exercise of its jurisdiction illegally
or with material irregularity - The supervisory
powers given to the Board or the Commissioner
is in order to keep the Subordinate revenue
authorities or the Courts within their bounds.
(Para 19 and 20)
E. Court proceeding - Playing of fraud -
Consequence - Fraud vitiates every solemn act
- A judgment or decree obtained by playing
fraud on the Court is a nullity and nonest in the
eye of law - Such a judgement and decree
passed either by the Court of first instance or by
the highest Court has to be treated as a nullity
by every Court, whether superior or inferior - It
can be challenged in any Court even in a
collateral proceedings. (Para 21)
F. Constitution of India - Article 226 -
Principle of Natural Justice
- Scope
of
Interference - The observance of principles of
natural justice cannot be put in a strait jacket
formula. Wherever a plea is taken regarding
violation of natural justice, the person pleading
it has to establish that prejudice has been
caused
to
him
by
such
action
-
On
demonstration of the said fact, interference
under Article 22

## Text

_Characters 0–39,980 of 45,086. This is a partial read: ask again with offset=39980 for what follows._

3-5 All. Baboo Ram Vs. The Commissioner, Basti Division, Basti & Ors.
1893
Samiti and Zila Panchayat Adhiniyam,
1961. Therefore, the action taken by the
respondents by way of issuing the recovery
citation is not legally justified.

22. The counsel for the respondents
also could not bring any material or law
contrary to the aforesaid judgements,
before this Court, therefore, the action
taken by the respondents in issuing
recovery citation for recovery of the
contractual amount as arrears of land
revenue, is illegal.

23. In the facts of the case, we find
just and proper to conclude that the
impugned
recovery
certificate
dated
24.8.2019
issued
by
Upper
Mukhya
Adhikari, Zila Panchayat, Sonebhadra and
recovery citation dated 1.11.2019 issued by
Tehsildar Chunar, Distt. Mirzapur, seeking
to enforce the recovery of contractual
amount as arrears of land revenue, cannot
be sustained and are hereby quashed.

24. The writ petition is allowed. No
order as to costs.
----------
(2020)03-05ILR A1893
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SIDDHARTHA VARMA, J.

WRIT-C No. 41708 of 2001

Baboo Ram & Anr. ...Petitioners
Versus
The Commissioner, Basti Division, Basti &
Ors. ...Respondents

Counsel for the Petitioners:
Sri P.P. Chaudhary, Sri A.K. Singh
Counsel for the Respondents:
C.S.C., Sri Dharm Raj Chaudhary, Sri P.N.
Pandey, Sri Rama Nand Pandey

A. Civil Law-U.P. Zamindari Abolition and
Land Reform Act, 1950 - Section 122-B
(5-F) and 132 - Pasture Land - Significance -
Preservation of Environment - Village Economy
- The Pasture Land in a Village area is lifeline of
the village people as they need a ground for
grazing by their cattles. Every agricultural
activity in the village is dependent upon the
Cattles which are used for ploughing the fields
and other related activities by the agriculturist -
The Village economy is largely dependent upon
the
agricultural
activities
and
even
for
Vegetarian
urban
population,
agricultural
produces are coming from the Villages - Over
the period of years, with the increase in
population,
public
spaces
are
being
compromised which has resulted in ecological
disasters. We cannot be oblivious of the
imminent need to preserve our environment by
restoring and maintaining public spaces both in
rural and urban areas. (Para 15 and 26)

B. Civil law-U.P.Z.A.&L.R. Act, 1950 -
Section 132 - Public Utility Land - Claim of
Bhumidhari rights - Scope - In rural areas,
public spaces such as ponds, pasture lands,
lands in river bed and the lands used for casual
or occasional cultivation described under Section
132 have to be preserved and protected by the
Revenue Authorities who have been conferred
with the ample powers to undo the wrong - No
Bhumidhari rights could be granted in the Public
Utility land kept aside for 'Charagah' (Pasture
Land) - It cannot be settled in favour of an
agricultural labour even belonging to Scheduled
Caste or Scheduled Tribes by taking recourse to
the proceedings under Section 122-B (4-F) of
the Act. (Para 24, 26 and 31)
C. Public Utility Land - Illegal Encroachment
- Duty of State and Revenue authorities - It is
the duty of the State and the appropriate Local
authority to take necessary measures at the
grassroot level. The Revenue Authorities are
required to keep a strict vigil in the area of their
jurisdiction so as to ensure that the public
spaces are not illegally occupied or encroached
by the Villagers or outsiders - Appropriate
1894 INDIAN LAW REPORTS ALLAHABAD SERIES
timely action is the need of the hour. In each
case of such illegal encroachment coming before
the Revenue Authorities, action in accordance
with the statutory provisions has to be taken.
(Para 27)
D. Civil Law-U.P.Z.A.&L.R. Act, 1950 -
Section 333 - Supervisory Power - Objects
and Scope - The Board or the Commissioner
can make an enquiry into an order passed by
the Subordinate Court by summoning the record
of the suit or proceedings conducted by it,
either on its own motion, i.e. suo motu or an
application moved by any person bringing the
said fact to its knowledge - The enquiry is
limited to the question of failure in exercise of
jurisdiction vested in the court concerned, or
exercise of the jurisdiction not vested in or if it
has acted in exercise of its jurisdiction illegally
or with material irregularity - The supervisory
powers given to the Board or the Commissioner
is in order to keep the Subordinate revenue
authorities or the Courts within their bounds.
(Para 19 and 20)
E. Court proceeding - Playing of fraud -
Consequence - Fraud vitiates every solemn act
- A judgment or decree obtained by playing
fraud on the Court is a nullity and nonest in the
eye of law - Such a judgement and decree
passed either by the Court of first instance or by
the highest Court has to be treated as a nullity
by every Court, whether superior or inferior - It
can be challenged in any Court even in a
collateral proceedings. (Para 21)
F. Constitution of India - Article 226 -
Principle of Natural Justice
- Scope
of
Interference - The observance of principles of
natural justice cannot be put in a strait jacket
formula. Wherever a plea is taken regarding
violation of natural justice, the person pleading
it has to establish that prejudice has been
caused
to
him
by
such
action
-
On
demonstration of the said fact, interference
under Article 226 of the Constitution of India
can be made to remedy the situation - High
court would be right in refusing to invoke its
extraordinary discretionary power under Article
226 of the Constitution to quash an order which
would result in restoration of an illegal order.
(Para 29)
Writ Petition disposed off (E-1)
Cases relied on :-
1. S.P. Chengal Varaya Naidu Vs. Jagannath &
ors., (1994) 1 SCC 1
2. Raj Kumar Vs. Ashok Kumar Chaurasia,
(2016) 2 ADJ 672
3. Ramesh Chaturvedi Vs. St. of U.P. through
Collector Faizabad & ors.,
 (2019) 2 ALJ 292
4. Hinch lal Tiwari Vs. Kamala Devi & ors.,
(2001) 6 SCC 496
5. Jagpal Singh & ors. Vs. St. of Punjab & ors.,
(2011) 11 SCC 396
5. S. L. Kapoor Vs. Jagmohan & ors., (1980) 4
SCC 379
6. Aligarh Muslim University Vs. Mansoor Ali
Khan, (2000) 7 SCC 529
7. Gadde Venkateswara Rao Vs. Govt. of A.P &
ors., AIR (1966) SC 828

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. &
 Hon'ble Siddhartha Varma, J.)

1. This Special Bench has been
constituted by Hon'ble The Chief Justice on
a reference made by learned Single Judge
vide judgment and order dated 8.3.2017 in
the present petition.

2. We have heard learned counsel for
the parties and perused the record.

3. The petitioners before the learned
Single Judge placed reliance on the
judgment and order dated 12.7.2011 in
Writ Petition no.5820 of 2002 (Kanhaiya
and others) wherein the order dated
13.9.2001
passed
by
the
Additional
Commissioner in revision expunging the
names of the petitioners therein had been
3-5 All. Baboo Ram Vs. The Commissioner, Basti Division, Basti & Ors.
1895
set aside on the ground that it was passed
without issuing notice to them. The counsel
for the petitioners herein insisted that the
petitioners being similarly situated persons
challenging the common order dated
13.9.2001 are entitled for the same relief.
The observations made in the referral order
in this regard are relevant to be noted
hereunder:-

"Another supplementary affidavit
has been filed by the petitioners on
20.01.2012, in which the petitioners have
said that their writ petition was similar to
Writ Petition No. 5820/2002 filed by
Kanhaiya and others and said writ petition
was allowed by order of Coordinate Bench
of this Court dated 12.07.2011, copy of the
said order has been filed as annexure 1 to
the supplementary affidavit and a prayer
has been made for grant of similar relief.

The judgement and order dated
12.07.2011 shows that the same contention was
raised before this Court in Writ Petition No.
5820 of 2002, that the private respondent had
filed an application on the basis of which the
Additional Commissioner treated the same to
be a revision and without issuing notice to the
petitioners had passed the order dated
13.09.2001 expunging their names and
directing for recording of plot no.46 as
'charagah'.The Hon'ble Court thereafter has
recorded that the party, who could have been
affected had not been given an opportunity or
notice in the matter. In such circumstances, the
order impugned passed by the Additional
Commissioner dated 13.09.2001, was quashed
and the matter was remanded back to
respondent no. 1 i.e. Additional Commissioner
for taking appropriate decision, after issuance
of notice to the petitioners and after inviting
objections.

While passing the order dated
12.07.2011 the Hon'ble Court also observed
thus:

"While
passing
any
order,
respondent
no.1
will
also
take
into
consideration whether in the facts and
circumstances as it has been informed that the
consolidation proceeding is going on, he will
have a jurisdiction to pass such order or not.
All these objections have to be taken into
consideration by the respondent no.1."

Since this writ petition is by
similarly situated petitioners as those of
Writ Petition No. 5820 of 2001, which has
been allowed by Coordinate Bench of this
Court, which order is ordinarily binding
upon this Court also, I can not take any
contrary view unless I refer the matter to
the Chief Justice for constitution of a
Division Bench to hear and decide the
following questions of law:-"

4. It appears that having different
opinion, facing with the previous directions
in a similar matter, the learned Single
Judge deemed it fit and proper to make a
reference while framing the following
Questions of law to be answered by the
larger Bench:-

"A.
Whether
the
Additional
Commissioner was empowered to treat an
application bringing to his notice the fraud
committed by the revenue authorities, as a
revision and take necessary action because
under U.P.Z.A & L.R. Act, the powers of
revision are vested under Section 333 of the
U.P.Z.A & L.R. Act and include the power
to correct an error where the subordinate
revenue authority has acted in the exercise
of jurisdiction illegally or with material
irregularity and the Revisional Authority
may pass such order in the case as he
thinks fit?

B. Whether an order passed by
the Sub Divisional Officer in case filed
under Section 229 B U.P.Z.A. & L.R Act,
which was passed without reference to the
1896 INDIAN LAW REPORTS ALLAHABAD SERIES
issues involved in the "lis" and without
formal
adjudication
of
points
for
determination could be said to be a decree
in the eyes of law when admittedly it was
against the statutory provisions of the very
same Act, under which the said jurisdiction
was exercised?

C.
Whether
there
is
any
requirement of opportunity of hearing in a
case where from the records in question
and the reports submitted by the Revenue
Authorities, it is apparent that an illegality
has been committed and a fraud has been
played. In terms of the law laid down by the
Hon'ble Supreme Court in Aligarh Muslim
University Vs Mansoor Ali Khan 2000(7)
SCC 529? Whether such an exercise would
be an exercise in futility and following of
principles of natural justice an empty
formality?

D. Whether this Court would
exercise its extraordinary writ jurisdiction
to set aside an order which would amount
to restoration of an illegal order?

E. Whether in view of the law laid
down by the Hon'ble Supreme Court in the
case of A.M. Allison Vs. B.L. Sen, AIR
1956 SC 227 and Mohammad Swaleh Vs.
III Additional District Judge, 1998 (1)
SCC 40, this Court should set aside the
order
passed
by
the
Additional
Commissioner, looking into the necessity to
preserve public utility lands and ponds
emphasized by the Hon'ble Supreme Court
in the case of Hinch Lal Tiwari Vs. Kamla
Devi, 2001 (6) SC 496 and Jagpal Vs.
State of Punjab and others, 2011 (11) SCC
396?"

5. Having carefully read the referral
order, we find that answer to the questions
referred can be given only while dealing
with the merits of the case of the parties
herein. The reason being the legal position
on the questions of law referred to us is not
unsettled
and
no
authoritative
pronouncement of the larger Bench is
needed. It has to be seen whether the
questions referred would arise in the
controversy at hands in the facts and
circumstances of the case.

6. Further, having carefully perused
the order dated 12.7.2011 passed by the
learned Single Judge in the previous Writ
Petition no.5820 of 2002, we note that all
questions were left open to be examined by
the
Additional
Commissioner
while
relegating the matter. On the merits of the
claim of the petitioners therein only this
much was noted that no notice was issued
to the petitioners before passing the order
dated 13.9.2001 expunging their names and
directing for recording of plot no.46 as
'Charagah'. We further find that there was
no expression of opinion of the learned
Single Judge while passing the judgment
and order dated 12.7.2011 on any of the
issue before us under the referral order. The
conflict of opinion appears to be only on
the merits of the case, though in the referral
order the learned Single Judge has not
expressed any definite opinion on any of
the issues before her.

7. The facts in brief relevant to decide
the controversy at hands are that the present
petition has been filed for quashing of the
order dated 13.9.2001 passed by the
Additional
Commissioner,
Basti
in
Revision no.29 of 2001. The said revision
was registered on an application dated
10.8.2001 filed by one Vishram, resident of
Village-Saraini, Tehsil-Bhanpur, District-
Basti.

8. The averments in the said
application was that Arazi No.46 area 2-0-0
situated in Mauja Saraini, Tappa Kothila,
Pargana Basti, Tehsil-Bhanpur, District-
3-5 All. Baboo Ram Vs. The Commissioner, Basti Division, Basti & Ors.
1897
Basti was kept aside for 'Charagah' (Pasture
Land)
during
the
last
consolidation
proceedings. In the middle of the land in
dispute, there exist a pokhar (pond) where
Village cattles used to drink water. In the
land in question a Village fair was also
being held. However, in order to grab the
land in question illegally, certain Scheduled
Caste persons of the Village got settlement
of the said land in their names and got entry
in the proceeding under Section 122-B (4F) of U.P.Z.A & L.R Act (hereinafter
referred as the 'Act) Kanhaiya, Siya Ram,
Bundele, Gulai and Hari Ram all sons of
Ram Lal got their names recorded in
Category -3 in an area of 16-0-0 (pukhta)
of plot no.46 taking benefit of Section 122B (4-F) of the Act. Two persons namely
Nokhairam and Ramkewal sons of Ram
Surat constructed their houses over the land
in question. On the restoration/recall
application filed by a member of Land
Management Committee, the then SubDivisional Officer had stayed the operation
of the order passed under Section 122-B (4F) of the Act. The revision filed by
Kanhaiya and others was also rejected by
the Commissioner, Gorakhpur on the
ground of maintainability. It was averred
therein
that
the
Village
was
under
consolidation and taking benefit of the
same the opposite parties were making
efforts to get their names recorded in the
public utility land, which was kept aside for
'Charagah' (Pasture Land). The prayer in
the
application
was
to
evict
the
unauthorised occupants and restore the
public utility land in its original position.

9. On the presentation of the said
application,
it
appears
that
the
Commissioner, Basti Division, Basti had
summoned the report of the lekhpal as also
the Original basic year khatauni from 13971404 fasli. The lekhpal in his report dated
6.9.2001 produced original records namely
Gausvara dated 6.9.2001 and extract of
khatauni for 1399-1404 fasli. The said
report of lekhpal has been extracted in the
order impugned. It is recorded in the order
impugned that in the Basic year Khatauni
(1399 to 1404 fasli), Arazi 46, (Area 17-00) has been entered in Khata no.198. In the
same document, in Khata no.65- Arazi 46/2
(Area 1-10-0) was entered in the name of
Bundele s/o Ram Lal in Category-1; Arazi
no.46/3 Area 1-10-0 in Khata no.66 in
Category-1 was recorded in the name of
Babu Ram s/o Puddan; in Khata No.198,
Arazi no.46 (Area 3-0-0) names of Babu
Ram s/o Puddan, Bundele, Hariram sons of
Ramlal were entered in Category-3 and
Arazi no.46M (Area 3-0-0) was entered in
the names of Kanhaiya, Gulai, Siyaram
sons of Ram lal as Asami in Category-3.
Name of Guru Prasad s/o Kanhaiya was
recorded as Non-transferable Bhumidhar in
Arazi no.46 M in an Area 3-10-0; Arazi
no.46, Area 1-0-0, Khata no.198 in
category-4 was entered in the name of
Lakshram s/o Sewak. As result of it, out of
total Area of 20-0-0 of Arazi no.46, entered
in the Basic year Khatauni, only an area of
17-0-0 remained in Khata No.198. It was
directed that the revenue record keeper
shall explain after making an enquiry as to
how the aforesaid entries were made and
when and under whose order? It was
further observed that the public utility land
kept aside for 'Charagah' under Section 132
of U.P.Z.A & L.R Act could not have been
settled in favour of private persons.
Direction was, therefore, given to find out
the guilty officials and initiate appropriate
proceedings against them. Simultaneously,
it was ordered that no right whether Asami
or
Bhumidhari
(transferable
or
nontransferable) could be conferred in the
public utility land within the meaning of
Section 132 of U.P.Z.A & L.R Act. The
1898 INDIAN LAW REPORTS ALLAHABAD SERIES
entries made in the name of the private
persons noted hereinabove were directed to
be expunged being illegal and void ab
initio. Entries of 'Charagah' in Arazi no.46,
Area 20-0-0 was directed to be restored in
Khata of 'Charagah' (Pasture Land). It was
further directed that the copy of the order
be also sent to the Settlement Officer
(Consolidation), Basti for information.

10. Challenging this order, the
petitioners herein (two in number)
averred in the writ petition that they
belong to Scheduled Caste category and
each of them has been in possession of
the land in dispute since prior to
30.6.1975. Over an area of 1-10-0 of
Arazi no.46, their names were initially
recorded in Category (Class)-4 in the
revenue records. But later, both the
petitioners filed two separate suits
under Section 229-B of U.P.Z.A & L.R
Act seeking declaration of Bhumidhar
rights in the said land. The said suits
were registered as Suit no.25 and 26,
respectively,
and
decreed
by
two
separate judgments and orders of the
same
date,
i.e.
20.1.1989.
After
expunging the entries of the names of
the petitioners in Category-4, the land
in question was directed to be recorded
in their names in Category-1. Both the
aforesaid orders have been appended as
Annexures-'1' and '2' to the writ petition
and to contend that the petitioners,
thereafter, have installed their tubewells
and are using the land in question for
agricultural
purposes.
The
complainant/respondent
no.2
is
a
member
of
higher
class
and
the
complaint
is
motivated.
The
Commissioner, however, being swayed
away by the statement of the respondent
had directed for deletion of names of the
petitioners
from
the
revenue
record,
without even issuing notice to them. As no
notice or opportunity of hearing had been
granted to the petitioners herein, the order
impugned is liable to be quashed.

11. Sole ground to press the prayer for
quashing the order impugned is noncompliance of principles of natural justice.

12. At the outset, we may note that we
have not been able to gather anything from
the
order
impugned
which
would
demonstrate that notice was issued to the
petitioners herein after registration of the
application moved by the respondent no.2
as Revision under Section 333 of U.P.Z.A
& L.R Act.

13. First question (A) in the referral
order, therefore, arises for consideration
before us as to whether the Commissioner
had jurisdiction for expunging the entries in
the revision noticing that fraud had been
committed by the Revenue Authorities in
manipulating the records as also in view of
the error apparent on the face of record in
making the revenue entries in the name of
private persons of the public utility land.

14. We may also note that the
petitioners are claiming right in the Public
Utility Land on the basis of an order passed
by
the
Sub-Divisional
Officer
in
proceedings under Section 122-B (4-F) of
the Act, operation of which was stayed on a
recall application filed by a member of
Gram Sabha. We do not have any record
pertaining to the proceedings under Section
122-B (4-F) nor anything has been
disclosed in the writ petition. Only the
copies of the decree passed in the
declaratory suits under Section 229-B of
U.P.Z.A & L.R Act suit nos.25 of 26 have
been filed with the writ petition. As per the
stand of the complainant and the findings
3-5 All. Baboo Ram Vs. The Commissioner, Basti Division, Basti & Ors.
1899
recorded in the order impugned, the land in
question i.e. Arazi No.46, area 20-0-0 was
kept
aside
during
the
course
of
consolidation as land for 'Charagah' under
Section 132 of U.P.Z.A & L.R Act. We
may, at this stage, note the relevant
provisions of Section 122-B (4-F), 132 and
333 of the U.P.Z.A & L.R Act to answer
the issue before us:-

"122B. Powers of the Land
Management
Committee
and
the
Collector. -

[(4-F) 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 nontransferable 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
nontransferable rights in that land.]]

Explanation. - The expression
"agricultural labourer" shall have the
meaning assigned to it in Section 198.

"132.
Land
in
which
[bhumidhari] rights shall not accrue. -
Notwithstanding anything contained in
Section 131, but without prejudice to the
provisions of Section 19, [bhumidhari]
rights shall not accrue in-

(a)
pasture
lands
or
lands
covered by water and used for the purpose
of growing singhara or other produce or
land in the bed of a river and used for
casual or occasional cultivation;

(b) such tracts of shifting or
unstable
cultivation
as
the
State
Government may specify by notification in
the Gazette; and

[(c) lands declared by the Slate
Government by notification in the Official
Gazette, to be intended or set apart for
taungya plantation or grove lands of a
[Gaon Sabha] or a Local Authority or land
acquired or held for a public purpose and
in particular and without prejudice to the
generality of this clause-

(i) lands set apart for military
encamping grounds;

(ii) lands included within railway
or canal boundaries;

(iii) lands situate within the limits
of any cantonment;

(iv) lands included in sullage
farms or trenching grounds belonging as
such to a local authority;

(v) lands acquired by a town
improvement trust in accordance with a
scheme sanctioned under Section 42 of the
U.P. Town Improvement Act, 1919 (U.P.
Act V11 of 1919) or by a municipality for a
purpose mentioned in Clause (a) or Clause
(c) of Section 8 of the U.P. Municipalities
Act, 1916 (U.P. Act VII of 1916); and

(vi) lands set apart for public
purposes under the U.P. Consolidation of
Holdings Act, 1953 .]"

"[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
1900 INDIAN LAW REPORTS ALLAHABAD SERIES
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.]"

15. From a conjoint reading of the
said provisions, we may note that under the
Scheme of the Zamindari Abolition Act, no
Bhumidhari rights could accrue in a
'Pasture Land' or public utility land covered
by the Clauses (a) to (c) (i)-(vi) of Section
132 of U.P.Z.A & L.R Act. Section 122-B
(4-F) categorically states that any land
vested in Gaon sabha under Section 117,
(not being land mentioned in Section 132),
if in occupation of any agricultural labourer
belonging
to
Scheduled
Caste
and
Scheduled Tribes can be settled in the
manner as provided therein. It is, thus, clear
that no private person can be conferred
Bhumidhari Rights, either transferable or
non-transferable, in a land which has been
declared as public utility land under any of
the Category of Section 132 of the
Zamindari Abolition Act. In view of the
clear language of Section 122-B (4-F) read
with Section 132, we have no doubts that
the land kept aside as 'Pasture Land'
(Charagah)' in the village could not have
been settled in favour of the petitioners by
taking aid of the provisions of Section 122B (4-F), or by declaring them Bhumidhar
either with non-transferable or transferable
rights under Section 229B of the Act. It
appears that the orders of settlement of land
in favour of the petitioners and declaration
of Bhumidhari rights in their names under
the Act have been obtained by playing
fraud upon the process of law.

16. It may not be out of place to note
here that the Land Management Committee
and the Collector are empowered under
Section 122-B for eviction of unauthorised
occupants of the land belonging to Gram
Sabha
and
they
can
also
realise
compensation
for
damage,
misappropriation or wrongful occupation of
such land, which can be recovered as
arrears of land revenue.

17. We may also note that the
proceeding for eviction of an unauthorised
occupant can be undertaken as per the
provisions in Section 122-B of the Act,
which requires that the Assistant Collector
has to issue notice calling upon the person
in unauthorised occupation to explain his
conduct and also to show cause as to why
he may not be held liable to pay
compensation.

18. Further remedy available to the
aggrieved person to assail the order passed
by the Assistant Collector under Subsection-(3) or sub-Section-(4) by filing
revision before the Collector on the ground
mentioned in clauses (a) to (c) of Section
333. Finality has been attached to the order
passed by the Collector in revision and a
person aggrieved can only file a suit in the
Court of competent jurisdiction to establish
the rights claimed by him in such land
property.
3-5 All. Baboo Ram Vs. The Commissioner, Basti Division, Basti & Ors.
1901

19. Section 333, on the other hand,
confers supervisory powers upon the Board
or the Commissioner or the Additional
Commissioner, as the case may be, to call
for the record of any suit or proceeding,
decided by the Court subordinate to it, for
the purpose of satisfying itself as to the
legality or propriety of any order passed in
such suit or proceeding, where no appeal
lies or though an appeal lies but has not
been preferred. The said enquiry is limited
to the question of failure in exercise of
jurisdiction vested in the court concerned,
or exercise of the jurisdiction not vested in
or if it has acted in exercise of its
jurisdiction illegally or with material
irregularity.

20. The plain and simple reading
of the provisions of Section 333(1) of
the Zamindari Abolition Act makes it
clear
that
the
Board
or
the
Commissioner can make an enquiry into
an order passed by the Subordinate
Court by summoning the record of the
suit or proceedings conducted by it,
either on its own motion, i.e. suo motu
or an application moved by any person
bringing the said fact to its knowledge.
The supervisory powers given to the
Board or the Commissioner, in our
opinion, is in order to keep the
Subordinate revenue authorities or the
Courts
within
their
bounds.
The
application moved by a person bringing
the said fact to the knowledge of the
supervisory
or
revisional
authority
would
be
only
an
intimation
or
information of the illegality committed
by such Authority or the Court. The
complainant, however, has no say in the
enquiry,
if
any,
initiated
by
the
Revisional Authority by invoking its
power under Section 333 of U.P.Z.A &
L.R Act, on his application.

21.

Moreover,
it
is
settled
proposition in law that fraud vitiates
every solemn act. A judgment or decree
obtained by playing fraud on the Court
is a nullity and nonest in the eye of law.
Such a judgement and decree passed
either by the Court of first instance or
by the highest Court has to be treated as
a nullity by every Court, whether
superior
or
inferior.
It
can
be
challenged in any Court even in a
collateral proceedings. As a fraud is an
act of deliberate deception with the
design of securing something by taking
unfair advantage of another. It is a
deception in order to gain by another's
loss. It is a cheating intended to get an
advantage. A litigant who approaches
the Court must come with clean hands.
A person whose case is based on
falsehood has no right to get any relief
from the Court. He can be summarily
thrown out at any stage of the litigation.
If he withholds a vital document in
order to gain advantage on the other
side or produces a document as a basis
of his claim which is forged or
fabricated document, then he would be
guilty of playing fraud on the Court as
well as on the Opposite side. Reference
may be made to decision of the Apex
Court in S.P. Chengal Varaya Naidu vs
Jagannath and others reported in
(1994) 1 SCC 1 in support of the above
view.

22. In light of the above discussion,
the action of the Commissioner in treating
the application filed by the respondent no.2
as a revision under Section 333 to U.P.Z.A
& L.R Act would be suo motu exercise of
power conferred on him, on receipt of
intimation of fraud played in the revenue
records. The question no.1 of the reference
is, thus, answered in affirmative.
1902 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The decisions relied by the
learned counsel for the petitioners in Raj
Kumar vs Ashok Kumar Chaurasia
reported in (2016) 2 ADJ 672 and Ramesh
Chaturvedi vs State of U.P through
Collector Faizabad and others reported in
(2019) 2 ALJ 292 are distinguishable on
the facts and the circumstances of the
present case.

24. As far as the second question (B)
is concerned, we do not find it necessary to
deliberate on the said issue as we are not
examining the merits of the order passed by
the sub-divisional Officer in the suit under
Section 229-B of U.P.Z.A & L.R Act,
passed in favour of the petitioners,
inasmuch as, we are of the definite opinion
no Bhumidhari rights could be granted in
favour of the petitioners herein in the
Public Utility land kept aside for 'Charagah'
(Pasture Land) under Section 132 of
U.P.Z.A & L.R Act.

25. In so far as the fifth question (E)
is concerned, we may note at this stage
itself that there cannot be any two opinion
or doubt about the directions issued by the
Apex Court in Hinch lal Tiwari vs Kamala
Devi and Ors reported in (2001) 6 SCC
496 and Jagpal Singh and others vs State
of Punjab and others reported in (2011) 11
SCC 396 that the material resources of the
Community like forests, tanks, ponds,
hillock, mountain etc; being nature's bounty
need to be protected for a proper and
healthy environment as they maintain
delicate ecological balance and enable
people to enjoy a quality life which is
essence of the guaranteed right under
Article 21 of the Constitution. The
Government including Revenue Authorities
have been mandated to take appropriate
steps
under
the
relevant
statutory
provisions
to
prevent
damage,
misappropriation of the Village land which
is vested in the Gaon Sabha being PublicUtility land under Section 132 of the Act.

26. The Pasture Land in a Village area
is lifeline of the village people as they need
a ground for grazing by their cattles. Every
agricultural activity in the village is
dependent upon the Cattles which are used
for ploughing the fields and other related
activities by the agriculturist. The Village
economy is largely dependent upon the
agricultural
activities
and
even
for
Vegetarian urban population, agricultural
produces are coming from the Villages.
Over the period of years, with the increase
in population, public spaces are being
compromised
which
has
resulted
in
ecological
disasters.
We
cannot
be
oblivious of the imminent need to preserve
our
environment
by
restoring
and
maintaining public spaces both in rural and
urban areas. In rural areas, public spaces
such as ponds, pasture lands, lands in river
bed and the lands used for casual or
occasional cultivation described under
Section 132 of the Zamindari Abolition Act
have to be preserved and protected by the
Revenue Authorities who have been
conferred with the ample powers to undo
the wrong. Apathy or lack of immediate
action at the ends of Revenue Authorities
has resulted in illegal encroachment of the
Public Utility Lands in the rural area.

27. This Court and the Apex Court
has repeatedly expressed its concern over
the said issue but it is the duty of the State
and the appropriate Local authority to take
necessary measures at the grassroot level.
The Revenue Authorities are required to
keep a strict vigil in the area of their
jurisdiction so as to ensure that the public
spaces are not illegally occupied or
encroached by the Villagers or outsiders.
3-5 All. Baboo Ram Vs. The Commissioner, Basti Division, Basti & Ors.
1903
Appropriate timely action is the need of the
hour. In each case of such illegal
encroachment coming before the Revenue
Authorities, action in accordance with the
statutory provisions has to be taken.
Adequate checks and balances have been
provided under the Act to remedy an illegal
or overzealous attempt of a Revenue
Authority in any such situation. We are,
therefore, of the considered opinion that no
exception can be taken to the action taken
by the Commissioner for restoration of the
public utility land in Arazi no.46 area 20-00 after summoning the original records,
when the fact of illegal or forged revenue
entries was brought before it by way of an
application moved by the respondent no.2.
The fifth and last question no.'E' of the
reference is, thus, answered in affirmative.

28. Now we are left with two more
question nos.'C' & 'D' of the reference.
Question no.'C' is about the need of
observance of principles of natural justice
and question no.'D' is about exercise of
extraordinary discretionary writ jurisdiction
in the instant case in the light of the facts
brought before us. Both the questions can
be answered together as answer to one
would be dependent on answer to another.

29. As to question no.'C' and 'D', no
debate or deliberation is required as it is
settled that the observance of principles of
natural justice cannot be put in a strait
jacket formula. Wherever a plea is taken
regarding violation of natural justice, the
person pleading it has to establish that
prejudice has been caused to him by such
action. On demonstration of the said fact,
interference under Article 226 of the
Constitution of India can be made to
remedy the situation. In a case where on
consistent and indisputable facts only one
conclusion is possible, then in such a case,
it would not be possible to hold that breach
of natural justice was itself in prejudice.
(Reference S. L. Kapoor vs Jagmohan and
others reported in (1980) 4 SCC 379). It is,
thus, a settled proposition of law that if no
other conclusion is possible on admitted or
indisputable fact, it is not necessary to
quash the order which is shown to have
been passed in violation of natural justice.
However, it is observed in Aligarh Muslim
University vs Mansoor Ali Khan reported
in (2000) 7 SCC 529 that the above
principles is in the nature of exception and
great care must be taken by the Court in
applying this exception. Similarly, it is
settled position of law that the High court
would be right in refusing to invoke its
extraordinary discretionary power under
Article 226 of the Constitution to quash an
order which would result in restoration of
an illegal order. The refusal by the High
Court to exercise of its extraordinary
discretionary
jurisdiction
in
such
circumstance of a case would be justified.
[Reference- Gadde Venkateswara Rao vs
Government of A.P and others, AIR 1966
SC 828]. Both the question nos. 'C' and 'D'
of the reference are, thus, answered in the
above terms.

30. Reverting to the facts of the
instant case, we find that only ground urged
by the petitioners to seek quashing of the
order dated 13.9.2001 passed by the
Commissioner is that the names of the
petitioners
were
expunged
from
the
Revenue records without affording them
any opportunity of hearing. The basis of the
claim of the petitioners to seek Bhumidhari
rights in the disputed property is the
declaration granted by the Sub-divisional
officer in the suits filed under Section 229B. In the order impugned, categorical
finding of fact has been recorded by the
Commissioner after perusal of the original
1904 INDIAN LAW REPORTS ALLAHABAD SERIES
records that the land in question namely
Arazi no.46 area 20-0-0 was reserved for
'charagah' (Pasture Land) during the course
of the consolidation proceedings. The
merits of the said finding has, however, not
been challenged before us. We, therefore,
cannot take exception to the findings of fact
recorded by the Commissioner as there is
nothing before us which would justify
interference in the aforesaid findings in
exercise of our extraordinary discretionary
jurisdiction.

31. At the cost of repetition we may
note here that in view of the findings
returned by the Additional Commissioner
regarding the nature of the land in dispute
being public utility land, declaratory decree
obtained by the petitioners in Suit nos.25
and 26 of 1987 under Section 229-B of
U.P.Z.A & L.R Act appear to be nullity.
The order of the Revenue Authority is
nonest in the eye of law. We may also note
that the public utility land under Section
132 of U.P Act can not be settled in favour
of an agricultural labour even belonging to
Scheduled Caste or Scheduled Tribes by
taking recourse to the proceedings under
Section 122-B (4-F) of the Act. Any such
attempt by a Revenue Authority would be
illegal exercise of jurisdiction vested in it
and has to be viewed seriously. The
petitioners, therefore, cannot derive any
benefit from the settlement, if any, made in
their favour under Section 122-B (4 F) of
the Act. They cannot take benefit of the
declaratory decree which in itself is a
nullity or nonest in the eye of law.

32.