# Raj Kumar and another v. Rajasv Parishad Uttar Pradesh Allahabad and others

- **Citation:** (2010) 2 ILRA 575
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-15
- **Case number:** Civil Misc. Writ Petition No. 12330 of 2007
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-and-another-v-rajasv-parishad-uttar-pradesh-allahabad-and-others-41633
- **Pages:** 5

## Headnote

Sri Rajesh Pandey
Sri Anuj Kumar
C.S.C.

U.P.
Z.A.
&
L.R.
Act-122-B(U-E)-
Cancellation
of
allotment
of
Patta
allottee a widow lady already possessing
0.866 hectare land-not within.meaning
of landless agricultural labour-against
statute sympathy has no role to play nor
entitle for any benefit of section 122B(u-F)-suit dismissed.

Held: Para 16

In my considered view, the aforesaid
quoted portion from the judgment of the
Apex Court is equally applicable to the
facts
of
the
present
case
notwithstanding the fact that the said
observations
were
made
while
considering a case of workmen under the
Labour Laws. Moreover, in the present
case, the plea of sympathy in favour of
the
plaintiff
respondent
no.3
is
misplaced one as she has got two grown
up sons who are well placed in life as
they are in police service. She has,
admittedly, got a piece of land in her
own name. There may be other persons
in the village having no land or source of
income or having no earning member in
their family. The two judgment and
orders of the Appellate Authorities are
based on irrelevant considerations and
they cannot be allowed to stand.
Case law discussed:
AIR 2005 SC 851, (2004) 7 SCC 112, (JT
2003(2) SC 88).

## Text

2 All] Raj Kumar and another V Rajasv Parishad Uttar Pradesh Allahabad and others.
575
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2010

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 12330 of 2007

Raj Kumar and another
 ...Petitioner
Versus
Rajasv Parishad Uttar Pradesh Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri Surya Pratap Yadav

Counsel for the Respondents:
Sri Rajesh Pandey
Sri Anuj Kumar
C.S.C.

U.P.
Z.A.
&
L.R.
Act-122-B(U-E)-
Cancellation
of
allotment
of
Patta
allottee a widow lady already possessing
0.866 hectare land-not within.meaning
of landless agricultural labour-against
statute sympathy has no role to play nor
entitle for any benefit of section 122B(u-F)-suit dismissed.

Held: Para 16

In my considered view, the aforesaid
quoted portion from the judgment of the
Apex Court is equally applicable to the
facts
of
the
present
case
notwithstanding the fact that the said
observations
were
made
while
considering a case of workmen under the
Labour Laws. Moreover, in the present
case, the plea of sympathy in favour of
the
plaintiff
respondent
no.3
is
misplaced one as she has got two grown
up sons who are well placed in life as
they are in police service. She has,
admittedly, got a piece of land in her
own name. There may be other persons
in the village having no land or source of
income or having no earning member in
their family. The two judgment and
orders of the Appellate Authorities are
based on irrelevant considerations and
they cannot be allowed to stand.
Case law discussed:
AIR 2005 SC 851, (2004) 7 SCC 112, (JT
2003(2) SC 88).

(Delivered by Hon'ble Prakash Krishna, J.)

1. The present writ petition arises
out of Suit No.97 instituted by Lachi
Devi, respondent no.3 herein under
Section 229 B of the U.P.Z.A. & L.R. Act
for declaration of her right in respect of
Araji No.479 area 0.454 situate in village
Maharkhan, Pargana Mahuari, Tehsil-
Sakaldiha, District Chandauli on the
ground that she is a landless agriculturist
and is member of Scheduled Caste
community. She is entitled to get the
benefit as provided for under Section 122
B (4-F) of the U.P.Z.A. & L.R. Act and
her name may be recorded in the revenue
record and the entry of 'Navin Parti' be
corrected accordingly.

2. The suit was contested by Gaon
Sabha on the pleas inter alia that the
plaintiff does not fall in the category of
landless agriculturist. Her two sons are
major and they are in government service.
They are jointly residing with their
mother. An other suit in respect of same
land being suit No.110 of 2001 under
Section 229 B read with Section 122 B (4F) of the Act has been filed by Gulab and
others which is pending before the Court.
Possession of the plaintiff Lachi Devi or
Gulab and others was denied by Gram
Pradhan.

3. Parties led evidence in support of
their respective cases. Lachi Devi in her
deposition stated that her two sons are
leaving separately from her and she is an
agriculturist. Earlier, her husband was
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
carrying on agricultural operations over
the land in question and now, she is
earning her livelihood therefrom. She also
produced other witnesses in support of her
case. The defence also produced evidence
to show that Lachi Devi has not matured
her right over the land in question and her
two sons are in Police Department and
she has got an Araji No.478 area 0.866
hectare.

4. The trial Court after considering
the evidence led by the respective parties,
held that she does not fall in the category
of landless agricultural labourer. She
failed to prove her alleged possession of
thirty years as she has not filed any
revenue record in support thereof such as
Khasra or any documentary evidence. The
suit was dismissed by the order dated 30th
of
March,
2005.
The
decree
was
challenged in appeal No.13 of 2005
before the Additional Commissioner
(Jud.), who by the order dated 16.6.2005
allowed the appeal and set aside the
judgment and decree of the trial Court and
decreed the suit by passing necessary
direction for recording the name of Lachi
Devi over the plot in question.

5. The order of the First Appellate
Authority has been confirmed in second
appeal No.70 of 2004-2005 by the Board
of Revenue, U.P. at Allahabad.

6. The learned counsel for the
petitioners submits that both the Appellate
Authorities have committed mistake in
decreeing the suit of Smt. Lachi Devi on
the ground that she is a widow. Merely
because, the plaintiff is a widow, unless
the requirements of Section 122 B (4-F)
of the Act are fulfilled, no right shall
accrue in her favour. None of the
Appellate
Authorities
has
found
possession of Lachi Devi over the land in
dispute.

7. The learned counsel for the
respondents, on the other hand, supports
the impugned orders.

8.

Considered
the
respective
submissions of the learned counsel for the
parties and perused the record. Section
122 B(4-F) of the Act, for the sake of
convenience is reproduced below:-

"122B
(4-F).
Notwithstanding
anything in the foregoing sub-sections,
where
any
agricultural
labourer
belonging
to
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 June 30, 1985 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
it shall be deemed that he has been
admitted
as
bhumidhar
with
nontransferable rights of that land under
Section 195."

9. Section 122 B (4-F) of the Act
provides that notwithstanding anything in
the foregoing sub-sections, where any
agricultural
labourer
belonging
to
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 June 30, 1985 and
the land so occupied together with land, if
any, held by him from before the said date
2 All] Raj Kumar and another V Rajasv Parishad Uttar Pradesh Allahabad and others.
577
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 it
shall be deemed that he has been admitted
as bhumidhar with non-transferable rights
of that land under Section 195.

10. The said provision does not give
any special or additional right to a
widowed agricultural labourer belonging
to Scheduled Caste or Scheduled Tribe.
One of the essential conditions for
conferment of Bhumidhari with non
transferable rights is that the claimant
must be in occupation of the land in
dispute on the relevant cut off date.
Besides the other things, in other words,
occupation of land is also one of the
requirements or ingredients so far as
Section 122 B (4-F) of the Act is
concerned.

11. The trial Court found as a fact
that the plaintiff Smt. Lachi Devi has
failed to prove her possession over the
land in dispute. She failed to substantiate
her claim that she has been in possession
of the said land for the last thirty years.
No documentary evidence such as Khasra
was
filed
to
corroborate
her
plea
regarding possession. Indisputably, the
said finding recorded by the Trial Court
has not been disturbed or reversed by the
First Appellate Authority. A perusal of
the judgment of the First Appellate
Authority would show that it proceeded to
allow the appeal by setting aside the
judgment and decree of the Trial Court
simply on the ground that the plaintiff is a
widow. The order of the First Appellate
Authority has been confirmed by the
Second Appellate Authority. The question
which falls for consideration is whether
such an approach is justified or not.

12. The learned counsel for the
petitioners is right in his submission that
merely because the plaintiff respondent
no.3 is a widow, the law does not grant
her any such concession or benefit under
the aforesaid Section. A person can
succeed only on the fulfillment of
ingredients of Section 122 B (4-F) of the
Act and not otherwise. The finding
recorded by the Trial Court that the
plaintiff has failed to prove her possession
on the relevant date over the land in
question having not been reversed, it
follows that the plaintiff has failed to
satisfy the ingredients as provided by
Section 122 B (4-F) of the Act.

13. The learned counsel for the
respondents submits only this much that
the plaintiff being a widow deserves
sympathy of the Court. The said argument
is merit-less and does not advance the
case of the plaintiff respondent no.3.

14. While considering a Statute
"sympathy has no role to play". The Apex
Court has laid down that a Court can not
interpret a provision binding decisions of
the Constitution Bench of this Court only
by way of sympathy to the concerned
person. In Maruti Udyog Ltd. Vs. Ram
Lal, AIR 2005 SC 851 the Apex Court
has noticed its earlier judgments and held
that ordinarily Court would not pass an
order on the ground of sympathy which
would be in contravention of Statutory
provision. The relevant paragraphs are
extracted below from the aforesaid
judgment:-

"44. While construing a statute,
'sympathy' has no role to play. This Court
578 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
cannot interpret the provisions of the said
Act ignoring the binding decisions of the
Constitution Bench of this Court only by
way of sympathy to the concerned
workmen.

45. In A. Umarani v. Registrar, Cooperative Societies and others (2004) 7
SCC 112, this Court rejected a similar
contention upon noticing the following
judgments: AIR 2004 SC 4504: 2004 AIR
SCW 4462: 2004 Lab IC 3206 Paras 67,
68 and 69,

"In a case of this nature this court
should not even exercise its jurisdiction
under Article 142 of the Constitution of
India on misplaced sympathy.

In Teri Oat Estates (P) Ltd. v. U.T.,
Chandigarh and others (2004) 2 SCC 130,
it is stated;

"We have no doubt in our mind that
sympathy or sentiment by itself cannot be
a ground for passing an order in relation
whereto the appellants miserably fail to
establish a legal right. It is further trite
that
despite
an
extra-ordinary
constitutional jurisdiction contained in
Article 142 of the Constitution of India,
this Court ordinarily would not pass an
order, which would be in contravention of
a statutory provision.

As early as in 1911, Farewell L.J. in
Latham v. Richard Johnson and Nephew
Ltd.
1911-13
AER
reprint
p.117)
observed:

"We must be careful not to allow our
sympathy with the infant plaintiff to affect
our judgment. Sentiment is a dangerous
Will O' the Wisp to take as a guide in the
search for legal principles."

15.

Yet
again
recently
in
Ramakrishna Kamat and others v. State of
Karnataka and others (JT 2003(2) SC 88),
this Court rejected a similar plea for
regularization of services stating : AIR
2003 SC 1530 : 2003 AIR SCW 890 :
2003 Lab IC 1196 : 2003 AIR -Kant HCR
702
Para 7

"... We repeatedly asked the learned
counsel for the appellants on what basis or
foundation in law the appellants made their
claim for regularization and under what
rules their recruitment was made so as to
govern their service conditions. They were
not in a position to answer except saying
that the appellants have been working for
quite some time in various schools started
pursuant to resolutions passed by zilla
parishads in view of the government orders
and that their cases need to be considered
sympathetically. It is clear from the order
of the learned single Judge and looking to
the
very
directions
given
a
very
sympathetic view was taken. We do not
find it either just or proper to show any
further sympathy in the given facts and
circumstances of the case. While being
sympathetic to the persons who come
before the court the courts cannot at the
same time be unsympathetic to the large
number of eligible persons waiting for a
long time in a long queue seeking
employment...""

16. In my considered view, the
aforesaid
quoted
portion
from
the
judgment of the Apex Court is equally
applicable to the facts of the present case
notwithstanding the fact that the said
observations were made while considering
a case of workmen under the Labour Laws.
Moreover, in the present case, the plea of
sympathy in favour of the plaintiff
2 All] U.P.P.C.L.and another V National Human Rights Commission and another
579
respondent no.3 is misplaced one as she
has got two grown up sons who are well
placed in life as they are in police service.
She has, admittedly, got a piece of land in
her own name. There may be other persons
in the village having no land or source of
income or having no earning member in
their family. The two judgment and orders
of the Appellate Authorities are based on
irrelevant considerations and they cannot
be allowed to stand.

17. In the result, the writ petition
succeeds and is allowed. The suit filed by
the plaintiff respondent no.3 under Section
229 B read with Section 122 B (4-F) of the
Act stands dismissed.

18. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIRENDRA SINGH, J.

Civil Misc. Writ Petition No. 13821 of 2010

U.P. Power Corporation Limited and
another

 ...Petitioners
Versus
National Human Rights Commission and
another

 ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar

Counsel for the Respondents:
S.C.

Constitution of India-Art.226- readwith
Section 18 of Protection of Human
Rights, 1993- Finding regarding violation
of human right-based upon enquiry and
the award of compensation of Rs.
300000/- held well within jurisdiction-
so for argument regarding compensation
of Rs. 1 Lac by Corporation can not be
enhanced-held-.misconceived-second
part relating to compensation of Rs. 4
Lac for electric shot to the wife of
petitioner in connected petition reduced
to Rs. 2,50,000/- keeping in view the
amount expended in treatment is only
Rs. 70,000 + 1 Lac with these alternative
order passed by commission upheld.

Held: Para 13, 15 &17

According to section 18(a) where inquiry
discloses the commission of violation of
human rights or negligence in the
prevention of violation of human rights
or abetment thereof by a public servant,
it may recommend to the concerned
Government
or
authority
to
make
payment of compensation or damages as
the
Commission
may
consider
necessary." Thus, the commission has
jurisdiction to recommend compensation
as
the
Commission
may
consider
necessary. The power of the Commission
under section 18 is not inhibited by any
other provisions or any State Legislature
or subordinate legislation. The power of
the Commission under section 18 is in
addition to any other provisions covering
the subject matter and not in derogation
of
any
other
provisions
of
law.
Entitlement of a person whose human
rights have been violated in accordance
with the relevant statutory provisions
governing payment of compensation,
does not in any manner create a fetter in
the right of Commission to find out the
magnitude of violation of human rights
and award a compensation. Thus, the
mere fact that under the orders issued
by the U.P. Power Corporation, amount
of Rs. 1,00000/- has been fixed in case
of death or injury by the Corporation,
does
not
fetter
the
rights
of
the
Commission to award compensation over
and above the amount of Rs. 1,00000/-.
Thus, the order of the Commission
awarding compensation more than Rs.
1,00000/- cannot be faulted on the
above ground.