# Ram Kishore & Anr v. Member Judicial Board of Revenue, & Ors

- **Citation:** (2015) 2 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-28
- **Case number:** Writ-B No. 6783 of 2015
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishore-anr-v-member-judicial-board-of-revenue-ors-43154
- **Pages:** 6

## Headnote

U.P. Z.A. & L.R. Act-122-B(4-F)-Benefit
when
available?-possession
must
be
unauthorized-damage caused to Gaon
Sabha Land-plaintiff/petitioner granted
lease for plantation-which has been
done-such possession-not unauthorizednor
any
loss/damage
caused
by
petitioner-none of ingredients of Section
122-B attracted accordingly-benefit of
subsection (4-F)-not available-findings
532
 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded by Board-justified-require no
interference.
Held: Para-14, 15 & 16

## Text

2 All] Ram Kishore & Anr. Vs. Member Judicial Board of Revenue, & Ors.
531
the land which was in the domain of
objections to be filed under Section 9 of the
Act. The report indicates that the petitioners
were given opportunity but they did not
adduce any evidence.
32. It has been stated in the report
that keeping in view the public purpose of
constructing the expressway it was not
desirable to exempt the land from
acquisition proceedings and quantum of
compensation
to
be
paid
will
be
determined after obtaining the valuation
report in accordance with the law and the
provisions of the Act.
33. While considering the objection
under Section 5-A the Collector is not
required to arrive at any decision like a
court. He has only to submit the case for
decision of the appropriate Government
together
with
the
record
of
the
proceedings held by him and a report
containing his recommendation on the
objections, relying upon which the
Government takes its decision under
Section 6 of the Act. It is true that for
making the report the Collector is
required
to
follow
the
procedure
prescribed under Section 5-A of the Act
and to give the objector an opportunity,
and after hearing all such objections and
making such further inquiry, as he thinks
necessary to make a report of his
recommendation on the objections.
34.
In such view of the matter, the
report
on
the
objections
along
with
recommendation satisfies the test. All the
petitioners were present in person on the date
of hearing. A perusal of the report goes to
show that objections of the petitioners were
properly dealt with, heard and the report along
with the recommendation was made after due
application of mind. We are satisfied that the
report dated 10.12.2013 was made in full
compliance of mandatory directions of
Section 5-A of the Act. Thus the second
submission advanced on behalf of the
petitioners also does not merit consideration.
35. No other ground has been raised
or pressed before us.
36. In view of above facts and
discussions, we find no merit in the writ
petition and the same accordingly stands
dismissed.
37.
However, in the facts and
circumstances, there shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2015
BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.
Writ-B No. 6783 of 2015
Ram Kishore & Anr.
...Petitioners
Versus
Member Judicial Board of Revenue, &
Ors.
...Respondents
Counsel for the Petitioners:
A.K. Rai, Vishnu Kr. Singh
Counsel for the Respondents:
C.S.C., Brij Kumar Yadav, Shivam Yadav
U.P. Z.A. & L.R. Act-122-B(4-F)-Benefit
when
available?-possession
must
be
unauthorized-damage caused to Gaon
Sabha Land-plaintiff/petitioner granted
lease for plantation-which has been
done-such possession-not unauthorizednor
any
loss/damage
caused
by
petitioner-none of ingredients of Section
122-B attracted accordingly-benefit of
subsection (4-F)-not available-findings
532
 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded by Board-justified-require no
interference.
Held: Para-14, 15 & 16
14. In the instant case, it is admitted
that the plaintiff petitioner entered into
possession on the basis of a lease
granted in his favour for planting trees
and for this reason alone it must be held
that the possession of the petitioner, if
any, was not unauthorised or contrary to
law. Admittedly, the lease had been
granted
to
the
petitioner
or
their
predecessor in interest and therefore,
their possession was permissive and not
unauthorised or contrary to law or
contrary to the provisions of the Act.
15. Secondly, the lease had been
granted for planting trees which has
admittedly been done by the petitioners
as also their predecessors in interest.
The property in question having been
used for the purpose for which the lease
had been granted the same cannot be
termed as misappropriation or causing
damage to the land in question.
16. It is therefore clear, that none of the
necessary ingredients provided in sub
section 1 of Section 122-B exists and
therefore, in my considered opinion the
Section 122-B as a whole is not attracted
and therefore reliance upon sub section
4 F is not tenable. The petitioner would
be entitled to seek benefit of sub section
4
F
only
in
case
they
were
in
unauthorised occupation and had caused
damage or had misappropriated the land.
Case Law discussed:
2002 (93) RD 393; 1991 (3) SCC 410; 2005
(98) RD 454
(Delivered by Hon'ble Anjani Kumar Mishra, J.)
1. Heard Sri V.K. Singh learned
counsel for the petitioners , Sri Brij
Kumar Yadav for the respondent no. 6
Gaon Sabha and Sri Shivam Yadav for
Kanpur
Development
Authority
(respondent no. 4) and also learned
Standing
Counsel
for
the
State
respondents.
2. This writ petition arises out of suit
under
Section
229-B
of
the
U.P.
Zamindari Abolition & Land Reforms Act
filed by the petitioner seeking to be
declared Bhumidhar of Plot no. 2611 area
0.993 hectare situated in village Sarsaul,
Pargana and District Kanpur Nagar.
3. The case of the plaintiff petitioner
in the suit was that he had been granted a
plantation lease for planting trees over the
plot in question belonging to the Gaon
Sabha. He had therefore, planted several
trees thereon and had also started
cultivating the land. Since he belonged to
the scheduled caste and was in continuous
possession of the land of the Gaon Sabha
recorded
as
Naveen
Parti,
since
11.08.1974, he was entitled to the benefit
of Section 122-B (4F) of the Act.
4. The Trial Court by its judgment
dated 27.01.1998, decreed the suit on the
finding that the petitioner plaintiff was in
possession over the land in dispute from
before 30.06.1975, prior to its transfer to
the Kanpur Development Authority.
5.
Aggrieved by the judgment and
decree of the Trial Court, the Kanpur
Development Authority preferred an appeal
which was dismissed by the Additional
Commissioner, Kanpur Division, Kanpur
by
the
judgment
and
order
dated
25.05.2000. The Kanpur Development
Authority preferred a second appeal no. 65
of 1999-00. This second appeal has been
allowed by the judgment and decree dated
17.11.2014, the judgments and decrees of
the two courts below have been set aside
and the suit of the plaintiff petitioner has
2 All] Ram Kishore & Anr. Vs. Member Judicial Board of Revenue, & Ors.
533
been dismissed. It is this judgment passed
by the Board of Revenue which is
impugned in the writ petition.
6.
It has been submitted by learned
counsel for the petitioner that the plaintiff
was in possession of the land in question
recorded as Naveen Parti since prior to the
cut off date and was therefore fully entitled
to the benefit of sub section 4F of Section
122-B as he belonged to the scheduled
caste. The Trial Court as also the Appellate
Court had rightly held in favour of the
petitioner but the Board of Revenue has
committed a manifest illegality in reversing
such judgments. He has also submitted that
the petitioner had perfected his rights as a
bhumidhar with non transferable rights on
the basis of his long standing possession,
long before the land was transferred to the
Kanpur Development Authority.
7.

Learned
counsel
for
the
respondents have refuted the submissions
made
by
learned
counsel
for
the
petitioners. Their primary contention is
that the possession of the petitioner is
legal and therefore the petitioners were
not entitled to the benefit of sub section 4
F of Section 122-B. Merely, by planting
some trees over land belonging to the
Gaon Sabha, the petitioner could not
become the owner of the said land.
8. Sri Shivam Yadav has additionally
submitted that the benefit of sub section 4 F
of the Act is available only against the Gaon
Sabha. Since admittedly, the land now vests
in the Kanpur Development Authority, the
petitioner cannot get any benefit of the said
sub-section.
9. I have considered the submissions
made by learned counsel for the parties
and have perused the record.
10. The sole point that arises for
consideration in the instant case is as to
whether a person who has been granted a
plantation lease of land belonging to the
Gaon Sabha for the purpose of planting
trees thereupon and who has planted such
trees in pursuance of the lease, is entitled
to the benefit provided by Section 122-B
(4F) of the U.P. Zamindari Abolition &
Land Reforms Act. It therefore appears
appropriate
to
notice
the
relevant
provision which is extracted below:-
"122B.
Powers
of
the
Land
Management
Committee
and
the
Collector.-- [(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.
534
 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 three months
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.
(4-B) The procedure to be followed
in any action taken under this section
shall be such as may be prescribed.
(4-C)
Notwithstanding
anything
contained in Section 333 or Section 333A,
but subject to the provisions of this
section ;
(i) every order of the Assistant
Collector under this section shall, subject
to the provisions of Sub-sections (4A) and
(4D), be final.
(ii) every order of the Collector
under this section shall, subject to the
provisions of Sub-section (4D), be final.
(4-D) Any person aggrieved by the
order of the Assistant Collector or
Collector in respect of any property under
this section may file a suit in a court of
competent jurisdiction to establish the
right claimed by him in such property,
(4-E) No such suit as is referred to in
Sub-section (4D) shall lie against an
order of the Assistant Collector is a
revision is preferred to the Collector
under Sub-section (4A).
Explanation. -- For the purposes of
this section, the expression 'Collector'
means the officer appointed as Collector
under the provisions of the U. P. Land
Revenue Act, 1901 and includes an
Additional Collector.]
(4-F) Notwithstanding anything in
the foregoing sub-sections, where any
agricultural labourer belonging to a
Schedule 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
it shall be deemed that he has been
admitted
as
bhumidhar
with
nontransferable rights of that land.
(5)........................
11. Section 122-B of the Act provides
the mode and the procedure for taking action
where property vested in the Gaon Sabha is
damaged or misappropriated and the various
sub sections provided the procedure and the
remedy as regards the action and therefore
the entire provision has to be read as a whole.
Sub Section 1 provides that where property
2 All] Ram Kishore & Anr. Vs. Member Judicial Board of Revenue, & Ors.
535
vested in the Gaon Sabha is damaged or
misappropriated and such land is 'occupied
otherwise than in accordance with the
provisions of this Act', the Assistant
Collector concerned is required to be
informed of such damage, misappropriation
or occupation otherwise than in accordance
with the provisions of the Act.
12. It is therefore, clear that for the
provisions of Section 122-B to be
attracted the following ingredients must
exist:-
(i)
there
must
be
damage
or
misappropriation of property vested in the
Gaon Sabha or local authority,
(ii) the land must be occupied except
in accordance with the provisions of the
Act or the Gaon Sabha or local authority
is entitled to take and retain possession
thereof under the Act,
13. It therefore logically follows that
the provisions of this section will come
into play only when the aforesaid two
conditions are fulfilled.
14. In the instant case, it is admitted
that the plaintiff petitioner entered into
possession on the basis of a lease granted
in his favour for planting trees and for this
reason alone it must be held that the
possession of the petitioner, if any, was
not unauthorised or contrary to law.
Admittedly, the lease had been granted to
the petitioner or their predecessor in
interest and therefore, their possession
was permissive and not unauthorised or
contrary to law or contrary
to the
provisions of the Act.
15. Secondly, the lease had been
granted for planting trees which has
admittedly been done by the petitioners as
also their predecessors in interest. The
property in question having been used for
the purpose for which the lease had been
granted the same cannot be termed as
misappropriation or causing damage to
the land in question.
16. It is therefore clear, that none of
the necessary ingredients provided in sub
section 1 of Section 122-B exists and
therefore, in my considered opinion the
Section 122-B as a whole is not attracted
and therefore reliance upon sub section 4
F is not tenable. The petitioner would be
entitled to seek benefit of sub section 4 F
only in case they were in unauthorised
occupation and had caused damage or had
misappropriated the land.
17. The same view has been taken by
this court in the case of Brahmi Vs District
Magistrate/D.D.C.,
Muzaffarnagar
and
others.1 In paragraph 13 of this judgment it
has been held that where possession of a
person is not unauthorised, there is no
question of applicability of Section 122-B (4
F). This has been so held relying upon the
judgment of the Apex Court in Kalawatibai
Vs Soiryabai and others2 wherein the Apex
Court while interpreting the provisions
contained in Section 122-B and it sub
sections held "that a section has to be read
in its entirety as one composite unit
without bifurcating it or ignoring any part
of it. Viewed from this perspective the
section, undoubtedly, comprises two
parts, one descriptive, specifying the
essential requirements for applicability of
the section, other consequences arising
out of it. One cannot operate without the
other. Neither can be read in isolation.
Both
are
integral
parts
of
the
section........."
18. In the case of Sanjay Kumar vs
Collector/ District Magistrate, Kanpur
536
 INDIAN LAW REPORTS ALLAHABAD SERIES
Dehat and others3 this court had held that
the benefit under Section 4 F is liable to
be given only to those members of the
scheduled caste whose possession is
entered in the revenue records prior to the
cut off date or eviction proceedings are
pending against them since before the
said date. This is not the position in
the case at hard. The land in question is
admittedly recorded as Naveen Parti and
therefore also the petitioners are not
entitled to the benefit of sub section 4 F.
19. The Board of Revenue in the
impugned order has recorded that the
plaintiff petitioner had title only to the
trees and the entries of title over the trees
will not give any substantive right to the
petitioner over the land. It was further
observed, that no documentary proof has
been furnished by the plaintiff petitioner
and only the trees are recorded in the
Khasra 1401 Fasli. A specific finding has
also been recorded that the petitioners'
possession is not recorded in any
document available on record.
20. In view of the above discussion,
I see no illegality in the impugned order.
It is inconsonance with the view taken by
this court in the case of Sanjay Kumar and
specially in Brahmi (supra), which in turn
is based on the judgment of the Apex
Court in the case of Kalawatibai Vs
Soiryabai and others.
21. The writ petition therefore lacks
substance and is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2015
BEFORE
THE HON'BLE MANOJ MISRA, J.
Application U/S 482 No. 7359 of 2015
Bhagwan Das
 ...Applicant
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Bharat Singh
Counsel for the Opp.Parties:
Govt. Advocate
Cr.P.C.-Section
482-against
order
rejecting application to recall of witnessfor cross examination-held-suffers from
legal
infirmity-set-a-side-as
right
to
cross examine the prosecution witness-a
valuable right of accused-can not be
casually forfeited.
Held: Para-7
Having considered the submissions of
the learned counsel for the parties, this
Court is of the view that right to crossexamine the prosecution witnesses is a
very valuable right of an accused and
should not mechanically or casually be
forfeited unless there are compelling
reasons justifying the same. Where the
accused is languishing in jail and is not
being represented by a counsel or
though a counsel has put in appearance
but fails to appear to provide any
assistance to the accused, it is the duty
of the Court to appoint an amicus curiae
to represent the accused unless the
accused in clear and unambiguous words
refuses to take his service and chooses
to defend himself personally.
(Delivered by Hon'ble Manoj Misra, J.)
1.
Heard learned counsel for the
applicant; the learned A.G.A. for the State
and perused the record.
2. The instant application has been
filed by an accused facing trial for
offences punishable under sections 363,
366 and 376 IPC for quashing of an order