# Rameshwar v. Deputy Director of Consolidation, Bareilly and others

- **Citation:** (2002) 2 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-05-08
- **Case number:** Civil Misc. Writ Petition No. 16180 of 2002
- **Bench:** Yatindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rameshwar-v-deputy-director-of-consolidation-bareilly-and-others-39867
- **Pages:** 7

## Headnote

U.P. Zamindari Abolition Act- Section
122-B (4F)- benefit can only be given
over land vested in a Gaon Sabha- when
Gaon Sabha is declared to be a town
area or Nagar Panchayat then it ceases
to exist and is divested of all properties-
Gaon Sabha ceased to exist on 10th April
1974 and did not hold any property on
the relevant date under section 122-B
(4F) of the Z.A., the petitioners did not
acquire any rights over the land in
dispute.

Held in para 19

Section 117 (2) or Section 117 A of the Z
A Act perhaps applies to a case when
property within the jurisdiction of one
local authority is vested in any other
local authority, but in case the property
itself falls within the jurisdiction of other
authority, then they do not apply. Rule 3
AAA (2) (a) and (b) are also relevant and
clarify this point. Perhaps the moment
the property of Gaon Sabaha goes to
another local authority then the other
local
authority
becomes
owner
immediately, and no fresh notification is
necessary, but this will await a suitable
case.
Case law referred-
1970RD 450, AIR 1975 SC 2159, AIR 1977 K
83 FB, AIR 1973 All. 403

## Text

2 All] Rameshwar Vs. Deputy Director of Consolidation, Bareilly and others
363
after complying with the rules of natural
justice.
The
inquiry
report
is
not
sustainable and therefore it cannot be
relied upon, therefore, the dismissal order
dated 30.11.1998 is liable to be set aside.
However, keeping in view the gravity of
the charges against the petitioner the State
Government is at liberty to make Inquiry
afresh and to conclude the Inquiry
preferably within six months from the
date of receipt of the this order, in
accordance with the law and in the light
of the observations made above till then
the respondent is at liberty not to engage
the petitioner on employment.

24. Let a certified copy of this order
be given to the learned counsel for the
petitioner on payment of usual charges
within a week.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2002

BEFORE
THE HON'BLE YATINDRA SINGH, J.

Civil Misc. Writ Petition No. 16180 of 2002

Rameshwar

...Petitioner
Versus
Deputy Director of Consolidation and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.P.S. Chauhan
Sri Ajay Banot

Counsel for the Respondents:
Sri V.K. Singh
S.C.

U.P. Zamindari Abolition Act- Section
122-B (4F)- benefit can only be given
over land vested in a Gaon Sabha- when
Gaon Sabha is declared to be a town
area or Nagar Panchayat then it ceases
to exist and is divested of all properties-
Gaon Sabha ceased to exist on 10th April
1974 and did not hold any property on
the relevant date under section 122-B
(4F) of the Z.A., the petitioners did not
acquire any rights over the land in
dispute.

Held in para 19

Section 117 (2) or Section 117 A of the Z
A Act perhaps applies to a case when
property within the jurisdiction of one
local authority is vested in any other
local authority, but in case the property
itself falls within the jurisdiction of other
authority, then they do not apply. Rule 3
AAA (2) (a) and (b) are also relevant and
clarify this point. Perhaps the moment
the property of Gaon Sabaha goes to
another local authority then the other
local
authority
becomes
owner
immediately, and no fresh notification is
necessary, but this will await a suitable
case.
Case law referred-
1970RD 450, AIR 1975 SC 2159, AIR 1977 K
83 FB, AIR 1973 All. 403

(Delivered by Hon'ble Yatindra Singh, J.)

1. These writ petitions consider if
benefit under sub section (4-F) of Section
122-B {section 122-B (4-F)} of the UP
Zamindari Abolition and Land Reforms
Act, 1950 (the ZA Act) could be given
over land not vested in a Gaon Sabha and
consequences of declaration of a Gaon
Sabha to be Town Area under section 3 of
the Town Area Act, 1914 (the TA Act).

THE FACTS

2. The land in dispute vested in
Gaon Sabha Rithaura, Bareilly under
section 117 of the ZA Act. The Gaon
Sabha Rithaura was upgraded as town
Area Rithaura by notification dated
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
364
10.4.1974 under the TA Act. This Act has
been since repealed and now all town
areas, according to their population, have
been renamed and are governed by U.P.
Municipalities Act 1914. Town Area
Rithaura
has
now
become
Nagar
Panchayat Rithaura.

3. It is not clear from the records
when
consolidation
operations
were
started under U.P. Consolidation of
Holdings Act 1953 (the Consolidation
Act) but the petitioners filed objections
under section 9-A of the Consolidation
Act alleging that:

•
They
are
landless
agriculturists
belonging to scheduled caste.
•
 They are in possession over the plots
in dispute since the time of their
ancestors.
•
 Their names may be recorded over
property in dispute in view of
section 122-B (4F) of the ZA Act.

The Consolidation Officer allowed these
objections on 19.1.1999 directing their
names to be recorded as Bhumidhar with
transferable
rights.
He
held
that
petitioners are in possession over the
Gaon Sabha property prior to 3rd June
1995 and are entitled to benefit of section
122-B (4F) of the ZA Act.

4. The state filed appeals. These
appeals were allowed by the Settlement
Officer Consolidation (the SOC) on the
ground that the petitioners were not in
possession over the land in dispute. The
petitioners filed revisions which were
dismissed by the Deputy Director of
Consolidation (the DDC) on 11.3.2002 on
the ground that the benefit under section
122-B (4F) of the ZA Act could not be
given over the land in dispute as it had
ceased to be Gaon Sabha land din view of
notification dated 10th April 1974 under
Section 3 of the TA Act declaring Gaon
Sabha Rithaura to be Town Area
Ruithaura.
Hence
the
present
writ
petitions.

POINTS FOR DETERMINATION

5. I have heard Sri Ajay Bhanot and
Sri RPS Chauhan counsels for petitioners,
standing counsel and Sri V K Singh
counsel for respondents. The following
points arise for determination:

(i) Whether benefit under section 122 -B
(4F) of the ZA Act can be given over
land vested in a local authority other
than Gaon Sabha?

(ii) Whether the land in dispute was
vested in the Gaon Sabha Pithaura on
the relevant date under section 122-B
of the ZA Act?

1st POINT: BENEFIT-ONLY OVER
GAON SHABHA LAND

6. Rule 115 C to 115 H of the UP
Zamindari Abolition and Land Reforms
Rules (the ZA Rules) provide summary
procedure for ejectment of trespassers.
These rules were declared illegal by the
High
Court.
Section
122-B
was
introduced by UP Act no. 38 of 1981 to
provide necessary sanction of law for the
summary procedure for ejectment of a
trespasser. Sub Section (1) of section 122
B (section 122 B (1) of the ZA Act
provides for speedy recovery of property
of Gaon Sabha or a local authority. It also
permits
imposing
compensation
for
damages, misappropriation or wrongful
occupation of such property.
2 All] Rameshwar Vs. Deputy Director of Consolidation, Bareilly and others
365
7. Section 122 B as enacted did not
contain sub section 4 F. It was introduced
by UP Act no. 30 of 1975. Section 122 B
(4F) of the ZA Act (quoted below)1 is an
exception to section 122B. It starts with
notwithstanding clause and provides that
the authorities will take no action under
section
122
B
in
case
conditions
mentioned in sub section 4 F are fulfilled.
One of the conditions was that the land
should have been occupied prior to June
30 1975. The date 30th June 1975 has
been amended since then, and now by

1 The relevant part of section 122-B of the ZA
Act is as follows:
122-B 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.
***
(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 June 3, 1995 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
non- transferable rights of that land under
section 195.
U.P. Act no. 9 of 1997. It has been
substituted by June 3, 1995.

8. Section 122 B (1) of the ZA
provides for eviction from the land not
only vested in Gaon Sabha but also in a
local authority i.e. to say sub section (1)
specifically refers to Gaon Sabha and
local authority but section 122 B 4 F only
provides for benefit over land vested in a
Gaon Sabha. It does not refer to local
authority. This shows that the benefit
under section 122 B 4f is available only in
respect of land vested in Gaon Sabha and
does not extend to land vested in the State
or in any other authority apart from Gaon
Sabha. The Board of Revenue in its two
decisions (quoted below)2 has rightly
taken the view that benefit under section
122 B 4F can be given in respect of land
vested in Gaon Sabha. Of course a person
has to fulfil other conditions mentioned in
that sub section before the benefit can be
given.

2nd POINT: LAND IN DISPUTE -NOT
OF GAON SABHA

9. Notification dated 10.4.1974
declaring Gaon Sabha Rithaura to be
Town Area Rithaura was issued under
section 3 of the TA Act. This section
prescribed conditions on which any
village could be declared a town area.
Here there is no challenge to the
notification, but the dispute relates only to
its legal consequences.

2 Nagar Mahapalika Kanpur vs. Rikhi Lal
1989 RD 332 and Smt. Sikandra Devi vs.
Bhagwan Deen 1997RD 190
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
366
10. Section 8 (quoted below)3 of the
UP
Panchayat Raj Act 1947 (the
Panchayat Raj Act) provides that in case
whole or part of the area of a Gram
Panchayat is included in any other local
body then Gram Panchayat would cease,
and its assets and liabilities would stand
transferred in the manner prescribed. This
manner is prescribed in Rule 3 AAA of
the Panchayat Raj Rules (quoted below)4
Sub rule (1) of this Rule 3 AAA (1) is
applicable when whole area of Gaon
Sabha is included in a local authority. Sub
Rule 2 of this rule is applicable when only
part of Gaon Sabha land is included in
any other local authority. Rule 3 AAA (1)
provides that the Gaon Sabha shall cease
and its all assets and liabilities shall be
transferred to the local authority. If the
Gaon Sabha is not in existence then it can
not hold any property. So is the case here.
Gaon Sabha Rithaura was declared Town
Area Rithaurad on 10th April 1974; it

3 8. Effect of change in population or
inclusion of the area of a Gram Panchayat
in Municipalities, etc.- If the whole of the
area of Garm Panchayat is included in a city,
municipality, cantonment, notified area, or
Nagar Panchayat the Gram Panchayat shall
cease, and its assets and liabilities shall be
disposed of in the manner prescribed. If a
party of such area is so included, its
jurisdiction shall be reduced by that part.
4 The relevant part of rule 3-AAA is as
follows:
3-AAA. If the whole of the area of a Gaon
Sabha
is
included,
in
a
municipality,
cantonment, notified area or town area the
Gaon Sabha shall cease and its assets and
liabilities shall be transferred to the local body
in which such area is included.
(2) If a part of such area is so included, the
jurisdiction of the Gaon Sabha concerned shall
be reduced by that part and the division of
assets and liabilities of the Gaon Sabha shall
be made in the following manner:
ceased to exist and could not hold any
property after that date.

11. I have already held that section
122 B (4F) is applicable on the land
vested in a Gaon Sabha. Gaon Sabha,
Rithaura was neither in existence, nor
held any land on the relevant date under
this section 122 B (4F) of the ZA Act, its
benefit can not be given to the petitioner.

Shafi Case Is Not Applicable

12. Counsel for the petitioner has
brought to my notice sub section (2) and
(3) of Section 117 and Section 117 A and
submitted that till a fresh notification is
made in favour of Town Area Rithaura,
the property in dispute will continue to
vest in Gaon Sabha Rithaura even though
it may not be in existence. He has also
cited a Division Bench decision in Mohd.
Shafi vs. Gram Sabha Bisauli, 1970 RD
450
(shafi
case)
to
support
his
submissions.

13. In Shafi case Gaon Sabha
Bisauli had filed a suit for ejectment. It
was dismissed. Gaon Sabha Bisauli filed
an appeal. During pendency of the appeal,
part of property of Gaon Sabha Bisauli
(which included property in dispute in
that case) was included in the town area
Achhalda.
The
defendant
filed
an
application to dismiss the appeal on the
ground that Gaon Sabha Bisauli was not
entitled to maintain the appeal as the
property was vested in town area
Achhalda.
This
application
was
dismissed. The defendant filed a revision.
In
this
revision
the
question
of
maintainability of appeal by Gaon Sabha
Bisauli was referred to the larger bench.
The Division Bench of this court, while
deciding the reference, made some
2 All] Rameshwar Vs. Deputy Director of Consolidation, Bareilly and others
367
observations whether Gaon Sabha Bisauli
continued to be vested with the property
or not, but these observations are merely
obiter and were not necessary for deciding
the case. The court (in paragraphs 4 and
6) held:

"In the present case, some of the
plots included in territorial limits of the
Gram Sabha, Bisauli have been included
in the territorial limits of the Town Area
Acchalda. So, the Gram Sabha, Bisauli
did not cease to exist, but its jurisdiction
was excluded in relation to such plots"

"Under section 34 the property
belonged to the Gaon Sabha. The same
stood transferred to the Town Area. There
was no change in the nature, or quality or
quantum of the rights. This is case of
assignment of the interest. Since it has
been effected by force of the statutory
rules, the assignment is statutory, to
which order 22 Rule 10, CPC will apply".

14. Once the court held that the case
was covered by order 22 rule 10 then the
suit could be continued by the Gaon
Sabha Bisauli or by the Town Area
Acchlda by leave of the court and appeal
by Gaon Sabha Bisauli was competent. It
was not necessary to decide whether the
property continued to vest in Gaon Sabha
Bisauli or not'. The cases covered by
order 22 rule 10- unlike the case covered
by rule 3 or rule 4- do not abate. Sarkar's
Law on civil procedure 9th Edition Vol. 2
(page 1670) explains:

"Or 22 r 10 is based on the principle
that trial of a suit cannot be brought to an
end merely because interest of a party in
the subject matter of the suit has devolved
upon another during the pendency of the
suit, but that suit may be continued
against the person acquiring the interest
with the leave of the court (Rikhu v. Som
AIR 1975 SC 2158) R 10 enables only
continuance of the suit by leave of the
court. Where by reason of r 3 or r 4, as the
case may be, there is abatement there
would be no scope for continuance
(Goutami v. Madhavan AIR 1977 K 83
FB)"

15. Apart from above, the Shafi case
was concerned with question when only
part of the property of Gaon Sabha was
transferred to the Town Area. It was not
the case where the Gaon Sabha itself was
declared to be a Town Area. The court in
the Shafi case itself pointed out the
differences. This is clear from paragraph
10 of the report. The court in this
paragraph cited an unreported decision of
a single judge in Town Area Committee
Kore Jahanabad v. Rai Bahadur Adya
Sarana Singh (Adya Saran case)5. This
decision is a case where Gaon Sabha itself
was declared a Town Area, as the case in
the writ petition. The single Judge in the
Adya Saran case held:

'The moment Gaon Sabha ceased, the
property would revert back to the State.'

16. The division bench in the Shafi
case while dealing with it observed.

'This proposition may apply where
the entire territories of the Gaon Sabha
are transferred with the result that the
Gaon Sabha ceased, but, we are unable to
hold that the same consequence would
follow where only a part of the area of the
Gaon Sabha is transferred to a Town Area
or any other local body. In such a case,

5 SA No. 1983 of 1962 decided on 1st April
1969
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
368
the existing rights of the Gaon Sabha in
the land would continue to remain vested
in the Gaon Sabha.'

This shows that Shafi case itself made a
distinction between the case where the
Gaon Sabha ceased as in the present case
and the case where Gaon Sabha continued
to exist but only part of its property was
transferred. The Shafi case is not
applicable to the facts of this case. On the
contrary these two cases show that when a
Gaon Sabha is declared to be Town Area,
it ceases and is no longer vested with any
property.

SOME OBSERVATIONS

17. In this case I have considered the
question whether Gaon Sabha Rithaura is
vested with the land in dispute or not, I
have negated it. The question, whether the
Town Area Rithaura and thereafter Nagar
Panchayat Rithaura is vested with land in
dispute is now involved here. Some
observations, regarding this question,
have been made in Adya Saran and Shafi
case.
I would like to make few
observations.

18. Adya Saran case has held that
Gaon Sabha after it ceased to exist did not
hold any land, and the same reverted back
to the State. It has also held that the Town
Area is not the owner, till it is proved that
the land was transferred to the Town
Area. This, to my humble submission, is
not correct. Rule 3 AAA (1) indicates that
in such event assets and liabilities are
transferred
and
the
transfer
being
automatic does not require any fresh
notification under section 117 (1) of the
ZA Act. Two single Judges- one in a case
relating to Town Area (quoted below)6
and the other in a case relating to Nagar
Palika (quoted below)7-have rightly held
that transfer is automatic and does not
require any fresh notification. I would
have referred this question to the larger
bench if I had to decide this question.

19. I have already indicated that the
Shafi case is not applicable here and the
observations made by the division bench
that property is not vested in the town
area are obiter. Apart from it, in my
humble opinion, observations regarding
section 117, 117-A of ZA Act and rule 3AAA (2) of the Panchayat Raj Rules by
the Court are not correct. Section 117 (2)
or Section 117 A of the ZA Act perhaps
applies to a case when property within the
jurisdiction of one local authority is
vested in any other local authority. But in
case the property itself falls within the
jurisdiction of other local authority, then
they do not apply. Rule 3 -AAA (2) (a)
and (b) are also relevant and clarify this
point. Perhaps the moment the property of
Gaon Sabha goes to another local
authority then the other local authority
becomes owner immediately, and no fresh
notification is necessary, but this will
await a suitable case.

CONCLUSION

19. My conclusions are as follows:

(i) Benefit under section 122-B (4F) can
only be given over land vested in a
Gaon Sabha.

6 Gaon Sabha Jhinjhak vs. State of U.P.; AIR
1973 Allahabad 403
7 Mohd. Amir vs. Lala Ram; 1983 UPLBEC
685
2 All] Sunit Kumar Tyagi Vs. State of U.P. and others
369
(ii) When Gaon Sabha is declared to be a
town area on Nagar Panchayat then it
ceases to exist and is divested of all
properties.

(iii) Gaon Sabha Rithaura ceased to exist
on 10th April 1974 and did not hold
any property on the relevant date
under section 122-B (4F) of the ZA
Act, the petitioners did not acquire
any rights over the land in dispute.

(iv) The petitions have no merits and are
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE R.P. MISRA, J

Civil Misc. Writ Petition No. 3945 of 1998

Sunit Kumar Tyagi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan

Counsel for the Respondents:
Sri Ranjeet Saxena
Sri U.S. Awasthi
S.C.

Land
Acquisition
Act-
Section
48-
Interest of justice requires that the
respondents should take a quick decision
whether they would pursue with the
acquisition proceedings and would take
possession of the land or they would like
to withdraw from acquisition of the land
by
taking
appropriate
action
in
accordance with the section 48 of the
Act. The respondents are accordingly
directed
to
take
a
final
decision
expeditiously preferably within 4 months
in the matter whether they would still
proceed with the acquisition proceedings
and take possession of the land by
dispossessing those who had raised
constructions over the plot in dispute or
they
would
withdraw
from
the
acquisition of the land.

(Held in para 16).

If a decision is taken to withdraw from
acquisition of the land, appropriate steps
shall be taken by the government to
issue a notification in that regard. If,
however, the respondents decide not to
withdraw
from
the
acquisition
proceedings to its logical end, the award
for the acquired land under section 11 of
the Act shall be made expeditiously and
in accordance with law. Without being
influenced in any manner by the interim
order passed by this Court on 7.10.1998.
The Collector/Special Land Acquisition
Officer
would
also
adjudicate
the
question as to who is entitled to get the
compensation.
Case law referred.
1997 (1) SCC 134
1979 RD 226

(Delivered by Hon'ble G.P. Mathur, J.)

1. This writ petition under Article
226 of the Constitution has been filed
praying that a writ, order or direction in
the nature of mandamus be issued
commanding the respondents to pay 80
percent of the estimated amount of the
compensation as provided by section 17
(3-A) of Land Acquisition Act to the
petitioner in respect of plots no. 947 and
1019/2 of village Makanpur, Tehsil Dadri,
district NOIDA, along with 24 per cent
interest from 13.11.1997, when the
respondents took possession over the
aforesaid plots. The writ petition was filed
on
29.1.1998
and
subsequently
on
27.1.1999, an amendment application was