# Sushila & Anr v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 973
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-25
- **Case number:** Misc. Single No. 4794 of 2015
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushila-anr-v-state-of-u-p-ors-43330
- **Pages:** 17

## Headnote

Constitution of India Art.-226-Alternative
Remedy-order passed under Section 122-B
(4-F) of U.P. Zamindari Abolition Act-can be
challenged on statutory remedy of Revisionwrit-not maintainable.
Held: Para-41
So far as the question as to whether the
order
passed
conferring
benefit
of
Section 122-B (4-F) of the Act on any
person or an order cancelling such
benefit is an administrative order and
against such order no appeal or revision
would lie, as claimed by learned counsel
for the petitioners is concerned, suffice is
to observe that provisions of Section
122-B (4-F) of the act does not confer
any independent right on a person and
the
provisions
as
envisaged
under
Section 122-B (4-F) of the Act is to be
read in consonance with other provisions
under Section 122-B of the Act. Under
Section 122-B (4-A) of the Act, there is a
specific
provision
of
filing
revision
against an order passed in proceedings
under Section 122-B of the Act, as such,
I am of the considered view that any
order passed in the matter relating to
Section 122-B (4-F) of the Act is a
judicial order and the same would be
amenable to revisional jurisdiction under
Section 122-B (4-A) of the Act. Any
person aggrieved has a remedy of filing
revision under Section 122-B (4-A) of the
Act in this regard.
Case Law discussed:
AIR 2003 (SC) 4102; 2007 (102) RD 136.

## Text

_Characters 0–39,977 of 57,164. This is a partial read: ask again with offset=39977 for what follows._

2 All] Sushila & Anr. Vs. State of U.P. & Ors.
973
9. Further, in the Sate of Uttar Pradesh
the matter in regard to compassionate
appointment is governed by the Rules known
as under U.P. Recruitment of Dependants
Government Servants Dying in Harness
(Ninth Amendment ) Rules, 2011 and the
definition of family is being given in Rule 2C
of the Rules which reads as under:-
"2(C) 'family' shall include the
following relations of the deceased
Government servant;
(i) wife or husband;
(ii) sons/adopted sons;
(iii) unmarried daughters, unmarried
adopted daughters, widowed daughters
and widowed daughters-in-law;
(iv) unmarried brothers, unmarried
sisters and widowed mother dependent on
the deceased Government servant, if the
deceased
Government
servant
was
unmarried;
(v) aforementioned relations of such
missing Government servant who has
been declared as "dead" by the competent
court;
Provided that if a person belonging to
any of the above mentioned relations of the
deceased Government servant is not available
or is found to be physically and mentally unfit
and thus, ineligible for employment in
Government service, then only in such
situation the work "family" shall also include
the grandsons and the unmarried grand
daughters of the deceased Government
servant dependent on him."
10. A Division Bench of this Court in
the case of Sunita Bhadooria (Smt.) v. State of
U.P. and another (2006) 1 UPLBEC 754 after
considering the the provisions as provided
under Rule 2 (c) of U.P. Recruitment of
Dependants Government Servants Dying in
Harness (Ninth Amendment) Rules, 2011 has
held that the married daughter of the deceased
is not entitled for compassionate appointed
under Dying-in-Harness Rules, 1974. (See
also Smt. Reeta Singh v. State of U.P. and
others (2013) 2 UPLBEC 1540, Sarita Singh
v. State of U.P. and others 2012 (91) ALR
323 and in Special Appeal No.553 of 2014
"Gayatri Singh v. State of U.P. and others ").
11. The said view has further reiterated by
this Court in the case of Sapana Tiwari Vs. Stte of
U.P. And others , 2015(33) LCD 1381 wherein it
is also held that married woman does not fall
within the definition of family of the deceased as
given under Rule 2 (c) of U.P. Recruitment of
Dependants Government Servants Dying in
Harness (Ninth Amendment) Rules, 2011.
12.
Accordingly, the petitioner being
married daughter of the late Suresh Nath Misra,
who died while working and discharging his
duties on the post of Assistant Teacher of the
institution known as Public Inter College,
Sampoorna Nagar Kheri is not entitled for
compassionate appointment under Regulation
103 Chapter III of U.P. Intermediate Education
Act, 1921 , so I do not find any illegality or
infirmity in the impugned order dated
21.1.2015 passed by opposite party no.2/
District Inspector of Schools, Lakhimpur
Kheri, the writ petition liable to be dismissed.
13. For the foregoing reasons, the
writ petition lacks merit and is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.08.2015
BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
Misc. Single No. 4794 of 2015
Sushila & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
974
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Rajeiu Kumar Tripathi
Counsel for the Respondents:
C.S.C., Azad Khan
Constitution of India Art.-226-Alternative
Remedy-order passed under Section 122-B
(4-F) of U.P. Zamindari Abolition Act-can be
challenged on statutory remedy of Revisionwrit-not maintainable.
Held: Para-41
So far as the question as to whether the
order
passed
conferring
benefit
of
Section 122-B (4-F) of the Act on any
person or an order cancelling such
benefit is an administrative order and
against such order no appeal or revision
would lie, as claimed by learned counsel
for the petitioners is concerned, suffice is
to observe that provisions of Section
122-B (4-F) of the act does not confer
any independent right on a person and
the
provisions
as
envisaged
under
Section 122-B (4-F) of the Act is to be
read in consonance with other provisions
under Section 122-B of the Act. Under
Section 122-B (4-A) of the Act, there is a
specific
provision
of
filing
revision
against an order passed in proceedings
under Section 122-B of the Act, as such,
I am of the considered view that any
order passed in the matter relating to
Section 122-B (4-F) of the Act is a
judicial order and the same would be
amenable to revisional jurisdiction under
Section 122-B (4-A) of the Act. Any
person aggrieved has a remedy of filing
revision under Section 122-B (4-A) of the
Act in this regard.
Case Law discussed:
AIR 2003 (SC) 4102; 2007 (102) RD 136.
(Delivered by Hon'ble Ritu Raj Awasthi, J.)
1. Heard Mr. Rajeiu Kumar Tripathi,
learned counsel for the petitioners, Mr.
M.E. Khan, learned Additional Chief
Standing Counsel as well as Mr. Azad
Khan, learned counsel for Gaon Sabha
and perused the records. Mr. Ashok
Kumar Verma, Advocate, with the leave
of
the
Court
has
also
made
his
submissions in order to assist the Court.
2. Since the writ petition involves
purely legal questions of law, as such,
with the consent of parties' counsel, it is
being decided at the admission stage
without calling for counter affidavit.
3. The instant writ petition has been
filed
challenging
the
orders
dated
26.02.2014 and 13.01.2015, contained in
Annexures-2 and 3 to the writ petition,
whereby the operation of order dated
29.01.2013 granting benefits of Section
122-B (4-F) of the Act1 in favour of the
petitioners was kept in abeyance and
thereafter was cancelled and lands in
question was directed to be recorded as
banjar land etc. in favour of Gaon Sabha.
4. A preliminary objection regarding
maintainability of writ petition has been
taken by learned Standing Counsel on the
ground that petitioners have statutory
alternative remedy of filing revision under
Section 122-B (4-A) of the Act against
the impugned order, as such, writ petition
directly in the High Court without
exhausting
the
statutory
alternative
remedy is not maintainable.
5. The facts of the case as narrated
in the writ petition are that petitioners are
said to be agricultural labourers belonging
to scheduled caste, they are in cultivatory
possession over Gata No.1199 measuring
area 0.50 hectare and Gata No.1088
measuring area 0.152 hectare (with regard
to petitioner no.1) whereas Gata No.1102J measuring area 0.083 hectare and Gata
No.1175 measuring area 0.033 hectare
2 All] Sushila & Anr. Vs. State of U.P. & Ors.
975
(with regard to petitioner no.2) in Village
Sithauli, Pargana & Tehsil Rudauli, District
Faizabad. The lands held by them are in their
possession prior to 13th May, 2007, i.e. the
cut-off date mentioned in Section 122-B (4B), as such, petitioners are entitle to get
benefit of Section 122-B (4-F) of the Act.
The opposite party no.2/Sub-Divisional
Magistrate, Rudauli, District Faizabad after
calling the report and recommendation of the
revenue
authorities
vide
order
dated
29.1.2013 had passed the orders in favour of
petitioners, giving them benefit of Section
122-B (4-F) of the Act and the revenue
authorities were directed to make necessary
entries in the revenue records. Subsequently,
the names of petitioners were entered in the
revenue records as "Bhumidhar with nontransferable rights" over the lands in
question.
6. It is submitted by learned counsel
for the petitioners that the lands in
question were not recorded as land
reserved for public purposes or the land
mentioned in Section 132 of the Act;
rather the land was vested in Gaon Sabha
under Section 117 of the Act. It is alleged
that the panel Advocate of Gaon Sabha,
on the instigation of persons enemical to
the petitioners, had filed application for
recall of order dated 29.1.2013. The
petitioners had filed their objections to the
said application. The opposite party no.2,
in most arbitrary and illegal manner
without condoning the delay, vide order
dated 26.02.2014 had put the order dated
29.1.2013 in abeyance and thereafter vide
final order dated 13.1.2015 has set aside
the order dated 29.1.2013 and has directed
the lands in question to be recorded as
'banjar' lands in favour of Gaon Sabha.
7. Learned counsel for petitioners
submitted that in Writ Petition No.6691
(MS) of 2014 the High Court vide order
dated 17.10.2014 had stayed the operation
of the impugned order dated 26.2.2014.
However, the said writ petition was
subsequently dismissed as withdrawn
with liberty to file separate cases on
behalf of petitioners of that writ petition.
8. Mr. Rajeiu Kumar Tripathi,
learned counsel for petitioners, in reply to
the preliminary objection raised by
learned Standing Counsel, submitted that
the order impugned is not amenable to
revisional jurisdiction as it has been
passed under Section 122-B (4-F) of the
Act which lies in administrative domain
of the concerning competent authority and
such orders are not revisable.
9. Submission is that order giving
benefit of Section 122-B (4-F) of the Act
is not a judicial order;
rather it is
administrative order against which neither
restoration nor the review is entertainable
nor maintainable. Hence, both the orders
dated 26.2.2014 and 13.1.2015 are
without jurisdiction and void ab initio. It
is also submitted by learned counsel for
the petitioners that the revision provided
under Section 122-B (4-A) of the Act
would not be applicable to any order
passed giving benefit of Section 122-B (4F) of the Act to any person.
10. It is also submitted that under
the Act the statutory remedy available to a
person is under Section 331 of the Act.
Order passed in exercise of powers under
various provisions as mentioned in
Schedule II can be challenged by filing
first appeal/second appeal before an
authority as given in the said Schedule.
Since Schedule-II which is to be read with
reference to Section 331 of the Act does
not entail Section 122-B of the Act, as
976
 INDIAN LAW REPORTS ALLAHABAD SERIES
such, no remedy is available to the
petitioners against the order cancelling the
benefit conferred on them under Section
122-B (4-F) of the Act.
11. Submission is that revisional order
under Section 122-B (4-A) of the Act is with
respect to the orders passed under Section
122-B sub-Section (3) and and it is not
applicable to the orders passed giving benefit
of Section 122-B (4F) of the Act which is
purely administrative order.
12. It is further submitted that the
rights under sub-Section (4-F) of the Act
is independent right which can be claimed
even when there is no pendency of
proceedings under Section 122-B of the
Act and the person can be treated as
Bhumidhar with non-transferable rights
under Section 131 (b) of the Act.
13.
Mr. Rajeiu Kumar Tripathi,
learned counsel for petitioners in support of
his submission has relied on the judgment of
Hon'ble Apex Court in the case of Manorey
@ Manohar Vs. Board of Revenue and
others2. It is submitted that in view of law
laid down by the Apex Court the legal
position would be summarized as under:-
i.The rights under sub-section (4-F) of
the Act is independent "statutorily fiction"
even when there is no pendency of
proceedings under sub-section (1) and (3) of
section 122-B of the Act and he is
bhumidhar under section 131 (b) of the Act.
ii.Revenue authorities are under
mandate to keep the revenue records in
the line of rights recognized under
deeming provisions of sub-section (4-F)
which is one such right that false within
the per view of section 131 (b) of the Act.
iii.Since such a mandate casts upon
the revenue authorities does not find any
specific procedure either in the Act or
Rules framed thereunder and in last line
of sub-section, it has specifically being
provided that there is no necessity to file a
suit for declaration of such rights. On the
basis of it, inference regarding the
intention of legislature can easily be
drawn that beneficiary of such "statutorily
fiction" is not required to go through
rigorous process of court and law and
should not be subjected to long drawn
litigation in the name of "Recall/Review"
or "Appeal" and "Revision".
iv.Since Section 333 of the Act provide
revision against any order passed in any suit
or proceedings under the Act and in view of
provisions of section 331 of the Act, read
with Schedule-II, and Rules 338/338-A read
with Appendix-III, the provisions of subsection (4-F) of Section 122-B of the Act,
does not find place therein, as such the
duty/mandate
cast
upon
the
revenue
authority is not a judicial proceedings hence
any order passed therein to keep the revenue
records
updated,
is
an
administrative
discharge of duties by such revenue official
therefore, it may be concluded that no
revision is maintainable against any order
under sub-section (4-F) of the Act.
v.That nature of any order making
entries in the records of rights, in discharge
of administrative duties by a revenue official
in consonance with the provisions of the subsection (4-F) of the Act may easily be
gathered from the judgment and order dated
02.05.2012 passed by this Hon'ble Court at
Allahabad in case Writ-C No. 11431 of 2012
"Lal Ji Harijan Vs. State of U.P. & others"
and also from Board Order no. 6074/G-546A/86, dated 21 May of 1987 issued by
Board of Revenue Uttar Pradesh and Apex
statutory body of the State (Copies annexed
herewith).
vi.Since the view of this Hon'ble Court
taken in case of "Ramdev Vs. Board of
2 All] Sushila & Anr. Vs. State of U.P. & Ors.
977
Revenue, 1994, R.D. Page 395", has been
overruled by Hon'ble the Apex Court in case
of Manorey @ Manohar (Supra) and the case
laws relied upon by the learned counsel for
the State are in the same footings as that of
judgment rendered in case of Ramdeen
(Supra) and that too without having any
consideration of law laid down by Hon'ble
the Apex Court in Manorey @ Manohar, are
of no avail to the submission advanced on
behalf of the State and same may kindly be
treated as "Per-incuriam".
vii.Since the orders impugned in the
Writ Petitions are "without jurisdiction" in
view of the facts that opposite party no. 2 is
not vested with any power to recall or review
its own order dated 29.01.2013 passed in
discharge of mandate or discharge of duties
on administrative side and further in view of
the facts that the applications before him was
not supported with any affidavit so as to
condone the delay, though the opposite party
no. 2 was not dealing with any judicial
proceedings as such thee was no question of
condonation of delay but if same is being
sought for, then for the sake of argument
without condoning the delay opposite party
no. 2 lacks inherent jurisdiction to enter in to
the
merits
of
the
application
for
recall/review. In vew of law laid down by
Hon'ble Ape Court and this Hon'ble Court in
following cases, impunged orders being
"without jurisdiction" are amenable to extra
ordinary jurisdiction under Article 226 of the
Constitution of India irrespective of any
alternative remedy (though as respectfully
submitted herein above there is no legal
remedy before the petitioners against the
orders impugned in the Writ Petition":-
a. Whirpool Versus Registrar of
Trade Marks 1998 (8) SCC, page 1
b. Satwati Deswal Versus State of
Haryana & others, 2009 (27 LCD, 1711.
c. Lipton India Ltd. Ghaziabad
Versus State of U.P., 2009 (27) LCD,
161.
14. It is submitted by learned
counsel for the petitioner that the Board
of Revenue vide circular dated 21st May,
1987 has laid down the procedure for
extending benefits of Section 122-B (4-F)
of the Act to the eligible persons. In this
regard the Lekhpal is required to give his
report on the prescribed proforma and the
competent authority is required to extend
the benefit of Section 122-B (4-F) of the
Act by passing appropriate orders. It is
submitted that the entire exercise is in the
administrative capacity of the authority
concerned and, as such, no appeal or
revision would lie in such proceedings.
The circular dated 21.5.1987, which has
been placed before the Court during
arguments, has been taken on record.
15. Mr. Ashok Kumar Verma,
Advocate, with the leave of the Court has
made his submissions that the procedure
as envisaged under Section 122-B of the
Act is complete in itself, it provides in
detail the procedure which is required to
be followed, the order which is to be
passed and the remedy available against
the said order. It also provides the right of
defence to the person aggrieved. Mr.
Ashok Kumar Verma submitted that
provisions of Section 122-B (4-F) of the
Act cannot be read independently. It has
to be read with respect to other provisions
as contained in Section 122-B (1) to subSection (4-D) of the Act. It is further
submitted by him that so far as the
provisions under Section 122-B (4-F) of
the Act conferring right of defence to an
aggrieved person is concerned, in fact, the
said provision provides positive right to
the aggrieved person and it clearly means
978
 INDIAN LAW REPORTS ALLAHABAD SERIES
that the said person claiming the benefit
of Section 122-B (4-F) of the Act can
move an application for correction of
revenue records under Section 39 of U.P.
Land Revenue Act and the concerning
revenue authority on moving of such
application can pass necessary orders for
correction of revenue records after
holding enquiry etc., as may be required.
16. Learned Additional Chief
Standing Counsel, on the other hand,
submitted that the order extending the
benefits of Section 122-B (4-F) of the Act
cannot be treated to be an order passed in
independent proceedings; rather the same
is in continuation of the proceedings
under Section 122-B of the Act which are
judicial in nature. It is submitted that such
orders are revisable and revision filed in
this regard are maintainable. The Board of
Revenue in the case of Basanti Vs. State
of U.P.3 has observed that "it cannot be
said by any stretch of imagination that an
order passed under Section 122-B (4F) of
the U.P.Z.A. & L.R. Act are executive in
nature......"
17. It is submitted that the
provisions under Section 122-B (4-F) of
the Act is an exception to the general
provisions contained under Section 122-B
of the Act.
18. Learned Additional Chief
Standing Counsel has emphasised that the
word "notwithstanding" mentioned in
Section 122-B (4-F) of the Act itself
denotes that it cannot be treated to be an
independent provision and it has to be
read with other provisions as contained in
Section 122-B of the Act. It is further
contended that if the intention of the
legislature was to the effect that the order
passed under Section 122-B (4-F) of the
Act shall be final and no appeal or
revision shall lie against the same, it
would have been specifically mentioned
in the said Section itself as it has been
done in Rule 115-P (5) of the Rules4
which categorically provides that the
order passed by Collector under sub-Rule
shall be final. It is submitted that rights
conferred Section 122-B (4-F) of the Act
is a right of defence, when a person is
sought to be evicted or dispossessed from
the land of Gaon Sabha and it is not a
weapon of offence. Learned Additional
Chief Standing Counsel further submitted
that Schedule II of the Act provides
proceedings and forum in which the first
appeal and second appeal will lie under
Section 331 of the Act, however, the same
does not include the entire proceedings
which can be initiated under the Act.
19. It is submitted that since the
provisions contained under Section 122-B
(4-F) of the Act are deeming provisions
and it provides for conferring rights of a
Bhumidhar with non-transferable rights
who is in possession over the land under
Section 195 of the Act, if he is found in
possession prior to 13th May, 2007 and
no separate proceedings are required to be
initiated for claiming such rights. In this
regard he has relied on the judgment of
this Court in the case of Shambhu Nath
and
others
Vs.
Commissioner
Vindhyachal
Region,
Mirzapur
and
another5.
20. Learned Additional Chief
Standing Counsel also submitted that if a
person is in possession over any land
vested in Gaon Sabha under Section 117
of the Act since or before 13th May,
2007, he can apply for correction of
revenue records under Section 33/39 of
U.P. Land Revenue Act and the revenue
2 All] Sushila & Anr. Vs. State of U.P. & Ors.
979
records may be corrected on the said
application by recording the name of
persons claiming benefit of Section 122-B
(4-F) of the Act after due enquiry by the
Collector. The order passed under Section
39 of U.P. Land Revenue Act shall also
be amenable to revision under Section
219 of the Act. In support of his
arguments,
learned
Additional
Chief
Standing Counsel also relies on the
judgment of Hon'ble Apex Court in the
case of Manorey @ Manohar (supra).
21. It is submitted that writ petition
has been filed directly against the order
which have been passed in exercise of
power under Section 122-B (4-F) of the
Act, the petitioners have remedy of filing
revision against the said order, as such,
the writ petition directly in the High Court
without exhausting the statutory remedy
of filing revision is not maintainable.
22. Mr. Rajeiu Kumar Tripathi,
learned counsel for petitioners, in rebuttal,
submitted that there are no proceedings as
such under Section 122-B (4-F) of the
Act. It is in fact a deeming provision
which is on the basis of fiction in the
provisions under Section 122-B of the
Act, as such, the benefits conferred on a
person under Section 122-B (4-F) of the
Act is by way of administrative order
which is not amenable to any proceedings
under Section 333 (1) of the Act or
revision if any in other provisions of the
Act.
23.

I
have
considered
the
submissions made by learned counsel for
the parties and gone through the records.
24. The question which has cropped
up for this Court to consider is whether
the order giving benefits of Section 122-B
(4-F) of the Act is an administrative order
against which there is no statutory remedy
of filing appeal or revision.
25. In order to consider the said
question, it would be appropriate to first
examine the relevant provisions under the
Act.
26. Section 122-B of the Act as
amended
from
time
to
time
on
reproduction reads as under:-
"122-B.
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
damages or misappropriated or where
any Gaon Sabha or local authority is
entitled to take or retain possession of any
land under the provisions of this Act and
such land is occupied otherwise than in
accordance with the provisions of this
Act, the Land Management Committee or
Local Authority, as the case may be, shall
inform the Assistant Collector concerned
in the manner prescribed.
(2)
Where from the information
received under sub-section (1) or otherwise,
the Assistant Collector is satisfied that any
property referred to in sub-section (1) has
been damaged or misappropriated or any
person is in occupation of any land, referred
to in that sub- section, in contravention of the
provisions of this Act, he shall issue notice to
the person concerned to show cause why
compensation for damage, misappropriation
or wrongful occupation as mentioned in such
notice be not recovered from him or, as the
case may be, why he should not be evicted
from such land.
(3) If the person to whom a notice
has been issued under sub-section (2)
fails to show cause within the time
980
 INDIAN LAW REPORTS ALLAHABAD SERIES
specified in the notice or within such
extended time not exceeding [thirty days]
from the date of service of such notice on
such person, as the Assistant Collector
may allow in this behalf, or if the cause
shown is found to be insufficient, the
Assistant Collector may direct that such
person may be evicted from the land and
may for that purpose, use, or cause to be
used such force as may be necessary and
may
direct
that
the
amount
of
compensation
for
damage,
misappropriation or wrongful occupation
be recovered from such person as arrears
of land revenue.
(4) If the Assistant Collector is of
opinion that the person showing cause is
not guilty of causing the damage or
misappropriation or wrongful occupation
referred to in the notice under sub-section
(2) he shall discharge the notice.
(4-A). Any person aggrieved by the
order of the Assistant Collector under
sub-section (3) or sub-section (4) may,
within thirty days from the date of such
order prefer, a revision before the
Collector on the grounds mentioned in
clauses (a) to (e) of Section 333.
(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 (4-A) and
(4-D), be final.
(ii) every order of the Collector
under this Section shall, subject to the
provisions of sub-section (4-D), 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 (4-D) shall lie against an
order of the Assistant Collector if a
revision is preferred to the Collector
under sub-section (4-A).
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
Scheduled Caste or Scheduled Tribe is in
occupation of any land vested in a Gaon
Sabha under Section 117 ( not being land
mentioned
in
Section
132)
having
occupied it from before [May 13, 2007]
and the land so occupied together with
land, if any, held by him from before the
said date as Bhumidhar, sirdar or asami,
does not exceed 1.26 hectares (3.125
acres), then no action under this section
shall be taken by the Land Management
Committee or the Collector against such
labourer, and [he shall be admitted as
bhumidhar with non-transferable rights of
that land under section 195 and it shall
not be necessary for him to institute a suit
for declaration of his rights as bhumidhar
with non-transferable rights in that
land]".
Explanation.-The
expression
"agricultural labourer" shall have the
meaning assigned to it in Section 198.
[(5) Rules 115-C to 115-H of the
U.P.Zamindari
Abolition
and
Land
Reforms Rules, 1952, shall be and be
always deemed to have been made under
the U.P. Zamindari Abolition and Land
Reforms Act, 1950 as amended by the
2 All] Sushila & Anr. Vs. State of U.P. & Ors.
981
Uttar Pradesh Land Laws (Second
Amendment) Act, 1961, as if this section
has been in force on all material dates
and shall accordingly continue to force
until altered or repealed or amended in
accordance with the provisions of this
Act.]"
27.
Section 131 of the Act relates to
bhumidhars with non-transferable rights,
whereas Section 131-A of the Act provides
bhumidhari rights in Gaon Sabha or State
Government land in certain circumstances
and Section 131-B of the Act provides
bhumidhar with non-transferable rights to
become bhumidhar with transferable rights
after ten years. The relevant provisions on
reproduction reads as under:-
"131.
Bhumdhar
with
nontransferable
rights.-
Every
person
belonging to any of the following classes
shall be called a bhumidhar with nontransferable rights and shall have all the
rights and be subject to all the liabilities
comferred
or
imposed
upon
such
bhumidhars by or under this Act, namely-
(a) every person admitted as a sirdar
of any land under Section 195 before the
date of commencement of the Uttar
Pradesh Land Laws (Amendment) Act,
1977 or as the bhumidhar with nontransferable rights under the said section
on or after the said date;
(b) every person who in any other
manner acquires on or after the said date,
the rights of such bhumidhar under or in
accordance with the provisions of this
Act;
(c) every person who is, or has been
allotted any land under the provision of
the Uttar Pradesh Bhoodan Yagna Act,
1952.
(d) with effect from July 1, 1981
every person with whom surplus land is
or has been settled under Section 26-A or
sub-section (3) of Section 27 of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings Act, 1960.
[131-A. Bhumidhari rights in Gaon
Sabha or State Government land in
certain circumstances.- Subject to the
provisions of section 132 and section 133A, every person in cultivatory possession
of any land, vested in a Gaon Sabha
under section 117 or belonging to the
State Government, in the portion of
district Mirzapur south of Kaimur range,
other than the land notified under section
20 of the Indian Forest Act, 1927, before
the 30th day of June, 1978, shall be
deemed to have become a Bhumidhar with
non-transferable rights of such land:
Provided that where the land in
cultivatory possession of a person, together
with any other land held by him in Uttar
Pradesh exceeds the ceiling area determined
under the Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1960, the
rights of a Bhumidhar with non-transferable
rights shall accrue in favour of such person
in respect of so much area of the firstmentioned land, as together with such other
land held by him, does not exceed the ceiling
area applicable to him, and the said area
shall be demarcated in the prescribed
manner in accordance with the principles
laid down in the aforesaid Act.
[131-B.
Bhumidhar
with
nontransferable rights to become bhumidhar
with transferable rights after ten years.-
(1) Every person who was a bhumidhar
with nontransferable rights immediately
before the commencement of the Uttar
Pradesh Zamindari Abolition and Land
Reforms (Amendment) Act, 1995 and had
been such bhumidhar for a period of ten
years or more, shall become a bhumidhar
withtransferable
rights
on
such
commencement.
982
 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) Every person who is bhumidhar
with non-transferable rights on the
commencement referred to in sub-section
(1) or becomes a bhumidhar with nontransferable
rights
after
such
commencement, shall become bhumidhar
with transferable rights on the expiry of
period of ten years from his becoming a
bhumidhar with non-transferable rights.
(3)
Notwithstanding
anything
contained in any other provision of this
Act, if a person, after becoming a
bhumidhar with transferable rights under
sub-section
(1)
or
sub-section
(2).
Transfers the land by way of sale, he shall
become ineligible for a lease of any land
vested in Gaon Sabha or the State
Government or of surplus land as defined
in the Uttar Pradesh Imposition of Ceiling
on Land Holdings Act, 1960.]"
28. Section 195 of the Act
empowers
the
Land
Management
Committee with the previous approval of
the Assistant Collector-in-charge of the
Sub Division to admit any person as
bhumidhar with non-transferable rights to
any land other than land being in any of
the classes mentioned in Section 132 of
the Act. Section 195 of the Act on
reproduction reads as under:-
"195. Admission to land. -The [Land
Management
Committee]
[with
the
previous approval of the [Assistant
Collector-in-charge of the sub-division]
shall have the right to admit any person
as [bhumidhar with non-transferable
rights] to any land (other than land being
in any of the classes mentioned in Section
132) where-
(a) the land is vacant land;
(b) the land is vested in the [Gaon
Sabha] under Section 117; or
(c) the land has come into the
possession
of
[Land
Management
Committee] under Section 194 or under
any other provisions of this Act."
29. Section 331 of the Act puts an
embargo that no Court other than a Court
mentioned in Column 4 of Schedule II
shall, notwithstanding anything contained
in Civil Procedure Code take cognizance
of any suit, application or proceedings
mentioned in Column 3 thereof. Section
331 of the Act on reproduction reads as
under:-
"331. Cognizance of suits, etc. under
this Act.- (1) Except as provided by or
under this Act no court other than a court
mentioned in Column 4 of Schedule II
shall, notwithstanding anything contained
in the Civil Procedure Code, 1908 (V of
1908), take cognizance of any suit,
application, or proceedings mentioned in
Column 3 thereof or of a suit application
or proceedings based on a cause of action
in respect of which any relief could be
obtained by means of any such suit or
application;
Provided that where a declaration
has been made under Section 143 in
respect of any holding or part thereof, the
provisions of Schedule II insofar as they
relate
to
suits,
applications
or
proceedings under Chapter VIII shall not
apply to such holding or part thereof.
Explanation.- If the cause of action is
one in respect of which relief may be
granted by the revenue court, it is
immaterial that the relief asked for from
the civil court may not be identical to that
which the revenue court would have
granted.
[(1-A) Notwithstanding anything in
sub-section *I), an objection that a court
mentioned in Column 4 of Schedule II, or,
2 All] Sushila & Anr. Vs. State of U.P. & Ors.
983
as the case may be, a civil court, which
had no jurisdiction with respect to the
suit, application or, proceeding, exercised
jurisdiction with respect thereto shall not
be entertained by any appellate or
revisional court unless the objection was
taken in the court of first instance at the
earliest possible opportunity and in all
cases where issues are settled, at or
before such settlement, and unless there
has been a consequent failure of justice.
(2) Except as hereinafter provided no
appeal shall lie from an order or decree
passed under any of the proceedings
mentioned in column 3 of the Schedule
aforesaid:
[(3) An appeal shall lie from any
decree or from an order passed under
Section 47 or an order of the nature
mentioned in Section 104 of the Code of
Civil Procedure, 1908 (V of 1908) or in
Order 43, Rule 1 of the First Schedule to
that Code passed by a court mentioned in
column no. 4 of Schedule II to this Act in
proceedings mentioned in column No. 3
thereof
to
the
court
or
authority
mentioned in column No. 5 thereof.
(4) A second appeal shall lie on any
of the grounds specified in Section 100 of
the Code of Civil Procedure, 1908 (V of
1908) from the final order or decree,
passed in an appeal under sub-section
(3), to the authority, if any, mentioned
against it in column 6 of the Schedule
aforesaid.]"
30. Section 333 of the Act gives
power to the revenue authorities to
exercise the revisional power in certain
cases. Section 333 of the Act on
reproduction reads as under:-
"333.(1) 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 proceedings under sub-section (4-A)
of Section 198] decided by any court
subordinate to him in which no appeal
lies, or, where an appeal lies but has not
been preferred, for the purpose of
satisfying himself as to the legality or
propriety of any order passed in such suit
or proceeding and if such subordinate
court appears to have ;
(a) exercised a jurisdiction not
vested in it in 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 it thinks fit.
(2) If an application under his 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.]"
31. Section 122-B of the Act is the
provision relating to the power of Land
Management
Committee
and
the
Collector to be exercised in such matters
where the land of Gaon Sabha has been
unauthorizedly occupied and is in the use
of individual person. The provision gives
the procedure in detail which is to be
followed in such matters.
32. In the case of Shambhu Nath and
others (supra) this Court has examined in
detail the procedures prescribed under
Section 122-B (4-F) of the Act which
does not need to be re-examined. The
relevant paragraphs of the judgment on
reproduction reads as under:-
984
 INDIAN LAW REPORTS ALLAHABAD SERIES
"11. Section 122-B(4-F) is placed in
part II Chapter VII which has the heading
"Gaon Sabha". In this very Chapter the
provisions of Section 117, 117-A and 119
regarding vesting of certain land etc. in
Gaon Sabha and other local authority
only with the provision for exercise of
further extra territorial jurisdiction by
Gaon Sabha or other local authority and
vesting of certain hats, bazars, melas and
private ferries etc. in the Zila Parishad or
other authority also find their place.
Section
122-A
speaks
about
superintendence,
management
and
control of land etc. by the Land
Management Committee.
12. Section 122-B under the scheme
of which Sub-section (4-F) has also been
inserted with a non-obstante clause, in
fact, obligates the Land Management
Committee and provides a mechanism to
save
Gaon
Sabha
land
from
encroachment or unauthorized possession
and for that matter information has to be
sent by the Committee to the Assistant
Collector concerned in the manner
prescribed. A detailed procedure has been
provided under sub Clause 2,3, and 4
regarding the manner in which such a
report is to be dealt with by the Assistant
Collector and if any person is aggrieved
by the order of Collector he has been
given right of revision before the
Collector under Sub-section (4-A). The
said provision of Section 122-B enjoins
responsibility upon the Land Management
Committee
to
keep
a
vigil
upon
unauthorized occupation of Gaon Sabha
land and if it finds that the said land has
been occupied or is in possession
otherwise than in accordance with the
provisions of the Act, immediate action is
to be taken by making a report to the
Assistant Collector concerned who would
issue notice and take appropriate action
and shall pass orders accordingly. This
has been done with a view to protect the
Gaon Sabha land from encroachers and
from misuse and mis-utilization of the
Gaon Sabha land.
13. Sub-section (4-F) of Section 122B of the Act carves out an exception
which permits the occupation over the
Gaon Sabha land by certain class of
persons
namely
Scheduled
Caste/Scheduled tribe, if he/she is an
agricultural labourer and has been in
possession over the said land since before
May 1, 2002. This provision appears to
have been made looking to the interest of
the scheduled caste or scheduled tribe
persons, who are agricultural labourer.
14. The occupation or unauthorized
possession
even
of
an
agricultural
labourer
belonging
to
Scheduled
caste/Scheduled tribe would not have
been legal nor such land could be settled
with him/her in the absence of the
aforesaid exceptional provision of Subsection (4-F) which was substituted by
U.P. Act No. 24 of 1986. Thus, it is an
enabling
provision
to
protect
the
agricultural
labourer
belonging
to
Scheduled Caste/Scheduled tribe from
being evicted from the Gaon Sabha land,
if
he/she
fulfills
the
conditions
enumerated therein. Under the given
circumstances,
the
said
agricultural
labourer would be admitted as bhumidhar
with non-transferable rights of that land
under Section 195 and it shall not be
necessary for him to institute a suit for
declaration of his rights as bhumidhar
with non-transferable rights.
15. U.P.