Court No. - 43
Case :- WRIT - C No. - 8540 of 2018 Petitioner :- Bhura Respondent :- Upper Ayukt, Saharanpur And 3 Others Counsel for Petitioner :- Pankaj Kumar Srivastava,Ambuj Srivastava Counsel for Respondent :- C.S.C.,Rajesh Yadav
Hon'ble Pankaj Naqvi,J.
Heard Sri Pankaj Kumar Srivastava, learned counsel for the petitioner, Sri Rajesh Yadav, learned counsel for the Gaon Sabha and Sri Rajesh Kumar, the learned standing counsel.
Sri Rajesh Kumar, the learned standing counsel states that as the issue involved in this petition is purely legal, he does not propose to file any counter affidavit, writ petition be decided on available materials.
A suit was filed by the petitioner under Section 229-B of the U.P. Z.A & L.R Act, claiming the benefit of Section 122-B (4F) of the said Act, alleging that he being a scheduled cast landless labourer, was in possession over the land in dispute since 3.6.1995, on the basis of adverse possession, he is liable to be declared as Bhumidhar with non-transferable rights. The Lekhpal in his evidence stated that the petitioner is in illegal possession over the land in dispute prior to 2.5.2002 that the petitioner does not possess any other land apart from the land in dispute, which is not of public utility land. The said suit came to be dismissed as abated on 20.2.2009 under Section 5(2) of the U.P. C.H. Act which has been affirmed in the revision order dated 10.3.2010.
Learned counsel for the petitioner submitted that with the abatement of his suit, the petitioner is remedyless as he is deprived of preferring his claim under Section 122-B (4F) of the U.P. Z.A & L.R. Act before the consolidation authorities under Section 9-A of the Act, in view of the judgement of the learned Single Judge of this Court in Nand Lal vs. Deputy Director of Consolidation, District Hardoi and others, Consolidation No.567/2015 decided on 5.8.2016, wherein it has been held that consolidation authorities have no jurisdiction to adjudicate a claim under Section 122-B (4F).
Sri Rajesh Kumar, the learned standing counsel submitted that no illegality could be attached to the orders impugned, inasmuch as once a notification under Section 4(2) came to be issued in respect of the land in dispute, the proceedings of the suit in question which relates to declaration of rights, was liable to be abated under Section 5(2) of the U.P. C.H Act. However, he further submitted that the impugned orders shall not be an impediment for the petitioner to prefer his claim before the Consolidation Officer under Section 9-A of the U.P. C.H. Act in view of the judgement of the Apex Court in Manorey vs. Board of Revenue, 2003 AIR (SC) 4102, which has been followed by learned Single Judge of this Court in Satpal vs. Collector / District Deputy Director of Consolidation and others (Writ B No.45468/2015).
Section 122-B (4F) of the U.P. Z.A & L.R Act provides that notwithstanding anything in the foregoing sub-section 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 13.5.2007 and the land so occupied, does not exceed 1.26 hct, then no action under this Section shall be taken by the Land Management Committee or the Collector against such agricultural labourer and he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195.
The Apex Court in Manorey (supra) had an occasion to examine the scope and extent of Section 122-B (4F), wherein it was held that the said provision being a beneficial piece of Legislature, benefit thereof, can be claimed, irrespective of whether the person concerned is facing any eviction proceedings under Section 122-B of the Act or not. The only requirement is that the person claiming benefit under Section 122-B (4F) must satisfy the conditions mentioned therein. It further held that such a benefit can be claimed by way of an application.
The learned Single Judge of this Court in Satpal (supra) held that the view taken by the consolidation authorities that they had no jurisdiction to confer the benefit under Section 122-B (4F) of the Act was incorrect, i.e., in view of Manorey (supra), consolidation authorities are well within the jurisdiction to confer the right / benefit under Section 122-B (4F) in proceedings under Section 9-A of the U.P.
C.H. Act.
The judgement of the learned Single Judge in Nand Lal (supra) decided on 5.8.2015 is oblivious of the judgement of the Apex Court in Manorey (supra), decided on 2.4.2003.
The view taken by the revenue authorities that with the issuance of notification under Section 4(2) of the U.P. C.H Act, the proceedings under Section 229-B, relating to declaration of rights was rightly abated under Section 5(2) of the U.P. C.H. Act, to which no perversity could be demonstrated.
The writ petition is devoid of merit and is dismissed.
However, the petitioner is at liberty to approach the Consolidation Officer concerned for redressal of his grievance under Section 9-A of the U.P. C.H Act, within 2 months from today, in the event the petitioner approaches the authority concerned within the stipulated period, parties are directed to maintain status quo with regard to nature and possession over the land in dispute, till the disposal of the claim.
It is clarified that this Court has not commented on the merits of the claim of the petitioner.
Order Date :- 27.4.2018 Chandra