Heard Sri Virendra Mishra, learned counsel for the petitioners and Dr. Krishna Singh, learned Standing Counsel appearing for the State-respondents.
These proceedings under Article 226 of the Constitution of India have been instituted by the petitioners challenging the orders dated 31.11.2016, 17.07.2006, passed by the Board of Revenue and the order dated 28.06.1994, passed by the Collector/Record Officer, District Sonbhadra.
Submission of learned counsel for the petitioners is that the names of the petitioners in the relevant revenue records in respect of the land in question were ordered to be recorded by means of order dated 05.02.1989, passed by the Survey Naib Tehsildar conferring Bhumidhari rights on the petitioners in terms of the provision contained in Section 131-A of the U.P. Z.A. & L.R. Act and the said order dated 05.02.1989 has been set aside by the Record Officer/Collector, Sonbhadra by the impugned order dated 28.06.1994 without appropriately disclosing as to under which provision of law, the said order has been passed. Sri Mishra has vehemently argued that neither any provision under U.P. Land Revenue Act nor U.P. Z.A. & L.R. Act exists which empowers the Record Officer/Collector to pass the order dated 28.06.1994. He has stated that once the rights in favour of the petitioners were conferred in terms of Section 131-A of U.P. Z.A. & L.R. Act, then solely on the basis of inspection report dated 24.06.1994, that too, based on the inspection conducted by the Record Officer/Collector himself, the impugned order could not have been passed which ultimately has resulted in divesting the petitioners of their rights conferred on the basis of dated 05.02.1989, passed by the Survey Naib Tehsildar giving the benefit of Section 131-A of the U.P. Z.A. & L.R. Act. He has, thus, stated that Board of Revenue while deciding the revision petition, vide order dated 17.07.2006 and also while deciding the review petition, vide order dated 31.11.2016 has completely ignored the aforesaid legal aspect of the matter, as such the orders dated 17.07.2006 and 31.11.2016, passed by the Board of Revenue are liable to be set aside.
Basis of the claim of the petitioners in this case is the order dated 05.02.1989, passed by the Survey Naib Tehsildar. The said order can be found incorporated in the Khatauni pertaining to 1384 to 1386 Fasli. The said order which has been recorded in the Khatauni, reads as under :
"Jheku l0 uk0 r0 egksn; izi=&6 Hkkx 2 dzekad 393 vkns'k fnukad 05-02-89 ds vuqlkj vkns'k gqvk fd xkVk la[;k 6229[k [email protected]@3 ij Qwy flag gfjds'oj flag xkVk la[;k 6229[k [email protected] /kZeukFk flag iq= jkeujs'k flag dk uke crkSj ladz0 Hkwfe/kj ntZ gksA [kkrs ls [kkrsnkj dk uke [kkfjt gksA"
Thus, the aforesaid order dated 05.02.1989, on the basis of which the petitioners are claiming their rights, was passed by Survey Naib Tehsildar, which that means at the relevant point of time when the order by the Survey Naib Tehsildar was passed, the village in which the land is situated, was under record operation. The record operation in the State of U.P. is conducted under the provisions of U.P. Land Revenue Act, 1901. According to Section 48 of the said Act if the State Government is of the view that in any district or in any part of the district, a general or partial revision of the records or a re-survey, or both should be made, it shall publish a notification to that effect and as a consequence of such notification every such area shall be held to be under record or survey operation or both, as the case may be, from the date of the notification until the issue of another notification declaring the operations to be closed.
In term of Section 49 of the U.P. Land Revenue Act, the State Government appoints Record Officers and Assistant Record Officers to conduct record/survey operations. Section 51 of the U.P. Land Revenue Act provides that in case of any dispute concerning any boundaries, the Record Officer shall decide such dispute in the manner prescribed in Section 41. Section 52 provides that when any notification in respect of any area is issued for record/survey operation, the Record Officer shall prepare for each village a map and field-book, which shall be maintained by the Collector as provided in Section 28, instead of the map and field-book previously existing. Section 53 provides that Record Officer shall frame for each village the record specified in Section 32 and the record so framed shall thereafter be maintained by the Collector, instead of the record previously maintained under Section 33.
Thus, as per the statutory scheme of the record/survey operation, the records prepared during the record operations on the notification to be issued under the U.P. Revenue Act, are to be final which are to be maintained after the record operations are closed, under the relevant provisions of U.P. Land Revenue Act.
Section 54 provides that for revising the map and records, the Record Officer shall cause to be carried out survey, map correction, field to field ''Partal' and test and verification of current annual register in accordance with the procedure prescribed. Sub-section (2) of Section 54 provides that after the test and verification of the Khatauni, the Naib Tehsildar shall correct clerical mistakes and errors, if any. Sub-section (3) of Section 54 provides that before the Naib Tehsildar objection in respect of disputes relating to correctness or nature of the entries may be filed. Sub-section (4) of Section 54 further provides that any person interested in the land may also file objection before the Naib Tehsildar at any time before the dispute is settled in accordance with Sub-Section (5) or before the Assistant Record Officer at any time bore the objections are decided in accordance with sub-section (6). Sub-section (6) of Section 54 provides that the record of all cases which cannot be disposed of by the Naib Tehsildar by conciliation as required by sub-section (5) are to be forwarded to the Assistant Records Officer who shall dispose of the same, in accordance with the provisions of Sections 40, 41 or 43, as the case may be, and where the dispute involves a question of title, he shall decide the same after a summary inquiry.
Thus, in terms of Section 54 of the U.P. Land Revenue Act, if any dispute or title arises and objection whereof is filed, the efforts are to be made to decide the same on the basis of conciliation by the Naib Tehsildar and in case of disputes which cannot be disposed of by conciliation, the matter is to be decided by the Assistant Records Officer.
For giving effect to the record operation in terms of the provisions contained in Chapter IV of the U.P. Land Revenue Act, the State Government has framed statutory Rules known as U.P. Land Revenue (Survey and Record Operations) Rules, 1978. According to Rule 26 (1) and (2), the Survey Naib Tehsildar is empowered to decide the cases only on the basis of conciliation and the cases which cannot be disposed of by the Survey Naib Tehsildar in terms of the conciliation, shall be referred by him to the Assistant Record Officer for disposal. Thus, from a perusal of the scheme as contained in U.P. Land Revenue Act and also in U.P. Land Revenue (Survey and Record Operations) Rules, 1978, it is more than clear that Survey Naib Tehsildar is empowered to decide the cases only on the basis of conciliation and in case there is any dispute, the Survey Naib Tehildar is bound to refer the same for decision on merit to the Assistant Record Officer.
The question in this case which calls for consideration, apart from the procedural irregularities which can be said to be present in the order of the Collector/Board of Revenue, is as to whether the order dated 05.02.1989, on the basis of which the petitioners are claiming their right and title in the property was passed within the jurisdiction of Survey Naib Tehsildar and, thus, is referable either to Rule 26 or Section 54 of the U.P. Land Revenue Act and if the said order is without jurisdiction, what will be its effect and whether even if the said order is found to be without jurisdiction, this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India will still interfere with the orders impugned herein.
The Survey Naib Tehsildar under Section 54 of the U.P. Land Revenue Act and Rule 26 of U.P. Land Revenue (Survey and Record Operations) Rules 1978 is empowered only to decide the cases on the basis of conciliation. So far as the facts of the present case are concerned, the rights, as submitted by the learned counsel for the petitioners, are being claimed by the petitioners on the basis of operation of Section 131-A of the U.P. Z.A. & L.R. Act, which runs as under :
"[131A. Bhumidhari rights in Gaon Sabha or State Government land in certain circumstances. - Subject to the provisions of Section 132 and Section 133-A, 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 first-mentioned 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.]"
According to the aforequoted provision contained in Section 131-A of the Act, if a person is found to be 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 30th day of June, 1978 such a person shall be deemed to have become a bhumidhar with non-transferable rights of such land.
Thus for seeking conferment of any right under Section 131-A of the U.P. Z.A. & L.R. Act, a person has to establish that he has been in cultivatory possession of the land in question from before 30th day of June, 1978 and that the land situates in the portion of district Mirzapur south of Kaimur range.
In the instant case, the petitioners are claiming their rights on the basis of cultivatory possession over the land in question under Section 131-A of the U.P. Z.A. & L.R. Act. There cannot be any doubt that such a claim of the petitioners could not have been decided by the Survey Naib Tehsildar by way of conciliation under Section 54 of the U.P. Land Revenue Act read with Rule 26 of the Survey Rules. The conciliation proceedings which are decided by the Survey Naib Tehsildar, are normally in respect of some private dispute concerning some piece of land, however, the land in question is clearly recorded under the category 6(2) as per Land Record Manual and it is vested in the State. No question of passing of any order by the Survey Naib Tehsildar under Section 54 of the U.P. Land Revenue Act read with Rule 26 of U.P. Land Revenue (Survey of Record Operations) Rules, 1978 arises at all. The order dated 05.02.1989, passed by the Survey Naib Tehsildar, as can be found recorded on the Khatauni which has been annexed as Annexure No.4 to the writ petition, states that the names of the petitioners be recorded as bhumidhar with transferable right. In any way, even if the said order dated 05.02.1989 is treated to have been mistakenly recorded conferring rights of a bhumidhar with transferable right upon the petitioners, such an order is completely without jurisdiction for the reasons given above. According to Rule 26 of the Survey Rules, the Survey Naib Tehsildar could not confer any right on the basis of provisions contained in Section 131-A of the U.P. Z.A. & L.R. Act for the simple reason that in such a situation, the matter will no more remain undisputed and hence the question of conciliation would not arise before the Naib Tehsildar who could have the jurisdiction to pass the order dated 05.02.1989. In other words, it may be observed that Survey Naib Tehsildar under Section 54 of the the U.P. Z.A. & L.R. Act read with Rule 26 of Survey Rules gets or assumes jurisdiction to pass the order only in case any situation of conciliation in a particular case exists.
In the instant case, the land was vested in the State Government under category 6(2) and the petitioners were claiming their right on the basis of Section 131-A of U.P. Z.A. & L.R. Act. In this view of the matter, I am of the considered opinion that no ground for deciding the matter on the basis of conciliation was in existence before the Survey Naib Tehsildar. Thus, he while passing the order dated 05.02.1989 has completely erred in law and the order is absolutely beyond his jurisdiction.
In the aforesaid view of the matter, since the very basis of right being claimed by the petitioners i.e. the order dated 05.02.1989 is without jurisdiction, I am of the considered opinion that even if there is some procedural irregularity by the Collector/Board of Revenue while passing the impugned orders dated 28.06.1994, 17.07.2006 and 31.11.2016, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India will not interfere in the orders impugned herein for the reason that any interference in this matter will perpetuate illegality and validate an order which is void ab initio being without jurisdiction.
Learned counsel appearing for the petitioners has drawn attention of the Court to the fact that the order dated 28.06.1994 has been passed by the Collector/Record Officer under Section 151 of the Code of Civil Procedure and this provision does not confer any jurisdiction on a higher authority or court to set aside or cancel the order passed by a subordinate authority or court. His submission, thus, is that the reasons given by the District Collector/Record Officer while passing the order are, therefore, not sustainable. He has further argued that before passing the order dated 28.06.1994, the petitioners were not afforded opportunity of hearing and that they were not even provided copy of the report relied upon by the District Collector/Record Officer while passing the said order and as such the impugned order passed by the Collector/Record Officer clearly suffers from the vice of non-observance of the principles of nature justice.
So far as the aforesaid submissions made by the learned counsel for the petitioners are concerned, it has already been noticed above that even if there has been some procedural irregularity committed by the Collector/Record Officer while passing the order dated 28.06.1994, the same does not persuade this Court to interfere in the orders impugned in this writ petition for the reason that the very basis of the right and title as claimed by the petitioners is an order dated 05.02.1989 which has already been held to be completely without jurisdiction. There does not exist any material or ground which can be said to be the basis of any right or title of the petitioners over the land in question and accordingly providing of an opportunity to the petitioners after quashing the order dated 28.06.1994, passed by the Collector/Record Officer and remitting the matter to him, would only be a mere formality and an exercise in futility. Though the principles of nature justice are a very important facet of any judicial proceedings drawn by the courts or authorities, however, in this case the Court finds that the very basis of claim of the petitioners is an order which is void ab initio, as such providing opportunity to the petitioners would not serve any purpose.
For the reasons aforesaid, the writ petition being devoid of merit is dismissed.
However, there will be no order as to costs.
Order Date :- 29.4.2019 Sanjay