JUDGMENT S.P. Srivastava, J.
1. Feeling aggrieved by the order passed by the Deputy Director of Consolidation allowing a revision filed under Section 48 of the U. P. Consolidation of Holdings Act, whereunder while setting aside the order passed by the Assistant Settlement Officer, Consolidation in appeal, the order of the Consolidation Officer rejecting the objection of the petitioner preferred by him under Section 9 of the U. P. Consolidation of Holdings Act claiming to be the tenure-holder of the land in dispute has been restored, he has now approached this Court seeking redress praying for the quashing of the order passed by the revising authority.
2. I have heard the learned counsel for the petitioner as well as the learned standing counsel representing the respondents and have carefully perused the record.
3. The facts in brief, shorn of details and necessary for the disposal of this case, lie in a narrow compass. In this case, the publication of the notice contemplated under Section 9 of the U. P. Consolidation of Holdings Act was made on 31.7.1967. The petitioner filed an objection on 31.8.1976 claiming sirdari rights in the land in dispute on the assertions that he was entitled to the benefits contemplated under Section 122B (4F) of the U. P. Zamindari Abolition and Land Reforms Act and the requisite conditions contemplated therein having been satisfied, the revenue entry in respect of the land in dispute wherein the said land had been shown as vesting in the Gaon Sabha be corrected and instead, it be recorded as his bhumidhari holding. It may be noticed that in the village record, the land in dispute at the time when the objection had been filed was recorded as "Bachat" Land vesting in the Gaon Sabha.
4. The Consolidation Officer came to the conclusion that the publication under Section 9 of the U. P. Consolidation of Holdings Act was made on 31.7.1967 and the Gaon Sabha was continuing to be in possession since the year 1970 Fasali, The provisions contained in Section 122B (4F) of the U. P. Zamindari Abolition and Land Reforms Act came into effect on 30.6.1975. In the aforesaid view of the matter, the Consolidation Officer holding that on the relevant date, the petitioner was not in possession over the. land in dispute rejected the objection. The petitioner had claimed that in the proceedings under Section 122B of the U. P. Zamindari Abolition and Land Reforms Act initiated against him by the Gaon Sabha on 5.8.1975, his possession over the land in dispute had been shown to be of a period of six years. The Assistant Collector while disposing of the aforesaid proceedings had dropped the proceedings on the ground that the land in dispute stood recorded as "Bachat land" during the consolidation proceedings and as such the question in regard to the accrual of the sirdari rights put forward by the objectors on the strength of the provisions contained in Section 122B (4F) of the Act could be gone into before the competent authorities under the U. P. Consolidation of Holdings Act as the proceedings under the said Act were still continuing.
5. The petitioner thereafter challenged the order of the Consolidation Officer by means of an appeal which was allowed by the Assistant Settlement Officer Consolidation vide his order dated 19.6.1978. The Assistant Settlement Officer, Consolidation held that the claim put forward by the petitioner should have been entertained under Section 12 of the U. P. Consolidation of Holdings Act as he was entitled to be recorded as tenure holder of the land in dispute on account of the benefit secured in his favour under the provisions contained in Section 1226 (4F) of the U. P. Zamindari Abolition and Land Reforms Act. The direction given by the appellate authority was that Raghunath, the petitioner be recorded as sirdar under Section 122B (4F) and the land revenue be fixed accordingly.
6. The appeal referred to hereinabove had been allowed on 19.6.1978. A belated revision challenging the aforesaid order was filed by the Gaon Sabha along with an application seeking condonation of delay. The petitioner filed an objection opposing the prayer for the condonation of delay in filing the revision. The delay in filing the revision was of a period of about 3 years. The revising authority came to the conclusion that there was nothing to indicate that the Gaon Sabha had been given any notice of the appeal and no opportunity to the Gaon Sabha of being heard before allowing the appeal had been provided. The revising authority found the ground seeking condonation of delay to be sufficient and accordingly condoned the delay in filing the revision. It was also observed that since the entire record of the case had been called for, it was open to the revising authority to go into the merits of the revision irrespective of the fact as to whether there was any irregularity in the presentation thereof by a counsel who had not been engaged by the Gaon Sabha in accordance with the provisions contained in the Gaon Sabha Manual.
7. The Deputy Director of Consolidation came to the conclusion that the land in dispute had to be taken as vesting in the Gaon Sabha under Section 117 of the U. P. Zamindari Abolition and Land Reforms Act and had been recorded as Bachat land during the consolidation proceedings. In the circumstances, it was held that Section 122B (4F) of the Act could not be taken to have conferred any tenurial right in favour of the objector. The Deputy Director of Consolidation obviously proceeded on the assumption that the entry of Bachat land made during the proceedings under the U. P. Consolidation of Holdings Act was final. The objection under Section 12 of the Act could not be held to be maintainable. It was in the aforesaid view of the matter that the revising authority set aside the order passed by the appellate authority.
8. The learned counsel for the petitioner has assailed the impugned order on various grounds. However. I do not find it necessary to advert to them as it seems to me that the real controversy in this case stands concluded against the petitioner in view of the decision of this Court in the case of Ram Dhiraj and others v. Board of Revenue, Allahabad and others, 1997 R. D. 324.
9. This Court had an occasion to consider the implications arising under the aforesaid provision in its decision in the case of Ramdin and others v. Board of Revenue and others, 1994 RD 395. wherein the contention that if the requisite conditions contemplated under Section 122B (4F) of the Act were fulfilled, any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe has to be deemed to be admitted as bhumidhar with non-transferable rights in respect of the land in his occupation, under Section 195 of the Act. notwithstanding the provisions contained in Section 198 of the Act or the Rules prescribed under the Act regulating the manner in which a person could be admitted as bhumidhar with non-transferable rights in respect of land vesting in the Gaon Sabha was held to be totally misconceived and not at all acceptable, clarifying that the deeming clause contained in Section 122B (4F) of the Act providing that it shall be deemed that the occupant had been admitted as bhumidhar with non-transferable rights of the land in his occupation under Section 195 has to be treated to be confined in its operation to the proceedings contemplated under Section 122B of the Act, observing further that the right conferred under the deeming clause contained under Section 122B (4F) of the Act has to be taken so as to confer a right only made available to an unauthorised occupant of the land envisaged under Section 122B, who satisfied the eligibility criteria prescribed therein, to protect his possession and does not create a title in him.
10. As pointed out by this Court in its aforesaid decision, the fiction contemplated under the provision in question could not be deemed to create such right or title in favour of an occupant which could only accrue on the grant of the lease' in accordance with the procedure prescribed under Section 198 of the Act and that it is only thereafter that such person could get the revenue entries in the record of rights (Khatauni) corrected and not merely on the basis of the statutory fiction in question.
11. This Court had approved the decision of the Board of Revenue in the case of Rohit v. Rajaram, 1982 AWC (Revenue) 75, wherein it was held that if a person is not recorded in the revenue papers, he is not entitled to get his name recorded as tenure-holder by filing an application under Section 122B (4F) of the Act.
12. In the aforesaid view of the matter, the position that emerges on the facts and circumstances brought on record is that the order dated 19.6.1978 which was manifestly illegal stands quashed by the Deputy Director of Consolidation vide his order impugned in the present case. The question which arises, therefore. is as to whether in such a situation, any interference by this Court is called for in the present proceedings under Article 226 of the Constitution of India when disturbing the impugned order will result in the revival of such a manifestly illegal order.
13. In its decision in the case of Ashok Kumar Pandey and others D. Basic Shiksha Adhikari, Mau and others. Special Appeal No. 127 of 1992, decided on 22.4.1992. a Division Bench of this Court had observed that powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order reiterating the view of another Division Bench of this Court in its decision in the case of SKJPK Inter College v. District Inspector of Schools, 1988 U.P.L.B.E.C. 739. pointing out that quashing of an order which amounted to putting premium upon and giving Judicial imprimatur to another wrong, namely conferment of a right upon certain persons who were not entitled to it cannot be justified.
14. It is. therefore, obvious that the discretionary extraordinary Jurisdiction envisaged under Article 226 of the Constitution of India should not be exercised for quashing an order though found to be erroneous in law when the quashing of such an order will result in the revival 'of another manifestly illegal order.
15. The learned counsel for the petitioner placed reliance upon an order issued by the Secretary, Board of Revenue U. P. dated 21.5.1987 and a demi-official letter issued by the Board of Revenue dated 21st January, 1989 which have not been made part of the record but a copy whereof was produced during the course of hearing of the writ petition. In the order dated 21st May, 1987, it has been observed that from the provisions contained in Section 122B (4F) of the U. P. Zamindari Abolition and Land Reforms Act the persons belonging to Scheduled Caste and Scheduled Tribe may be benefitted and, therefore, a direction was issued for recording the names of such unauthorised occupants in the manner prescribed under that order making it clear that their unauthorised occupation may be regularised and recommendations in that regard may be sent by Supervisor Kanoongo, Naib Tahsildar/Tahslldar for orders to the Sub-Divisional Officer.
16. The demi-official letter referred to above appears to have been issued to ensure compliance of the order of the State Government dated 21st May, 1987. In the demi-official letter issued by the Board of Revenue, it has been indicated that it was not necessary to get a declaration of the tenurial rights by such unauthorised occupants and their cases may be examined by the Sub-Divisional Officer and if he is satisfied he may pass the appropriate order and the aggrieved person may approach the Court of competent jurisdiction.
17. It may be noticed that the aforesaid orders ex facie do not secure any benefit or right in respect of the land vesting in the Gaon Sabha under Section 117 of the Act but only provides a forum for adjudication of the rights. The orders proceed on the erroneous assumption that provisions contained in Section 122B (4F) secure accrual of tenurial rights in the land vesting in the Gaon Sabha in favour of an unauthorised occupant on his satisfying the conditions contemplated under that provision. This assumption is totally misconceived as clarified by this Court in its decision In the case of Ramdin (supra). So far as the regularisatlon of the unauthorised occupant referred to in the aforesaid order is concerned, suffice it to say that the State Government or the Gaon Sabha has to act in accordance with the provisions contained in the U. P. Zamindari Abolition and Land Reforms Act and the Rules framed thereunder. The regularisation of unauthorised occupant of the land vesting in the Gaon Sabha has to be done only under the modes prescribed by law by granting lease or licence, etc. as contemplated under the U. P. Zamindari Abolition and Land Reforms Act and the rules framed thereunder and not otherwise. Further, there is no such pleading that the petitioner's unauthorised occupation had ever been regularised so as to secure in his favour a tenurial right contemplated under U. P. Zamindari Abolition and Land Reforms Act. In the circumstances, the aforesaid Government order or the demi-official letter cannot come to the rescue of the petitioner.
18. Considering the facts and circumstances brought on record and the conclusions indicated herein above, no justifiable ground has been made out for any interference by this Court, while exercising the extraordinary Jurisdiction envisaged under Article 226 of the Constitution of India.
19. The writ petition is accordingly dismissed. There shall however, be no order as to costs.