JUDGMENT Yatindra Singh, J.
1. The only point involved in these two writ petitions is, whether a revision lies under Sub-section (4A) of Section 122B Section 122B (4A)] of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (the Act) against the order rejecting an application to recall an order passed under Subsection (3) of Section 122B [Section 122B (3)1 of the Act.
The Facts :
2. The Assistant Collector issued notice to the petitioners to show cause why they may not be for evicted and damages be realised from them under Section 122B of the Act. Petitioners initially appeared before the Assistant Collector but did not appear before him on 14,6.2001 and he passed an order for their eviction from the property in dispute, he also imposed damages. The petitioners filed applications for recalling it on the ground that :
(1) The order is ex parte against them.
(2) They could not appear due to the strike of the lawyers.
(3) Their cases may be heard on merits after recalling the ex parte order.
3. The aforesaid applications were rejected on 21.1.2002. The petitioners filed revisions against the same before the Collector. They were rejected on 15.3.2002 as not maintainable. The Court held that no revision lay against the order rejecting an application to recall the order passed under Section 123B (3) of the Act. Hence, the present writ petitions.
Decision :
4. Section 122B of the Act (quoted below) is headed as 'Powers of the Land Management Committee and the Collector'. It provides a procedure for eviction of a person in unauthorised occupation over the land or property of Gaon Sabha or local authority : it also provides for fixing and realisation of compensation for damage, misappropriation and the wrongful occupation. Gaon Sabha or the local authority is to inform the Assistant Collector about the illegal occupation under Sub-section (1) of Section 122B [Section 122B (1)] of the Act. A show cause notice is to be given under Subsection (2) of Section 122B (Section 122B (2)) of the Act to the person concerned. If the cause shown is insufficient then he may be evicted and damages may be fixed under Section 122B (3)" of the Act. The damages can be recovered as arrears of land revenue. The Assistant Collector has to discharge the notice under Sub-section (4) of Section 122B (Section 122B (4)) of the Act if he is of the view that the person is not guilty of causing any damage or misappropriation.
5. A revision normally lies against any order in a suit or proceeding decided under the Act before the Board of Revenue or the Commissioner under Section 333 (quoted below)' of the Act. But no revision lies under Section 333 of the Act against the order passed under Section 122B (3) or (4) of the Act as application, of Section 333 has been excluded under Sub-section (4C) of Section 122B (Section 122B (4C)) of the Act, the Legislature has provided revision on the same grounds as Section 333 of the Act before the Collector under Sub-section (4A) of Section 122B (Section 122B (4A)) of the Act. Orders contemplated under Section 122B (3) or (4) of the Act are orders of eviction or fixation of damages or discharge of notice. These sub-sections specifically neither envisage any application to recall any order passed under these sub-sections nor any order on such application. It is for this reason that the respondents' submit that the order rejecting the recall application is not passed under these subsections. According to respondents, the order rejecting the recall application is passed under Order IX, Rule 13 of the Civil Procedure Code, 1908 (C.P.C.) in view of Section 341 (quoted below) of Act read with Section 3 (30) (quoted below) of the Act. They submit as the order was not passed under Section 122B (3) or (4) of the Act, no revision lay under Section 122B (4A) of the Act and the petitioners may, if they so like, file revision under Section 333 of the Act.
6. The petitioners submit that revision can be filed under Section 122B (4A) of the Act against an ex parte order for eviction and damages under Section 122B (3) of the Act. In case an ex parte order is challenged in a revision, then in that revision. the question whether the order was rightly passed ex parte or not can be gone into. According to them, filing a revision before the Commissioner or Board of Revenue under Section 333 against the order rejecting the application for recall would be anomalous as this question can be gone into in a revision before Collector under Section 122B (4A) of the Act against the order of eviction. The petitioners further submit that in case revision against the order dated 29.1.2002 was not maintainable, then the Collector ought to have permitted the petitioner to claim relief against the order dated 14.6.2001, which was for their eviction.
7. The intention of the Legislature under Section 122B of the Act is to provide speedy remedy for recovery of property of Gaon Sabha or local authority and also for fixation of damages. It is for this reason that the revision under Section 333 has been specifically barred and the revision within the same district before the Collector has been provided. This is strengthened by the fact that proceeding under this section prevails over U. P. Consolidation of Holdings Act, 1953 (Consolidation Act) in view of insertion of proviso in Section 49 of the Consolidation Act (quoted below)'. It has been specifically provided that proceeding under Section 122B of the Act can be taken even during pendency of consolidation operations. Section 122B (4E) of the Act further clarifies that no suit can be filed against the order of the Assistant Collector in case revision has been filed before the Collector under Section 122B (4A) of the Act. A suit could be filed against the order of Assistant Collector in case remedy of revision is not availed of ; but in this suit also no temporary injunction can be granted in view of Sub-section (2) of Section 229D (quoted below) of the Act. This shows that Section 122B provides speedy remedy for recovering the property of Gaon Sabha or local authority that has been illegally occupied ; and this section is a complete Code by Itself. If this were the intention of the Legislature, then it would be defeating these provisions to provide revision before the Commissioner or Board of Revenue against the order rejecting the application to recall an order though same question can be decided by the Collector in revision against the order on merits. An order rejecting a recall application is a final order and, in my opinion, is (or deemed to be) under Section 122B (3) or (4) of the Act ; this interpretation also obliterates the anomaly. The Collector committed an Illegality in dismissing the revision on the ground that it was not maintainable. The Board of Revenue has rightly taken a similar view in Surendra Kumar v. Gaon Sabha, 1990 RD 418.
8. Apart from above, even If the revision was not maintainable, the Collector ought to have given time to the petitioner to amend his revision making it against the order dated 14.6.2001 also. This would have avoided unnecessary delay. However, as the case is being sent back, the petitioners may file applications to amend their revisions incorporating the challenge to the order dated 14.6.2001 also. In case such applications are filed, their revisions would be treated against the order dated 14.6.2001 also. Thereafter, the Collector may decide the revisions on merits. It is clarified that I am not expressing any opinion on the legality of the order dated 14.6.2001 or the order dated 21.1.2002.
Conclusion ;