Heard Sri S.A. Gilani, learned counsel appearing for petitioner and learned Standing Counsel.
Present writ petition has been filed for quashing the order dated 31.8.2000 passed by the Collector, Bulandshahar (Annexure 4 to writ petition).
Facts arising out of writ petition are that proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) were initiated in the year 1975-76 by issuing a notice under Rule 115 (d) against petitioner. The case was registered as Case No.3038 of 1976. Petitioner filed an objection to the notice dated 29.7.1976. Parties adduced evidence and Assistant Collector after hearing both the parties was pleased to decide vide its order dated 20.4.2000. A finding has been recorded that petitioner is not an unauthorised occupant of the land and he never encroached upon the land of the Gaon Sabha, as such, proceeding was dropped holding therein that petitioner is in possession of the land in dispute authorisedly. Gaon Sabha filed a revision before the District Magistrate against the order dated 20.4.2000. An objection was taken on behalf of petitioner that revision before Collector/District Magistrate is not maintainable in view of U.P. Land Laws (Amended) Ordinance 1981 promulgated by the Governor on 3rd June, 1981 published in the U.P. Gazette Extra Ordinary dated 3.6.1981. By this amendment, Section 122-B of the Act was amended. This ordinance was replaced by U.P. Ordinance No.18 of 1981 published in U.P. Gazette Extra Ordinary dated 26th October, 1981 was again replaced by Ordinance No.8 of 1981 published on 21st February, 1982. This ordinance was again amended and replaced by U.P. Land Laws (Amended) (Second) Ordinance 1982 (U.P. Ordinance No.15 of 1982) published in U.P. Gazette dated 7th April, 1982.
Section 2 of the ordinance is to be deemed to have come into force on 3rd June, 1981. Section 2 is being reproduced below:-
(1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged 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 of 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 persons to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time as the Assistant Collector may allow in this behalf, or if 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 or 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 ground, 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 much as may be prescribed.
(4-c) Notwithstanding anything contained in Section 333 or Section 333-A 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 the 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).
9. That Section 26 (a) of the U.P. Ordinance No.15 of 1982 is as follows:-
"26. Notwithstanding anything contained in the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950-
(a) all proceedings under Section 122-B of the said Act as it existed immediately before the commencement of this section and pending before any officer, court or authority on the date of such commencmeent shall be disposed of in accordance with the provisions of the siad Actas if this ordinacne had not been promulgated;
(b)....................................................................................................................."
Sri S.A.Gilani learned counsel for petitioner submits that in spite of objection to the effect that revision itself is not maintainable before Collector and proceeding as it was pending on the date when amendment came into force in the year 1981, applicable from 3rd June, 1982, therefore, it will governed with an un-amended provision and revision will lie before the Commissioner and it will not lie before Collector. He has submitted that in view of Section 26(a) of the Ordinance, which clearly provides that "all proceedings under Section 122-B of the Act as it existed immediately before commencement of this section and pending before any officer, Court or authority on the date of such commencement shall be disposed of in accordance with the provisions of the said Act as if this ordinance have not been promulgated." Meaning thereby in view of provisions of the amendment, revision will lie before the Commissioner but revisional court without taking into consideration the said fact has allowed the revision and remanded the matter. Therefore, the order passed by Collector dated 31.8.2000 itself is liable to be set aside.
On the other hand, State in spite of time granted no counter affidavit has been filed on their behalf, though some private persons filed their impleadment application but impleadment application has already been dismissed by order dated 30.9.2004. Learned Standing Counsel is not able to dispute the analogy put up by petitioner regarding applicability of the provision of jurisdiction of revision.
I have considered the submissions of parties and perused the record. Admittedly, proceedings under Section 122-B was initiated and registered as Case No.3038 of 1976. The amendment came into force on 3.6.1981. Meaning thereby admittedly on the date of amendment under section 122-B was made applicable on 3rd June, 1981. The proceeding was decided on 20.4.2000. Apart from the decision on 20.4.2000 and in view of Section 26-A of the Ordinance 15 of 1982, as the proceeding was pending on the date of amendment, revision will lie under unamended provision before the Commissioner. Admittedly, revision filed by Gaon Sabha before the Collector was not maintainable. In case, Gaon Sabha was aggrieved in view of Sub-Section 4-D, he can file a suit in the Court of competent jurisdiction to establish the right claimed by him in such property. Therefore, if the Gaon Sabha was aggrieved by order dated 20.4.2000, they had an option to file a suit but admittedly in view of amended provision, revision before the Collector cannot be said to be maintainable.
In view of aforesaid fact, entertaining revision and remanding the matter can be treated to be without jurisdiction.
Therefore, the writ petition is allowed and order dated 31.8.2000 (Annexure 4 to writ petition) is hereby quashed.
No order as to costs.
Order Date :- 15.7.2011 SKD