JUDGMENT S.U. Khan, J.
1. Petitioners in the above noted three petitions i.e. Sanjai Kumar, Vijay Kumar and Vinod Kumar are claiming themselves to be members of scheduled cast and in unauthorized occupation of Gaon Sabha land comprised in plot Nos. 828 and 901/3. All the three petitioners claim to be members of Dhobi caste. Petitioners managed reports in their favour by Lekhpal, Revenue Inspector and Tehsildar in May and June, 2003 to the effect that they were in possession before May, 2000 and they were entitled to the benefit of Section 122-B(4-F) of U.P.Z.A.& L.R. Act (herein after referred to as the Act). The said provision regularizes the possession of Scheduled Caste agricultural labourers if they are found to be in possession of gaon Sabha land prior to 1.5.2002 unless it is public utility land. Initially cut off date was 30.6.1985 which was later on changed to 3.6.1995. The latest cut off date is 1.5.2002. Vinod Kumar and Vijay Kumar were granted benefit over an area of .248 hectares of plot No. 901/3 which was earlier entered as navin parti. Sanjai Kumar was granted benefit of the aforesaid Sub-section in respect of an area of .188 hectares comprised in plot No. 828. The said plot was also entered as navin parti. On 20.2.2004 S.D.M. by the patent order "accepted as proposed" granted benefit of Section 122-B(4-F) of the Act in respect of the above land to the petitioners. Prior to the above order passed by S.D.M., Derapur District Kanpur Dehat proceedings for ejectment of the petitioners had been initiated under Section 122-B of the Act before Tehsildar in the form of case Nos. 25, 24, and 22 respectively. As the petitioners did not appear hence the said cases were decided against the petitioners on 16.1.2004 i.e. prior to the date of order passed by Deputy Collector conferring benefit of Section 122-B(4-F) of the Act upon the petitioners. Thereafter each of the petitioners on 28.1.2004 filed restoration application for setting aside ex-parte order passed against him under Section 122-B of U.P.Z.A.& L.R. Act. It is therefore, quite clear that on 28.1.2004 all the petitioners were aware of pendency of proceedings of ejectment under Section 122-B of the Act against them. However, they did not inform the Deputy Collector/S.D.O. about the said fact and they manipulated to get favourable order from S.D.O. on 20.2.2004 for getting their names mutated in the revenue record under Section 122-B(4-F) of the Act. Tehsildar, Derapur, Kanpur Dehat on 12.5.2004 dismissed the restoration applications on the ground that on the basis of report under Section 122-B restoration applications appeared to be baseless. In the restoration applications all the three petitioners had stated that due to illness they could not appear. Tehsildar was required to decide whether this ground was correct or not. Tehsildar did not say a single word regarding that. The dismissal order cannot therefore be sustained.
2. Against the orders dated 16.1.2004 and 12.5.2004 all the petitioners filed revisions which were numbered as revision Nos. 72, 71 and 73 of 2003-04 respectively. Collector, Kanpur Dehat on 31.1.2005 dismissed all the revisions. This writ petition is directed against orders dated 16.1.2004, 12.5.2004 and 31.1.2005. The Collector in respect of order of S.D.O. dated 20.2.2004 held that Lekhpal had given contrary reports and the said order of S.D.O. being based upon the report of Lekhpal was not correct. In the said order of Collector dated 31.1.2005 it is mentioned that the action of the Lekhpal was malafide for which separate action was necessary.
3. Whenever a new cut off date for conferring benefit of Section 122-B(4-F) of the Act is provided, people belonging to scheduled caste start claiming benefit of the said Section by creating evidence of prior possession. In view of this rampant mal-practice it is most essential that whenever benefit of aforesaid Sub-section (4-F) is claimed the claimant must show that he is in unauthorized possession over Gaon Sabha land and his name is recorded in the revenue records prior to the cut off date or the proceedings for his ejectment must be pending since before the cut off date. If it is not so then no amount of evidence can be looked into in that regard. In most of the cases like the present ones Pradhans, Lekhpals and other Revenue authorities in collusion with claimants give wrong reports of possession of the claimants prior to the cut off date. Absolutely no reliance can be placed upon such reports. On the contrary disciplinary proceedings must be initiated against those Lekhpals and other revenue authorities who give such reports. Whenever any Lekhpal or any other revenue authority gives a report that a person is in unauthorized possession of Gaon Sabha land since long before the cut off date then action must be taken against him for his negligence to report the unauthorized occupation and initiate proceedings of eviction of that person before cut off date. Lekhpal is bound to give report of unauthorized occupation of any person over Gaon Sabha land promptly.
4. In the instant case Lekhpal gave report in May/June 2003 that since before May, 2000 petitioners were in unauthorized occupation of Gaon Sabha land. Lekhpal is liable to be punished for not reporting the unauthorized occupation promptly for initiation of proceedings of ejectment under Section 122-B of the Act. The Collector has very rightly held that Lekhpal was in collusion with petitioners hence in order to help the petitioners to illegally claim benefit of regularization of possession under aforesaid sub Section (4-F), he gave a false report that petitioners were in possession much prior to May, 2002, the latest cut off date under aforesaid Sub-section (4-F).
5. As far as role of S.D.O. is concerned it is also not above board. Thorough enquiry is required into the role of Deputy Collector/S.D.O. concerned also. It is correct that proceedings may be initiated by a person for getting his name recorded in revenue record on the basis of Section 122-B(4-F) of the Act. However for the said purpose a proper case must be instituted impleading therein State/Gaon Sabha and detailed findings shall be recorded by S.D.O. in the said case regarding possession of the claimant prior to the cut off date which must be based upon evidence. In the instant case S.D.O. without registering a case, without issuing notice to the Gaon Sabha and State passed patent order of "Approved as proposed". Primafacie, the court is of the opinion that Government/Gaon Sabha property has illegally been handed over by S.D.O., Lekhpal and other officers by passing order and giving favourable report in favour of the petitioners regarding their possession prior to May, 2002. Collector, Kanpur Dehat is directed to immediately initiate/recommend to initiate disciplinary proceedings against guilty officers and officials.
6. Accordingly, it is held that the order of S.D.O. dated 20.2.2004 is no order in the eye of law. It is absolutely void and nonest hence no reliance can be placed thereupon. The Revenue records shall be corrected at once and the names of the petitioners shall be deleted therefrom.
7. The experience of the court is that provision of Section 122-B(4-F) of the Act are utterly misused. The real benefit of the said Section does not go to the weakest and meekest among scheduled cast. Firstly, really weak and poor people of scheduled caste do not encroach upon the Gaon Sabha land and only strong and influential persons of scheduled caste (which may be described as creamy layer) can forcibly occupy Gaon Sabha land. Secondly, whenever a new cut off date is provided (the latest being 1.5.2002), unscrupulous and influential persons of scheduled cast manufacture evidence of their prior possession and in this regard Lekhpals and Pradhans some times provide full support to them. This utter misuse can sufficiently be checked if benefit of the said sub Section (4-F) is given only and only to those members of scheduled caste whose possession is entered in the revenue records prior to cut off date or eviction proceedings are pending against them since before the said date. It appears that after May, 2002 huge tracts of land of Gaon Sabha have been settled in favour of those scheduled caste persons who were not really in occupation before May, 2002 but somehow managed to get favourable reports of their prior possession either by Pradhan, Lekhpal or other revenue officials. Collectors of all the Districts of Uttar Pradesh shall call the reports of all such cases in which benefit of the aforesaid Sub-section (4-F) has been conferred without there being any entry of possession of the claimant in the revenue record prior to 1.5.2002 or pendency of eviction proceedings prior to that date. All such entries must be reversed but only after issuing notice and hearing the persons whose names have been so entered. Gaon Sabha is also entitled to apply for such correction of entry either before Deputy Collector or Collector. These cases must also be decided on top priority basis but only after issuing notice and hearing affected persons. The court may in some future case require the Collectors to submit compliance report in pursuance of this order.
8. However, as far as the instant case is concerned, the order of Tehsildar rejecting restoration application dated 12.5.2004 cannot be sustained. Whatever wrong a person may have committed, no adverse order can be passed against him without hearing him. In the impugned order nothing has been said which can suggest that Tehsildar did not believe statement of illness made by the petitioners. Accordingly no useful purpose will be served by sending back the matter to the Tehsildar for deciding restoration application again. The restoration applications filed by the petitioners are therefore allowed. The petitioners are directed to appear before the Tehsildar alongwith certified copy of this judgment on 4.4.2005. On the said date petitioners shall also file their objections alongwith such evidence, which they consider necessary. Thereafter Tehsildar shall decide the case under Section 122-B of U.P.Z.A.&L.R. Act within two months positively after providing full opportunity to the petitioners.
9. Until decision by Tehsildar neither petitioners shall be evicted nor damages shall be recovered from them.
10. All the three writ petitions are therefore allowed and the impugned orders are set aside/modified accordingly.
11. Let a copy of this order be given free of cost to Shri S.K.Maurya, learned standing counsel for communication to all the Collectors particularly Collector, Kanpur Dehat. Collector, Kanpur Dehat is directed to file compliance report in respect of action against Lekhpal and those revenue authorities who gave reports in favour of the petitioners on the basis of which S.D.O. passed order on 20.2.2004.
12. List on 18.7.2005 in chamber at 1.30 P.M. for perusal of compliance report.