Khacheru vs Addl. Collector and Others

S.P. Srivastava J.

Heard the learned Counsel for the Petitioner and the learned standing counsel representing the Respondents.

Perused the record.

Feeling aggrieved by the order passed by the Additional Tehsildar in the proceedings u/s 122B of the U.P. Zamindari Abolition and Land Reforms Act directing the eviction of the Petitioner from plot No. 785 excepting an area of 0.20 hectares for use as a passage and demolition of unauthorised constructions made by him standing in the remaining area of 0.170 hectares, the Petitioner sought to challenge the said order by filing a revision u/s 122B(4A) of the U.P. Zamindari Abolition and Land Reforms Act without any success as the said revision was dismissed vide the order dated 29.8.1995 by the Additional Collector, the Respondent No. 1.

Being aggrieved the Petitioner has now approached this Court, seeking redress praying for the quashing of both the aforesaid orders.

On the pleadings of the parties, the Additional Tehsildar framed three issues and after considering the oral and documentary evidence on the record as well as the report of the Commissioner he came to the conclusion that plot No. 785 in dispute which had been claimed to have been encroached upon in an unauthorised manner by the Petitioner constituted a land contemplated u/s 132 of the U.P. Zamindari Abolition and Land Reforms Act which had been reserved for a public purpose for being utilised as a ''Khalihan''. He also came to the conclusion that an area of 0.097 hectares of the area of land in dispute was lying vacant and a portion thereof was being utilised as a passage.

In his objections to the notice in 7.. A From 49A, the Petitioner had asserted in paragraph 6 thereof that the Gram Pradhan and the Up-Pradhan acting in collusion with the brother of Ajab Singh the brother of the Pradhan and Rampal, the brother of the Up-Pradhan had encroached upon the plot No. 785 vesting in the Gaon Sabha and had raised a construction thereon hurriedly leaving no space closing the passage used by the Petitioner to reach his ''Gher''. The aforesaid assertions made by the Petitioner himself clearly indicate that the entries in C. H. Form 41 and C. H. Form 45 relied upon by the Additional Tehsildar for holding the land in dispute to be vesting in the Gaon Sabha were not incorrect in any manner as the Petitioner himself disclosed in paragraph 6 of the objections that the plot No. 785 vested in the Gaon Sabha. However, in paragraph 3 of this objections, the Petitioner had asserted that the land in dispute was not the property of the Gaon Sabha and the possession of the Petitioner over the same could not be taken to be unauthorised. What was asserted was that towards the south of the land in dispute, the Petitioner had his ancestral ''Gher'' the door whereof opened towards the land in dispute and the land in dispute was being utilised as the Sehan'' of the ''Gher'' and as a passage for the ingress and egress of the carts, tethering of the cattle and keeping the carts. So far as this user is concerned, the claim was that the Petitioner was utilising the land in dispute for the aforesaid purposes since before the enforcement of the U.P. Zamindari Abolition and Land Reforms Act.

In the notice issued under Z. A. Form 49A, it was disclosed that the Petitioner had occupied an area of 0.037 hectares of plot No. 785. The Lekhpal had been examined as P.W. 1 who had asserted that an area 0.037 hectares in dispute was the property of the Gaon Sabha and had been encroached upon by the Petitioner with effect from 6.10.1990. He had asserted that the land in dispute had never been used an abadi as claimed.

The Additional Tehsildar, as has already been indicated above had found that the entire plot No. 785 stood vested in the Gaon Sabha and making a provision for the Petitioner for a passage for which an area of 0.20 hectares was found sufficient, he had passed an order for recovery of possession over an area of 0.170 hectares. The aforesaid order was affirmed in revision.

The learned Counsel for the Petitioner has strenuously contended that the Petitioner had raised a bona fide dispute of title and, therefore, it was not open for the Respondent authorities in the proceedings u/s 122B of the Act to pass an order as in question as these proceedings have to be taken to be of a summary nature. In support of this submission, the learned Counsel for the Petitioner has strongly relied upon the observations made by the Apex Court in its decision in the case of Government of Andhra Pradesh v. Thummala Krishna Rao and Anr. AIR 1982 SC 1081, to the effect that if there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it and on the basis of such decision take recourse to the summary remedy provided by Section 6 of the Andhra Pradesh Land Encroachment Act, 1905 for evicting the person who is in possession of the property under a bona fide claim or title. On the facts disclosed in that case, the Apex Court had come to a conclusion that there was unquestionably a genuine dispute between the State Government and the Respondents in regard to the question of title and finding that the Respondent had a bona fide claim to litigate, the Apex Court ruled that they could not be evicted save by the due process of law and the summary remedy prescribed by Section 6 could not be taken to be that kind of legal process which is suited to an adjudication of complicated questions of title. Such a procedure it was indicated could not be due process of law for evicting the Respondents in that case.

The provisions contained in Section 6(1) of the aforesaid Act which were considered in the aforesaid decision provided that a person in an unauthorised occupation of any land as contemplated therein could be summarily evicted by the Collector but as provided u/s 7 of the Act before proceeding under that provision, the Collector/Tehsildar or Deputy Tehsildar as the case may be was required to cause to be served on the person concerned a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against u/s 5 or Section 6 of the Act.

It has been urged by the learned Counsel representing the Respondent, however, that the ratio of the decision of the Apex Court relied upon by the learned Counsel for the Petitioner cannot be deemed to be attracted in the facts and circumstances of the present case. It has further been contended that the provisions contained in Section 122B of the U.P. Zamindari Abolition and Land Reforms Act carve out a procedure entirely different as compared to the procedure provided for under the provisions which were considered in the aforesaid case decided by the Apex Court and taking into consideration the implications arising under the provisions attaching a statutory finality to the decision of a competent revising authority invoked by the aggrieved person himself not opting to go for adjudication in regard to his alleged claim negatived by the Assistant Collector before a court of competent jurisdiction, there can be no justification for holding that the procedure provided u/s 122B of the Act is such a procedure which has to be taken to be otherwise than a due process of law.

I have given my anxious consideration to the rival contentions.

The provisions contained in Section 122B of the U.P. Zamindari Abolition and Land Reforms Act have undergone considerable changes brought in by various amendments. Under the unamended provisions if a person produced evidence which appeared to the Collector to raise a bona fide dispute of title, the Collector was required not to proceed further requiring such a person to file a suit for declaration and further action was to be taken by him according to the result of such suit.

The earlier provisions contained in Section 122B (2) in this regard was to the following effect:

122B(2) Where the Land Management Committee or the local authority fails to take action in accordance with the provisions of Sub-section (1) within a period of six months from the date of wrong occupation, and one month from the date of damage or misappropriation, the Collector may, except in a case involving a bona fide question of title, on an application of the Chairman, Member or Secretary of the Land Management Committee or the local authority, as the case may be, or on facts coming to his notice otherwise, take steps for the ejectment of the person in wrongful occupation of the land and for recovery of compensation for wrongful occupation of the land for damage to, or misappropriation of the property.

However, the provisions contained the Section 122B at the relevant time in this case was to the following effect:

122B. Power of the Land Management Committee and the Collector.--

(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 or 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 my be, why he should not be evicted from such land.

(3) If the person to whom a notice has been issued under Sub-section (2) fails to show cause within such extended time not exceeding three months from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the 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 for 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.

(4A) 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 grounds mentioned in Clauses (a) to (e) of Section 333.

(4B) The procedure to be followed in any action taken under this section shall be such as may be prescribed.

(4C) Notwithstanding anything contained in Section 333 or Section 333A, 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 (4A) and (4D), be final,

(ii) every order of the Collector under this section shall, subject to the provisions of Sub-section (4D), be final.

(4D) 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 a court of competent jurisdiction to establish the right claimed by him in such property.

(4E) No such suit as is referred to in Sub-section (4D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under Sub-section (4A).

The provisions contained in Section 122B (4A) provide that any person aggrieved by the order of the Assistant Collector under Sub-section (3) or Sub-section (4) of Section 122B may within thirty days from the date of such order prefer a revision before the Collector on the grounds mentioned in Clauses (a) to (e) of Section 333. The provisions contained in Section 122B (4C), however, provide that every order of the Assistant Collector under that section shall, subject to the provisions of Sub-sections (4A) and (4D), be final and an order of Collector under that section shall subject to the provisions of Sub-section (4D) be final.

The provisions contained In Section 122B (4D) provide that any person aggrieved by the order of the Assistant Collector of Collector in respect of any property under this section may file a suit in a court of competent Jurisdiction to establish the right claimed by him in such property. But Section 122B (4E) contains a prohibition to the effect that no such suit as is referred to in Sub-section (4D) shall lie against an order of Assistant Collector if a revision is preferred to the Collector under Sub-section (4A).

It is, therefore, obvious that a person aggrieved by an order passed by the Assistant Collector or a Collector u/s 122B (3) or (4) may file a suit In a court of competent jurisdiction to establish the right claimed by him in the property in dispute but this right is subject to the condition that the affected party has not invoked the revisory Jurisdiction of the Collector as envisaged u/s 122B (4A) of the Act. As a consequence if a person is aggrieved by an order passed by the Assistant Collector as envisaged u/s 122B (3) in that event he has two remedies open. He may either challenge the said order by filing a revision as contemplated u/s 122B (4A) of the Act or straightaway file a suit in the court of competent Jurisdiction to establish the right claimed by him in such a property. There may be a situation where the order passed u/s 122B (3) goes against the Land Management Committee or the local authority. In that event also the Land Management Committee or the Local Authority can either file a revision or straightaway file a suit in a court of competent Jurisdiction to establish the right claimed by it in the property in dispute. There may also be a situation where a case may fall in yet another category where the revision contemplated u/s 122B (4A) of the Act filed by an aggrieved person goes against the Land Management Committee or Local authority. In such category of cases, the order will be that of a Collector as contemplated u/s 122B (4D) of the Act by which Land Management Committee or Local Authority may feel aggrieved without having invoked the revisory Jurisdiction. Such type of order will be an order passed by the Collector in a revisory proceedings which had not been initiated by the Land Management Committee or the Local Authority. In such a case where a party aggrieved by an order of the Collector passed in a proceeding wherein the aggrieved party has not invoked the revisory jurisdiction, it has a remedy of filing a suit in a court of competent Jurisdiction to establish a right claimed by him which remedy stands protected.

In the present case, the Petitioner had not opted for the remedy of any suit for establishing his right claimed by him in the property in dispute. He himself invoked the revisory Jurisdiction contemplated u/s 122B (4A) of the Act where his claim was negatived. In this situation, the Petitioner himself is responsible for losing his remedy of filing a regular suit in view of the prohibition contained in Section 122B (4E) of the Act.

It may, however, be noticed that under the scheme of the U.P. Zamindari Abolition and Land Reforms Act, different remedies have been provided to the Gaon Sabha, Land Management Committee or the Local Authority for seeking recovery of possession of the property vested in it from the person who wrongfully encroaches upon it. It can file a regular suit or it may take recourse to a summary proceeding up to the stage of Section 122B (4) of the U.P. Zamindari Abolition and Land Reforms Act. The proceedings contemplated therein remain a proceeding of a summary nature and any order passed u/s 122B (3) or (4) is subject to the result of a regular suit filed in a court of competent Jurisdiction by the aggrieved party. But once recourse is taken by the aggrieved party to the remedy provided u/s 122B (4A) of the Act, the consequences which ensue are quite different. Having availed of this remedy, the bar contained in Section 122B (4E) of the Act then comes into play.

While it is true that providing a remedy of a summary nature without there being any appeal and providing a separate remedy with a right of appeal and a revision may be violative of Article 14 of the Constitution of India as different proceedings, though falling under the same class and the category being that of tress-passers or unauthorised occupants may be subjected to different procedures on a summary and drastic procedure and the other the normal procedure with various rights which are denied to those who separately treated under the summary procedure. A scheme providing for such a summary proceeding as well as a regular proceeding without any criteria of classification was taken to be violative of the Article 14 of the Constitution of India by as clear from the ratio of its decision in the case of M. Ct. Muthiah and Others Vs. The Commissioner of Income Tax, Madras and Another, .

It has been strenuously contended that there can be different class of persons who might have encroached upon the land of the Gaon Sabha or the Local Authority as against whom the Land Management Committee or the Local Authority may choose to take recourse to the summary procedure while as against the others. it may choose to file a regular suit. No manner of classification has been put by which the Gaon Sabha, or the Land Management Committee or the Local Authority has to classify as against whom they are to proceed u/s 122B of the Act or as against whom by filing a regular suit. Therefore, though falling in the same category of persons who had encroached upon the land vesting in the Gaon Sabha or Local Authority, they can be dealt with by different procedures one of a summary nature and a drastic one and the other by the normal procedure with a right to appeal and other rights.

Considering the policy underlying the Act and the expeditious disposal of the cases relating to removal of unauthorised encroachments in public interest, it appears to me that in order to overcome the aforesaid difficulty it was provided that once the aggrieved party chose not to avail the remedy of revision, his right to file a regular suit for establishing his claim will remain protected but once such a person chose to invoke the revisory jurisdiction and invite a decision from the revising authority in that event, such a person will have to face the bar contained in Section 122B (4E) of the Act prohibiting the filing of the suit.

In this connection, there is yet another aspect which cannot be lost sight of. There may be such cases where title of the Gaon Sabha or the Local Authority in respect of the property in dispute may not be raised and in that situation, there can be no impediment in straightaway proceeding u/s 122B of the Act but even in such a situation, the right of the aggrieved party against the order passed by the Assistant Collector or the Collector as the case may be so far as the maintainability of the suit in regard to the claim in respect of the property award of damages is concerned stands protected subject to the conditions referred to hereinabove.

In view of the scheme underlying the provisions u/s 122B of the U.P. Zamindari Abolition and Land Reforms Act, as it stands, it seems to me that the said provisions cannot be held to be violative of Article 14 of the Constitution of India.

In view of what has been stated above, the ratio of the decision sought to be relied upon cannot come to the rescue of the Petitioner.

Considering the facts and circumstances brought on record, and noticed in the order of Additional Tehsildar as well as the revislonal order, I find no justifiable ground for any interference by this Court, while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.

The writ petition is accordingly dismissed.