R.R.K.Trivedi - (1.) SHORT question involved for determination in this writ petition is as to whether petitioner could be required to file a suit for declaration of his title in the court of competent jurisdiction within a period of three months' from the date of the order passed in proceedings under section 122-B of UP ZA and LR Act (here-in-after referred to as Act), which were initiated against the petitioner in the year 1972
(2.) THE undisputed facts giving, rise to this writ petition are that in the year 1972 Lekhpal of the village Oriyara made a report that the petitioner has illegally occupied plot no 93 area 1-12-0 of village Oriyara in the year 1378F. On this report a show-cause notice was served on petitioner in Z. A. Form 49-A as to why he may not be evicted from the land in dispute and the damages may not be recovered from him. In response to this notice petitioner filed an objection stating therein that his possession is old and continuing from before the abolition of Zamindari. THE land was taken from Zamindari and after taking possession he constructed his abadi and also established a Chakki (Flour mill). Even during consolidation no notice was served on him. After taking evidence of both the sides Assistant Collector 1st class, Kanpur by his order dated 23 rd August, 1973 asked the petitioner to vacate his possession from the plot in dispute and to pay Rs. 210. 60P. as damages. Aggrieved by this order, petitioner filed a revision before the Additional Commissioner, Allahabad Division, Allahabad who vide his order dated 24th June, 1975 made a recommendation to the Board of Revenue to setaside the order of Tahsildar and to drop the proceedings against the applicant, as on the basis of the evidence on record the bonafide question of title is involved. Board of Revenue vide its order dated 13th May, 1981 has accepted the recommendation in part only to the extent that the bonafide question of title is involved and thus has set aside the order dated 23rd August, 1973 passed by Tahsildar/ Assistant Collector 1st class, Kanpur. However the petitioner has been required to file a suit within three months in a competent court of jurisdiction for declaration of his title and the proceedings before the trial court have been stayed. Thus show cause notice which was served on petitioner in Z. A. Form 49-A and the proceedings initiated on the basis of the same are pending. This order passed by Board of Revenue has been challenged in the present writ petition as illegal and without jurisdiction. I have heard Shri Yatindra Singh, learned counsel for the petitioner and Shri K B. Garg, learned counsel appearing for the Gaon Sabha Sri Garg raised a preliminary objection that before Assistant Collector Ist Class/ Tahsildar one Sri Ballabh Bajpai was made a party and he was allowed to adduce evidence and was heard by Tahsildar. Kanpur but he has not been made a party and the writ petition is liable to be dismissed for non- impleadment of necessary parties. Sri Yatindra Singh has submitted that though it is true that Sri Ballabh Bajpai was impleaded and he was allowed to adduce evidence but his allegations were not accepted by Tahsildar. The dispute as raised by Ballabh Bajpai cannot be determined in the present proceedings. The Board of Revenue in the impugned order has considered this objection and has rejected the same as irrelevant for the decision I have considered the preliminary objection raised by Sri Garg and in my opinion, in the present proceedings the inter-se dispute of title between the petitioner and Sri Ballabh Bijpai cannot be gone into and determined. The provisions of section 122-B of the Act are meant only for the protection of the property vesting in Gaon Sabha and local authorities A quick remedy has been provided to get possession of public property from unauthorised occupation. This forum cannot be permitted to be used for resolving the private dispute of the nature raised by Sri Ballabh Bajpai. If such disputes are allowed to be raised and considered, the very purpose and object behind enacting section 122-B shall stand defeated. It is also noteworthy that though no relief was granted to Sri Ballabh Bajpai, but he did not file any revision challenging the order of Tahsildar. He gave up contest and in the circumstances he could not be treated to be a necessary party. The preliminary objection raised by Sri Garg thus is rejected as not tenable. Sri Yatindra Singh submitted that the proceedings under section 122-B were initiated against the petitioner in 1972. The order of Tahsildar was passed on 23rd August, 1973 and as such the proceedings should be governed by the provisions of section 122-B as it then stood. As it has been found by Additional Commissioner and the Board of Revenue on the evidence adduced by petitioner that a bonafide question of title is involved, the proceedings should have been dropped and the petitioner cannot be legally required to file a suit within three months as done by the Board of Revenue. The submission of learned counsel for the petitioner is that the amended provisions of section 122-B cannot be legally applied against the petitioner in the pending proceedings and the Board of Revenue has committed a serious error of law and in requiring petitioner to file a suit and the impugned direction is liable to be quashed as illegal and without authority.
(3.) SRI K B. Garg, on the other hand, has submitted that the provisions of section 122-Bare procedural in nature' and amended provisions have been correctly applied to the pending proceedings also as Board of Revenue has directed the petitioner to file a suit and has stayed the proceedings in view of the amended provisions of section 122-B, as they stood on the date of order passed by Board of Revenue. SRI K. B. Garg has further submitted that the order passed by Assistant Collector has become final as the order was final under section 122-B (4) and revision was not legally maintainable. SRI Garg has placed reliance on a case Nasiruddin v. Ch. Ram Swarup, 1978 RD, 298 (DB) and 1980 RJ 103 and 270. Learned counsel tor the petitioner in his rejoinder has submitted that the revision filed by him was legally maintainable before the Additional Commissioner and Board of Revenue. He has relied on Ram Raja v. Board of Revenue, U P. Allahabad, 1970 ALJ 410. Sri Yatindra Singh has also submitted that the Board of Revenue has taken the view in respect of proceedings under section 122-B that the proceedings initiated before 19th August, 1975 should be decided in accordance with law then prevailing. Sri Yatindra Singh has placed before me a judgment of Board of Revenne in Smt. Bitana v. Gaon Sabha, 1977 AWC 89 (Revenue). I have considered the submissions raised by both the learned counsel Section 122-B was brought on the statute book and was added for the first time by section 2 (i) of U. P. Land Laws (Second Amendment) Act, 1961 i e. Act No 28 of 1961. This provision was introduced as Rules 115-C, 115-H of UP ZA and LR Rules for the summary ejectment of the trespassers from Gaon Sabha property were he'd invalid, in case Paras Nath Singh v State of U. P., 1960 ALJ 549. Main purpose behind introducing this section was to remove the difficulties and provide necessary sanction of law. for evicting unauthorised occupants of the land of Gaon Sabha and local authorities in summary proceedings without causing much delay. Thereafter section 122-B was subjected to various legislative changes. The First Amendment was introduced on the basis of the recommendation of Visharad. Committee which recommended that stern action should be taken to deal with the problem of unauthorised occupants of Gaon Sabha land. The amendments were firstly introduced through U. P. Ordinance No. 20-1975 which was placed by U. P. Land Laws (Amendment) Act, 1975 that is U. P. Act No. 30 of 1975 which came in force on 19th August, 1975. Sections 2, 3 and 4 of existing section 122-B of the Act were substituted by new sub-sections and sub-sections 4-A to 4-F were also added. Section 4-B of the Act provided as under : "If during the course of enquiry any proceeding under this section, the person in occupation of land referred to in sub-section (i) has produced any evidence of title to such land which appears to the Collector to raise bona fide question of title, then the Collector shall, by order require such person to file a suit, for declaration of his title under section 229-B in competent court within a period of one month from the date of such order and stay further proceedings in the mean time". Section 4-B was again amended by U. P. Ordinance No. 17 of 1976 with effect from 15th June, 1976. After amendment section 4-B provided that the suit could be filed within three months from the date of the order and otherwise it remained same substantially. Section 4-D and 4-DD provided that where the suit succeeded in whole or in part the Collector shall either drop or continue further proceedings under this section. Section 4-DD provided that if no suit was filed within the period as directed or the suit has been dismissed, the Collector shall evict the person and realise the compensation for damages and misappropriation. In the statement of objects and reasons for passing aforesaid U. P. Land Laws Amendment Act, 1976 it has been said that the problem of unauthorised occupants of Gaon Sabha's land has been disturbing. In order to reduce the incidence of this evil it has been decided to amend the UP ZA LR Act, 1950 to provide that if after execution of any decree or order for eviction from any Gaon Sabha land in case present occupant occupies, he shall be liable to be criminally prosecuted and no rights could accrue by adverse possession over and Gaon Sabha land.;