R.K.Gulati - (1.) THIS writ petition is directed against an order of the Board of Revenue, U. P. at Allahabad by which it accepted the reference made by the Additional Commissioner, Varanasi Division, Varanasi under section 333-A of U. P. Zamindari Abolition and Land Reforms Act, 1950 (for short 'the Act'). The Additional Commissioner had recommended that the orders dated 4-2-1976 and 22-5-1979 pissed by the Sub Divisional Officer, Sadar, Jaunpur being without jurisdiction be set aside.
(2.) HAVING heard learned counsel for the petitioner, in my opinion, the writ petition has no merit and is liable to be rejected in limine. Babu Nandan, the petitioner, has claimed that he is a landless agricultural labourer belonging to scheduled caste and he was in possession of plot nos. 28/2/20 and 42/3 before 30-6-1975 that were recorded in the name of the Gaon Sabha. It is said that after the introduction of sub-section (4-F) in section 122-B of the Act, the Lekhpal of the circle made a report In favour of the petitioner to the Supervisor Kanungo to the effect that the name of the petitioner be entered in the revenue records as sirdar. This report was approved by the Sub Divisional Officer by his order dated 4-2-1976 and he directed that the petitioner be recorded as sirdar in accordance with the provisions of section 122-B (4-F) of the Act. Subsequently 'respondent no. 7 Bhaisasur Deosthan filed an application on 11-11-1978 through its Pujari against the order dated 4-2-1976 on the allegation that the plot in question constitutes 'Deosthan'. That application was accompanied by another application for condonation of the delay. Respondent no. 7 asserted that the land comprising the aforesaid plots which belonged to the Gaon Sabha was ear-marked in the consolidation proceedings for 'Deosthan' and the name of the petitioner was wrongly directed to be entered as sirdar without any notice to it. The Sub Divisional Officer rejected the restoration application by his order dated 22-5-1979. Against that order respondent no. 7 preferred a revision before the Additional Commissioner, Varanasi Division, Varanasi, who after hearing the parties and considering the material that existed on the record, opined that the two orders dated 4-2-1976 and 22-5-1979 which were passed by the Sub Divisional Officer, were without jurisdiction and were liable to be set aside. With this opinion the Additional Commissioner made a reference to the Board of Revenue, U. P. at Allahabad under section 333-A of the Act As stated earlier, the Board of Revenue concurred with the recommendation of the Additional Commissioner and accepted the reference Accordingly, it set aside the two orders passed by the Sub Divisional Officer. Aggrieved by the order passed by the Board of Revenue, the present writ petition has been preferred. Learned counsel for the petitioner submitted that the name of the petitioner was recorded in Zaman 4 in the year 1381-83 Fasli which implied that the plots In question belonged to the Gaon Sabha. As the petitioner was in possession of the plots in question before 30-6-1975 and satisfied the other conditions of section 122-B (4-F) of the Act, the 5ub Divisional Officer committed no error of law when he directed the name of the petitioner be entered as Sirdar. The petitioner claims the benefit of section 122-B (4-F) of the Act. To appreciate the contention of the petitioner, it is necessary to refer the provisions of sub-section (4-F) which reads as under :- "(4-F) Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under section 117 (not being land mentioned in section 132) having occupied it from before June 30, 1985 and the land occupied together with land, if any, field by him from before the said date as Bhumidhar, Sirdar or Asami does not exceed 1.26 hectares (3.125 acres) then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and it shall be deemed that he has been admitted as Bhumidhar with nontransferable rights of that land under section 195".
(3.) BEFORE proceeding further, it may be noticed that the other part of the provisions contained in section 122-B of the Act preceding subsection (4-F), inter-alla, deal with the powers of the Land Management Committee in respect of the property or land vested in a Gaon Sabha or a local authority, and in the case of any damage or misappropriation or wrongful occupation of such land, it prescribes the procedure for eviction of the persons in unauthorised occupation of such land and imposition of damages etc. Sub-section (4-F) which opens with a non-obstante clause, is in the nature of an exception to section 122-B of the Act. The language of sub-section (4-F) Is precise and unambiguous. It is a beneficial provision and purports to confer certain statutory rights and grants immunity against any action of the Land Management Committee or the Collector in respect of class and description of persons who in their turn, have to satisfy certain conditions also, as laid regarding period of occupation and aggregate land occupied by them as Bhumidhar, Sirdar of Asami. The exception is provided by prohibiting exercise of the powers of the Land Management Committee and the Collector as provided in the sub-sections preceding sub-section (4-F) of the Act. Sub section (4-F) precludes any action by the Land Management Committee or the Collector against the class of persons named in the sub-section itself and creates a beneficial legal fiction in their favour namely, "then no action under this section shall be taken by the Land Management Committee or Collector against such labourer and it shall be deemed that he has been admitted as Bhumidhar with nontransferable rights of that land under section 195". Now section 195 enjoins the Land Management Committee with the powers to admit any person as Bhumidhar with non-transferable "right in respect of three categories of land enumerated in that section other than the land covered by any of classes mentioned in section 132 of the Act In other words, the land of Classes mentioned in section 132 of the Act is specifically excluded from the purview of section 195 and the Land Management Committee has no power to admit any person and grant non-transferable Bhumidhari rights in respect of the land falling within any of the classes mentioned In section 132 of the Act. A reference to section 132 would show that it speaks of the land in which Bhumidhari rights shall not accrue and vide clause (c) (vi) it is stipulated that Bhumidhari right shall not accrue In the land set apart for public purposes under the U. P. Consolidation of Holdings Act, 1953.;