- (1.) This appeal has arisen from a judgment and order of the learned Single Judge dated 25 August 2015 by which a writ petition filed by the appellants to question the legality of orders passed by the Sub Divisional Officer, SDO Rudauli, district Faizabad on 26 February 2014 and 13 January 2015 has been dismissed. The view of the learned Single Judge is a remedy of a revision would be available under sub-section (4A) of Section 122B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, Act against an order passed under sub-section (4F). Hence, the writ petition was not entertained on the ground of the availability of alternate statutory remedy. The appellants claim to be in cultivatory possession and to be entitled to the benefit of Section 122B (4F). They claim to be in possession prior to 13 May 2007 which is the cut off date prescribed under Section 122B (4F). On 29 January 2013, the SDO granted to the appellants the benefit of the provisions of Section 122B (4F) and directed the revenue authorities to make consequential entries in the revenue record. The names of the appellants were entered in the revenue record as Bhumidhar with non transferable rights. Subsequently, an application was filed for recall of the order dated 29 January 2013. The SDO initially kept the order dated 29 January 2013 in abeyance, by an order dated 26 February 2014 and eventually by a final order dated 13 January 2015 set aside the earlier order. The SDO directed that the land in question be recorded as Banjar land in favour of the Gram Sabha. Aggrieved, the appellants filed a writ petition under Article 226 to challenge the orders passed by the SDO on 26 February 2014 and 13 January 2015.
(2.) The learned Single Judge dismissed the writ petition on the ground that a remedy of a revision was available under Section 122B (4A). Sub-sections (1), (2), (3), (4) and (4-A) of Section 122B of the Act read as follows: "(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 may 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 the time specified in the notice or within such extended time not exceeding thirty days 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. (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 grounds mentioned in clauses (a) to (e) of Section 333." Sub-section (4F) of Section 122B is in the following terms: "(4F) 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 May 13, 2007 and the land so occupied together with land, if any, held 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 he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land". Explanation.-- The expression "agricultural labourer" shall have the meaning assigned to it in Section 198." Sub-section (4F) of Section 122B has been construed and interpreted in a judgment of the Hon'ble Supreme Court in Manorey alias Manohar vs. Board of Revenue (U.P.) and Ors., 2003 AIR(SC) 4102 . The Supreme Court held that sub-section (4F) carves out an exception from the provisions of sub-sections (1), (2) & (3) under which a procedure for eviction of unauthorized occupants of land vested in the Gram Sabha is provided. The exception which is carved out by sub-section (4F) is in favour of agricultural labourers belonging to Scheduled Castes and Schedule Tribes having land below the stipulated ceiling of 3.125 acres. Where the conditions of sub-section (4F) are fulfilled, the legislature has provided that no action to evict such person shall be taken and he shall be deemed to have been admitted as Bhumidhar with non transferable rights over the land.
(3.) The Supreme Court has held thus: "8. First, the endeavour should be to analyze and identify the nature of the right or protection conferred by sub-section (4F) of Section 122-B. Sub-sections (1) to (3) and the ancillary provisions upto sub-section (4E) deal inter alia, with the procedure for eviction of unauthorized occupants of land vested in Gaon Sabha. Sub-section (4F) carves out an exception in favour of an agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe having land below the ceiling of 3.125 acres. Irrespective of the circumstances in which such eligible person occupied the land vested in Gaon Sabha (other than the land mentioned in Section 132), no action to evict him shall be taken and moreover, he shall be deemed to have been admitted as a Bhumidhar with non transferable rights over the land, provided he satisfies the conditions specified in the sub-section. According to the findings of the Sub-Divisional Officer as well as the appellate authority, the appellant does satisfy the conditions. If so, two legal consequences follow. Such occupant of the land shall not be evicted by taking recourse to sub-section (1) to (3) of Section 122B. It means that the occupant of the land who satisfies the conditions under sub-section (4F) is entitled to safeguard his possession as against the Gaon Sabha. The second and more important right which sub-section (4F) confers on him is that he is endowed with the rights of a Bhumidhar with no-transferable rights. The deeming provision has been specifically enacted as a measure of agrarian reform, with a thrust on socio-economic justice. The statutorily conferred right of Bhumidhar with non-transferable rights finds its echo in clause (b) of Section 131. Any person who acquires the rights of Bhumidhar under or in accordance with the provisions of the Act, is recognized under Section 131 as falling within the class of Bhumidhar. The right acquired or accrued under sub-section (4F) is one such right that falls within the purview of Section 131(b).";