M.L. Chadurvedi, J. - (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE petitioner was recorded as a tenant of the plots in suit sometime in 1347F. The settlement operations in the Tehsil started in 1348F and continued till 1351F. A survey of the village in which the plots in suit are situate, was made in 1348F and the petitioner's name was recorded as a tenant of the plots. In 1349F., a suit was brought under Section 180 of the U. P. Tenancy Act, by the Zamindar for the ejectment of the petitioner from the plots in dispute. The suit was decreed in 1350F and it appears that in 1351F. the petitioner was ejected as a result of the decree and a note was made in the settlement khatauni that a decree for ejectment had been passed. The khatauni for the period 1348 -51F was one and the same. After the petitioner's ejectment the zamindar let out the land in suit to the respondents Nos. 2 to 42 or their predecessors in -interest. These tenants continued in possession and in the year 1947, the U. P. Tenancy Act No. X of 1947 was passed. Under Section 27 of this Act, a provision was made for reinstatement of certain tenants, who had been ejected under decrees of the Revenue Courts. The provision applicable to the present case is contained in Section 27 (1) (c) and, it is to the effect that if on or after the 1st January, 1940, any person was ejected from his holding or any part thereof under Section (sic)80 of the U.P. Tenancy Act notwithstanding his having been recorded as an occupant after the 1st day of January, 1938, in a record revised under Chapter IV of the U. P. Land Revenue Act, or corrected by an officer specially appointed by the Government for the correction of annual registers in any tract, he may apply to the court which passed the decree of ejectment for his reinstatement to the holdings or part thereof. In pursuance of this provision, the petitioner filed two applications for his reinstatement, in the court of the Assistant Collector first class. The two applications appear to have been consolidated and were disposed of by one judgment. The petitioner's case was that he was recorded as an occupant in the Settlement Operations in 1348F., and he had been ejected from the plots in dispute after the 1st day of January, 1940, and he was thus entitled to be reinstated or restored to possession. The zamindars contested these applications alleging that the petitioner was not recorded an occupant in the last Settlement. The Assistant Collector dismissed the applications on the 19th August, 1949, mainly on the ground that though the petitioner was recorded as an occupant of the plots in the khatauni of 1348F but in the remarks column of the same khatauni, there was an entry that the zamindars had ejected the petitioner in 1943 A.D. by means of a decree of court, and had taken possession of the plots. He consequently held that the petitioner was not recorded as an occupant in the Settlement Khatauni. The petitioner then went up in appeal to the Collector of Azamgarh, who allowed the appeal on the 28th March, 1951, and directed the reinstatement of the petitioner to the plots. The Collector was of opinion that the petitioner was recorded as an occupant in the record of rights revised under Chapter IV of the U. P. Land Revenue Act. The respondents then applied to the Commissioner in revision, and the learned Commissioner recommended to the Board of Revenue for setting aside the order of the Collector. The Board then heard the reference and Mr. S. N. Mitra, a learned judicial member of the Board expressed the opinion that on the facts which had been proved, the petitioner could not be called a person who had been recorded as an occupant of the plots in dispute during the Settlement Operations. The case then was referred to another member. Mr. Mitra was of the opinion that the revision should be allowed. The other judicial member, Mr. V. C. Sharma, did not agree with the opinion of Mr. Mitra that the petitioner was not recorded as an occupant in the settlement proceedings but he was of the opinion that the revision should be allowed on the ground that the petitioner was not in actual possession of the plots in dispute. He could be restored to possession only if he was recorded as an occupant and was also in actual possession of the plots. For this view he relied upon a decision of the Board of Revenue in the case of Ganga Ram and others v. Bijleshwari, 1954 A. W. R. (Rev.) 13. That decision was on similar words used in Sec. 20 of the U. P. Zamindari Abolition and Land Reforms Act. Mr. Sharma was also of the opinion that the revision should be allowed but his ground was a different one. The present petition was filed on the 25th April, 1955, and the prayer contained in the petition is that the judgment of the Board of Revenue be quashed.
(3.) LEARNED counsel for the petitioner has urged that there is a patent illegality in the Orders of both the learned members. His case is that Mr. Mitra's decision is wrong in so far as it says that the petitioner was not recorded as an occupant of the plots in dispute during the settlement proceedings, and on this point he says that the order of Mr. Sharma is correct. As regards the latter part of the judgment of Mr. Sharma, the argument is that what the law requires is the record as an occupant during Settlement Operation and it makes no difference whether the person recorded was actually in possession of the land or not. All that is required is that the person should be recorded as an occupant and even if it be proved that he was not in possession, he was entitled to an order of reinstatement under Section 27 (1) (c). Learned counsel for the respondents has challenged this proposition of law and has further urged that the decision of Mr. Mitra is correct and the petitioner cannot be said to have been recorded as an occupant of the land in dispute, in the settlement proceedings . He has also argued that the error, if any, cannot be corrected in a Writ of Certiorari, that the setting aside the decision of the Board of Revenue would work hardship on the respondents, and in the interest of justice this Court should refuse to interfere in its jurisdiction under Art. 226 of the Constitution; and that there is another equally efficacious remedy open to the petitioner inasmuch as he can file an application for the grant of special leave to appeal, to the Supreme Court. After hearing learned counsel at some length I have come to the conclusion that the contention of the learned counsel for the petitioner is correct and that this petition should be allowed.;