- (1.) HON'ble Amitava Lala, J. The second appeal has been placed before us by an administrative order dated 24th September, 1993 by the then Chief Justice of the High Court due to conflicting decisions between two learned single Judge having been connected with several writ petitions previously arising out of com-mon question. All matters are decided by this common judgment making binding effect upon all such cases. The Second Appeal No. 496 of 1988, Civil Misc. Writ Petition No. 7343 of 1989 and Civil Misc. Writ Petition No. 7343 of 1996 have been dealtwith as leading cases.
(2.) ALTHOUGH several substantial questions of law are raised by the appellant but in view of the arguments as put forward by the learned Counsel appearing for the appellant as well as the writ petitioners, the following questions are inevitable to be considered by this Court: " Whether as per Section 122-Bsub-sections (4-C), (4-D) and (4-E) of U. P. Z. A. and L. R. Act, 1950, civil suit is the appropriate remedy to resolve the dispute. Or Whether writ petition could lie against any order under such section irre-spective of availability of alternative and efficacious remedy of civil suit. " Both the judgments of the learned single Judge are reported judgments. First one is reported in 1985 A. L. J. 746 (Sewak Shankar v. Additional Collector, Agra and others) while the other one is reported in 1987 A. W. C. 755 (Shankar Saran and others v. State of U. P. and others ). Atvariance, Mr. Pradeep Chandra, learned Counsel appearing for the appellant and Mr. B. B. Paul, learned senior Counsel appearing for some of the writ petitioners thrust upon the following relevant portionof the judgment of sewak shankar (supra): " 21. It does appear that the dominant object of enacting Section 122-B and particularly Proviso to sub-section (4-E) of Section 122-B of the Act is to provide speedy, expeditious and effective remedy for the ejectment of unauthorised occupants of the Gaon Sabha land. The procedure contemplated by sub-section (4-E) of Section 122-B was for avoiding unusual, dila-tory process and with the object of achieving the purpose of recovering possession without recourse to prolonged litigation in a regular suit. It is common knowledge that a regular suittakes long time commencing with the trial Court, first appellate Court, second appellate Court, and the leave petition being preferred before the Hon'ble Supreme Court. In pursuing revenue and civil suits several years could have elapsed before the possession could have. been recovered. It is for this object that in case a person avails the vemedy of preferring revision before the Collector, he has been deprived of the remedy of the suit. It was this mischief which the Legislature intended to avoid by in corporating the Proviso to sub-section (4-E) of Section 122-B of the Act. 22. Section 122-C provides that the land in possession of the Gaon Sabha has to be earmarked for Abadi sites for the members of the Scheduled Castes and Scheduled Tribes, agricultural iabourers and village artisans The land thus obtained is for the weifare of downtrodden and underprivileged section of society. Ours is a welfare State. 23. It would not be out of place to mention that there is a maxim Salus Populiest Suprema lex, which obviousiy means that the regard for public welfare is highest law. lndividual welfare shall in case of necessity yield to that of the community and that his property, liberty and life shall, in certain circumstances, be placed in jeopardy or even sacrificed for public good. 24. In view of these discussions it is crystal clear that the Legisiature in its wisdom thought it proper to lay down the procedure that in case revision wasfiled, the remedy of suit cannot beavailed. I am, therefore, of the opinion that the provisions. of sub-sections (4-A), (4-C), (4-D) and (4-E) of Section 122-B of the Act are not discriminatory nor are they violative of Article 14 of the Constitution of India. " Therefore, let us see what is the view point of the other learned Single Judge. Following is the relevant portion of the judgment of Shankar Saran (supra): " 18. lt is necessary to observe that when a person files a revision petition the order in revision petition would be final between the parties and the order of the Trial Court i. e. Assistant Collector shall merge into the order of revisional Court. Therefore, after the decision in revision petition filed by the aggrieved party the aggrieved party will be reguired to file a suit against the order of the : revisional Court and the remedy under sub-section (4-D) is against the order of the Collector. 19. I am unable to accept the contention of the learned Counsel for the ; petitioners that the petitioners have no alternative remedy to establish their claim to the disputed land in view of provisions of Section 122-B (4-E) of the Act. think, that the petitioners have an alternative remedy to seek their title to the disputed land because the order in revision has been passed by the Additional Collector and against his order a suit under sub-section (4-D) of Section 122-B of the Act has been provided. 20. In 1982 AWC (Rev.) 94, Abdul Ghafoorv. Gaon Sabha, a learned Member has made the following observations vide para 6 : ". . . . . . . . . . If a revision is filed, before the Collector, regular suit will not be filed against the order of the Assistant Collector in view of the provisions of sub-section (4-E) but the remedy of regular suit will be available against the order passed by the Collector in revision. By the ordinance revisions under Sections 333 and 333-A of the Act are barred against the order of the Assistant Collector or Collector, but the remedy of regular suit is made available to the aggrieved party against the order of the Assistant Collector or Collector as the case may be. The order passed by the Assistant Collector, 1st Class and Collector under amended Section 122-B of the U. P. Z. A. and L. R. Act are not revisable under Section 333 or Section 333-A of U. P. Z. A. and L. R. Act. " 21. The bare reading of Section 122-B (4-D) and (4-E) of the Act indicates that there is some contradiction in the two provisions. The Collector is the revisional authority and against his order a suit has been contemplated under sub-section (4-D ). There after, it is difficult to say that the order of the Assistant Collector which ismerged in the order of the revisional Court, cannotbe challenged in a regular title suit. The suggestion by the learned Member Board of Revenue to the effect that no suit against the order of the Assistant Collector shall lie during the pendency of the revision petition before the revisional Court cannot be readily'accepted because of the wording of the provisions of sub-section (4-E ). Had the Legisiature intended so it would have expressed itself as follows : " No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Ccilector under sub-section (4-A) and is pending. " 22. As I have indicated that the order of Assistant Collectoi would merge in the order of the revisional Court, therefore, the aggrieved partywould be required to file a suit against the order in revision, I am unable to agree with brother B. L. Yadav,. that when an aggrieved party avails 'he remedy of preferring revision before the Collector, he would be deprived of. lh. e remedy of the suit. It would be better for the Legislature to make necessary amendments in Section 122-B of the U. P. Z. A. and L. R. Act so as; to ciarify its intention in enacting sub-section (4-E) of Section 122-B of the Act. "
(3.) THE preamble of the U. P. Zamindari Abolition and Land Reforms Act, 1950, (for short hereinafter referred to as the Act of 1950) is as follows : " Where it is expedient to provide for the abolition of the Zamindari system which involves intermediaries between the tiller of the soil and the State in the Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent on such abolition and ac-auisition and to make provision for other matters connected there with. " From the plain reading of the preamble itself it appears that the Act of 1950 isa complete Code. Its Part II Chapter VII deals with the lands belonging to Gaon Sabha and Land Management Committaes. Section 122-B is part of such Chapter. Such section was introduced by U. P. Land Laws (Amendment) Act No. 20 of 1982 making iteffective from June 3, 1981. Under sub-sections (3) and (4-A) of the said section, a period of 3 months originally prevailing was substituted by the words "thirty days" by the U. P. Act No. 11 of 2002 but since we find that all the cases were filed prior there to the original period will remain applicable. Sub-section (4-F) of the said section was incorporated by the Act No. 24 of 1986 when sub-section (5) was incorporated by the Act No. 35 of 1976. The entire Section 122-B as a whole, is as follows : " 122-B. Powers 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 a local authority is entitled to take or retain possession of any land under 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 other-wise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or mis appropriated or any person 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 causewhy compensation fordamage, misappropriation orwrongful 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 with in the time specified in the notice or with in 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 pur-pose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation fordamage, 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 with in 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. (4-B) The procedure to be followed in any action taken under this section shall be such as may be prescribed. (4-C) Not with standing anything contained in Section 333 or Section 333-A, 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-section (4-A) and (4-D), be final. (ii) Every order of the Collector under this section shall, subject to the provisions of sub-section (4-D), be final. (4-D) 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 himin such property. (4-E) No, such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to Collector under sub-section (4-A ). Explanation.-For the purposes of this section, the expression 'collector' means the officer appointed as Collector under the provisions of the U. P. Land Revenueact, 1901 and includesan Additional Collector. (4-F) Not with standing anything in the foregoing sub-section, 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 1, 2002, and the land shoe 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 himto 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. (5) Rules 115-C to 115-H of the U. P. Zamindari Abolition and Land Re-forms Rules, 1952, shall be and be always deemed to have been made under the U. P. Zamindari Abolition and Land Reforms Act, 1950, as amended by the Uttar Pradesh Land Laws (Second Amendment) Act, 1961, as if this section has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with provisions of this Act. ";