Churha v. Chief Controller of Revenue/Board of Revenue, District Dehradun & Ors.

Judgment

#1. In this case, which pertains to the year 2002, notices were already sent to respondent nos. 4 & 5/1 to 5/3 on 23.10.2008 and there is an office report dated

15.12.2009 which shows that notices were sent by the registered post. The service is deemed to be sufficient against respondent nos. 4 & 5/1 to 5/3.

#2. Heard learned Senior Advocate Mr. Sharad Sharma assisted by Mr. J. S. Bisht, Advocate for the petitioner.

#3. The petitioner belongs to Scheduled Caste Community. There is a provision under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (from hereinafter referred to as the Act), i.e. Section 122B-4-F, according to which, if a schedule caste person is in occupation of a land from before 1.5.2002, and secondly if the land is less than 1.26 hectare in area then he will not be evicted from that land. Provision of Section 122B- 4-F of the Act otherwise authorizes the Land Management Committee to evict such unauthorized occupant who occupied the land after 1.5.2002. 2

#4. The petitioner, who was in occupation of the land of Management Committee, moved an application stating that he should be given the land under Section 122B-4-F of the Act and consequently an order dated 12.1.1976 was passed in his favour in case no. 3 of 1976. After one year of this order, a complaint was made by another villager of the same village Khajuri that the order has been fraudulently obtained by the petitioner. Thereafter on a complaint, the order dated 12.1.1976 was recalled on 20.9.1977 and the matter was referred to the Board of Revenue under the provision, namely, 333-A of the Act*. When the matter was pending before the Board of Revenue, a notification under Section 4 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (from hereinafter referred to as (cid:145)1953 Act(cid:146)) was issued on

14.9.1991 pertaining to the village in which the disputed land was situated (an affidavit filed to this effect in Court today, the veracity of which is confirmed by Senior Advocate Mr. Sharad Sharma before this Court, is taken on record). Now once a notification under Section 4 of 1953 Act is published, one of important consequences of such a notice is that all proceedings and interest relating to the land in the said village stands started in view of Section 5(2) of the 1953 Act. Section 5(2) of the 1953 Act reads as under:- (cid:147) 5. Effect of [notification under Section 4 (2). (cid:150) (1)(cid:133) (2) Upon the said publication of the notification (2) of Section 4, the under sub-section following further consequences shall ensue in the area to which the notification relates, namely (cid:150) *A provision which now stands repealed by U.P. Act No.20 of 1997. 3 (a) every proceedings for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated : Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard : Provided further that on the issue of a notification under sub-section (1) of section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated; (b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits appropriate or proceedings before consolidation authorities under and accordance with the provisions of this Act and the rules made thereunder.] [Explanation. (cid:150) For the purposes of sub- section (2), a proceeding under the Uttar Imposition of Ceiling on Land Pradesh Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land.]

#5. When the consolidation proceedings started in the village, the present petitioner filed an objection under Section 9-A-2 of the 1953 Act before the Consolidation 4 Officer, which was registered as case no. 4281 of 1998 and is still pending.

#6. Meanwhile reference, which was pending before the Additional Commissioner was decided against petitioner by an order dated 16.5.1980 upholding the validity of the order dated 20.9.1977 passed by the Additional Sub Divisional Officer. The petitioner, consequently, moved a revision before the Board of Revenue, which was ultimately decided by the Board of Revenue on 8.2.1993 upholding the decision of the Additional Commissioner dated 16.5.1980 as well as earlier order of the Additional Sub Divisional Officer dated 20.9.1977.

#7. The provision of law is absolutely clear that the proceedings as mentioned under Section 5(2)(a) of 1953 Act shall stood abated when the notification under Section 4 of the 1953 Act is published. Therefore since the notification under Section 4 of the 1953 Act was published on 14.9.1991 the Board of Revenue had no jurisdiction to decide the revision on 8.2.1993, as it had stood abated.

#8. In view of the above, the writ petition is allowed. The matter is remanded to Consolidation Officer before whom the matter is still pending. He shall decide the same in accordance with law considering all aspects of the matter and after giving opportunity of hearing to the petitioner as well as to the present land of Management Committee and to the villagers of the village Khajuri in general and the complainant in particular so that they may put their case regarding the present possession of the petitioner on 5 the land in dispute, particularly in view of the order of the court below dated 20.9.1977 holding that the order dated 12.1.1976 was actually obtained by the petitioner by fraud. It is made clear that till the matter is decided by the authorities, the status quo as on today on the disputed land shall be maintained.

#9. No order as to costs. Kuldeep (Sudhanshu Dhulia, J.)

20.6.2012