HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- WRIT - C No. - 41708 of 2001
Petitioner :- Baboo Ram And Another
Respondent :- The Commissioner Basti And Others
Counsel for Petitioner :- P.P.Chaudhary, A.K. Singh
Counsel for Respondent :- C.S.C.,Dharm Raj Chaudhary,P.N. Pandey,Ramanand Pandey
Hon'ble Siddhartha Varma,J.
1. This Special Bench has been constituted by Hon'ble The Chief Justice on a reference made by learned Single Judge vide judgment and order dated 8.3.2017 in the present petition.
2. We have heard learned counsel for the parties and perused the record.
3. The petitioners before the learned Single Judge placed reliance on the judgment and order dated 12.7.2011 in Writ Petition no.5820 of 2002 (Kanhaiya and others) wherein the order dated 13.9.2001 passed by the Additional Commissioner in revision expunging the names of the petitioners therein had been set aside on the ground that it was passed without issuing notice to them. The counsel for the petitioners herein insisted that the petitioners being similarly situated persons challenging the common order dated 13.9.2001 are entitled for the same relief. The observations made in the referral order in this regard are relevant to be noted hereunder:-
"Another supplementary affidavit has been filed by the petitioners on 20.01.2012, in which the petitioners have said that their writ petition was similar to Writ Petition No. 5820/2002 filed by Kanhaiya and others and said writ petition was allowed by order of Coordinate Bench of this Court dated 12.07.2011, copy of the said order has been filed as annexure 1 to the supplementary affidavit and a prayer has been made for grant of similar relief.
The judgement and order dated 12.07.2011 shows that the same contention was raised before this Court in Writ Petition No. 5820 of 2002, that the private respondent had filed an application on the basis of which the Additional Commissioner treated the same to be a revision and without issuing notice to the petitioners had passed the order dated 13.09.2001 expunging their names and directing for recording of plot no.46 as 'charagah'.
The Hon'ble Court thereafter has recorded that the party, who could have been affected had not been given an opportunity or notice in the matter. In such circumstances, the order impugned passed by the Additional Commissioner dated 13.09.2001, was quashed and the matter was remanded back to respondent no. 1 i.e. Additional Commissioner for taking appropriate decision, after issuance of notice to the petitioners and after inviting objections.
While passing the order dated 12.07.2011 the Hon'ble Court also observed thus:
"While passing any order, respondent no.1 will also take into consideration whether in the facts and circumstances as it has been informed that the consolidation proceeding is going on, he will have a jurisdiction to pass such order or not. All these objections have to be taken into consideration by the respondent no.1."
Since this writ petition is by similarly situated petitioners as those of Writ Petition No. 5820 of 2001, which has been allowed by Coordinate Bench of this Court, which order is ordinarily binding upon this Court also, I can not take any contrary view unless I refer the matter to the Chief Justice for constitution of a Division Bench to hear and decide the following questions of law:-"
4. It appears that having different opinion, facing with the previous directions in a similar matter, the learned Single Judge deemed it fit and proper to make a reference while framing the following Questions of law to be answered by the larger Bench:-
"A. Whether the Additional Commissioner was empowered to treat an application bringing to his notice the fraud committed by the revenue authorities, as a revision and take necessary action because under U.P.Z.A & L.R. Act, the powers of revision are vested under Section 333 of the U.P.Z.A & L.R. Act and include the power to correct an error where the subordinate revenue authority has acted in the exercise of jurisdiction illegally or with material irregularity and the Revisional Authority may pass such order in the case as he thinks fit?B. Whether an order passed by the Sub Divisional Officer in case filed under Section 229 B U.P.Z.A. & L.R Act, which was passed without reference to the issues involved in the "lis" and without formal adjudication of points for determination could be said to be a decree in the eyes of law when admittedly it was against the statutory provisions of the very same Act, under which the said jurisdiction was exercised?C. Whether there is any requirement of opportunity of hearing in a case where from the records in question and the reports submitted by the Revenue Authorities, it is apparent that an illegality has been committed and a fraud has been played. In terms of the law laid down by the Hon'ble Supreme Court in Aligarh Muslim University Vs Mansoor Ali Khan 2000(7) SCC 529? Whether such an exercise would be an exercise in futility and following of principles of natural justice an empty formality?D. Whether this Court would exercise its extraordinary writ jurisdiction to set aside an order which would amount to restoration of an illegal order?E. Whether in view of the law laid down by the Hon'ble Supreme Court in the case of A.M. Allison Vs. B.L. Sen, AIR 1956 SC 227 and Mohammad Swaleh Vs. III Additional District Judge, 1998 (1) SCC 40, this Court should set aside the order passed by the Additional Commissioner, looking into the necessity to preserve public utility lands and ponds emphasized by the Hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamla Devi, 2001 (6) SC 496 and Jagpal Vs. State of Punjab and others, 2011 (11) SCC 396?"
5. Having carefully read the referral order, we find that answer to the questions referred can be given only while dealing with the merits of the case of the parties herein. The reason being the legal position on the questions of law referred to us is not unsettled and no authoritative pronouncement of the larger Bench is needed. It has to be seen whether the questions referred would arise in the controversy at hands in the facts and circumstances of the case.
6. Further, having carefully perused the order dated 12.7.2011 passed by the learned Single Judge in the previous Writ Petition no.5820 of 2002, we note that all questions were left open to be examined by the Additional Commissioner while relegating the matter. On the merits of the claim of the petitioners therein only this much was noted that no notice was issued to the petitioners before passing the order dated 13.9.2001 expunging their names and directing for recording of plot no.46 as 'Charagah'. We further find that there was no expression of opinion of the learned Single Judge while passing the judgment and order dated 12.7.2011 on any of the issue before us under the referral order. The conflict of opinion appears to be only on the merits of the case, though in the referral order the learned Single Judge has not expressed any definite opinion on any of the issues before her.
7. The facts in brief relevant to decide the controversy at hands are that the present petition has been filed for quashing of the order dated 13.9.2001 passed by the Additional Commissioner, Basti in Revision no.29 of 2001. The said revision was registered on an application dated 10.8.2001 filed by one Vishram, resident of Village-Saraini, Tehsil-Bhanpur, District- Basti.
8. The averments in the said application was that Arazi No.46 area 2-0-0 situated in Mauja Saraini, Tappa Kothila, Pargana Basti, Tehsil-Bhanpur, District-Basti was kept aside for 'Charagah' (Pasture Land) during the last consolidation proceedings. In the middle of the land in dispute, there exist a pokhar (pond) where Village cattles used to drink water. In the land in question a Village fair was also being held. However, in order to grab the land in question illegally, certain Scheduled Caste persons of the Village got settlement of the said land in their names and got entry in the proceeding under Section 122-B (4-F) of U.P.Z.A & L.R Act (hereinafter referred as the 'Act) Kanhaiya, Siya Ram, Bundele, Gulai and Hari Ram all sons of Ram Lal got their names recorded in Category -3 in an area of 16-0-0 (pukhta) of plot no.46 taking benefit of Section 122-B (4-F) of the Act. Two persons namely Nokhairam and Ramkewal sons of Ram Surat constructed their houses over the land in question. On the restoration/recall application filed by a member of Land Management Committee, the then Sub-Divisional Officer had stayed the operation of the order passed under Section 122-B (4-F) of the Act. The revision filed by Kanhaiya and others was also rejected by the Commissioner, Gorakhpur on the ground of maintainability. It was averred therein that the Village was under consolidation and taking benefit of the same the opposite parties were making efforts to get their names recorded in the public utility land, which was kept aside for 'Charagah' (Pasture Land). The prayer in the application was to evict the unauthorised occupants and restore the public utility land in its original position.
9. On the presentation of the said application, it appears that the Commissioner, Basti Division, Basti had summoned the report of the lekhpal as also the Original basic year khatauni from 1397-1404 fasli. The lekhpal in his report dated 6.9.2001 produced original records namely Gausvara dated 6.9.2001 and extract of khatauni for 1399-1404 fasli. The said report of lekhpal has been extracted in the order impugned. It is recorded in the order impugned that in the Basic year Khatauni (1399 to 1404 fasli), Arazi 46, (Area 17-0-0) has been entered in Khata no.198. In the same document, in Khata no.65- Arazi 46/2 (Area 1-10-0) was entered in the name of Bundele s/o Ram Lal in Category-1; Arazi no.46/3 Area 1-10-0 in Khata no.66 in Category-1 was recorded in the name of Babu Ram s/o Puddan; in Khata No.198, Arazi no.46 (Area 3-0-0) names of Babu Ram s/o Puddan, Bundele, Hariram sons of Ramlal were entered in Category-3 and Arazi no.46M (Area 3-0-0) was entered in the names of Kanhaiya, Gulai, Siyaram sons of Ram lal as Asami in Category-3. Name of Guru Prasad s/o Kanhaiya was recorded as Non-transferable Bhumidhar in Arazi no.46 M in an Area 3-10-0; Arazi no.46, Area 1-0-0, Khata no.198 in category-4 was entered in the name of Lakshram s/o Sewak. As result of it, out of total Area of 20-0-0 of Arazi no.46, entered in the Basic year Khatauni, only an area of 17-0-0 remained in Khata No.198. It was directed that the revenue record keeper shall explain after making an enquiry as to how the aforesaid entries were made and when and under whose order? It was further observed that the public utility land kept aside for 'Charagah' under Section 132 of U.P.Z.A & L.R Act could not have been settled in favour of private persons. Direction was, therefore, given to find out the guilty officials and initiate appropriate proceedings against them. Simultaneously, it was ordered that no right whether Asami or Bhumidhari (transferable or non-transferable) could be conferred in the public utility land within the meaning of Section 132 of U.P.Z.A & L.R Act. The entries made in the name of the private persons noted hereinabove were directed to be expunged being illegal and void ab initio. Entries of 'Charagah' in Arazi no.46, Area 20-0-0 was directed to be restored in Khata of 'Charagah' (Pasture Land). It was further directed that the copy of the order be also sent to the Settlement Officer (Consolidation), Basti for information.
10. Challenging this order, the petitioners herein (two in number) averred in the writ petition that they belong to Scheduled Caste category and each of them has been in possession of the land in dispute since prior to 30.6.1975. Over an area of 1-10-0 of Arazi no.46, their names were initially recorded in Category (Class)-4 in the revenue records. But later, both the petitioners filed two separate suits under Section 229-B of U.P.Z.A & L.R Act seeking declaration of Bhumidhar rights in the said land. The said suits were registered as Suit no.25 and 26, respectively, and decreed by two separate judgments and orders of the same date, i.e. 20.1.1989. After expunging the entries of the names of the petitioners in Category-4, the land in question was directed to be recorded in their names in Category-1. Both the aforesaid orders have been appended as Annexures-'1' and '2' to the writ petition and to contend that the petitioners, thereafter, have installed their tubewells and are using the land in question for agricultural purposes. The complainant/respondent no.2 is a member of higher class and the complaint is motivated. The Commissioner, however, being swayed away by the statement of the respondent had directed for deletion of names of the petitioners from the revenue record, without even issuing notice to them. As no notice or opportunity of hearing had been granted to the petitioners herein, the order impugned is liable to be quashed.
11. Sole ground to press the prayer for quashing the order impugned is non-compliance of principles of natural justice.
12. At the outset, we may note that we have not been able to gather anything from the order impugned which would demonstrate that notice was issued to the petitioners herein after registration of the application moved by the respondent no.2 as Revision under Section 333 of U.P.Z.A & L.R Act.
13. First question (A) in the referral order, therefore, arises for consideration before us as to whether the Commissioner had jurisdiction for expunging the entries in the revision noticing that fraud had been committed by the Revenue Authorities in manipulating the records as also in view of the error apparent on the face of record in making the revenue entries in the name of private persons of the public utility land.
14. We may also note that the petitioners are claiming right in the Public Utility Land on the basis of an order passed by the Sub-Divisional Officer in proceedings under Section 122-B (4-F) of the Act, operation of which was stayed on a recall application filed by a member of Gram Sabha. We do not have any record pertaining to the proceedings under Section 122-B (4-F) nor anything has been disclosed in the writ petition. Only the copies of the decree passed in the declaratory suits under Section 229-B of U.P.Z.A & L.R Act suit nos.25 of 26 have been filed with the writ petition. As per the stand of the complainant and the findings recorded in the order impugned, the land in question i.e. Arazi No.46, area 20-0-0 was kept aside during the course of consolidation as land for 'Charagah' under Section 132 of U.P.Z.A & L.R Act. We may, at this stage, note the relevant provisions of Section 122-B (4-F), 132 and 333 of the U.P.Z.A & L.R Act to answer the issue before us:-
"122B. Powers of the Land Management Committee and the Collector. -[(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 [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."132. Land in which [bhumidhari] rights shall not accrue. - Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, [bhumidhari] rights shall not accrue in-(a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation;(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette; and [(c) lands declared by the Slate Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a [Gaon Sabha] or a Local Authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause-
(i) lands set apart for military encamping grounds;(ii) lands included within railway or canal boundaries;(iii) lands situate within the limits of any cantonment;(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority;(v) lands acquired by a town improvement trust in accordance with a scheme sanctioned under Section 42 of the U.P. Town Improvement Act, 1919 (U.P. Act V11 of 1919) or by a municipality for a purpose mentioned in Clause (a) or Clause (c) of Section 8 of the U.P. Municipalities Act, 1916 (U.P. Act VII of 1916); and(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 .]"
"[333. Power to call for cases. - (1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding [other than proceeding under sub-section (4-A) of Section 198] decided by any court subordinate to him in which appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate court appears to have;
(a) exercised a jurisdiction not vested in it by law; or(b) failed to exercise a jurisdiction so vested, or(c) acted in the exercise of jurisdiction illegally or with material irregularity;the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.
(2) If an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no further application by the same person shall be entertained by any other of them.]"
15. From a conjoint reading of the said provisions, we may note that under the Scheme of the Zamindari Abolition Act, no Bhumidhari rights could accrue in a 'Pasture Land' or public utility land covered by the Clauses (a) to (c) (i)-(vi) of Section 132 of U.P.Z.A & L.R Act. Section 122-B (4-F) categorically states that any land vested in Gaon sabha under Section 117, (not being land mentioned in Section 132), if in occupation of any agricultural labourer belonging to Scheduled Caste and Scheduled Tribes can be settled in the manner as provided therein. It is, thus, clear that no private person can be conferred Bhumidhari Rights, either transferable or non-transferable, in a land which has been declared as public utility land under any of the Category of Section 132 of the Zamindari Abolition Act. In view of the clear language of Section 122-B (4-F) read with Section 132, we have no doubts that the land kept aside as 'Pasture Land' (Charagah)' in the village could not have been settled in favour of the petitioners by taking aid of the provisions of Section 122-B (4-F), or by declaring them Bhumidhar either with non-transferable or transferable rights under Section 229B of the Act. It appears that the orders of settlement of land in favour of the petitioners and declaration of Bhumidhari rights in their names under the Act have been obtained by playing fraud upon the process of law.
16. It may not be out of place to note here that the Land Management Committee and the Collector are empowered under Section 122-B for eviction of unauthorised occupants of the land belonging to Gram Sabha and they can also realise compensation for damage, misappropriation or wrongful occupation of such land, which can be recovered as arrears of land revenue.
17. We may also note that the proceeding for eviction of an unauthorised occupant can be undertaken as per the provisions in Section 122-B of the Act, which requires that the Assistant Collector has to issue notice calling upon the person in unauthorised occupation to explain his conduct and also to show cause as to why he may not be held liable to pay compensation.
18. Further remedy available to the aggrieved person to assail the order passed by the Assistant Collector under Sub-section-(3) or sub-Section-(4) by filing revision before the Collector on the ground mentioned in clauses (a) to (c) of Section 333. Finality has been attached to the order passed by the Collector in revision and a person aggrieved can only file a suit in the Court of competent jurisdiction to establish the rights claimed by him in such land property.
19. Section 333, on the other hand, confers supervisory powers upon the Board or the Commissioner or the Additional Commissioner, as the case may be, to call for the record of any suit or proceeding, decided by the Court subordinate to it, for the purpose of satisfying itself as to the legality or propriety of any order passed in such suit or proceeding, where no appeal lies or though an appeal lies but has not been preferred. The said enquiry is limited to the question of failure in exercise of jurisdiction vested in the court concerned, or exercise of the jurisdiction not vested in or if it has acted in exercise of its jurisdiction illegally or with material irregularity.
20. The plain and simple reading of the provisions of Section 333(1) of the Zamindari Abolition Act makes it clear that the Board or the Commissioner can make an enquiry into an order passed by the Subordinate Court by summoning the record of the suit or proceedings conducted by it, either on its own motion, i.e. suo motu or an application moved by any person bringing the said fact to its knowledge. The supervisory powers given to the Board or the Commissioner, in our opinion, is in order to keep the Subordinate revenue authorities or the Courts within their bounds. The application moved by a person bringing the said fact to the knowledge of the supervisory or revisional authority would be only an intimation or information of the illegality committed by such Authority or the Court. The complainant, however, has no say in the enquiry, if any, initiated by the Revisional Authority by invoking its power under Section 333 of U.P.Z.A & L.R Act, on his application.
21. Moreover, it is settled proposition in law that fraud vitiates every solemn act. A judgment or decree obtained by playing fraud on the Court is a nullity and nonest in the eye of law. Such a judgement and decree passed either by the Court of first instance or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in a collateral proceedings. As a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant who approaches the Court must come with clean hands. A person whose case is based on falsehood has no right to get any relief from the Court. He can be summarily thrown out at any stage of the litigation. If he withholds a vital document in order to gain advantage on the other side or produces a document as a basis of his claim which is forged or fabricated document, then he would be guilty of playing fraud on the Court as well as on the Opposite side. Reference may be made to decision of the Apex Court in S.P. Chengal Varaya Naidu vs Jagannath and others reported in (1994) 1 SCC 1 in support of the above view.
22. In light of the above discussion, the action of the Commissioner in treating the application filed by the respondent no.2 as a revision under Section 333 to U.P.Z.A & L.R Act would be suo motu exercise of power conferred on him, on receipt of intimation of fraud played in the revenue records. The question no.1 of the reference is, thus, answered in affirmative.
23. The decisions relied by the learned counsel for the petitioners in Raj Kumar vs Ashok Kumar Chaurasia reported in (2016) 2 ADJ 672 and Ramesh Chaturvedi vs State of U.P through Collector Faizabad and others reported in (2019) 2 ALJ 292 are distinguishable on the facts and the circumstances of the present case.
24. As far as the second question (B) is concerned, we do not find it necessary to deliberate on the said issue as we are not examining the merits of the order passed by the sub-divisional Officer in the suit under Section 229-B of U.P.Z.A & L.R Act, passed in favour of the petitioners, inasmuch as, we are of the definite opinion no Bhumidhari rights could be granted in favour of the petitioners herein in the Public Utility land kept aside for 'Charagah' (Pasture Land) under Section 132 of U.P.Z.A & L.R Act.
25. In so far as the fifth question (E) is concerned, we may note at this stage itself that there cannot be any two opinion or doubt about the directions issued by the Apex Court in Hinch lal Tiwari vs Kamala Devi and Ors reported in (2001) 6 SCC 496 and Jagpal Singh and others vs State of Punjab and others reported in (2011) 11 SCC 396 that the material resources of the Community like forests, tanks, ponds, hillock, mountain etc; being nature's bounty need to be protected for a proper and healthy environment as they maintain delicate ecological balance and enable people to enjoy a quality life which is essence of the guaranteed right under Article 21 of the Constitution. The Government including Revenue Authorities have been mandated to take appropriate steps under the relevant statutory provisions to prevent damage, misappropriation of the Village land which is vested in the Gaon Sabha being Public-Utility land under Section 132 of the Act.
26. The Pasture Land in a Village area is lifeline of the village people as they need a ground for grazing by their cattles. Every agricultural activity in the village is dependent upon the Cattles which are used for ploughing the fields and other related activities by the agriculturist. The Village economy is largely dependent upon the agricultural activities and even for Vegetarian urban population, agricultural produces are coming from the Villages. Over the period of years, with the increase in population, public spaces are being compromised which has resulted in ecological disasters. We cannot be oblivious of the imminent need to preserve our environment by restoring and maintaining public spaces both in rural and urban areas. In rural areas, public spaces such as ponds, pasture lands, lands in river bed and the lands used for casual or occasional cultivation described under Section 132 of the Zamindari Abolition Act have to be preserved and protected by the Revenue Authorities who have been conferred with the ample powers to undo the wrong. Apathy or lack of immediate action at the ends of Revenue Authorities has resulted in illegal encroachment of the Public Utility Lands in the rural area.
27. This Court and the Apex Court has repeatedly expressed its concern over the said issue but it is the duty of the State and the appropriate Local authority to take necessary measures at the grassroot level. The Revenue Authorities are required to keep a strict vigil in the area of their jurisdiction so as to ensure that the public spaces are not illegally occupied or encroached by the Villagers or outsiders. Appropriate timely action is the need of the hour. In each case of such illegal encroachment coming before the Revenue Authorities, action in accordance with the statutory provisions has to be taken. Adequate checks and balances have been provided under the Act to remedy an illegal or overzealous attempt of a Revenue Authority in any such situation. We are, therefore, of the considered opinion that no exception can be taken to the action taken by the Commissioner for restoration of the public utility land in Arazi no.46 area 20-0-0 after summoning the original records, when the fact of illegal or forged revenue entries was brought before it by way of an application moved by the respondent no.2. The fifth and last question no.'E' of the reference is, thus, answered in affirmative.
28. Now we are left with two more question nos.'C' & 'D' of the reference. Question no.'C' is about the need of observance of principles of natural justice and question no.'D' is about exercise of extraordinary discretionary writ jurisdiction in the instant case in the light of the facts brought before us. Both the questions can be answered together as answer to one would be dependent on answer to another.
29. As to question no.'C' and 'D', no debate or deliberation is required as it is settled that the observance of principles of natural justice cannot be put in a strait jacket formula. Wherever a plea is taken regarding violation of natural justice, the person pleading it has to establish that prejudice has been caused to him by such action. On demonstration of the said fact, interference under Article 226 of the Constitution of India can be made to remedy the situation. In a case where on consistent and indisputable facts only one conclusion is possible, then in such a case, it would not be possible to hold that breach of natural justice was itself in prejudice. (Reference S. L. Kapoor vs Jagmohan and others reported in (1980) 4 SCC 379). It is, thus, a settled proposition of law that if no other conclusion is possible on admitted or indisputable fact, it is not necessary to quash the order which is shown to have been passed in violation of natural justice. However, it is observed in Aligarh Muslim University vs Mansoor Ali Khan reported in (2000) 7 SCC 529 that the above principles is in the nature of exception and great care must be taken by the Court in applying this exception. Similarly, it is settled position of law that the High court would be right in refusing to invoke its extraordinary discretionary power under Article 226 of the Constitution to quash an order which would result in restoration of an illegal order. The refusal by the High Court to exercise of its extraordinary discretionary jurisdiction in such circumstance of a case would be justified. [Reference- Gadde Venkateswara Rao vs Government of A.P and others, AIR 1966 SC 828]. Both the question nos. 'C' and 'D' of the reference are, thus, answered in the above terms.
30. Reverting to the facts of the instant case, we find that only ground urged by the petitioners to seek quashing of the order dated 13.9.2001 passed by the Commissioner is that the names of the petitioners were expunged from the Revenue records without affording them any opportunity of hearing. The basis of the claim of the petitioners to seek Bhumidhari rights in the disputed property is the declaration granted by the Sub-divisional officer in the suits filed under Section 229-B. In the order impugned, categorical finding of fact has been recorded by the Commissioner after perusal of the original records that the land in question namely Arazi no.46 area 20-0-0 was reserved for 'charagah' (Pasture Land) during the course of the consolidation proceedings. The merits of the said finding has, however, not been challenged before us. We, therefore, cannot take exception to the findings of fact recorded by the Commissioner as there is nothing before us which would justify interference in the aforesaid findings in exercise of our extraordinary discretionary jurisdiction.
31. At the cost of repetition we may note here that in view of the findings returned by the Additional Commissioner regarding the nature of the land in dispute being public utility land, declaratory decree obtained by the petitioners in Suit nos.25 and 26 of 1987 under Section 229-B of U.P.Z.A & L.R Act appear to be nullity. The order of the Revenue Authority is nonest in the eye of law. We may also note that the public utility land under Section 132 of U.P Act can not be settled in favour of an agricultural labour even belonging to Scheduled Caste or Scheduled Tribes by taking recourse to the proceedings under Section 122-B (4-F) of the Act. Any such attempt by a Revenue Authority would be illegal exercise of jurisdiction vested in it and has to be viewed seriously. The petitioners, therefore, cannot derive any benefit from the settlement, if any, made in their favour under Section 122-B (4 F) of the Act. They cannot take benefit of the declaratory decree which in itself is a nullity or nonest in the eye of law.
32. Nonethless, the order impugned passed by the Commissioner does not show that any notice was issued to the petitioners herein who claimed to be in occupation of the land-in-dispute for a long time. Eviction of even an unauthorised occupants from the Gram Sabha land can be made by undertaking appropriate proceedings under Section 122-B of the Act. Further, an enquiry into the plea of fraud put forward before the Commissioner was required and in the event of notice the aggrieved person against whom allegations of fraud are made may come up with the plea that he is innocent. The notice is all the more necessary as on eviction of an unauthorised occupant from the Gram Sabha land in a proceeding either on suo motu motion or at the instance of any person, including Gram Sabha, compensation for damages, misappropriation or wrongful occupation can be levied which can be recovered from such person as arrears of land revenue. As any action against unauthorised occupant for eviction and realization of compensation or damages entails serious civil consequences, we find it expedient in the interest of justice, that the notice to the unauthorised occupant or the petitioners herein whose names have been recorded in the revenue record was necessary before expunging entries of their names from the revenue record and further for taking physical possession of the land belonging to the Gram Sabha.
33. In light of the aforesaid, though we do not find any justifiable ground to quash the order passed by the Additional Commissioner by invoking extraordinary jurisdiction vested in us under Article 226 of the Constitution of India, but in order to meet the ends of justice, it is provided that the petitioners herein was required to put to notice by the Commissioner to show cause as to why action be not taken against them for illegal occupation of the public utility land (Pasture Land) reserved under Section 132 of U.P.Z.A & L.R Act. While taking their defence, it would be open for the petitioners to raise all issues available in law and also to challenge the findings recorded by the Commissioner in the order impugned regarding the nature of the land in question being public utility land. We, thus, make it clear that all issues are kept open to be assailed by the petitioners before the Commissioner who shall examine them being the supervisory revisional authority within the scope of Section 333 of the U.P.Z.A & L.R Act. We also make it clear that we are keeping intact the order impugned in the present petition so far as the petitioners herein are concerned and only making it subject to the fresh order to be passed by the Commissioner or the concerned revisional authority. We, therefore, disposed of the present petition with the directions as follows:-
(i) The petitioners shall file an application in reply to the findings returned by the Assistant Commissioner in the order impugned alongwith the certified copy of this order, before the Commissioner or the competent revisional authority within a period of four weeks from the date of this order. The said reply shall be treated as a reply to the notice to show cause had it been earlier issued to the petitioner.
(ii) On presentation of such an application, the competent revisional authority shall be under obligation to pass a fresh reasoned and speaking order in accordance with law by intimating the date fixed before it to the petitioners, within a further period of two months.
(iii) The petitioners herein shall be under obligation to cooperate in the above proceedings. In any case, no unnecessary adjournment shall be granted to any of the petitioners herein so that they may not linger on the proceedings.
(iv) The status quo as to the nature and possession of the land as on date, shall be maintained in so far as the petitioners herein are concerned till the passing of the fresh order by the revisional authority.
34. After taking fresh decision as directed above, necessary action for restoring the nature and possession of the land in question shall be taken by the competent authority which shall be brought to its logical ends in accordance with law, as expeditiously as possible. In other words, all necessary actions to undo the wrong done, if any, shall be taken and proceedings in this regard be brought to their logical ends.
35. In case of non compliance or dereliction of the petitioners in cooperating in the proceedings before the Revenue authorities, the guilty person(s) would expose him/them in the contempt proceedings for deliberate violation of the directions issued hereinabove.
36. Subject to the above, the present petition is disposed of.
Order date: 05.03.2020
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