Amitava Lala, J.
1. 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 common question. All matters are decided by this common judgement 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 dealt with 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-B Sub-sections (4-C), (4-D) & (4-E) of U.P.Z.A. & 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 irrespective of availability of alternative and efficacious remedy of civil suit?
3. 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 Ors.) while the other one is reported in 1987 A.W.C. 755 (Shankar Saran and Ors. v. State of U.P. and Ors.). At variance, 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 portion of 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, dilatory 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 suit takes 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 remedy 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 incorporating 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 labourers and village artisans. The land thus obtained is for the welfare 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 Populi est Suprema lex, which obviously means that the regard for public welfare is highest law. Individual 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 Legislature in its wisdom thought it proper to lay down the procedure that in case revision was filed, the remedy of suit cannot be availed. 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.
4. 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. It 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 required 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. I 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 Ghafoor v. 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, Ist Class and Collector under amended Section 122-B of the U.P.Z.A. & L.R. Act are not revisable under Section 333 or Section 333-A of U.P.Z.A. & 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). Thereafter, it is difficult to say that the order of the Assistant Collector which is merged in the order of the revisional court, cannot be 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 Legislature intended so it would have expressed itself as belows:
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 Collector under Sub-section (4-A) and is pending.22. As I have indicated that the order of Assistant Collector would merge in the order of the revisional court, therefore, the aggrieved party would be required to file a suit against the order in revision, I am unable to agree with brother B.L. Yadav, J. that when an aggrieved party avails the remedy of preferring revision before the Collector, he would be deprived of the 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. & L.R. Act so as to clarify its intention in enacting Sub-section (4-E) of Section 122-B of the Act.
5. 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 acquisition and to make provision for other matters connected therewith.
6. From the plain reading of the preamble itself it appears that the Act of 1950 is a complete Code. Its Part II Chapter VII deals with the lands belonging to gaon sabha and Land Management Committees. Section 122-B is part of such Chapter. Such section was introduced by U.P. Land Laws (Amendment) Act No. 20 of 1982 making it effective 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 thereto 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 otherwise, the Assistant Collector is satisfied that any property referred to in Sub-section (1) has been damaged or misappropriated 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 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, of 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.
(4-B) The procedure to be followed in any action taken under this section shall be such as may be prescribed.
(4-C) Notwithstanding 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 him in 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 Revenue Act, 1901 and includes an Additional Collector.
(4-F) Notwithstanding anything in the foregoing subsection, 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 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.
(5) Rules 115-C to 115-H of the U.P. Zamindari Abolition and Land Reforms 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.
7. From the plain reading of the aforesaid section, it is clear that Legislature introduced a self corrective process to determine land of gaon sabha or local authority. Since the title dispute cannot be resolved by the executives, Legislature intended to get the dispute resolved by suit. Any person upon being aggrieved with the order of the Assistant Collector, will be entitled to file a revision before the Collector within the prescribed time and upon being aggrieved therefrom, file a suit for final decision. No person will be allowed to ignore the stage of revision and file a suit directly from the order of the Assistant Collector.
8. Disputed question of fact regarding land purportedly under permissive occupation or under adverse possession or even under forcible occupation of any aggrieved person cannot be resolved bypassing the remedy under suit. In either of the cases ascertainment of the right, title and interest is involved which cannot be done by the Writ Court under Article 226 of the Constitution of India as any alternative to a suit. Proceeding under Article 226 of the Constitution of India is basically meant to see violation of principles of natural justice, fundamental right of a citizen and vires of the Act as well as jurisdiction or competency of an authority. Later two are not relevant for the purpose. So far as violation of principles of natural justice and/or fundamental right is/are concerned, those are also inbuilt in an Act. The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism. An Act made by the Legislature represents the will of the people and that can not be lightly interfered with.
9. It has been jointly contended by Mr. Pradeep Chandra, learned Counsel appearing on behalf of the appellant and subsequently by Mr. B.B. Paul, learned senior counsel appearing on behalf of the writ petitioners that Section 229-D of the Act of 1950 (added by U.P. Act No. XX of 1982) is putting an embargo upon the civil courts to render complete justice. The provision of Section 229-D is as follows:
229-D. Provision for injunction.--(1) If in the course of a suit under the provisions of Sections 229-B and 229-C, it is proved by an affidavit or otherwise:
(a) that any property, tree or crops standing on the land in dispute is in danger of being wasted, damaged or alienated by any party to the suit; or
(b) that any party to the suit threatens or intends to remove or dispose of the said property, trees or crops in order to defeat the ends of justice, the Court may grant a temporary injunction, and where necessary, also appoint a receiver.
(2) Nothing in Sub-section (1) shall apply to a suit filed under Sub-section (4-D) of Section 122-B.
10. According to both the learned Counsel, there is no scope of getting any interim order of injunction or receiver as per Sub-section (2) of Section 229-D as quoted above if at all any suit is filed. It appears to us that such Section 229-D deals with the right of the tenure holders with regard to their lands in exclusion of the lands of a gaon sabha or local authority as under Section 122-B or the Chapter VIII of the Act of 1950. So far as the injunction or receiver is concerned, as they contended before us, it is restricted to the rights of the tenure holders with regard to :heir land which is specified under different Chapter i.e. under Chapter VII and not with regard to the lands belonging to a gaon sabha or local authority. From the plain reading of the relevant provisions it appears that in case of infringement of any right with regard to the agricultural land of a rural area, Section 229-D will be applicable, otherwise the possessory right, title and interest over the lands of urban area will be regulated under Section 34 of Specific Relief Act, 1963. There is reason behind doing so. Although the nomenclature 'suit' is prescribed under Section 122-B of the Act of 1950 but it is a process of determination of title in a summary or expeditious manner. The intention of the Legislature will be frustrated if after filing the suit it is kept pending indefinitely and interim order of injunction or receiver is obtained. Legislature wanted ratification of title by the court originally determined by Collector because he can not be ultimate title determining authority. There is no bar for the Legislature in making such law. For an example Section 6 of Specific Relief Act, 1963 provides suits of similar nature in of illegal dispossession. Law is to be understood from its language. When the law is explicit, no different meaning can be given. Even 'thereafter every court has inherent power to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court. This inherent power of the court neither can be said to be curtailed nor castled by the Act.
11. It is further contended that when U.P. Consolidation of Holdings Act, 1953 (in short Act of 1953) bars the civil courts' jurisdiction. The Act of 1950 is prescribing for civil jurisdiction. Therefore, the situation is so conflicting that the constitutionality of the later Act is to be challenged and accordingly although belatedly, they have made such applications by means of amendments. Sri Zafar Naiyer, learned Additional Advocate General contended before this Court that Section 49 of the Act of 1953 is not applicable in this case since the subject matter is not consolidation of the land of tenure holders but about the right, title and interest of an aggrieved person in respect of the land of gaon sabha. Moreover, a proviso has already been added to Section 49 of the Act of 1953 by U.P. Land Laws (Amendment) Act No. 20 of 1982 excluding scope and ambit of Section 122-B of the Act of 1950. According to us, Section 49 of the said Act is necessary to be incorporated hereunder with proviso to give clear picture in this regard.
49. Bar to Civil Court jurisdiction.-Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land by the lying in an area, for which a notification has been issued under Sub-section (2) of Section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or out to have been taken under this Act:Provided that nothing in this section shall preclude that Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a gaon sabha under or in accordance wit the provisions of this Act.
12. An interesting aspect is that incorporation of Section 122-B of the Act of 1950, re-numbering of Section 229-D of the Act of 1950 making Sub-section (2) therein and proviso to Section 49 of the Act of 1953, were made in a composite manner only by solitary amendment under the U.P. Land Laws (Amendment) Act No. 20 of 1982. Therefore, the Legislature was clear in its mind to differentiate the lands under tenure and land belonging to gaon sabha or local authority. This differentiation was incorporated way back in the year 1982. Long time has elapsed. It has taken effect. Therefore, the prayer as made by the petitioners by way of amendment application challenging validity of the Act in the year 2007 or 2008 cannot be taken note of. However, learned Additional Advocate General has added at that juncture that the vires of the Act of 1950 had already been challenged and ultimately upheld by the Supreme Court as intravires.
13. It is to be remembered that all the matters, either arising as second appeal or as writ petitions are for the period between 1982 to 1988 when there was no specific provision regarding panchayats in the Constitution. The provision was incorporated by way of seventy-third amendment of the Constitution inserting part IX regarding the panchayats with effect from 24th April, 1993. Article 243(b) gives a definition of Gram Sabha as follows:
(b) 'Gram Sabha' means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level.
Article 243-A gives certain powers to Gram Sabha which are as follows:
243-A. Gram Sabha.- A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide.
14. Mr. Paul wanted to develop his case by citing several judgments. He relied upon 1966 RD 378 (Mohd. Idris and Ors. v. Sat Narain and Ors.), a Constitution Bench judgement of Supreme Court to establish that the Zamindari Abolition Act came into force with effect from July 1, 1952. It has undergone numerous amendments and it is somewhat difficult to find out at any given moment of time what the state of law exactly was, because most of the amending Acts are made partly retrospective and partly not and considerable time is spent in trying to ascertain which part of the original Act survives and to what extent. We are concerned with a number of sections which have undergone changes again and again and we shall now attempt to examine what the position vis a vis the suit pending before the Munsif was, as a result of the enacting of the Abolition Act and its numerous amendments.
15. Mr. Paul also relied upon 1972 RD 377 (Kamal Ahmad and Ors. v. Deputy Director of Consolidation and Ors.) to establish on the basis that Maxwel on the Interpretation of Statutes, 12th Edition Page 231, says that some times where the sense of the statute demands it or where there has been an obvious mistake in drafting, a court will be prepared to substitute another word on phrase for that which actually appears in the text of the Act.
16. He also relied upon a Full Bench judgment of this High Court reported in 1977 A.W.C. 191 (Bijli Cotton Mills (Pvt.) Ltd., Hathras and Ors. v. Estate Officer/Secretary, National Textile Corporation (U.P.) Ltd. and Anr. to establish that an application under Article 226 will not be barred in a case where the remedy by way of suit under Section 9 of the Code of Civil Procedure or any other remedy is not effective or adequate to redress the injury complained of.
17. According to us, all the above citations have no effect upon the provision under the Act since the same deemed to have come into force only on 3rd June, 1981 as per the Act 20 of 1982. Therefore, Act 20 of 1982 has made a radical change in this regard. His further argument regarding applicability of the Act in the bhumidhary land, can not be held applicable hereunder.
18. So far as 2003 (94) RD 538 (Manorey @ Manohar v. Board of Revenue (U.P.) and Ors.) is concerned, we are of the view that Sub-section (4-F) of Section 122-B is an exception to other sub-sections. It talks about land belonging to scheduled caste or scheduled tribe holding lands up to 1.26 hectares to declare them bhumidhar with transferable rights. However, even this judgement itself differentiates right of person under Sub-section (4-F) from other parts of section 122-B of the Act saying about remedy available under suit to establish fright. The relevant portion is as follows:
To appreciate the issue, the reference to Section 122-B is necessary. The said section prescribes the procedure for eviction of a person wrongfully occupying or damaging or misappropriating the property vested in a gaon sabha or a local authority. The Land Management Committee or local authority, as the case may be, shall inform the Assistant Collector and thereupon the Assistant Collector should issue notice to the person concerned to show cause. If the Assistant Collector is not satisfied with the explanation, he may direct eviction by using force, if necessary, and may further direct that compensation be recovered from such person as arrears of land revenue. The person aggrieved has a right of revision to the Collector and he can also file a suit to establish his right.
19. Therefore, according to us, having alternative and efficacious remedy of suit under Section 122-B of the Act of 1950, there is no scope for the aggrieved person to invoke the writ jurisdiction of the Court either from the order of the Assistant Collector or from the order of the Collector. It is clarified hereunder that a self corrective process to invoke the jurisdiction of the Assistant Collector, then by way of revision before the Collector and thereafter by filing suit before the court, is the integral part of the Act, which cannot be avoided. Thus, in our considered opinion, contentions of the writ petitioners, can not be held to be sustainable, consequently, all the aforesaid writ petitions are dismissed without imposing any cost. Interim order, if any, stands vacated. However, aggrieved persons are at liberty to file civil suit for appropriate relief in accordance with law, if they are so advised.
20. So far as the conflicting judgments of learned single judge in Sewak Shankar (supra) & in Shankar Saran (supra) are concerned, we find that the earlier says if revision is filed, suit cannot be filed, when the later says that the remedy of revision before the Collector would not deprive the remedy of suit, with a recommendation to the Legislature to make the necessary amendments. In our view, amendment or no amendment, the law is very clear from its plain reading. In case a revision from an order of Assistant Collector is filed before the Collector, it will not stand in the way of an aggrieved of a revisional order to file a suit before the court. Incidently later view is more acceptable. Hence, the conflict stands resolved by the view taken and interpretation of the Act given by us as above keeping in mind the intention of the Legislature.
21. In the second appeal we find that the process referred above has been followed by the appellant and the suit was filed before the court of first instance for the purpose of declaration of his right in respect of the land which was declared as gaon sabha land by the authority. Apart from the question of notices, the court of first instance dismissed the suit in merit on contest holding that the land in dispute was gaon sabha land and the plaintiff-appellant was not owner of the same. The appellant preferred an appeal when the appellate court has also upheld the decision of the court of first instance where the suit was filed. We do not find any substantial question of law involved in the second appeal to be dealt with independently, in view of the discussions made above, therefore, the second appeal is also dismissed. The interim order, if any, stands vacated.
No order is passed as to costs.
Shishir Kumar, J.
22. I agree.