Mohd. Yusuf Khan v. Board of Revenue, U. P. Allahabad
1963-07-24
V.G.OAK
body1963
DigiLaw.ai
JUDGMENT V.G. Oak, J. - This petition under Article 226 of the Constitution arises out of a proceeding under Sec. 198 of Act No. 1 of 1951 (hereafter referred to as the Act). 2. In September 1957 the land management committee of village Chandapur executed nine leases in favour of a number of persons. Bhaggi Lal and others made a complaint to the Tahsildar that leases were improperly issued to these persons. The sub-divisional officer, Bhognipur looked into the matter under sub-Sec. (2) of Sec. 198 of the Act. He concluded that leases were improperly issued. So on 6-5-1959 he passed an order cancelling the leases. The lessees filed an appeal against the sub-divisional officer's order. The appeal was allowed by the Additional Commissioner of Allahabad on 1-7-1959. He set aside the sub-divisional officer's order dated 6-5-1959, and directed that the leases executed in favour of the appellants would stand, Bhaggi Lal carried the matter in revision before the Board of Revenue. There were two connected revisions. The revisions were allowed on 18-4-1960 by one Member of the Board of Revenue. The Additional Commissioner's order was set aside; and the sub-divisional officer's order was restored. This writ petition by Mohammad Yusuf Khan and others is directed against the decision of the Board of Revenue dated 18-4-1960. 3. Mr. H.P. Gupta appearing for respondent no. 4 raised a preliminary objection that the appeal filed by the present petitioners nos. 3 and 5 before the Additional Commissioner was in-competent. Reliance was placed upon sub-Sec. (4) of Sec. 198 of the Act. Sub-Sec. (4) of Sec. 198 states : "Any person aggrieved by the order of cancellation passed under sub-Sec. (2) may institute a suit to establish the right claimed by him but subject to the result of such suit the order of cancellation shall be final". On the other hand, Mr, S.N. Kacker appearing for the petitioners relied , upon the Second Schedule to the Act. Sec. 198 of the Act has been mentioned in serial no. 20 of the Second Schedule to the Act. Objection against order of land management committee relating to letting out of land has been mentioned in column no. 3 against serial no. 20. Assistant Collector in charge of sub-division has been mentioned in column no. 4. Commissioner has been mentioned in column no. 5.
20 of the Second Schedule to the Act. Objection against order of land management committee relating to letting out of land has been mentioned in column no. 3 against serial no. 20. Assistant Collector in charge of sub-division has been mentioned in column no. 4. Commissioner has been mentioned in column no. 5. It means that orders passed by an Assistant Collector in charge of a sub-division upon an objection against allotment made by a land management committee are appealable to the Commissioner. It was urged for the respondents that the right of appeal conferred by this entry in the Second Schedule is for the benefit of the objector, and not for the benefit of the lessee. No such limitation has been placed in serial no. 20. The plain meaning of serial no. 20 is that, orders in such a proceeding are appealable. It would be a curious position, if a person who has no vested right in land is able to file an appeal, but a person whose lease has been cancelled would not be able to file an appeal. It seems to me that both the parties would be entitled to file an appeal under serial no. 20 of Schedule II to the Act. 4. Mr. H.P. Gupta contended that such an interpretation would be inconsistent with sub-Sec. (4) of Sec. 198 of the Act. It is mentioned in sub-Sec. (4) of Sec. 198 that, subject to the result of a regular suit, an order of cancellation shall be final. Mr. H. P. Gupta also contended that, in the case of a conflict between a provision in the main Act and a provision in the Schedule, the provision in the main Act shall prevail. Schedule II has to be read with Sec. 331 of the Act. Sec. 331 provides for appeals against orders mentioned in the Second Schedule. So the Second Schedule is to be treated as a part of the Act. Every attempt should be made to reconcile the relevant provision in the Schedule with sub-Sec. (4) of Sec. 198 of the Act. For many purposes, an appeal is treated as a continuation of a suit. An appeal under the Schedule may be treated as a continuation of the order of cancellation under sub-Sec. (4) of Sec. 198 of the Act. If sub-Sec. (4) of Sec. 198 and serial no.
For many purposes, an appeal is treated as a continuation of a suit. An appeal under the Schedule may be treated as a continuation of the order of cancellation under sub-Sec. (4) of Sec. 198 of the Act. If sub-Sec. (4) of Sec. 198 and serial no. 20 of Schedule II are read together, the position appears to be this. A person, whose lease has been cancelled by a sub-divisional officer, may file an appeal to the Commissioner. His decision shall be final subject to the result of a regular suit. The expression "order of cancellation" used in sub-Sec. (4) of Sec. 198 should be deemed to include an order of cancellation passed or confirmed in appeal by Commissioner. I hold that the order cancelling the petitioner's leases was appealable, and overrule the preliminary objection. 5. The main contention of Mr. S.N. Kacker was that, a single Member of the Board of Revenue was not competent to finally dispose of a revision reversing the decision of the Additional Commissioner. In such a case, concurrence of another member of the Board is necessary. Mr. Kacker relied upon rule 190 of the Revenue Court Manual. Rule 190 of the Revenue Court Manual states :- "Where the Board has distributed its revisional business among the Members, the order of a single Member shall be the order of the Board ; Provided that no decree or order coming up before the Board in revision shall be modified or reversed without the concurrent judgment of two Members, and in such event the judgment or order shall be signed by both the Members concurring therein". The learned counsel for the respondents points out that, rule 190 of the Revenue Court Manual appears in a series of sections under the heading "Revisions under Sec. 275 of the U.P. Tenancy Act". The revisions under consideration were not revisions under the U.P. Tenancy Act. The question therefore arises whether the Board was, in the instant case, required to follow the procedure laid down in rule 190 of the U.P. Revenue Court Manual. 6. In Roorey v. Board of Revenue, 1960 A.L.J. 26 it was held that, a single Member of the Board of Revenue cannot alter or reverse a judgment in a second appeal under Act no. 1 of 1951. 7.
6. In Roorey v. Board of Revenue, 1960 A.L.J. 26 it was held that, a single Member of the Board of Revenue cannot alter or reverse a judgment in a second appeal under Act no. 1 of 1951. 7. In Sripat Narain Rai v. Board of Revenue, U.P. and others, AIR 1960 Allahabad 93 it was held that, neither the U.P. Tenancy Act nor the rules framed thereunder, including rule 190, can be said to apply to revisions arising out of cases under Sec. 232 of Act no. I of 1951. In Roorey's case, 1960 A.L.J. 26 this Court had to consider the disposal of a second appeal by the Board of Revenue. 8. In Sripat Narain's case, AIR 1960 Allahabad 93 the Court was dealing with the competence of a single Member of the Board to grant a review. The question of competence of a single Member to interfere in revision did not directly arise in either of these two cases. The point may therefore be considered open. 9. Mr, S.N. Kacker relied upon rule 182 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereafter referred to as the Z. A. Rules). Rule 182 of the Z. A. Rules runs thus : "(1) In hearing and deciding suits, applications and other proceedings under this Chapter, revenue courts shall follow mutatis mutandis and subject to the following amendment, the procedure laid down in Parts I and IV of the Revenue Court Manual : (2) The provisions regarding appeals, revisions and review contained in Chapter X of the U.P. Land Revenue Act, 1901, as amended by the Act, shall apply to the orders passed by revenue courts under this Chapter". Rule 190 of the Revenue Court Manual appears in Chapter VII of Part I of the Revenue Court Manual. So if the present case falls under sub-rule (1) of Rule 182, Z. A, Rules, it would appear that rule 190 of the Revenue Court Manual applies to the present case. But it was urged for the respondents that the present case is not covered by sub-rule (1) of Rule 182 of Z. A. Rules. It was pointed out that, although appeals, revisions and review have been mentioned in sub-rule (2) of Rule 182, there is no reference to revision in sub-rule (1) of Rule 182.
But it was urged for the respondents that the present case is not covered by sub-rule (1) of Rule 182 of Z. A. Rules. It was pointed out that, although appeals, revisions and review have been mentioned in sub-rule (2) of Rule 182, there is no reference to revision in sub-rule (1) of Rule 182. The expression used in sub-rule is (1) : "Suits, applications and other proceedings under this Chapter". Rule 182, Z, A. Rules appears in Chapter VIII of Z. A. Rules dealing with tenure. Proceedings of various types have been mentioned in Chapter VIII of Z. A. Rules. Sec. 198 of Act no. I of 1951 has been mentioned at several places in Chapter VIII of Z. A. Rules. There is therefore no difficulty in treating the proceeding for cancellation of lease as a proceeding under Chapter VIII of Z. A. Rules. But it was contended that the application of sub-rule (2) of rule 182, Z. A. Rules must be confined to the trial stage. Sub-rule (1) does not cover the appellate and the revisional stages. There are two answers to this contention. `Applications' may include revisions. Secondly, there would be some difficulty in confining the operation of sub-rule (1) of .Rule 182 to the trial stage. By this provision, Parts I and IV of the Revenue Court Manual have been made applicable. Part I of the Revenue Court Manual contains general rules of procedure in revenue courts. Many of these provisions would be applicable to the trial court, appellate court and the revisional court. Part IV of the Revenue Court Manual contains rules regarding legal practitioners, revenue agents and registration of clerks of revenue agents. There is no reason why the rules contained in Part IV of the Revenue Court Manual should apply to the trial court, and not to appellate and revisional courts. It is true that appeals, revisions and review have been expressly mentioned in sub-rule (2) of Rule 182. But that is probably because Chapter X of the U.P. Land Revenue Act is devoted to appeals, references and revisions. Although appeals and revisions have not been expressly mentioned in sub-rule (1) of Rule 182, it appears that sub-rule (1) of Rule 182 applies to appellate and revisional courts also.
But that is probably because Chapter X of the U.P. Land Revenue Act is devoted to appeals, references and revisions. Although appeals and revisions have not been expressly mentioned in sub-rule (1) of Rule 182, it appears that sub-rule (1) of Rule 182 applies to appellate and revisional courts also. It follows that rule 190 of the Revenue Court Manual is attracted, when the Board of Revenue proceeds to dispose of a revision arising out of a proceeding under Sec. 198 of Act no. I of 1951. 10. In the instant case there was no compliance with Rule 190 of the Revenue Court Manual. The learned single Member proceeded to set aside the Additional Commissioner's order without obtaining concurrence from another Member of the Board, as required by the proviso to Rule 190 of the Revenue Court Manual. Since the two connected revisions were not disposed of in accordance with law, the Board may now be directed to deal with those revisions in accordance with law. 11. The petition is allowed. The order of the Board of Revenue dated 18-4-1960 is quashed. The Board of Revenue is directed to readmit the connected revisions on its file, and dispose of the revisions in accordance with law in the light of Rule 190 of the Revenue Court Manual. The petitioner shall get costs in this Court from respondent no. 5.