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1976 DIGILAW 867 (ALL)

Ram Manorath v. Bhagwati

1976-12-18

H.N.AGARWAL

body1976
JUDGMENT H.N. Agrawal, Member. - This is a reference made by Sri G.P. Pandey, Commissioner, Faizabad Division, Faizabad, recommending that the revision against the order of the Sub-Divisional Officer, Bikapur dated March 9, 1972 passed in Case No. 23/6 under Rule 115-N U.P.Z.A. and L.R. Rules, may be accepted, the impugned orders quashed and the case be remanded to the Sub-Divisional Officer. 2. I have herd the learned counsels for the parties and have gone through the record. 3. The revisionist, Ram Manorath had moved an application before the Sub-Divisional Officer on November 2, 1970 requesting him to take suo motu action under Rule 115-N. U.P.Z.A. and L.R. Rules for cancellation of an illegal auction made by the Pradhan, Land Management Committee in respect of plot No. 345 in village Karamdanda in favour of the opposite party Bhagwati. On the same date, the Sub-Divisional Officer passed the order for registering the case and issuing a notice to the opposite party. On March 9, 1972 the Sub-Divisional Officer passed a two lines order rejecting the application of the revisionist. 4. The learned counsel for the revisionist has contended that the order passed by the trial court is no order in the eyes of law and as such it is liable to be set aside. He has further argued that the trial court has further to exercise jurisdiction vested in it by law in not considering the facts and circumstances of the case and in not giving the revisionist the opportunity to adduce any evidence. 5. The learned counsel for the opposite party Bhagwati has contended that the revision itself is not maintainable. He has referred to Roop Narain v. Smt. Patti, 1972 R.D. 209 in which a learned Member has observed as follows: "This case raised an important question of law as to who has the right of the appeal or revision against an order passed by the S.D.O. in suo motu proceedings under Section 198(2) of the Act refusing to cancel a lease granted by the Land Management Committee. Admittedly the proceedings were not initiated on the application of Roop Narain and Babban the present revisionists, as their application was held to be time-barred and that order against them had become final. It is obvious that the S.D.O. commenced this enquiry on his own motion both against the L.M.C. and Smt. Patti. the allottee. Admittedly the proceedings were not initiated on the application of Roop Narain and Babban the present revisionists, as their application was held to be time-barred and that order against them had become final. It is obvious that the S.D.O. commenced this enquiry on his own motion both against the L.M.C. and Smt. Patti. the allottee. The other party interested in the cancellation or otherwise of allotment of land would be the State Government, as under Section 4 read with Section 6 of the Act all Banjar land not forming part of holdings owned by tenants in the village, vested in the State Under Sections 195 and 197 the authority for the management and allotment of such land on behalf of the State Government has been given to the Land Management Committee. Thus the person aggrieved by the non-cancellation of a lease grated by the L.M.C. alleged to have been granted not in accordance with the rules, will be the State Government. In view of this position the parties necessary in proceedings under Section 198(2) initiated by the S.D.O. on his own motion will be the State Government through the Collector in the position of the applicant and L.M.C. and the allottee as the opposite parties. The legal position enunciated above would show that the present revisionists were not necessary parties in the proceedings. In order to sustain an appeal it is necessary to show that the party desirous of appealing has the right of appeal. As a general principle no one can appeal against a decree or order unless he was a party to the proceeding and was adversely affected by such order. Persons, who ought not to have been impleaded, such as proforma defendants, but who are impleaded cannot be said to be parties for the purpose of preferring an appeal. Applying the above criteria to the present case, I find that Babban and Roop Narain were not impleaded by the trial court as parties in the suit. On the basis of the Tahsildar's enquiry report dated April 17, 1964 the S.D.O. issued notices to the D.G.C. the Pradhan of the L.M.C. and Smt. Patti. No legal notice seem to have been issued to the present revisionists. At best their status was that of a witness in the enquiry. On the basis of the Tahsildar's enquiry report dated April 17, 1964 the S.D.O. issued notices to the D.G.C. the Pradhan of the L.M.C. and Smt. Patti. No legal notice seem to have been issued to the present revisionists. At best their status was that of a witness in the enquiry. It is a settled law that a witness cannot be equated with a party in the suit or proceeding as the case may be. For the reasons given above I am led to the conclusion that Babban and Roop Narain were no parties to the suo motu proceedings under Section 198(2) of the Act, as such the question of their being adversely affected did not arise." The learned counsel for the opposite party has further referred to Achhaibar v. Shree Ram, 1972 R.D. 426, in which another learned Member has made the following observations: "Again, the question arises as to whether or not these applications could be admitted as applications for review if they had inter alia contained a prayer for review. In this connection a reference to Section 114 and Order 47 of the Code of Civil Procedure is necessary wherein two things are clearly laid down that is who can file a review application, and what are the circumstances in which a review application can be admissible. It is a person who feels aggrieved by a decree or an order from which an appeal is allowed, but appeal has not been preferred or appeal is not allowed or by a decision on a reference from a Court of Small Cause who can file a review application. The opening words 'any person' in Order 47 Rule 1 do not mean all the sundry, but a person who is adversely affected by a decree or by a decision on a reference from a Court of Small Causes. In the instant case Shri Ram is not the person who can say that he is aggrieved by the order dated July 26, 1969 passed in the proceedings started suo motu in which he did not figure as a party. He may be aggrieved by the order of the Land Management Committee executing the lease in question, and for this grievance of his, law has already provided a remedy under Section 198(2) of Act 1 of 1951 which he could have availed within the prescribed period of limitation. He may be aggrieved by the order of the Land Management Committee executing the lease in question, and for this grievance of his, law has already provided a remedy under Section 198(2) of Act 1 of 1951 which he could have availed within the prescribed period of limitation. The argument, therefore, as put forward by the learned counsel for the revisionist that the S.D.O. might have treated these applications as applications for review does not hold good." 6. With due deference to the views of the learned Members expressed above, I may observe that whereas Section 198, U.P.Z.A. and L.R. Act provides that the Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land enquire in the manner prescribed into such allotment and if he is satisfied that allotment is irregular, he may cancel the allotment, it nowhere provides who will have the right of appeal or revision against the order of the Collector Sub-section(4) of Section 198 reads as follows: "Every order passed by the Collector under sub-section(3) shall, subject to the provisions of Section 333, be final." In other words, no right of appeal or revision has been specifically provided to any party. A reference has been made in sub-section(4) to Section 333 of the U.P.Z.A. and L.R. Act. This section reads as follows: "Section 333. Power of Board to call for cases-The Board may call for the record of any suit proceeding decided by any subordinate court in which no appeal lies, or where an appeal lies but has not been preferred and if such subordinate court appears- (a) To have exercised a jurisdiction not vested in it in law, or (b) To have failed to exercise a jurisdiction so vested; or (c) To have acted in the exercise of jurisdiction illegally or with material irregularity. The Board may pass such order in the case as it thinks fit." Thus, Section 333 confers upon the Board the power to revise an order of the subordinate Court if such revision is justified. This section neither confers on any party the right to file a revision nor debars any person from doing so. A revision is legally quite distinct from an appeal. The right of appeal has been prescribed under the law in certain conditions and conferred on certain parties in a case. This section neither confers on any party the right to file a revision nor debars any person from doing so. A revision is legally quite distinct from an appeal. The right of appeal has been prescribed under the law in certain conditions and conferred on certain parties in a case. Had an appeal against the order of the Sub-Divisional Officer been preferred, the question would have arisen whether or not the person preferring the appeal had the right to do so. This is, however, not the position here. In a revision, the Board of Revenue has to satisfy itself whether or not there has been any error or illegality in the exercise of jurisdiction by a subordinate Court. If it is found that a subordinate Court had been guilty of such error or irregularity in the exercise of jurisdiction, the Board will be quite justified in revisional interference. It may further be observed that the revisionist was in fact the person who had moved the application before the Sub-Divisional Officer for suo motu action and if he brings the illegality or the error in the exercise of jurisdiction committed by the Sub-Divisional Officer to the notice of this Court, it cannot be said that the revision is not maintainable. In other words, I am unable to accept the view that only the State could have come up to revision before this Court in proceedings under Rule 115-N. 7. Coming now to the merits of the case, I find that the order of the learned Sub-Divisional Officer is a two lines order and is not a speaking order at all. The Supreme Court has laid down the principle that order sin a judicial proceeding shall be speaking orders and this Court also had the occasion the reiterate this principle. An order of the kind which the learned Sub-Divisional Officer has passed, shows that he has failed to apply his mind to the case and has thus failed in the exercise of jurisdiction vested in him. Further, once the learned Sub-Divisional Officer had decided to take suo motu action and had issued notice to the allottees, it was incumbent upon him to enquire into the illegality and the irregularity of the allotment in question and thereafter either cancel the allotment or pass such other order as he thought fit. Further, once the learned Sub-Divisional Officer had decided to take suo motu action and had issued notice to the allottees, it was incumbent upon him to enquire into the illegality and the irregularity of the allotment in question and thereafter either cancel the allotment or pass such other order as he thought fit. The refusal of the learned Sub-Divisional Officer to enquire into the matter and to pass any substantive order also amounts to failure to exercise jurisdiction vested by law. 8. On the facts of the case, the learned Commissioner has correctly observed that though the trial court in its order dated August 6, 1971 stated that the appellant Ram Manorath had not produced evidence, the applicant Ram Manorath on that very date stated that he could not be present before the court and his application shows that he was very keen to pursue the case. The learned Commissioner has also found that the trial court did not give opportunity to the applicant Ram Manorath to establish his case and Ram Manorath could not be present on August 6, 1971 because of want of proper information, as regards the place where, the Court would sit. The learned Commissioner has correctly observed that the impugned order of the learned Sub-Divisional Officer is perverse and suffers from material irregularity inasmuch as it deprived the revisionist of his legitimate right of prosecuting the case. 9. Agreeing with the recommendation made by the learned Commissioner, I hereby allow the revision and quash the order of the learned Sub-Divisional Officer dated March 9, 1972 as also his earlier order dated August 6, 1971. The case is remanded to the Collector, Faizabad, who shall now proceed to dispose it of in accordance with law.